Monday’s decision from the Fifth Circuit Court of Appeals to affirm the halting of the President’s DAPA amnesty program was a mighty big win for immigration patriots around the country. But the ramifications of the court’s decision may actually be bigger than most appreciate. The recently leaked revelations that the President has other, grander plans besides DAPA to hand out work permits en masse means that his wider immigration agenda may also now be in flux. The same goes for previously enacted work permit giveaways, including the 2012 DACA amnesty as well as other equally unlawful programs aimed at appeasing the President, the Hispanic extremist lobbies, and the Big Business. In his final year in office, we may just see the toppling of Obama’s entire immigration legacy.
Unlike the previous court decisions in the States’ case against amnesty, which have focused more on the deportation-deferral portion of DAPA, the Fifth Circuit’s decision on Monday targeted the President’s purported employment authorization powers. As the court described Obama’s attorneys’ position on this issue, “[t]he interpretation of those provisions that the Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States” (emphasis mine). This they called, “an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility.” For a close discussion of that “intricate system” see here. The majority further stated “the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits, including work authorization.” (emphasis mine). This was a big hit to a central part of the Obama team’s argument.
The key provision advanced by the Obama administration to support its supposedly limitless work authorization powers, 8 U.S.C. §1324a(h)(3), had for decades up until the DACA amnesty simply been understood as defining the term “unauthorized alien” for purposes of the INA’s employer prohibition on hiring illegal aliens. The definition excludes those aliens to whom Congress has instructed the DHS secretary to grant work authorization and those aliens to whom Congress has instructed the DHS secretary to exercise discretion as to whether to grant work authorization under specified criteria. Since DACA, DHS has been using their “newfound” powers under the provision to create several work permit giveaways, including to spouses of H-1B visa holders and to foreign STEM-graduates. Dependent spouses of H-1B visa recipients obtain so-called "H-4" visas, a program that’s been in place since the H-1B was created under the Immigration Act of 1990. It was only this year, however, that the administration decided it actually had the authority to provide such spouses with work authorizations. Implemented last spring, the DHS move has led to tens of thousands of open-market work permits going to those who went from having no work permits for decades to now having more job market flexibility than their H-1B dependents, who are tied to their employers for the duration of their visas. The Immigration Reform Law Institute (IRLI), whom I work for, is challenging the move in federal court.
The other program involves the expansion of the Optional Practical Training program, which DHS has expanded, again based on this once dormant provision, to extend “job training” to foreign STEM graduates from American schools for as long as 3 year after they’ve completed their studies. Combine President Obama’s motivation to turn America into a “hodge-podge” nation with the financial might of the IT and University Lobbies and it’s amazing what previously unthinkable legal interpretations DHS attorneys can come up with.
And most recently, there was the revelation that the Obama administration had been gearing up for a much more expansive work permit giveaway. In a leaked internal memo from a DHS “Regulations Retreat,” top immigration officials within the agency apparently said the Secretary could give open-market 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 (note: Employment Authorization Document is the statutory term for work permits). A major positive of some of the options considered, according to the memo’s authors, is that it would “address the needs of some of the intended deferred action population.” But their argument for such “newfound” expansive powers, like in DAPA, has now been neutered.
As IRLI had argued in our friend-of-the-court brief in support of the States’ case against DAPA, DOJ refused to explain in its briefs how the provision gives the DHS Secretary such power, opting instead to simply conclude that it does. But obscuring the law for political reasons is not what our government’s attorneys are supposed to do. This week, the court agreed.