In remarks last night, President Obama announced his long-planned executive actions to reform the U.S. immigration system.  The President will sign the first of such orders today, despite intense opposition from Republicans in Congress, who believe that the President’s actions are outside the law and contrary to Congress’s authority to legislate federal immigration policy.  In his address to the nation, the President argued that executive actions are appropriate and legally justified, and that they are necessary because of Congress’s inaction since the Senate passed a bipartisan, comprehensive reform bill in June 2013.

The President outlined three components of his plan.  The most controversial aspect of the program will expand the administration’s deferred action policy, which promises illegal immigrants that they will not be deported if they meet certain criteria and come forward to apply for deferred action.  The new program will permit deferred action for immigrants who have been in the United States for at least five years, have children who are citizens or legal residents, pass a background check, and pay a “fair share” of taxes. 

The deferred action program, while significant, is far from full legalization for undocumented immigrants currently in the United States.  The program would not grant citizenship to undocumented immigrants or even create lawful permanent resident authorizations (i.e., green card).  Perhaps most significantly, because the President’s actions are being done under his executive authority, a future president could fully reverse the policy and leave immigrants in the deferred action program – who will have necessarily acknowledged their undocumented status to the federal government – in significant legal limbo.

The other two components of the President’s announced plan would strengthen border enforcement and increase visa access for highly skilled workers.  The increased visa access for highly skilled workers has long been a key priority for the business community.  A White House fact sheet indicates that the changes primarily relate to regulation of H-1B visa portability, investment visas, training visas for STEM workers, and intracompany L visas.  The President, however, was unable to address the single greatest barrier for high-skilled workers – the annual H-1B visa cap – because changes to the cap would require legislation.

As we have previously written, the next big question is Congress’s response.  Republicans gained the Senate and strengthened their majority in the House in the last election, and Congress could pass legislation in response to the President’s actions.  Congress has significant power to steer the actions of the administration, including blocking executive action with appropriations riders or holding up nominations until the President changes course.  Congress will have difficulty seeking to defund the specific actions that the President announced because the U.S. Citizenship and Immigration Services, the agency that would implement many of the changes, is self-funded through fees.

President Obama continued to call on Congress to legislate on immigration.  To his critics, he said, “I have one answer:  Pass a bill.”  Some Republicans have suggested that Congress should reassert its authority over immigration by passing legislation that enacts Congress’s view of reform.  Others have suggested a lawsuit to challenge the President’s authority, similar to the lawsuit filed today regarding his executive actions implementing the Affordable Care Act.  At present, Republican leaders have warned against suggesting impeachment or a government shutdown, although keeping all Members on message will be difficult.

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Photo of Brian D. Smith Brian D. Smith

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance. …

Brian Smith provides strategic and legal advice on matters that require substantial political, reputational, or government relations considerations.  He represents companies and individuals in high-profile or high-risk investigations, particularly congressional investigations, criminal investigations with political implications, and investigations related to political law compliance.  He has significant experience in crisis management, where he advises clients facing combined legal, political, and media relations risks.  His practice also includes the development and execution of government relations initiatives, including securing the U.S. government’s political support on behalf of U.S. companies facing international legal issues.

Photo of Jonathan Wakely Jonathan Wakely

Jonathan Wakely practices at the intersection of national security and the private sector, advising clients on a range of significant international trade, cross-border investment, national security, supply chain security, and public policy matters.

Mr. Wakely has been recognized by Chambers USA for his…

Jonathan Wakely practices at the intersection of national security and the private sector, advising clients on a range of significant international trade, cross-border investment, national security, supply chain security, and public policy matters.

Mr. Wakely has been recognized by Chambers USA for his leading expertise in securing national security-related regulatory approvals for foreign investments. He regularly represents clients before the Committee on Foreign Investment in the United States (CFIUS), the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (better known as “Team Telecom”), and the Defense Counterintelligence and Security Agency (DCSA) in proceedings related to the mitigation of foreign ownership, control, or influence (FOCI). He was deeply involved on behalf of clients in the development of the Foreign Investment Review Modernization Act of 2018 (“FIRRMA”), which reformed CFIUS’s authorities, and its implementing regulations.

Mr. Wakely has advised on transactions with an aggregate value in excess of $250 billion across virtually all sectors, including semiconductors, telecommunications, financial services, software, IT services, energy, and real estate. His recent representations include successfully defending Qualcomm against the attempted hostile takeover by Broadcom, securing approval for the acquisition of Genworth Financial by China Oceanwide, and representing Ford Motor Company in connection with a $2.6 billion investment by Volkswagen in Ford’s autonomous driving subsidiary, Argo AI. He has negotiated and advised companies on compliance with many of the most significant, complex, and sensitive national security agreements of the past decade.

Mr. Wakely also regularly advises clients on public policy and government relations matters involving international trade, cross-border investment, and national security. He has represented trade associations, Fortune 100 companies, and sovereign states before Congress and the executive branch, including by designing and executing government relations campaigns to achieve policy, regulatory, and legislative goals.

Mr. Wakely is an adjunct professor at the Georgetown University Law Center, where he teaches a course on national security and the private sector. He has also published extensively on matters related to the regulation of foreign investment; his articles have appeared in the Harvard National Security Journal, The International Lawyer, and the Global Trade and Customs Journal. Before joining Covington, he served as a political analyst with the Central Intelligence Agency (CIA), where he provided strategic analysis to the President and other senior policymakers.