From my Editorial in the Atlanta Journal Constitution on August 1, 2014
President Obama has been timid, at best, in using his executive powers to alleviate the current immigration crisis, preferring to wait for what can only be described as a Unicorn-- bi-partisan immigration reform. Recently, the President indicated that he is ready to use this practical tool to inject rationality and humanity into a broken immigration system that is neither responsive to family nor business realities.
Executive powers are not a “loophole." They have been used historically to interpret and implement immigration statutes and are commonly used by executive agencies. With these broad powers, President Obama can do much to legally alleviate the current immigration crisis.
The President can issue parole in place for immediate relatives of US citizens who are the beneficiaries of approved visa petitions. The Attorney General has the authority to parole into the U.S. under such conditions as he may prescribe for urgent humanitarian reasons or significant public benefit any alien applying for admission to the U.S. Once granted parole, these individuals could obtain lawful permanent residence through the US Citizen spouses. Parole in place has already been used for immediate relatives of the U.S. military and for Cuban arrivals.
Obama 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.
The Administration 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.
Although the Administration cannot increase the number of family and employment-based immigrant visas, it can alter the way family units are counted against the worldwide immigrant 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.
The Administration can allow all foreign nationals who are the beneficiaries of approved immigrant visa petitions to apply for waivers while in the U.S. Currently, this procedure is only available for immediate relatives of U.S. citizens. Foreign nationals who are not the beneficiaries of immediate relative petitions, but who nonetheless qualify for residence and who are eligible for waivers have to apply for waivers after being denied visas abroad. These waivers can take many months or even years to adjudicate. Fearful of not being granted waivers, many of these foreign nationals do not proceed abroad, even though many of these waivers would be favorably adjudicated.
The administration 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, TN, and H-1B1 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.
Certainly, many in Congress will criticize the President’s use of his executive powers in the immigration arena. It is within Congress’ power to enact laws; it is within the executive’s power to interpret those laws. The President has given Congress sufficient time to pass meaningful immigration reform and they have failed to do so. Though the President has been a great advocate of bi-partisan immigration reform, the ball is now in his court. What will the President do? We certainly hope he takes the lead.