Immigration Reform: President Obama Considering An Executive Order Despite Congressional Backlash

As you may have heard in the news lately, President Obama is considering issuing an Executive Order on immigration in the coming week (it may be as early as next week!).

From what we learned about American political system, we have three branches of Government: Legislative, Executive, and Judiciary.

Legislative branch, consisting of the U.S. Congress, MAKES laws.

Executive branch, which includes the President, ENFORCES laws (for example, when the President signs a law made by Congress).

Judiciary branch, made up of the courts, including the Supreme Court, INTERPRETS the laws made by Congress and enforced by the Executive branch.

So, you might be wondering, “how can the President make law on immigration, if Congress is supposed be the part of the Government that makes the laws?”

How DID the President get here?

Well, Congress is refusing to discuss and take up Comprehensive Immigration Reform (“CIR”), a more permanent fix to out broken immigration system.  President Obama, who had promised some sort of an immigration reform as part of his election promise (twice!), is tired of waiting for Congress to act, so he has decided that he will do whatever he can within his power to help potentially millions of undocumented foreign nationals currently living in the United States.  Many of these people are parents of United States citizen children.  Majority of these people are honest, hard-working individuals, who have not committed any crimes and have been paying taxes.  But because the way our immigration laws are, these individuals have no way to “legalize” their immigration status to become lawful permanent residents (green card holders).   In an effort to help some undocumented foreign nationals by allowing them to reside in the United States without fear of immediate deportation and allowing them to obtain work permits to work legally, the President plans to issue an Executive Order that will outline who will qualify for the benefit and what kind of evidence they will have to show that they qualify for the benefit and deserve the benefit.

Fox news is reporting 10 things that are likely to be covered by the Executive Order.

However, it is possible that the newly elected Republican Congress will fight the President on his authority to issue such an Executive Order.  Speaker of the House, John Boehner, has already gone on the record to say that “all options” are on the table to fight the President on the Executive Order, including the threat of another government shutdown.

Just like President Obama’s healthcare reform made its way to the Supreme Court, where the court struck down some parts of the health care laws known as “Obama Care,” it is possible that a challenge to the Executive Order could wind up in the Supreme Court down the road.  But the process through the court systems is lengthy and it could be a while until this matter could wind up being in the Supreme Court.

So what happens if the Executive Order is declared unconstitutional at a later time?

Because a legal challenge does not happen overnight, it could be a long time before President Obama’s Executive Order may be declared unconstitutional.  So there will be a window of opportunity for those eligible under the Executive Order to actually take advantage of the benefits it might offer.  This means do not delay in acting quickly in applying for any benefit the Executive Order might offer, and make sure you have all important documents secured and have filed your taxes (for at least the last three to five years).

Imagine 5 million people trying to apply for the Executive Order benefits at the same time, trying to get back taxes filed at the same time (which means overworked accountants or higher fees for work), or are trying to get original copies of vital statistics records at the same time (which means backlogs in processing requests, causing delays).

Finally, while I think this goes without saying, be aware of anyone promising you legal status or guarantees of any sort when the Executive Order is announced!  Immigration fraud is usually at high when a large volume of people are expected to apply for a benefit.  Do not just hand over your money to anyone promising you “legal papers” based on the Executive Order.  Make sure you speak about your case with a licensed, experienced, immigration lawyer, and not someone who is not licensed to practice law (such as travel agents or “notarios”).  While you may feel comfortable speaking in your native language with a travel agent or a “notario,” at the end of the day, they are not held accountable for any errors they might make in your case (since they usually do not sign the forms indicating they helped you prepared them), and more often than not, they disappear after you have paid them!  At the end of the day, you will be responsible for all the papers you sign and file, but with a lawyer’s help, there is accountability.

As of today, there is no Executive Order announced and there is no new “law” on immigration, so do not pay anyone to “help” you with anything that does not yet exist!

To stay updated on this issue, check back often on this blog, or you can connect with me on Facebook or Twitter, where I regularly post useful information about all things immigration.

Ruchi Thaker

Ruchi Thaker is New York City-based immigration attorney with extensive experience and excellent reputation for effective legal representation in simple and difficult immigration cases. I have experience in areas of deportation defense (criminal and non-criminal), federal court litigation, representation on appeals and motions with the immigration courts and the Board of Immigration Appeals, family-based immigration, asylum, naturalization, and consular processing.
Ruchi Thaker
Posted in Announcements, Deferred Action, Executive Order, immigration, Immigration reform, new law, News.