President Obama recently indicated he is ready to use his executive powers – historically used to interpret and implement U.S. laws – to inject rationality and humanity into a broken immigration system that is neither responsive to families nor business realities. Here are some things the President can do without stretching existing law to the breaking point:
The President can issue parole in place for spouses, parents and minor children of U.S. citizens. Under existing law, the Attorney General can parole any alien into the U.S. for urgent humanitarian reasons or significant public benefit which, in the past, has included parole for Cuban arrivals and families of U.S. soldiers. What could be more humanitarian and of more public benefit than uniting American citizens with their families.
He can instruct immigration officials to apply discretion to favorably adjudicate waivers for undocumented spouses, parents and minor children of U.S. citizens who would be eligible to obtain legal status if granted a waiver. In the 1990s, INS exercised discretion favorably to stop deportation of certain Central American refugees under a law called NACARA.
The Administration cannot increase the number of available immigrant visas. However, since the law does not require each family member to be counted separately – as is the current practice – it can count only the principal employment or family applicant. This would reduce the many year wait times that separate families and deprive employers of skilled workers.
The Administration can expand existing rules that allow spouses, parents and minor children of U.S. citizens to apply for waivers in the U.S. to the spouses and minor children of Permanent Residents. Currently these individuals have to apply for waivers abroad which can take months or even years. Fearful of being stuck overseas without their spouse, parent or child, most of these people do not proceed abroad even though their waivers would be favorably adjudicated.
The administration can extend the post graduation training for all foreign graduates of U.S. universities instead of just those in the STEM fields in exchange for requiring their employers to enroll in the E-Verify program. This would free up the H-1B which, due to the annual cap, is exhausted on the first day and also get more employers into E-Verify. The administration can also grant work permission to spouses of all non-immigrant professionals. Congress did so during the Bush administration for spouses of intra-company transferees and non-immigrant investors but the law does not preclude extending this right by regulation to spouses of H-1s, TNs and O-1s who are really are no different.
No matter the criticisms, while Congress has the power to enact laws, the President has the power to interpret those laws. President Obama has given Congress sufficient time to pass immigration reform and Congress has failed to do anything. The ball is now in President Obama’s court. What will President Obama do? Americans tired of a dysfunctional system certainly hope he takes the lead. An edited version of this article was originally published in The Oregonian