Immigration reform is a topic that is as old as it is controversial. The administration of President Barack Obama, like the George W. Bush administration before it, has pushed for Comprehensive Immigration Reform (CIR)—to no avail. There have been immigration crises brought on by the current law and also some relief from a “broken” system. That relief has principally come from Executive action rather than Congressional initiative because Congress can’t seem to pass an immigration reform or related bill. Among the executive actions taken by the Obama administration have been “Prosecutorial discretion” and Deferred Action for Childhood Arrivals (DACA).
Record numbers of aliens have been deported, but the government doesn’t have unlimited resources to prosecute every person who may be subject to removal—all 11 million+ of them. The executive branch has the discretion to decide where to allocate its resources. This is true in every area of law enforcement. In the immigration context, there has been executive action to focus on the removal of criminal aliens and to exercise discretion not to prosecute worthy individuals who have only technical immigration grounds for removal. In addition, DACA has given the relief of “deferred action” to approximately 500,000 aliens who arrived as children under the age of 16, who have clean records, pursued their education at or above the High School level and are under 31 when they apply. This executive action was announced by President Obama in June 2012. The DACA policy has allowed many young people who have only known the US as their home to have comfort that the US is their home.
In the last few days, there have been lead articles about additional actions that the administration will be taking to effect reform of some aspects of the broken immigration system. Typically, the articles discuss and debate the timing and the politics, but not the specifics. While the administration has discretion to take or decline to take some actions that have profound effects on the lives of many aliens and their communities, executive action will not be able to increase the number of family- or employment-based visas nor do away with the H-1B cap. Executive action may result in H-4 visa holders being granted employment authorization (see Blog posts by C. Wadhwani) and changes in the process and treatment of unaccompanied minors and increase the resources spent on the Border patrol. It will be up to Congress, however, to bring the US immigration system into the 21st century, Congress will need to get rid of the H-1B lottery that businesses face when seeking to employ foreign born professional workers and correct other measures that haven’t kept up with the times. Stay tuned, some changes are coming.