Top 10 of 2015 – Issue #3: White House Uses Many Levers of Power to Effect Change as Obama and Congress Remain Deadlocked on Immigration

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The Obama administration deployed the powers of the executive branch in multiple ways in 2015 to adjust the U.S. immigration system, even as Congress and the federal courts have sought to trim the president’s powers in the immigration arena. With Congress deadlocked over immigration, the president’s actions taken together represent a sweeping use of executive power to effect change in immigration policy. From changes to immigration enforcement priorities, administrative rule changes surrounding existing visa programs, creation of new deferred action programs that would shield unauthorized immigrants from deportation, and the grant of Temporary Protected Status to new populations, the Obama administration has sought actively to reshape immigration policy. Some of the changes have prompted a pushback, with 26 states thus far succeeding in their legal challenge to halt implementation of a signature deportation relief program.

A Delay in the Courts

On November 20, 2014, President Obama announced a series of administrative changes to the U.S. immigration system, building upon earlier executive actions. The most highly publicized of the changes were deferred action programs that would shield as many as 4 million additional unauthorized immigrants from deportation, beyond those gaining relief under the original Deferred Action for Childhood Arrivals (DACA) program launched in 2012.

In February 2015, however, two days before the government was to start accepting applications for the expanded DACA program and ahead of implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, a Texas federal judge froze the process, issuing an injunction in a lawsuit initiated by Texas and 25 other states. Since then, DAPA and the DACA expansion have remained blocked—a decision that was affirmed in November when the Fifth U.S. Circuit Court of Appeals maintained the initial injunction. The administration has appealed the Fifth Circuit decision to the Supreme Court, with a definitive ruling possible by mid-2016. The legal challenge has not prevented the implementation of other executive actions on immigration, including unchallenged ones also announced in November 2014.

Separately, the government has continued to make use of previously enacted executive changes. As the DACA program marked its third anniversary in August, more than 660,000 unauthorized immigrants brought to the United States as children had received temporary relief from deportation and access to work authorization. Furthermore, the administration has expanded its use of Temporary Protected Status (TPS), which grants temporary legal presence and work authorization to nationals of designated countries already in the United States in the event of certain conditions in their home countries, such as an earthquake or civil war. In 2015, the Department of Homeland Security (DHS) newly designated Nepal and Yemen, and redesignated Syria, bringing the total number of TPS countries to 13.

Making Changes to Enforcement

Within the president’s November actions were two major changes to the U.S. immigration enforcement system. First, DHS adopted new policy guidance on which categories of unauthorized immigrants and other potentially removable noncitizens are priorities for enforcement, reducing the share of unauthorized immigrants who qualify as enforcement priorities to 13 percent from 27 percent under earlier guidelines, according to Migration Policy Institute (MPI) estimates.

Second, DHS replaced the Secure Communities information-sharing program, which screened the fingerprints of all people booked in state and local jails across the United States against immigration databases to determine if they are in the country without authorization. The program proved controversial, with hundreds of jurisdictions across the country limiting their compliance with federal immigration enforcement as a result. The successor to Secure Communities, the narrower Priority Enforcement Program (PEP), aims to renew collaboration between U.S. Immigration and Customs Enforcement (ICE) and local law enforcement agencies for the removal of noncitizens who have been convicted of serious crimes or are seen as a national-security threat.

The PEP rollout began the same day that a San Francisco woman was killed by an unauthorized immigrant who would have been targeted for deportation under Secure Communities but for the city’s decision not to cooperate with ICE—touching off a debate over the noncompliance of “sanctuary” cities with federal immigration enforcement. Amid significant scrutiny, congressional hearings, and state action seeking to limit “sanctuary” cities, PEP has shaken off its rocky rollout, and to date 33 of the 49 major law enforcement agencies that were noncompliant with Secure Communities have adopted PEP.

Adjusting the Legal Immigration System

Beyond immigration enforcement, the administration in 2015 made a number of changes to the legal immigration system. In May, for example, DHS extended employment authorization eligibility to certain spouses of individuals on H-1B high-skilled employment visas.

Furthermore, from July through November the U.S. executive branch enacted or initiated at least one change to the legal immigration system per month, all of which were at least in part described in the November 2014 executive actions. The changes:

  • In July, DHS proposed a rule to expand eligibility to the spouses and children of lawful permanent residents (LPRs) for a program that reduces the time qualified applicants must spend abroad when applying for permanent residence. The provisional waiver program, first implemented in 2013, allows certain unauthorized immigrants who qualify for immigrant visas as spouses and children of U.S. citizens to apply for an unlawful presence waiver from within the country. Before 2013, all applicants for this type of waiver had to apply from a consulate outside the country, and faced up to a ten-year bar on re-entry for accrual of unlawful presence in the United States, causing families to endure risk and extended separation.
  • In August, U.S. Citizenship and Immigration Services (USCIS) released a policy memo offering guidance to simplify and streamline adjudications of the L-1B visa, which permits multinational companies to transfer to the United States employees who possess “specialized knowledge” from their foreign operations.
  • In September, USCIS and the State Department announced new procedures to allow individuals in family- and employment-based visa backlogs to apply for their immigrant visas earlier than previously available.
  • In October, USCIS released a draft memo on the extreme hardship standard officials use to adjudicate waivers of inadmissibility. Such waivers allow applicants to apply for green cards despite certain inadmissibilities on their records, such as illegally crossing the border. Applicants must establish that the permanent separation from family members that would result if the waiver were not approved would cause “extreme hardship” to their U.S. citizen or permanent-resident spouse or parent. Previously, “extreme hardship” was not defined.
  • Also in October, DHS proposed a rule that would make a number of changes to the Optional Practical Training (OPT) program, which allows foreign students to work in the United States for a certain period of time post-study. The changes would include extending the time students with science, technology, engineering, or math (STEM) degrees could participate in the program from 17 months to 24 months.
  • In November, DHS introduced a draft policy memorandum clarifying when employment-based green-card applicants may change jobs while waiting for their permanent residence permits under the current rules. DHS also announced it would propose a draft rule and new guidance making it easier for such applicants to change employers and accept promotions while waiting in the green-card backlog.

The government in 2015 also began accepting applications under the Central American Minors (CAM) Refugee/Parole Program, established in December 2014 in response to the surge in unaccompanied Central American children arriving at the U.S.-Mexico border. CAM is an in-country refugee processing program for minors in El Salvador, Guatemala, and Honduras who have qualifying U.S.-resident parents (for more on unaccompanied minors, see Issue #8: A Shared Challenge: Europe and the United States Confront Significant Flows of Unaccompanied Child Migrants).

Looking Ahead

In its November decision to uphold the DAPA injunction, the Fifth Circuit found that the lower court was correct in ruling that the administration had failed to follow certain rulemaking procedures. Taking a step further, the appellate panel also ruled the president did not have the authority to enact the program. That decision will likely not be the last as the White House quickly appealed to the Supreme Court, setting up an expected tussle in 2016 over the question of the boundaries of executive authority.

The administration’s executive changes touch every area of the immigration system: enforcement, border security, legal and illegal immigration, and immigrant integration. In the absence of congressional action, it remains to be seen if the Obama administration in its final year will continue to test its powers and make further changes to the system via executive action.

Features

MPI Research

Sources

U.S. Citizenship and Immigration Services (USCIS). 2015. Employment Authorization for Certain H-4 Dependent Spouses. Last updated June 25, 2015. Available Online.

—. 2015. Policy Manual for Comment – Volume 9, Part B: Extreme Hardship. Last updated November 10, 2015. Available Online.

—. 2015. Policy Memorandum PM-602-0111: L-1B Adjudications Policy, August 17, 2015. Available Online.

—. 2015. Temporary Protected Status. Last updated November 13, 2015. Available Online.

—. 2015. USCIS Announces Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status. Last updated September 9, 2015. Available Online.

—. 2015. USCIS Seeks Comments on Proposed Expansion of Eligibility for Provisional Unlawful Presence Waivers. Last updated July 28, 2015. Available Online.

U.S. Department of Homeland Security (DHS). 2015. Fixing Our Broken Immigration System Through Executive Action – Key Facts. Last updated November 20, 2015. Available Online.

—. 2015. Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students. Federal Register, October 19, 2015. Available Online.

—. 2015. One Year Later: DHS Working to Fix Our Broken Immigration System. Last updated November 20, 2015. Available Online.

U.S. Immigration and Customs Enforcement (ICE). N.d. Priority Enforcement Program. Accessed November 10, 2015. Available Online.

The White House. N.d. New Americans Project. Accessed November 10, 2015. Available Online.

Source: Migration Policy Ins