Our current immigration laws make little sense. Coupled with a broken Congress and virulent partisanship, we must accept that comprehensive immigration won’t be happening in the foreseeable future.
Nevertheless, President Obama can do much within his executive powers to lawfully sidestep Congress and fix, or alleviate, many of the immigration problems plaguing families and employers.
Just in the past few weeks, President Obama has wielded his administrative power in a clear message to Congress that he will no longer succumb to delays, roadblocks and a culture of No.
President Obama’s executive latitude in fixing immigration policy is broad. He can lawfully exercise this power, without Congressional action, to ameliorate harsh immigration policies that are not responsive to family and business needs. What are some practical changes the president can make without Congressional action?
• He can extend the practical training granted to foreign graduates of U.S. universities, allowing U.S. employers to benefit from their talents. The administration has already done this for graduates in science, technology, engineering and math (STEM) fields where their employers enroll in the e-verify program.
Why not offer this option to all U.S. foreign graduates? Doing so would free up the professional H-1B work visa, which Congress has capped so that the total number of visas available to foreign professionals is exhausted on the first day that the visa becomes available.
• The administration can grant work permission to spouses of H-1B professionals and O-1 extraordinary workers, further alleviating pressure on the H-1B quota. Executive authority has already been used to grant spouses of other nonimmigrant visa categories the right to work.
• Obama can mandate the use of favorable prosecutorial discretion in certain deportation cases and cease deportations of spouses and children of U.S. citizens with no criminal records.
• He can find, as did the 6th Circuit Court of Appeals, that those with Temporary Protected Status (TPS) are eligible to apply for permanent residence if they are the beneficiaries of approved visa petitions. Certain citizens of Haiti, Syria, El Salvador and Honduras, among others, have TPS because of war or natural disasters back home.
• He can instruct immigration officials to apply more discretion to favorably adjudicate waivers for undocumented immediate relatives of U.S. citizens. These individuals would be eligible to legally process their residence papers, if granted a waiver. Under a previous administration, immigration agencies exercised discretion favorably to stop deportation of certain Central American refugees under a law called NACARA.
• He can grant the undocumented spouses and children of U.S. citizens “parole in place” (already available for undocumented immediate relatives of U.S. military and Cuban arrivals), thereby permitting them to apply for lawful permanent residence.
• Although he cannot increase the number of family and employment-based immigrant visas without Congress, he can alter the way family units are counted against the worldwide visa quota, counting only one number per family unit against the quota, instead of counting each member of the family against the quota.
This would open up the number of available visas and reduce the cruel wait times that separate families and deprive employers of skilled workers.
Executive decisions that fix immigration will bring howls of fury from some in Congress. They will accuse the president of going rogue.
They will also remind us that a new president can rescind these changes.
This is where courage comes in. President Obama has been an immigration-reform advocate, but he has been, at best, meek in using his great power to effect change. Obama has a contentious path ahead, but he has given Congress time to act, and it has failed to do so.
Will he have the courage and fortitude to take the lead?
Let’s hope so.
Tammy Fox-Isicoff us a past president of the S. Fla. American Immigration Lawyers Association.