On Nov. 5, the president assured the public that he will take executive action to fix the country’s immigration system by the end of the year. House Speaker Boehner has already warned Obama that executive action will obstruct the future passage of a comprehensive reform bill, so why is Obama, after a midterm drubbing of his party, raising the stakes with Republicans, when it seems as if he should be trying to find common ground? Simple: the president is on the line to act because he’s made this immigration promise to the American people before, and then backed down. And the American people have not forgotten: Exit polling after the midterm elections had nearly six in 10 voters saying they were “dissatisfied” with the president—with one in seven citing either foreign policy or immigration as the reason. Obama has to act, to fulfill his promise, and to preserve his legacy as a president who managed to deliver profound changes in the face of unceasing political opposition.
With the Republican Party’s gains in last week’s elections, will he be able to fulfill his pledge to build “a fair, effective and common sense immigration system,” before his term expires?
At this stage, either the president gets the ball rolling on a practical compromise, or lets the problems that have haunted immigration reform continue to spiral, showing that he’s been bested by the GOP.
His best option is to continue to frame his executive orders as the “common sense” proposals he has alluded to so often, and avoid incendiary actions that belong in a comprehensive reform bill. Obama should work on proposals that answer the requests of business professionals and investors, promoting legal immigration, and talent that has already been vetted as admissible and, in many cases, essential or unique.
Among three proposals the president could start with are:
- Allow spouses of approved nonimmigrants to work while in the US. Spouses of multinational employees—those with Ls and Es visas—already have this right, as do spouses of applicants for permanent residency. The visa categories that don’t allow for this are the H-1B (for professionally-trained specialty occupation workers), where the Department of Homeland Security already has a partial solution proposed by rulemaking (only for spouses of H-1B visa holders who are already in the process for permanent residency), the O-1 visa (for persons of extraordinary ability in their field), and the F-1 visas (for students).
- Relieve the multi-year queues for permanent residency. Due to an archaic system of counting immigrant quotas, applicants are often in a residency limbo for years before they get their official paperwork. Two proposals that would help right away: First, count only the principal immigrant toward the immigrant quotas and not dependent family members. This would allow for approximately 94,000 employment-based immigrants and their families to receive visas each year. Second, the president could revise the interpretation of current law to allow for the recapture of unused employment-based visa numbers from prior fiscal years. Because of the way in which employment-based visa numbers fall across to the family-based categories where they cannot be used, there are thousands of unused numbers from prior fiscal years that would be available for recapture.
- Preventing artificial interruptions in work authorization. Allowing beneficiaries of approved immigrant petitions who are unable to apply for green cards because of the visa backlogs to file their applications despite the backlogs would ease this problem.
The president should still try hard to get comprehensive immigration reform passed through Congress before he leaves office. But he shouldn’t wait for Congress in order to make these rational changes right away.