How General Kelly’s DHS should undo Obama immigration policies

With the GOP taking control of the legislative and executive branches in just over six weeks, a political window for movement in the high-stakes area of immigration legislation is opening. Not that the Obama years weren’t busy ones for immigration policy. They were, just not legislatively.

In his second term alone, dozens of unilateral agency directives and guidance documents — so-called “executive actions”, not to be confused with “executive orders” — systematically sabotaged the operations of our democratically-enacted immigration laws for nearly every category of alien in the U.S.

{mosads}While most of these unilateral policy changes can be reversed just as they were implemented — by a stroke of a Secretarial pen — repairing the damage to another layer of Obama immigration policy-making will be less easy: rulemakings.

The 1996 Congressional Review Act allows Congress to enact joint resolutions of disapproval that treat rulemakings (both major and non-) as if they never took effect. Rules issued in previous administrations can be overturned under the act, but only those rules submitted to Congress approximately 60 legislative days before the end of session (a cut-off of June 2nd, according to Congressional Research Service estimates). 

First on the disapproval-list should be Obama’s 2016 unilateral expansion of the unlawful presence waiver. The Immigration and Nationality Act provides that an alien residing here illegally for 180 days to one year cannot return for three years after leaving voluntarily or being removed. 

The bar increases to 10 years for overstays beyond a year. An alien can request a waiver, but only by showing that the bar would cause “extreme hardship” to a citizen or permanent resident spouse or child, and only by applying at a U.S. consulate abroad.  

In an extensive public comment, the Immigration Reform Law Institute warned that this recent DHS rule change allowed illegal aliens to apply within the country, greatly watered down the definition of “extreme hardship”, and increased the number of relatives eligible for the loophole the agency had created.

Luckily, this rule appears to have been submitted to Congress within the 60-day CRA window. Discouraging unlawful presence, which the unlawful presence bars are designed to do, is what immigration law professor and self-described liberal Peter Margulies calls the “second leg of the deterrence stool” (the first being blocking chain migration by illegal aliens using anchor children to gain legalization; the third being controlling unauthorized employment).

Congress intended the bars to deter pervasive marriage fraud and generally to serve, writes Margulies, as a “legislative signal to foreign nationals who were unlawfully present not to linger in the United States.”

Most of Obama’s open-borders rule makings, however, have occurred outside the short CRA-window. Although the president-elect does have the power to direct federal agencies to rescind past rules, that process unfortunately takes time. The Administrative Procedures Act requires the same notice-and-comment process for rescinding final rules as it does for promulgating them.

Then there’s the inevitability of a legal challenge, given the total dominance of the immigration law industry by the open-borders lobby. In court, the Trump administration would have to show that it “examine[d] the relevant data and articulate[d] a satisfactory explanation of its action, including a ‘rational connection between the facts found and the choice made.’”

This showing shouldn’t be difficult, as Obama’s immigration rules were overwhelmingly intended to increase domestic labor supplies, undermining wages and working conditions for U.S. workers and with calculated indifference to the worker protection policies Congress embedded in our immigration laws.

Two other big 2016 rule makings come to mind. (Full disclosure: both are being challenged by American unions represented by IRLI). When the Obama DHS issued its “H-4” visa rule giving H-1B guest worker spouses work authorization, it estimated that 179,600 new work permits will be doled out just in the first year, with 55,000 added each year thereafter. Tech industries lobbied hard for the loophole to further indenture H-1B guest workers to their assigned employer and thus keeping them more pliant than uppity American tech workers. 

Formal APA rescission may also be required for the expansion of the Optional Practical Training program, a similar unlawful Obama rule making from earlier in the year which provides tax breaks to employers who hire foreign students graduating with STEM degrees; breaks which are not available to their American counterparts.

Briefs filed by IRLI in our ongoing lawsuit document that OPT was created specifically to circumvent the statutory cap on H-1B guest workers. Again, the impact on the American tech job market is massive: it’s estimated that 700,000 foreign students could compete in the tech job market over the next ten years.

Yet another H-1B-cap workaround from the Obama era is the so-called International Entrepreneur Parole Rule: a highly arbitrary and unlawful use of the agency’s “parole” authority to allow alien “entrepreneurs” to work in the US without visas. Luckily, this one’s a mere proposed rule.

As this no-visa guest worker parole has not yet been processed through the final public comment stage, under the APA it’s not “final” and can thus be easily withdrawn by an incoming president or Congress.

How decisively Secretary Kelly moves in the rescission process will be the first opportunity to test the Trump administration’s resolve to control illegal immigration and protect the American workers who voted him into office.