It is widely believed that the Obama administration will extend deferred action to include a significant portion of the United States illegal alien population following Labor Day. Some analysts are estimating that as many as five million illegal aliens will be provided some form of amnesty. I am skeptical this is the case, and believe it is more likely we will see smaller actions taken. The executive branch has a high degree of freedom when it comes to applying immigration law, but there are limits. The President’s actions thus far have been made with the goal of getting Congress to pass immigration reform, and any future actions are likely to follow that trend.
Let us consider for example the announcement of Deferred Action for Childhood Arrivals (DACA). DACA has provided temporary relief for half a million migrants in the form of work permits and legal presence. Perhaps more importantly it also strengthened a constituency that has a strong stake in seeing immigration reform passed by Congress. A cynic is tempted to say that the ultimate purpose of DACA was to create several thousand lobbyists.
Earlier this year the Obama administration also mused with the idea of extending the Military Accessions Vital to the National Interest (MAVNI) program to include those who had received DACA relief. The MAVNI program allows those who enter it an opportunity to earn US citizenship by serving in vital military roles. The actual perquisites to join the MAVNI program are high and it is doubtful more than a handful of DACA recipients will ever earn citizenship in this manner. As it is clear that this program is of little practical use, why did the administration bother with it at all? I suspect it was because it was hoping to win over support for immigration reform from military constituencies.
The administration has also proposed allowing spouses of certain legal migrants to acquire work authorization. Here too the idea is better in principle than actual practice, as only spouses of H-1B visa holders already in the process of gaining permanent residency are eligible. It is clear that the purpose of this proposal had more to do with gaining support among skilled migrants and their employers than it was about actually providing relief.
Opponents of increased immigration may consider the above actions to be instances of executive abuse, but they are all minor compared to what the Obama administration could do.
The Obama administration could, for example, lower the threshold necessary for a waiver of inadmissibility to be approved. A significant portion of the illegal alien population would be eligible to readjust their legal status either through their family connections to US citizens or by employer sponsorship, but they are barred from doing so because they have accrued unlawful presence. A waiver of inadmissibility is an existing process that pardons said unlawful presence, and it may suffice for the Obama administration to instruct US Citizenship and Immigration Services (USCIS) to be more generous when it decides whether to grant the waiver. Allowing illegal aliens to attain permanent residency and citizenship via this method would be a significant departure from past executive actions by providing long term relief.
The Obama administration has previously altered how the waiver of inadmissibility is granted by allowing it to be filed inside the United States instead of requiring applicants to do so in a consulate abroad. I am therefore skeptical that the administration is not aware of how relatively easy it would be to use the existing system to grant massive relief to the illegal alien population.
Furthermore I doubt the administration wishes to grant deferred action for a large portion of the illegal alien population as it may then find a decreased willingness to include a pathway to citizenship as a perquisite for immigration reform. Prior to DACA’s announcement there was broad support for passing a version of the Dream Act, but said support was lost as many saw DACA as being a de facto Dream Act. Few people know or care about the marginal differences between the two and many have perceived DACA as being sufficient. A large expansion of deferred action for the illegal alien population may, in the short term, provide them relief at the expense of making others perceive that there is no need for further action to help them. It may also lead to the current pro-immigration reform coalition to break apart and make it more difficult to increase the number of legal immigrants.
Liberalization of immigration law paradoxically makes it more difficult to find support for fully open borders. How much support would there be for open borders if all one had to do to legally enter a given country was sing the national anthem and pay for a ten dollar entrance visa? I suspect under such loose regulations the desire for open borders would be restricted to a handful of individuals interested in it on philosophical grounds.
The Obama administration cannot create any new pathways to citizenship for the United States’ illegal alien population. Nor can it create new pathways for legal immigration. It can however provide relief for the illegal alien population and ease the process for legal immigration. I doubt it will though, as its goal is to get Congress to pass comprehensive immigration reform with as few as possible executive orders.