Election years always push the subject of immigration, particularly illegal immigration, to the forefront of public debate, particularly in presidential election years. Although it is Congress that has sole authority to make and amend immigration laws, the President can have a real effect on immigration law, both through use of the executive order and through policy memorandums issued in coordination with his Cabinet members, such as the Secretary of Homeland Security and, of course, the Attorney General.
Notable recent examples of Presidential influence on immigration law include President Clinton issuing an executive order during Congress’ winter recess in 2000 days before he left office. That order resuscitated Section 245(i) of the Immigration and Nationality Act, which allowed individuals who had entered the United States without inspection, or who had failed to maintain their nonimmigrant status, the ability to apply for permanent resident status (green card) in the United States rather than be forced to depart the United States to obtain an immigrant visa at a consulate. Because departing the United States after having accrued six months or more of unlawful presence in the United States renders an individual ineligible for admission to the United States for ten years, this ban had a practical effect on tens of thousands of individuals who were stuck in the limbo of not being able to legalize their status in the US after, for example, failing to maintain F-1 student status by not enrolling in enough classes, but who would be barred from the US for up to ten years unless they had the qualifying relatives to be eligible for a waiver.
More recently, President Obama has left his own mark on immigration through his administrations interpretation, use, and enforcement of current immigration statutes. More immigration violators have been removed (deported) from the United States during his first term than under Presidents Bush or Clinton. The increased number of removals is at least partly a result of the increased number of work-site raids and company audits. President Obama, a supporter of immigration reform, clearly took note of the backlash lodged against his predecessor’s support of immigration reform by critics who argue that no immigration reform should occur until enforcement of current laws actually takes place. Obama has stated that he wishes to pursue immigration reform and this crackdown is likely an advance strategy to silence the critics of his proposed reform. Many supporters of immigration reform who supported Obama in 2008, however, have expressed disappointment in the increased removals. On the other hand, the Obama administration also has used directives issued by the Secretary of Homeland Security and the Attorney General to prioritize which removal cases should be pursued in the immigration courts. In the realm of legal immigration, he has used policy memoranda to expand the use of existing visa categories, such as for entrepreneurs who seek H-1B status and/or immigrant visas and household members accompanying nonimmigrant visa holders.
Looking ahead at the 2012 elections, President Obama is not being challenged by any Democrats at this point. What he will do if elected President remains to be seen as many of his policies thus far were not not broadcast in his campaign speeches and those that were mentioned during his campaign have not yet been unveiled. As for the GOP, the current batch of candidates all cite their usual party line of being “tough on illegal immigration” even when their record shows that in fact they were more moderate than their current talking points would suggest, such as Rick Perry who has supported allowing undocumented immigrants to pay in-state tuition at Texas state colleges and universities but now calls for the expedited removal of all undocumented aliens. Standing apart from the rest of the candidates is Newt Gingrich, who supports immigration reform that would provide relief for undocumented individuals who have lived in the United States for a number of years.
All of the major candidates, including President Obama, have indicated support for making legal immigration easier and more streamlined in order, recognizing that having talent from across the world studying, doing business, and investing in the United States can only be an asset to this country. It is likely that our next President will urge Congress to take such measures, just as recent Presidents have done. As always, many bills affecting immigration will be introduced by Congress, including many that have been introduced before but which failed to garner sufficient support for approval. Given the extreme partisanship in Congress and the controversy surrounding any measure that includes the word “immigration,” it is hard to predict which, if any, measures will get passed by the new Congress. Given that campaign speeches do not always equate with initiatives taken once in office, it is anyone’s guess how the next President will affect immigration policy, whether it be through his or her pressure on Congress or through policy decisions made at the executive level.
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ATTORNEY LOVE MACIONE is an expert Immigration Attorney who has personally assisted thousands of individuals obtain and maintain their legal immigration status in the United States. Attorney Macione has over 14 years of experience handling every type of immigration and naturalization case, as well as federal litigation and appeals. She is admitted to State Bars of California and Massachusetts and is also licensed to practice before U.S. District Court for the Northern and Eastern District sof California, the U.S. Court of Appeals for the Ninth Circuit, US Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, the Immigration Courts, and the Board of Immigration Appeals, She has also been certified as a specialist in Immigration & Nationality Law by the Board of Legal Specialization of the State Bar of California,on whose Immigration and Nationality Legal Advisory Commission she presently serves as Commissioner. She can be contacted at (408) 436-0789, This e-mail address is being protected from spambots. You need JavaScript enabled to view it or www.MyImmigrationLawyers.com. All information is intended for general information purposes and should not be deemed as legal advice or relied upon for any specific situation.
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