Early last week, the President addressed immigration reform from the Rose Garden of the White House. Clearly frustrated by Congressional inaction, the President indicated that he would move forward using his existing legal authorities, to “fix as much of our immigration system” as possible. The White House was informed in late-June that the Speaker of the House of Representatives would not move immigration reform legislation to the floor of the House for consideration, effectively eliminating any hope of immigration reform.
Working in cooperation with DHS Secretary Jeh Johnson and Attorney General Eric Holder, the President is expected to lay out administrative alternatives to comprehensive immigration reform. Immigration attorneys and advocates across the country anxiously await that announcement and are left only to speculate as to what kinds of changes might be in store.
Apart from granting much needed discretionary relief to those who arrived in the United States as children, the DACA program in 2012 served as a great trial run for a massive discretionary relief program. Deferred Action for Childhood Arrivals (“DACA”) is a current program for discretionary relief where the Department of Homeland Security affirmatively chooses to defer action against certain people, depending on their age, age at arrival, education history, and their immigration and criminal backgrounds. Deferred action results in employment authorization and relief from immediate removal.
Many immigration scholars expect a program similar to DACA to be initiated, granting relief to a larger population. In the absence of comprehensive immigration reform or other piecemeal legislative reform, the While House has broad authority to grant discretionary relief to certain individuals under current law. It is widely expected that any administrative relief will be a temporary program to alleviate much of the pressure we are currently experiencing under our broken immigration system. Many changes can be made without law changes made by Congress. A few such changes might be:
• Temporary Protected Status – TPS is typically granted when the Secretary of Homeland Security determines that citizens of a specific country should not be required to return to that country due to ongoing armed conflict, natural disaster, or other reasons that would endanger people returning to their home country. TPS has been granted in the past for situations like the earthquake in Haiti in 2011, the civil war in Sudan in 2013, or Honduras following Hurricane Mitch in 1998. The government can reevaluate TPS designations for certain Latin American countries and determine whether a grant of TPS is appropriate for those citizens due to ongoing civil conflict in those countries. A grant of TPS would permit employment authorization and alleviate the imminent threat of deportation.
• Deferred Action – Extending deferred action to larger classes of people can alleviate much of the strain on the current immigration system. By targeting those classes of people that Congress would otherwise target in statutory reform, the President has the opportunity to act now to grant temporary relief to millions of otherwise deserving immigrants. Deferred action would permit for employment authorization similar to the current DACA program, and would be an effective humanitarian solution to the immigration crisis we are currently experiencing.
• Parole – The President has wide authority to parole in groups of people, not unlike when we paroled in large numbers of Cubans during the Mariel Boatlift exodus in 1980. Strategically, the President’s use of parole-in-place authority can go a long ways to help many people pursue their lawful permanent residency. For example, spouses of some U.S. citizens may benefit from parole if they entered without inspection and are subject to inadmissibility bars for unlawful presence. Being paroled into the United States would save valuable time and money and expedite their residency applications. It would also ease the burden of having to demonstrate various hardship factors otherwise required for unlawful presence waivers.
• Expanded Dual Intent Usage – Certain non-immigrant visa-holders enjoy the benefit of the dual-intent doctrine which refers to having eventual immigrant intent despite holding a non-immigrant visa. Currently, some non-immigrant visa-holders must intend to never immigrate to the United States when arriving with their visa. Other visa-holders may either intend to immigrate or not pursuant to the specific type of business visa they may hold. By expanding the dual intent doctrine, the administration can easily make a regulatory change in how the doctrine applies, making many people eligible to remain in lawful status in the United States while they await more permanent solutions to immigrate.
There are truly many ways that the White House might announce administrative reforms while the American people await Congressional action. In the absence of new law to repair the broken immigration system, the Administration is wise to take temporary unilateral action in the best interests of our nation’s economy and in the humanitarian interest of the millions of people here awaiting a long-term solution. We are told to expect changes by the end of summer, should Congress fail to act.
