What Immigration Fixes Might President Obama Do On His Own?

House Speaker John Boehner recently ended speculation about whether his chamber would consider companion legislation to the comprehensive immigration reform (CIR) bill that was passed by the Senate over a year ago. The answer: a flat “no,” kicking the can down the road until – presumably – sometime in the 114th Congress, when the GOP hopes to have a larger caucus in both houses, and thus greater leverage to get a bill more to its liking.

But even a Republican takeover of the Senate would not guarantee quick and comprehensive action on immigration reform, because the GOP remains deeply divided on the issue. We’ll be in much the same boat if the Democrats retain control of the Senate, and pass a new CIR measure that’s similar to last year’s bill. Once again, everyone would be forced to wait on the House of Representatives. Either way, we’re likely to be stuck with the status quo for some time to come.

That said, the pressure to fix our immigration system is intensifying, if anything, not just because of the well-publicized crisis on our border, but because so many of our high-tech industries are having difficulty recruiting qualified STEM candidates, and are feeling the pinch of an immigration system that strictly limits the number of H1B and L-1 candidates who can get visas each year.

Enter President Obama, who has pledged to do everything he lawfully can to modernize and streamline our immigration system, to make it more responsive to present-day needs. The White House has yet to announce any specific administrative fixes, but there is informed speculation about what may be under consideration.

Citing sources familiar with internal White House policy debates, Patrick Thibodeau writes, in Computerworld, that the administration may seek, “ways to make it easier for U.S. firms to get H1B visas,” possibly by giving priority to U.S.-based firms. That might be easily circumvented, however, Thibodeau notes, if foreign companies simply applied through their U.S.-based subsidiaries. [See Obama has Big Options for Green Card, H1B Reform without Congress, by Patrick Thibodeau, Computerworld, 09.Jul.2014.] Alternatively, says Thibodeau, the administration might impose a 50-50 rule to cap H1B usage at no more than half a company’s U.S. workforce, though he hastens to add that “the legal ability to do this without congressional action is not clear.”

Another potential change: the White House could make more employment-based green cards available by excluding dependents from the limitation of 140,000 green cards per year, Thibodeau writes. Under the current interpretation of the law, the cap is divided between workers and their dependents. Former U.S. Congressman Bruce Morrison (D-CT), who played a leading role in creating the present system, told Computerworld that current law is subject to interpretation, and does not require dependents to be counted against the cap, though this has been the long-settled practice.

Meanwhile, the Washington Post suggests that the Obama administration might finesse the problem of undocumented immigration by providing a “‘parole in place’ for unlawful immigrants who are minors, parents, or spouses of U.S. citizens – people who are otherwise eligible for green cards – and allow[ing] them to apply for green cards without leaving the country.” [See How Obama Can Fix Immigration without Congress, by Alex Nowrasteh, Washington Post, 08.Jul.2014.] Other administrative measures might simplify the agricultural and seasonal guest worker visa programs, the Post article contends.

Having waited so long for some positive news on immigration reform, the prospect of even a limited administrative version is tantalizing – but until the President announces precisely what he plans to do – and how – it will be business as usual for our immigration system.

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