Lynchpin of Obama’s immigration agenda is beyond weak
November 12, 2015, 03:00 pm
By Ian M. Smith
The Fifth Circuit’s recent decision to halt the president’s DAPA amnesty program may have sweeping implications for his much wider immigration agenda. It was recently revealed that while at an off-the-record agency retreat (originally discussed here), top DHS officials had been gearing up for much more expansive work permit giveaways. The “Regulations Retreat” memo claims the Obama DHS has the power and intention to hand out open-market work permits to groups who are either wholly unauthorized to work, such as illegal aliens, or who merely have temporary work authorizations tied to their employers, like H-1B visa-holders. This claim of “newfound” immigration powers on the part of the administration had also formed the basis for numerous other programs during Obama’s tenure, including the now twice-overturned DAPA program. By specifically smacking down the president’s purported powers in the area of work permits Monday night, the Fifth Circuit has put DHS programs, both previously implemented and forthcoming, on very shaky ground.
The internal memo says that DHS can give work permits to anyone from “individuals who are physically present in the United States,” including “those who have entered without inspection”, to “individuals who are in lawful nonimmigrant status at the time of filing the EAD”, e.g., those on temporary H-1B visas [Employment Authorization Document—the statutory term for work permits]. Since the memo’s leak, a DHS spokesperson has come forward saying the document’s indeed genuine but that the American public really shouldn’t be taking it seriously. I wish that was consoling. Immigration-watchers will remember the two leaked memos (here and here) from 2010, written in an eerily similar tone and format, advising top DHS appointees on how to implement what eventually became the President’s 2012 DACA amnesty program. Another leaked document from this past summer, has been followed up with an announcement on the Unified Agenda that a rulemaking will be announced very soon. Then there’s the series of programs the President’s unilaterally implemented, or is trying to, all of which are intended to undercut the visa programs established by Congress. When DHS threatens to finesse the immigration law, we know that it should be taken seriously.
What the memo’s contemplating, an illegal mass work-permit giveaway, has ample precedent in this administration. Including the President’s 2012 DACA program, there have been four major cases, all challenged in the courts, two involving executive amnesty and two involving professional visa rule changes, where the administration’s relied on a once-uncontroversial provision of the INA to argue that it has the authority to give out work permits to anyone in the country, including illegal aliens—Disclosure: the Immigration Reform Law Institute has been involved in each of those cases as either lead counsel or a friend of the court. That provision, which for decades had been understood as simply directing when the DHS secretary’s allowed to distribute work permits, appears in each of the above cases and now forms the legal basis of the President’s leaked plans.
Section 274A was added to the INA following the Immigration and Reform Control Act (IRCA) amendments of 1986. The provision lists exceptions to IRCA’s general rule that it’s illegal for US employers “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” IRCA defines an “unauthorized alien” as an alien who is not “lawfully admitted for permanent residence” or an alien that is not “authorized to be so employed by this chapter or by the Attorney General.” (emphasis mine). It is this four-word phrase that’s key. These four words have taken on a magical quality under President Obama. In spite of IRCA’s general rule against employing illegal aliens, they claim this phrase gives the attorney general (now the DHS secretary) the statutory power to grant work permits to anyone he wants, including illegal aliens.
IRCA and other provisions of the INA specify that certain illegal aliens, ...
