Obama's Proposed Executive Action Doesn't Touch the Roots of Immigration Dysfunction

On immigration, President Obama is proffering an aspirin for a headache whose source will remain long after the pill's effects wear off. It will provide temporary relief to some but be the cause of new pains. Such is the limitation of executive action.

The three areas where the president is expected to act on immigration—deportation priorities, work-based green cards, and cooperation with local law enforcement—will cause almost no change in the underlying system, according to people familiar with the debate over how far the president should take executive action.

The new policies will cause a host of logistical problems, however. Here are a few:

1. Even the most generous of deportation relief options on the table would draw an arbitrary eligibility line that would leave out millions of unauthorized people, and it would do nothing to stop others from entering the country without papers.
2. To appease the tech community, the president is likely to make some 250,000 additional employment-based green cards available, but once they are exhausted, the long backlogs for green-card applicants (many from India and China) legally here would remain.
3. On enforcement, the  Homeland Security Department's Secure Communities program that partners immigration officials with local police, which is much-hated by immigration advocates, isn't likely to be abolished. How the lines will be drawn on where local police can participate may hinge on politically convenient distinctions like "felons" and "non-felons," rather than an in-depth judgment of which aliens in local jails should be turned over to immigration authorities.

The interim nature of the White House actions may be a deliberate choice, a tacit nod to the president's lack of constitutional authority to actually change immigration law. Or it may stem from an unwillingness to think about anything beyond the current population of undocumented immigrants, millions of whom have been deported under Obama's tenure. Either way, the sharp focus on unauthorized immigrants, to the exclusion of everything else, addresses only the symptoms of a dysfunctional immigration system instead of the cause.

"Fixing the broken system includes dealing sensibly with people who are here illegally, but it also requires repairing what doesn't work on both the legal immigration admission side and the prevention side of [undocumented immigrants'] ability to work," said former Rep. Bruce Morrison, D-Conn., a one-time chairman of the House immigration subcommittee.

Morrison is among a quiet group of veteran immigration professionals who wish the public dialogue about immigration would expand beyond simplistic notions of "border security" and "legalization." Neither term fits what actually needs to be done to keep people from entering the country illegally and getting jobs, they say. The president's actions won't do it, either.

The biggest component of Obama's executive action will be deportation relief for millions of people who have lived in the country illegally for several years. The most generous of the options on the table, deferral for undocumented parents and spouses of legal residents who have been here for at least five years, would benefit about 4 million people, according to estimates from the Migration Policy Institute. Expanding the 2012 Deferred Action for Childhood Arrival program to parents of DACA recipients could add another 1 million potential beneficiaries.

Not everyone who is here unlawfully—certainly not relatively recent arrivals who came here to work—would be eligible for this quasi-legal status. And not all of those eligible for relief would seek it out. About 1.2 million unauthorized immigrants were eligible for DACA. To date only 700,000 people have applied for it, according to MPI's deputy director of U.S. immigration policy, Marc Rosenblum.

Those who would benefit from the deferrals would be in a legal limbo that would have to be reconciled with an immigration statute eventually. Past experience with temporary humanitarian visas has shown that "once immigrants get a temporary benefit, it's difficult to take it away," Rosenblum said Friday on San Francisco's KQED radio station. That's precisely what opponents of executive action fear. Obama could swell the population of semi-legal people into the millions. Then there would be no choice but to let them stay.

Meanwhile, the enforcement mechanism to keep undocumented workers out of the workforce would remain unchanged. E-Verify, the electronic checks of work authorization required for new hires, is still not completely fraud-proof and isn't required for all employers.

Federal immigration enforcement officers, for their part, will be given new instructions about who they should target for deportation and who they shouldn't. But in a lot of cases, they will still have no choice on how they act. If immigration officers happen upon someone with a standing deportation order, even if that person has children who are U.S. citizens, they will still have to take her into custody.

That could be a common occurrence. Deportation orders—which frequently are ignored—have been given out with greater frequency since the beginning of the Obama administration as a way of deterring repeat border crossings. Once they are issued, it takes a judge to overturn them. It's not clear how those situations will be handled once the executive changes occur. Nor is it understood how the administration could "un-deport" people who would have qualified for relief under the White House's new criteria.

"A lot of questions need to be answered," said a DHS official, who declined to speak on the record because the executive order hasn't been finalized.

Finally, the administration is working with the State Department to "recapture" unused employment-based green cards from the past 20 years. That could clear the green-card backlogs of some legal immigrants who are living here on endlessly renewing H-1B visas waiting for a permanent visa slot to open up. Under the law, only 140,000 employment-based green cards are allowed per year, which makes for long waits for many foreign workers.

But even visa recapture is quick fix that does nothing to change the ongoing policy, to the great frustration of legal immigration advocates. The Congressional Budget Office estimates the available number of green cards to be about 250,000, certainly a nice one-time windfall but not a long-term solution. Legal immigrants who have been waiting patiently for broader reform to address their own immigration problems will, as one Indian foreign resident said on KQED on Friday, "be left out in the cold."