The Obama Administration faces a serious problem with a critical constituency — voters who supported the President last November, in large part, because of his promise of enlightened and compassionate immigration law reform. The administration is also under close scrutiny by the peoples and nations of the world to see whether his solutions to the global economic dysphoria will include large doses of protectionism.
Early signals are dispiriting. The first major law signed by President Obama contained a protectionist provision authored by a self-proclaimed socialist, Vermont’s Sen. Bernie Sanders, requiring the hiring by any recipient of TARP or Federal Reserve funding of U.S. workers over equally qualified H-1B workers. As the inclusion of this law into the stimulus legislation shows, the enactment of comprehensive immigration reform — in the current economic climate — will be a slog, and hopes may again be dashed.
Change, however, can come in other ways. The Obama Administration can effect large-scale immigration improvements by signing executive orders and directing the Departments with authority over immigration (Homeland Security, State and Labor) to issue policy interpretations, and where required, new regulations. Gary Endelman and Cyrus Mehta — two immigration thought leaders — show the way in their worthy article, “The Path Less Taken: Is There an Alternative to Waiting for Comprehensive Immigration Reform?” Here are a few more examples of stylish immigration penmanship (or is it penpersonship, given that the President is male and the heads of the three Departments are female?):
- Secretary of State, Hillary Clinton, could declare that all visa interviews by American consular officers would be video-recorded. This would help in two important ways. The federal government would capture biometric data on every interviewed applicant, thereby improving national security, and every consular officer (knowing that the interview could be viewed by superiors in Washington and by Congress) would have a (now-nonexistent) inducement to be fair in posing questions and allowing answers.
- Secretary of Labor, Hilda Solis, could redeploy resources and insist on only legally-justified audit triggers to (a) erase the long backlogs in labor certification processing created by the prior Administration’s unjustified “rule-making by press release” fiasco in which multiple Fortune 500 companies were audited because the agency misunderstood the proper advisory role of lawyers in the recruitment process, and (b) prevent new backlogs from recurring.
- Secretary of Homeland Security, Janet Napolitano, could order the cessation of worksite raids and quota-based street apprehensions until ICE develops clear enforcement priorities that focus on major felons and fraud facilitators rather than poor immigrants trying to feed their American citizen children.
- President Obama could sign an executive order enforcing the rule of law by ordering each of the three agencies to develop clear and procedurally fair regulations ensuring the right of attorney representation of every individual and entity with a legally cognizable interest in an immigration proceeding. This would extend, e.g., to consular interviews, port-of-entry secondary inspections, ICE interrogations of immigrants and employers, and the individual attorney or firm representation of multiple parties in interest in employment-based USCIS adjudications of H-1B and adjustment of status portability.
These are just a few changes that do not require a filibuster-proof vote in the Senate. Even if comprehensive immigration reform is a bridge too far for now, the dreams of audacious hope can still be realized with artfully penned immigration reforms.