Immigration Policy by Executive Fiat
Obama contemplates constitutionally dubious changes on both legal and illegal immigration.

(President Obam: Chip Somodevilla/Getty Images)


When the Senate passed its version of comprehensive immigration reform, it aimed to appeal to a coalition dominated by ethnic activists and big business. The Senate immigration package — consisting principally of immediate legalization for millions of illegal immigrants, promises of enforcement, revisions of the legal-immigration system, and the expansion of guest-worker visa programs — would have fulfilled that coalition’s desires for the legalization of illegal immigrants and cheap labor. A popular outcry might have stopped the Senate immigration bill, but perhaps President Obama’s executive orders will gratify this coalition’s appetites after all. In a series of closed-door meetings, representatives from big business and other organizations have been pushing hard for an expansion and revision of some U.S. visa programs. Corporate America has allied with groups such as the League of United Latin American Citizens and American Families United to urge the president to push through changes to the legal-immigration system and grant work permits to millions of current illegal immigrants.

The president’s rumored decision to legalize and grant work permits to millions of illegal immigrants has dominated media discussions of the administration’s potential executive fiats on immigration. However, decisions to revise the legal-immigration system could also be consequential. The prospect of the legalization of illegal immigrants combined with a revision of the legal-immigration system suggests that the Obama administration’s potential executive orders on immigration would go far beyond tiny administrative tweaks and minor exertions of prosecutorial discretion; they might instead be major and unilateral revisions of U.S. immigration policy.

Many of the proposals put forward in these closed-door meetings focus on changing the way that visas are counted; in the short term at least, these changes would probably lead to a substantial increase in legal immigration. They could affect both permanent immigrants and guest workers. One major proposal would change the ways green cards are counted. Under limits established in 1990, the United States can offer 226,000 family-based and 140,000 employment-based green cards annually. For decades, green cards issued both to principals and to their dependents count against this cap. For example, if a researcher from Sweden earns an employment-based green card and she brings along a husband and three children, a total of five of the 140,000 employment-based green cards would be used (one for the researcher — the principal — and four for her dependents). Advocates would like the Obama administration to make a ruling so that only principals count against this cap; the green cards issued to dependents of a principal would not in this case count toward those limits. Under this scenario, the immigration of the Swedish researcher would still cause five green cards to be issued, but only one green card would be counted toward the 140,000 limit. Counting principals only against visa limits could also apply to the “diversity lottery” of 50,000 visas, potentially doubling the number of immigrants from that pool.

Over the short term, counting principals only against the cap of legally issued green cards would cause a substantial spike in legal immigration. Some proponents of this measure estimate that it could cause the number of available family- and employment-based green cards to swell in the first year from 366,000 to 800,000, an increase of nearly half a million. According to the Department of Homeland Security, about a million permanent-residency visas have been issued each year since the early 2000s (it was lower in much of the 1990s), so an increase of half a million would be about a 50 percent jump.

People who urge the administration to take this course of action argue that it would significantly reduce the backlog of immigrants waiting in line to enter the country legally. They also argue that, despite the long-standing precedent for counting both principals and dependents toward the green-card cap, legislative language does not actually specify whether or not dependents must be counted against the cap. Interestingly, the immigration bill that passed the Senate last summer would have accomplished legislatively many of the things that advocates are now demanding the president take action on. For instance, the Senate immigration bill specified that dependents would no longer count against the cap for employment-based green cards, and it also would have revised regulations to clear the backlog for family-based immigration.

A related proposal pushed by Compete America, a coalition of corporate interests (including Facebook, Google, Microsoft, the U.S. Chamber of Commerce, and Walmart), and other groups would involve the “recapture” of green cards from past years. Though the federal government has limits for how many green cards it can issue each year, these limits are not met every year due to the arcane intricacies of U.S. immigration law. “Recapturing” green cards would bring back these unused green cards from past years, allowing the government to issue them. This “recapturing” could total more than 200,000 green cards (and, if dependents are not counted against this total, could mean that visas would be issued to a number far greater than the “recaptured” number of green cards).

Another proposal could substantially increase the number of guest workers in the United States by granting visas to the spouses of H-1B visa-holders. The administration already has proposed granting visas to the spouses of certain H-1B visa-holders, and some estimate that this smaller proposal would cause about 97,000 new guest-worker visas to be issued the first year, with about 30,000 in succeeding years. Here again, the administration would seek to accomplish through executive power what the Senate’s Gang of Eight bill would have accomplished legislatively; expanding guest-worker programs, combined with issuing visas to the spouses of guest workers, was a major component of the Senate immigration bill.


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