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Introduction

"I've got a pen and I've got a phone," President Obama famously said two years ago, openly proclaiming his strategy of ignoring Congress and acting unilaterally — and often illegally — to advance his agenda. He has adopted this approach regarding immigration as well, most notably in a series of November 2014 memos further reducing enforcement of the law and granting work authorization and Social Security numbers to millions of illegal aliens (that amnesty is held up in court).

This Backgrounder lists steps the next president can take — legally — with his or her own pen and phone early in the next administration. Many of the steps we suggest consist of rolling back the ill-advised and constitutionally dubious "executive actions" undertaken by the Obama White House. Those roll-backs alone would go far toward restoring balance and credibility to the nation's immigration system, although we realize they are unlikely in the event a Democrat takes the White House, given the commitments the two Democratic candidates have staked out in their debates.

Note also that the suggestions primarily reflect those things that can be done by the executive branch (within the constraints imposed by the Constitution, unlike those taken by our current president) — not the policy matters that will require major legislative changes, which we also believe are in the interest of the country. Those would include lowering the level of legal immigration and de-emphasizing familial relationships in the visa quota system in favor of a more balanced approach to the national interest, one that does not engender chain migration. Right now, the United States accepts about one million new resident aliens each and every year, year in and year out. The result in the past few decades has been a historically high percentage of immigrants among our population, raising serious questions about assimilation and integration of migrant populations.

Our suggestions for executive action cover the full spectrum of immigration, from lawful permanent residents to nonimmigrant entrants to illegal immigration. Note that some of our suggestions touch on more than one of these areas simultaneously, since such black-and-white categorizations can be imprecise. An example is Temporary Protected Status (TPS), because both illegal aliens and nonimmigrants in lawful status can avail themselves of the benefit of TPS, when it's offered.

Immigration Benefits

Restore USCIS Fraud Detection and National Security Division's analytical program to conduct regular benefits fraud assessments (empirical studies of benefits programs that determine fraud rates and types by category) and implement enhanced screening for categories and types of applicants deemed to be higher risk. A parallel program should also be implemented at the State Department so that collectively all types of benefits — including green cards, work permits, immigrant visas, and non-immigrant visas — are analyzed for the risk of fraud. Cease accepting petitions from prospective sponsors of immigrants if no immigrant visa or adjustment will be possible within two years. Cease issuing work permits to aliens in removal proceedings and to several categories of aliens not authorized to work by virtue of their status (spouses of H visa guestworkers, H guestworkers awaiting eligibility to adjust to resident status, and others). There are already too many abuses in both the skilled and unskilled guest worker categories that have resulted in the displacement of American workers. Adding these individuals to the pool of eligible workers diminishes work opportunities for citizens and resident aliens even further.

Lawful Permanent Immigration

Biometrics

In addition to existing fingerprint and photo requirements, additionally require USCIS to collect mandatory DNA samples from all permanent arrivals (including "K", "S", "T", and "V" visas and applicants for asylum or refugee status) for forwarding to the FBI for inclusion in its nationwide DNA database or, alternatively, by establishing a Department of Homeland Security (DHS) database for that purpose. Levy the same DNA sampling requirement on aliens who adjust status after entry (see Action 1). Require mandatory DNA matching prior to admission for all individuals claiming the right to enter based on family status — parents, children, siblings — to ensure that the familial relationship exists. This can be done on a phased-in basis starting with the high fraud risk categories first. Direct USCIS to initiate vetting of all citizens and resident aliens who petition on behalf of aliens, in addition to vetting the alien beneficiaries themselves. As has become obvious in recent cases, such as the San Bernardino terrorist shootings, investigating both petitioner and beneficiary is important and necessary to the national security and public safety. (See here and here.)

Investors

Institute changes to the ill-run and deeply flawed immigrant investor (EB-5) program, including the following:

In order to help curb corruption in the program, require all beneficial owners of EB-5 regional centers, developers, and alien investors to be identified in public records by full name, current residence, current citizenship, and date of birth. Reverse the current policy that the government cannot terminate regional centers for security reasons and issue an executive order (EO) directing that regional centers may not be owned in whole or in part by foreign governments, or corporate entities substantially owned by foreign governments. In order to move the benefits of this program from glitzy downtown areas in big cities to depressed areas (as the law demands), issue new regulatory definitions. "Targeted Employment Areas", i.e., areas with at least 150 percent of the nation's unemployment levels where a half-million-dollar investment can produce green cards for the entire family of an alien investor, must consist of no more than three census tracts, which must adjoin each other and may not be linked through bodies of water or other uninhabited areas. Nor will census tracts that only touch each other tangentially, such as diagonally, be permitted. All of these are among the ways in which clever regional centers and developers have gotten around the requirement that the investor program assist economically depressed areas. Suspend granting any more EB-5 regional center licenses until the number of regional centers shrinks considerably; perhaps no more than one per state or territory in total. Presently there are over 700 existing EB-5 regional centers — far more than can prosper or be scrutinized, which results in minimal or nonexistent oversight and an open invitation to corruption, fraud, and deception.

Terrorism and National Security

Cease issuing "exemptions" (waivers) to known terrorists and supporters of terrorism, individually or by group, that permit them to enter the United States as immigrants, asylees, or refugees. DHS issued over 1,500 such exemptions in 2014 alone, according to a report it submitted to Congress. Announce that there will be no more extensions for states that have not yet complied with the REAL ID Act, passed by Congress in 2005, which enacted the 9/11 Commission's recommendation that the federal government "set standards for the issuance of sources of identification, such as driver's licenses." Many states have ongoing extensions, meaning the 9/11 Commission's recommendations continue to be ignored 15 years after the terrorist attacks. DHS recently announced it will not require REAL ID-compliant driver's licenses for air travel until October 2020.

Nonimmigrants

Rescind EO 13597, "Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness", which has resulted in issuance of massive numbers of nonimmigrant visas to countries such as China and Brazil with high visa refusal rates. Wholesale granting of visas contributes to the vastly increasing number of overstays among illegal aliens residing and working in United States. (See, for instance, the remarks of Jessica Vaughan regarding consular visa issuance workloads and overstay rates, in the panel transcript, "No Coyotes Needed" and Dan Cadman, "Visa Overstays A Lesson in Flexible Facts and Pliable Media".) Reduce the default grant for authorized duration of stay to 30 days (down from 180 days) unless the traveler provides documentation or other justification for a longer stay either at the time a single-entry visa is issued or for Visa Waiver Program (VWP) travelers, in secondary inspection. (We would also like to see these visitors waive their right to a deportation hearing if they are caught overstaying, just like VWP travelers, but this will require a legislative fix.) Direct a maximum authorized duration of stay of 72 hours for Border Crossing Card holders. Direct the Social Security Administration to come up with a way to stop issuing Social Security numbers to children of foreign diplomats. All sides of the immigration debate agree that such children are not to be considered U.S. citizens under the 14th Amendment's Citizenship Clause. The Social Security Administration is aware that these children are not entitled to a Social Security number at birth, but acknowledges that some are receiving the numbers. This results in some confusion within state and federal agencies since a non-citizen is in possession of a validly issued U.S. birth certificate and Social Security number gives the appearance of U.S. citizenship, meaning jobs and benefits reserved for U.S. citizens could be granted to these children. Give a high-profile speech announcing that the United States will no longer tolerate birth tourism and the fraud committed against visa processing officials who are misled as to the perpetrator's true intention of traveling to the United States. It must be made clear that perpetrators will be fined and/or jailed under 18 U.S.C. § 1001 and other statutes. State Department visa officers must also be given greater authority to deny entry of a clearly pregnant woman if any fraud is suspected. We have estimated that as many as 36,000 birth tourists travel to the United States each year. Announcing that the State Department will not grant U.S. passports to children who were born here through fraud will discourage much of the activity, even if such threat is not carried out. The Supreme Court has never ruled on the question of whether children born to tourists are to be considered U.S. citizens at birth. Establish a policy of denying nonimmigrant visas to women in the third trimester of pregnancy, absent compelling circumstances and a certificate attesting that it is safe to travel for the woman and fetus, to be issued only by a pre-approved list of competent medical authorities in the country of origin. Hasten the implementation of biometric entry controls at land ports of entry, where large numbers of aliens enter with visas or Border Crossing Cards, but are untracked; and complete implementation of the long-delayed biometric exit system to complement the biometric entry system — thus reconciling entries to exits, which provides firm data on which to build a substantive enforcement program focusing on visa overstays. Initiate a nationwide program requiring a significant percentage, minimally 20 percent, of Immigration and Customs Enforcement (ICE) agent productive hours dedicated to locate and arrest visa and VWP overstays. (Note that VWP overstays are readily removed when found because they give up their rights to a hearing as a pre-condition of entering under the provisions of the program; this makes it exceedingly cost-effective to engage in deterrence-by-enforcement of the type we suggest.)

Skilled and Unskilled Workers Entering the Workforce for Extended Periods

Substantially increase the fees paid by employers of all nonimmigrant workers in the temporary work visa categories of H-1B, H-2A, H-2B, L-1, Q-1, and J-1 exchange visitors (when they are hired by corporate entities). In order to diminish the negative impact of the H-1B program on citizens and resident aliens in the workforce (particularly older, at-risk workers susceptible to being laid off as a corporate means of avoiding pensions or benefits), establish rules directing denial of H-1B ("skilled worker") petitions demanding a bachelor's degree if the salary is less than $80,000 a year or, for those demanding an advanced degree, $90,000 a year, with these pay level requirements to be adjusted yearly for inflation. Direct executive branch agencies to deny allocation of H visas to employing entities that lay off citizens or resident aliens in order to backfill them with H visa holders or other temporary alien workers. Direct additionally that the visas be revoked should layoffs of preexisting workers occur within six months after arrival of H visa workers. Direct that employing entities found by a court or tribunal of competent jurisdiction to have violated prevailing wage guidelines, or

improperly withheld pay or overtime, or

otherwise violated employment laws, or

engaged in the conduct described in Action 14 above, shall be deemed ineligible to obtain H visa allocations for a period of two to five years, depending on the severity of the violation. Adhere to the traditional methodology of counting all workers admitted in a year to be subject to the annual cap; work with Congress to rescind the legal provision permitting employers to bring back H-2B nonimmigrants who have departed the United States in circumvention of the H-2B application and approval process. Direct ICE and USCIS to coordinate and initiate a program to systematically investigate, prosecute, or take available civil actions against abuses within each of the nonimmigrant worker categories. Issue an EO directing debarment of violating employers from use of the programs for a period of two to five years, depending on the severity of the violation.

Foreign Students

Terminate the foreign student optional practical training (OPT) program, used to permit alien graduates of U.S. universities to remain and work for years after graduation, while permitting alien college graduates with existing OPT permits to work through their expiration date with no extensions. Terminating OPT will rid American workers of a program that has been used to end-run statutory limits/caps on other nonimmigrant cheap labor categories. This can be done by implementing and enforcing requirements that the training programs be regulated so strictly as to deter use of OPT as a regular work program, and by reducing the maximum number of months that a student can be in OPT status to six months. Finally, implement a requirement that any student applying for OPT must sign an agreement to return to his/her home country for a minimum of two years (just like the J exchange visitor requirement, only with no waivers available). Eliminate or drastically scale back the availability of visas for Summer Work/Travel, au pairs, and other J exchange visitor subcategories that involve de facto employment and that have been used by certain industries to beef up temporary workers and depress working conditions for permanent employees. This can be done through regulation and establishing higher standards for designation of sponsors that will winnow out employers who abuse the program. Direct ICE to initiate a compliance program in which agents actually make substantive efforts to take custody of foreign students who quit school, illegally take jobs, or otherwise violate the conditions of their status. This can be done, at least in part, by requiring ICE — which currently uses only a fraction of the monies collected from foreign student fees to enforce the law on abuses of the foreign student program — to use these funds as intended in more substantive, aggressive, and timely enforcement activities against both students who violate their status and against schools that act as "visa mills" instead of providing a legitimate education. Direct that the types of institutions that pose the greatest risk of violation by acting as visa mills (which history reflects have often been private-for-profit schools and English-language training institutes) be subject to yearly supervision and inspection, with enhanced fees to pay for the cost of the additional resources expended on the supervision and investigative activities, including at least one unannounced site visit. Require each such entity to provide the full name, citizenship, date of birth, and current address of all beneficial owners unless the entity has stock traded on one of the major national exchanges and additionally require each to take out advertisements in the main newspapers in their area noting key data, such as the number of students, the number of classrooms utilized, the number (rounded) of books in their libraries, and the total dollars of tuition collected and of scholarships awarded.

Asylees and Refugees

Deny asylum to any alien who could have sought asylum in countries through which he has traveled en route to the United States. Interpret "could have sought asylum" to mean any country that is signatory to the international agreements on non-refoulement (non-return) which, significantly, includes Mexico. Comply with statutory requirements to detain individuals who lack legal status but who are seeking asylum, with few, clearly articulated, exceptions. Doing so will restore integrity to an out-of-control system that encourages both border surges and asylum fraud. Reinstitute the mandatory six-month waiting period for pending asylum cases before issuing employment authorization documents (EADs). Require a full re-vetting of asylees or refugees once they apply for adjustment to permanent residence or upon re-entry after travel to their country of persecution, since such travel raises questions about the legitimacy of the persecution claim in the first place.

Temporary Protected Status (TPS)

Return "temporary" to the spirit of the law, as was intended when the category was created to provide a humanitarian respite for aliens whose home country confronts a calamity such as a hurricane, earthquake, or other act of God. Unfortunately, the direct letter of the law provides entirely too much latitude for abuse through endless extensions. Consequently, a long-term fix will likely require statutory amendment by Congress to be fully effective. In the meantime, the new president should direct termination of TPS designations that have been in effect for years for several nations, such as El Salvador, which was designated in 2001 as the result of an earthquake and which has been renewed regularly ever since, even though the effects of that earthquake have long since disappeared. Additionally, to ensure that TPS is used sparingly and appropriately, if at all, the president should also issue an EO directing that no TPS designation may stay in effect longer than one year unless vetted and approved through the National Security Council prior to being extended, and only in a one-year increment. The EO should include a thorough list of stringent conditions that must be met before extension is approved to ensure that true humanitarian need, not domestic or international politics, drives any extension.

Immigration Parole

End wide-scale use of parole to allow illegal aliens to go back and forth to their countries of origin. This simply requires a return to the statutory definition, which limits use of parole to "only on a case-by-case basis for urgent humanitarian reasons or significant public benefit". Likewise, end use of parole as a surrogate for asylum/refugee status for those who cannot meet the standard, including particularly in the failed CAM program, which should be terminated. Cease granting parole to Cubans arriving on our northern or southern land borders and instead apply the expedited removal standard to repatriate them to Cuba. This will ensure no unfair use is made of the Cuban Adjustment Act by Cubans who cannot establish a credible fear of persecution and are in fact economic migrants, just like many arriving Central Americans.

Illegal Immigration

Unaccompanied Minors

Hew to the statutory definition of "unaccompanied alien child" found in federal law rather than treating each arriving alien minor below the age of 18 as if he/she is entitled to the protections afforded victims of a "severe form of trafficking" under the Trafficking Victims Protection Reauthorization Act (TVPRA); only those juveniles who are trafficked and who are not reunited with family members or friends are entitled to coverage under the special TVPRA due process protections. (See here and here.) Direct that no unaccompanied minors be turned over to relatives who are illegally in the United States unless the relatives surrender themselves for processing and initiation of immigration court proceedings. Require DNA testing to confirm a familiar relationship before turning unaccompanied minors over to individuals who claim to be family members who are legally in the United States. In the past, false claims of familial relationship have led authorities to actually place minors into the hands of unscrupulous smugglers and middlemen who profit from their labor in near-peonage conditions. Selectively prosecute relatives who pay to smuggle unaccompanied minors into the United States, particularly in those instances when the minor is physically, sexually, or otherwise abused en route. Additionally direct DHS and DOJ to work with state and local authorities to examine the propriety of criminal or civil charges against such relatives for child endangerment in cases where the minor is abused during the northward journey.

Worksite Compliance

Issue an EO requiring that a condition of all federal grant monies given to state or local governments is that they, or the contracting employers or sub-recipients of that grant money, whether as a pass-through or for any other purpose, must use E-Verify for their employees. End the existing ICE policy embargo on workplace enforcement actions, including arrest of illegal aliens employed at violating companies. Revitalize the use of audits, to be used in strategic coordination with workplace enforcement actions. Direct the strategic use of employment data obtained from alien arrestees to inform targeting of workplaces for operations and audits. End mitigation of fines prior to hearings before the OCAHO and direct EOIR to establish clear-cut guidelines for OCAHO (similar to sentencing guidelines) to rein in that office's proclivity toward mitigating offenses down to meaninglessness. Establish and publicize a nationwide Social Security OIG / IRS CID / ICE HSI task force to root out fraudulent use of Social Security numbers and taxpayer identification numbers by aliens unauthorized to work. Such aliens should be prosecuted for appropriate tax and Social Security violations, and thereafter deported. In the process, any employers identified as having instigated, condoned, or participated in the fraud should be criminally prosecuted, including for harboring/concealing and/or pattern-and-practice violations under employer sanctions laws, and should be subject to civil penalties. (See, e.g., a discussion of the use of "soft power" in immigration enforcement by William Chip, "Mass Deportations vs. Mass Legalization: A False Choice".)