The hopes of tens of thousands of undocumented Irish to return home and come back legally under Obama's new immigration rules will depend on a complicated system called advance parole.
There is much yet to learned about what advanced parole will actually mean by the time people sign up for the Obama employment authorization document (EAD), which is expected to take at least nine months.
The president's speech did not deal specifically with the matter of travel for the five million expected to be eligible under the new executive action.
Partly that was due to the lack of emphasis on the issue by the Hispanic community, who are far more concerned with getting legal in order to work, get a driver’s license and come out from the shadows.
However other immigrant groups, most notably the Irish and the Polish, stressed strongly that ability to travel was critical in their communities.
Former Congressman Bruce Morrison, author of the Morrison visas which legalized tens of thousands of Irish in the 1990s, was especially committed in negotiations to finding a way to allow travel.
The new system will likely be based on the rules for children who were brought to the US at a very young age, the “dreamers” and who now have something called Deferred Action for Childhood Arrivals (DACA) meaning in essence children brought at a very young age by their parents to America will not be sought for deportation and can work.
DACA recipients can also apply for advance parole to go back home under the following conditions:
- Urgent humanitarian purposes, which include medical assistance, to attend a family member’s funeral, visiting a sick relative, or some other urgent family-related matter
- Educational purposes, including taking part in a study abroad program or doing academic research, or
- Employment purposes, including overseas assignments or client meetings, interviews, conferences,
In terms of the Irish only the first one above really applies.
The interesting aspect of advance parole as it affects DACA is that several immigration experts I talked to stated that it had been administered in an open and positive way by the Obama administration and that even same-day requests for advance parole in some cases had been agreed by the government department responsible.
The big question is will the new Obama deferred action job permit holders holders be treated in a similar fashion to DACA?
That will be determined by the Department of Homeland Security. Part of the background briefing given by the administration before Obama’s speech referred to the Department of Homeland Security (DHS) issuing new regulations covering this very matter in the next few months.
The role of Morrison, the Irish government, the Irish Lobby for Immigration Reform and the Irish immigration agencies in lobbying for liberal advance parole will be critical.
Already there is talk of combining with the lobbies such as the Polish who also have about 50,000 undocumented and the Hispanics who are sure to pay more direct attention to this issue now.
The best scenario will be that an Irish person would get their Obama EAD in the US then get cleared for advance parole by DHS before departing.
Ironically, there is Irish precedent here with several former IRA operatives who helped bring about Irish American support for the IRA ceasefire. They are deferred action recipients who have EAD and have often traveled on advance parole outside the country and back to Ireland over the past decade and a half.
What would constitute humanitarian crisis as per point one above? It could be as simple as a note from a doctor in Ireland that a parent is ill or a note from a priest on a funeral or some important family event.
None of that is clear but the lobbying and the need to get the most liberal interpretation possible is critical.
There is a small possibility if a person gets advance parole that they could be stopped re-entering anyway. That would mostly be if something shows up on their record, i.e. a DUI or some such crime that would remove their eligibility.
In the vast majority of cases the original background check for the Obama work authorization would usually catch that. Lawyers I have spoken to say they have not had a single case of a client from DACA being prevented from coming back after receiving advanced parole.
All in all much still to be decided and it is imperative that Irish undocumented keep fully abreast of developments through Irish centers, Irish media and following developments in mainstream media.
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