As the Obama Administration grapples with legal questions of what a president has the authority to do on immigration policy absent legislation, the White House is contemplating action in at least three areas of immigration policy.  

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Immigration Reform: President to Act

Tue Sep 2, 2014

Have no doubt: in the absence of congressional action, I’m going to do what I can to make sure the system works better.

President Obama, Press Conference, August 23, 2014

With immigration legislation stalled on Capitol Hill, focus has shifted to the White House and what President Obama may do by executive order to improve the U.S. immigration system.

Already complicated immigration policymaking has been further clouded by the November elections, a flood of unaccompanied minors crossing the border and foreign policy pressures seemingly from all corners of the globe. As the Administration grapples with legal questions of what a president has the authority to do on immigration policy absent legislation, the White House is contemplating action in at least three areas:

Status of some 11 million illegal immigrants living in the U.S. and the related prospect of pending deportations

Immigrant advocacy groups have been pushing the White House to scale back deportations separating families. President Obama conceivably could grant, by executive order, temporary relief from deportation for certain categories of illegal immigrants. It’s unclear whether such action would be accompanied by some form of temporary legal status to live and work in the U.S. Conferring legal status on large numbers of illegal immigrants by a stroke of the pen would be controversial, roiling the November elections.

When such action might take effect and how it might impact I-9 employment eligibility and the E-Verify system remains to be seen.

Backlog numbering in the millions for legal immigrant status, some waiting years to be reunited with families living in the U.S.

Over 4 million immediate relatives of U.S. citizens and Lawful Permanent Residents (LPRs) reportedly are waiting in line for visas to legally enter the U.S. and become Green Card holders in their own right.

While there are no limits on the number of immigrant visas that may be granted to spouses, unmarried children or parents of U.S. citizens, strict limits do apply to the number granted in Family Preference categories, e.g., 114,200 a year for spouses, minor children and unmarried adult children of Lawful Permanent Residents. All these “Family Unification” visas are capped at 226,000 per year, leading to waiting periods for some stretching for years.

Washington insiders speculate that while immigration law does not allow a president to unilaterally increase, or decrease, the number of family visas, there may be flexibility to redefine exactly which new family visas must be counted against the annual limit.

President Obama may have discretion, for example, not to count visas to minor children of Green Card holders against that category’s annual cap of 114,200. Similarly, siblings of U.S. citizens might receive visas without being counted against the annual 65,000 cap.

A low annual ceiling on the number of visas for workers with specialized skills, an issue employers say impairs U.S. competitiveness

Employer organizations have been lobbying the White House for some additional flexibility on H1-B and other employment based visas. Permanent, employment-based preference visas are limited to 140,000 per year, while only 65,000 H-1B temporary, non-immigrant visas are issued annually.

Compete America, a coalition of high-tech and other employers, observes that the FY 2015 H-1B cap was reached in five days, seriously limiting the competitiveness of U.S.-based employers. Overly restrictive immigration policy, it is said, undercuts the ability of employers to attract workers with STEM (science, technology, engineering and mathematics) skills in the global race for talent.

It’s not clear that existing immigration law allows much discretion in the administration of employment-based visas. Unused worker visas from previous years may hold promise for increasing annual limits.

What to expect

While the White House awaits recommendations from the Justice Department and the Department of Homeland Security, attention lately has turned to timing.

To be sure, the President faces a conundrum: on the one hand he has pledged to act with or without Congress by summer’s end. On the other hand senators running for re-election in battleground states like North Carolina and Arkansas have asked the White House not to bypass Congress on immigration.

Odds favor presidential action sometime in September. Majorities of Americans support fixing the immigration system and extending legal status to some undocumented immigrants. Nevertheless, unilateral action could be politically controversial.

President Obama faces difficult choices on immigration as well as on Syria, Iraq, Ukraine and other hot-button issues. These could test his leadership…and shape his legacy.