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Brian Lehrer: Brian Lehrer on WNYC. We'll talk now about President Biden's new executive order on immigration, the newest one, which would help certain longtime undocumented residents of the US stay here and specifically get protection from deportation. It would grant protection from deportation for certain undocumented spouses and stepchildren of US citizens, and new work authorizations for the so-called Dreamers, the people who were brought here as undocumented kids in a certain generation, but really grew up as Americans but don't have legal status.

Now, everyone, including we on this show, are talking about the politics of this coming right after Biden's border closure. For this segment, we're going to look more closely at who is actually covered by this latest announcement and we're going to invite phone calls from people in those categories. If you want to describe how it would affect your life or if you want to ask a question, questions very much will be welcome about how to apply or if you actually qualify. For that, we are pleased to have back with us Allan Wernick, senior legal adviser to the program called CUNY Citizenship Now that's CUNY's free immigration law service program. Allan, thanks for coming on with us again. Welcome back to WNYC.

Allan Wernick: Brian, thank you so much for having me. I have not been 100% pleased with the coverage of this issue, so I'm glad to have the opportunity to maybe clarify a few points.

Brian Lehrer: Good. I'm excited to hear what you have to say. We will open up the phones right away for exactly who I mentioned, people in those categories, spouses or stepchildren of US citizens or Dreamers covered by President Obama's DACA program. If you want to describe how Biden's new policy would affect your life or if you want to ask a question, questions are very much welcome about how to apply or if you actually qualify, or anything else. 212-433-WNYC, 212-433-9692.

You can also call with a question on behalf of someone you know if this is not about you personally, someone who you might help with information about this, a friend or relative or a client or anyone else. 212-433-WNYC, 212-433-9692. Call or text. Allan, I had a first question I was going to ask you, but based on what you said a second ago, what do you want to jump in and clarify that you think that people may be getting a misimpression about?

Allan Wernick: One thing is that I would say 80% to 90% of the people who are going to benefit from this program can already get green cards based on some procedural changes under the Obama administration. The difference is that it's more expensive, it takes four or five years longer, and the people can't work while they're waiting. They have to travel abroad for the interview, which can be scary because if it doesn't go well, you're stuck abroad.

Brian Lehrer: That's under the current system for these people. Yes.

Allan Wernick: This is under the current system. Under the Obama program, these people will be able to interview for their green card here in the United States-- [crosstalk]

Brian Lehrer: Under the Biden program, you mean, right? Under the new Biden program.

Allan Wernick: I'm sorry. [chuckles] I'm in California. It's a little early out here. Under the new Biden program, they'll be able to interview here for their green card, they'll be able to work while their applications are pending so they won't have to travel abroad for an interview and have all that fear, and they will likely be able to get a travel permission to travel abroad legally while their application is pending.

It's a great program, but it's important, from the political stuff that you were mentioning, I know that's not the topic of our discussion today, that these people were already going to get green cards if they were willing to go through all the hassles, expense, and risk involved. At Citizenship Now, we've helped a lot of people get their green cards this way already who were undocumented.

[crosstalk]

Allan Wernick: Go ahead.

Brian Lehrer: I'm asking if you're saying in a way that even though Biden touts this as being a potential benefit for 500,000 people who might have their legal status upgraded or have an easier path to it, as you were just describing, 500,000 people in the spouse and stepchildren category, that's a lot of people. Are you saying, though, in a way there is less here than meets the eye because the people he's talking about already could qualify for green cards?

Allan Wernick: I think it's a little strong because this is a terrific thing. When you have to sit with somebody and say, "You're going to have to go to Ecuador for your immigration interview, and if it doesn't work out, you're going to be stuck there," that's a really big deal. It's a pretty cool thing. One other thing I want to say about the 500,000 number, I'm not a demographer, and all due respect to demographers, but they always get these numbers too high. If you look at TPS, Temporary Protected Status, if you look at the DACA program, the numbers are always too high. Those are just my two comments. We'll see how it plays out, but I thought it was worth mentioning those two points.

Brian Lehrer: Just to put a pin in what you were saying about somebody going to Ecuador as an example and risking getting stuck there, we're talking in this particular category about people who are married and people who in many cases have children who are here. You could get stuck leaving to apply for your green card and be separated forever from your kid.

Allan Wernick: That's right. Most people don't get stuck, but yes, that's right. A lot of people have decided not to take this opportunity because of that fear. It's a big deal, but looking at it from the political point of view, "Oh, this is an amnesty for all these people," I'm not so convinced that it goes that far. It's still a great thing. All the lawyers who deal with immigrants are really happy with this.

Brian Lehrer: We're getting an interesting-looking call from Theo in Croton-on-Hudson. Theo is the co-executive director of the immigrant advocacy group Make the Road. Theo, you are at the White House for the announcement of this?

Theo: I was, Brian. Hi, Allan. Thank you so much for covering this issue. Yes, we were at the White House a couple of days ago because we knew that this was going to be a hugely consequential announcement, and we were there firsthand from the president to hear on this policy. Allan mentioned this already, but this is a huge deal for our immigrant community members.

The specter of going through such a huge risk and expense to potentially go back to their countries of origin was really a deal-breaker for folks. We hear so many stories of immigrant community members who are saying that they can finally breathe a sigh of relief because they have had to live with the possibility of family separation, so this is a very, very big deal.

Brian Lehrer: Since you're who you are, I'll ask you a quick political question, even though that is not the main thrust of this particular segment. You could get whiplash following Biden's recent immigration policies. The border closure, once it reaches 2,500 asylum seeker contacts a day, we're at that now, so the border became effectively closed immediately. That had a lot of people in groups like yours saying, "Biden talks different from Trump, but his policies really are not very different from Trump." Now he does this, which you were just raving about. How do you see the big picture?

Theo: That's a great question, Brian. We, of course, denounced Biden's executive order on the border. We believe that that is not the way that our country should be moving. We have been fighting for policies like this one that actually recognizes that our country is synonymous with immigration and immigrants policies that recognize that our future as a country is really bound together with how we treat immigrant communities. We're going to continue to fight for those kinds of policies. We believe that, yes, this now will energize some voters who are seeing that Biden's actually doing something good for immigrant communities. I think that's a plus going into the elections this year.

Brian Lehrer: No way to really reduce it. Theo, thank you very much for your call. I appreciate it. We're going to go right on to a caller who I think is going to be asking you for some advice, Allan. Singh in Ozone Park, you're on WNYC. Hi, Singh.

Singh: Hi, good morning, Brian. How are you doing?

Brian Lehrer: Doing all right. Thanks for calling. What you got?

Singh: My question, my wife entered into the country 20 years ago. She got arrested at the airport and she didn't go to court. She was issued a deportation order, but she never go to court. We are married 20 now and I'm being a citizen. As a US citizen, does she have a qualify for that program?

Brian Lehrer: Allan, do you know the answer?

Allan Wernick: I have to say maybe. The Department of Homeland Security has issued broad guidelines on these matters. The details will come out in a proposed regulation. I would be optimistic that the deportation case could be reopened. Did your wife come here legally or did she cross the border? [crosstalk]

Sing: No. She came with someone else's passport and she was arrested in Miami.

Allan Wernick: I see. I understand. I have to say maybe she'll qualify under this. I actually was expecting this question. I researched it as best I could. Once the regulation comes out, you definitely want to get a consultation with an experienced immigration legal advocate. If I could just use this opportunity, Brian, to give some information out about where people can get help for free or at low cost.

Brian Lehrer: Sure. Let me thank Singh for his call and let him go.

Allan Wernick: Okay.

Brian Lehrer: Singh, thank you. I hope that was at least a little bit helpful. Allan, go ahead.

Allan Wernick: Yes. Nationally, and I know you have a lot of people outside of New York City who listen to your show because I'm a regular listener myself, they should go to immigrationadvocates.org, that's immigrationadvocates, one word, .org. Wherever you live and whatever kind of case you have, you can find somebody that can help you at free or at low cost. In New York City, call 311 and they will direct you to an agency in New York City who can help you.

Brian Lehrer: Great. Singh, I hope you can take advantage of that, and anybody else who's listening who might be able to. Just to follow up on another thing that he brought up in his phone call, part of this new Biden policy is that these spouses have to have been living in this country for 10 years, but the marriage could have taken place anytime before this week's announcement. If you're undocumented and married to a US citizen, you have to have been here for at least 10 years, sounds like his wife was here 20 years, and you have to already be married before Biden's announcement.

Allan Wernick: Yes, that's right. You have to have been married as of June 17th. The DHS typically does this because they don't want people rushing to try to take advantage of a new program. They have to be married as of this June 17th and they have to been here as of June 17th for 10 years.

Brian Lehrer: Right. We continue for a little while longer with Allan Wernick, who is the senior legal advisor to the program called CUNY Citizenship Now that's CUNY's free immigration law service program, as we talk about President Biden's latest immigration policy announcement which would offer protection from deportation to, as I was saying, spouses of US citizens if those undocumented spouses have been here for at least 10 years in many cases, and also some new work authorization rights for Dreamers in the DACA program, which we're going to get into now with a phone call. Amber in Rutherford in Jersey, you're on WNYC. Hi, Amber.

Amber: Hi. Thanks for having me. I qualify for DACA and have been qualified since 2012 when Obama instituted it. My question is that I'm not married and I'm hoping to at least get a visa through the working program that was spoken about. I think they didn't really provide much detail. Could you provide additional detail on what that means as far as the work visa and what it would mean for DACA recipients that are not married yet?

Allan Wernick: Yes. There isn't a lot of detail, but I can give you a general idea. We anticipate that the Biden administration will issue guidelines that'll eliminate bars to people who are here undocumented to get employment-based visas. Right now, if you were to qualify for an employment-based visa, for example, you're a college graduate and you can find an employer to sponsor you in a position that takes advantage of your educational degree, you might qualify for what's called an H-1B temporary work visa.

Right now, if you have been undocumented in the United States, you would have to travel abroad to your country. You have to apply for a waiver. The waiver is iffy. It could take a long time. People are doing it. People are actually doing that now. Some of them are coming back and getting their H-1B. What we anticipate is the DHS will issue guidance that will either allow people to get their H-1Bs here in the United States or when they travel abroad, make it easier or at least more clear who can qualify for a waiver for having been in the United States unlawfully for so long.

Not having seen the guidance yet, we hope it'll also be true for people applying for green cards. Those people qualify if their employer can show that the employer has made a good-faith effort to find a qualified US worker and that has failed because there's a shortage of people with your particular skill and experience. Now if you have DACA, obviously, you can work so you can gain certain skills and experience that might be valuable to an employer.

Both these processes are quite cumbersome, but they're certainly doable. They're cumbersome even if you aren't unlawfully here or don't have DACA, but we're hoping to see some benefit for the people with DACA because it's a very, very scary process. Like I said, some people have been successful, but it's a very, very scary process and very, very few people want to take advantage of it.

Brian Lehrer: Amber, I wonder if you could describe to our listeners who may not understand the position that people like you were in. You are a DACA recipient, so you are protected from deportation under that Obama-era program, but you still want this work visa that the new Biden announcement might let you get, if I understand you correctly. What can you do and what can't you do as a DACA recipient under the present circumstances that leaves you wanting something more?

Amber, if you're willing to describe your situation in that way. Maybe she's gone. Amber, you're still there? All right. Maybe she doesn't want to get into it or maybe you answered her question, or maybe you can answer the question that I was asking her in general terms, Allan, because people who are not involved personally may think, "Oh, the DACA Dreamers, they're already protected."

Allan Wernick: There's two very difficult situations for the DACA people. One, they have the Damocles hanging over their head because we're waiting for the district court in Texas to issue a decision. The challenged DACA was remanded to that district court and we're waiting for a decision. People are very afraid that what if the decision goes against DACA, it's found that Obama didn't have the authority to do that? What's going to happen to them? My view is that likely there'll be an appeal from that decision if it is negative. We don't know yet which way it's going to go. It's been pending for about a year. There'll be an appeal and the people who have DACA will be allowed to stay in that status.

Then people are looking at what's going to happen if Donald Trump becomes president. That could possibly change some of the conditions under the DACA Program. Then the third thing as well, what if people lose DACA either because of the court decision or because of Trump? They want to get these employment-based visas. As I explained before, the way the situation is now, the way the rules are now, it's really very, very difficult, time-consuming, expensive, and very risky. Some people are doing it, but some people are not so doing it.

If the Obama program goes into effect as we expect it will for employment-based visas, people will be able to get them, and that's going to take the fear from them. Those visas are not so easy to get, but at least it's a chance, an opportunity. Many of these DACA people do have college degrees and they will qualify for these visas, or they have skills that are in short supply in the United States.

Brian Lehrer: Let me get one more question in for you on the spouses and stepchildren aspect from Christine in Roseville in Jersey. You're on WNYC. Hi, Christine.

Christine: Hi. Thank you for taking my call. I have a niece whose husband has been here the 10 years, but he was deported once and he's back. He also had bought car insurance because I believe he has a driver's license from New Jersey. He had bought car insurance but got scammed by somebody who claimed to sell him his car insurance, but it wasn't. He got pulled over and in trouble for that. She's concerned that he might not be eligible because they said you can't have a record.

Allan Wernick: There's two things. First of all, in terms of the kind of offense for the driving without good insurance, that shouldn't be a problem because that kind of offense doesn't typically bar a person from getting permanent residence. The fact that he was deported and came back may be a problem for him. I've been looking at what the legal scholars have been saying, and there seems to be a difference of opinion. We'll have to wait and see how this flushes out.

One more thing I want to mention, Brian, is that just like the DACA program was challenged in court and basically ended for new applicants, so people who have DACA now are able to keep it but nobody's been able to apply, there are going to be legal challenges to these programs as well.

Brian Lehrer: That's right. I see that the Trump anti-immigration advisor, Stephen Miller, the famous Stephen Miller, the infamous Stephen Miller, has already said he would challenge this new policy in court.

Allan Wernick: Yes. it's expected. I'm by nature an optimist, but I would say I'm not 100% optimistic that this program can't be stopped. Again, I've been reading the legal scholars who know more about these issues than I do and they disagree, but it's going to be something to keep an eye on. People should not get too optimistic at this point.

Brian Lehrer: Let me ask you one follow-up question on that, and then we're at a time.

Allan Wernick: Sure.

Brian Lehrer: Trump, as you just reminded us, ended DACA for new applicants when he took office in 2017. Why hasn't it been reopened to new applicants under Biden?

Allan Wernick: First of all, Trump tried to end it for everybody and the court said he couldn't do that, right?

Brian Lehrer: Right.

Allan Wernick: Based on where the court decision is, really it wouldn't make sense for him to try to open it because the court has already said that the program is unlawful.

Brian Lehrer: I see.

Allan Wernick: The whole program is unlawful. Everybody who has it. The idea of trying to extend it to people who are new is not going to be so easy.

Brian Lehrer: I see, but the court didn't take it away from people who are already living their lives based on that.

Allan Wernick: That's right.

Brian Lehrer: Yes.

Allan Wernick: Go ahead. I'm sorry.

Brian Lehrer: No, go ahead. You were saying we don't know what's going to happen at this lower court level now-

Allan Wernick: Yes, we don't know what's going to happen.

Brian Lehrer: -where even they could lose their status, right?

Allan Wernick: The one last point I would make is Biden is doing this by executive fiat, basically. That's what the court's going to look at. What happens if Trump becomes the president in November? He could end this program.

Brian Lehrer: Allan Wernick, senior legal adviser to the program called CUNY Citizenship Now that's CUNY's free immigration law service program. Allan, thank you for sharing your

knowledge with us.

Allan Wernick: All right. Thank you so much, Brian. It's my pleasure.

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