President Obama’s recent executive actions relating to immigration have sparked a firestorm from detractors and jubilation from supporters. Known as “Immigration Accountability Executive Action” (IAEA), the Executive Action addresses some decades-old problems with our immigration system, which supporters and detractors alike describe as “broken.” IAEA is not an act of Congress and can only go so far to fix a broken system. Ultimatley Congress is responsible for passing federal laws. The Immigration and Nationality Act (INA), is principally administered by the Department of Homeland Security (DHS). Agencies fashion regulations implementing the law in force as will the policy of the administration.
Executive Actions by the president are normal and ordinary and have been exercised with regard to immigration by every president for more than 50 years.IAEA is a directive to DHS to implement certain policies and promulgate regulations concerning border security, prosecutorial discretion, priorities in removal and legal immigration.The highlight of IAEA is to reorder enforcement priorities and direct DHS to grant deferred action to millions who have strong ties here, who are not a security threat, who do not have significant criminal backgrounds and who meet other criteria on a case by case basis. This action reflects recognition that millions of undocumented immigrants cannot be rounded up and deported, as the president said, “deport felons, not families.”
Deferred action is not a visa. It confers temporary relief from the threat of removal. It will be limited to three years at a time, but could be revoked earlier. When implemented, the new programs will potentially allow millions of undocumented childhood arrivals to the U.S. and parents of U.S. citizen or permanent resident children to receive employment authorization, social security numbers and driver’s licenses. They will be lawfully present, but not eligible for citizenship or adjustment to permanent residency. Beneficiaries are not able to jump any line in which others are waiting for their “green cards.” Deferred action benefits are funded by filing fees, and should result in more tax revenues from workers with employment authorization and social security numbers.
Alas, IAEA addresses only some parts of the legal immigration system that are broken. Congress has not increased the number of H-1B skilled worker non-immigrant visas in over a decade or the number of immigrant visas in at least twice that long. This means difficulty for foreign nationals in entering the legal work force and seemingly endless delays for many in securing their green cards. Part of IAEA addresses benefits to make the waiting less painful and entry into the professional or entrepreneurial workforce easier.
DHS and other agencies are directed to prepare and promulgate regulations to ease the problems within the existing law. This includes giving STEM students a longer period of post-degree optional practical training, allowing those with approved immigrant visa petitions to secure employment authorization for their dependent relatives, broadening the availability of national interest waivers for certain entrepreneurs and modernizing the PERM system.
One significant regulatory change is already underway, while the others may take many months before regulations are formulated. Congress established the H-4 visa for spouses of H-1B visa holders. Under current regulations, H-4 spouses do not have employment authorization. This year, the process began to change those regulations to permit certain H-4 spouses to gain employment authorization.
The proposed regulatory changes will be significant fixes. The grants of deferred action may affect half of the undocumented immigrants in the United States. They are humane and practical and cause for relief for millions. Although executive actions are dramatic and historic, only Congress can fully address the immigration system that is from a different time and fails to reflect the needs of 21st century America.