Francisco Javier Hernandez, from Zacatecas, Mexico, gains US citizenship during naturalization ceremonies at the Los Angeles Convention Center. (Photo: Getty Images)
President-elect Obama will likely make several tough decisions on immigration policy during his first few months in office, even if he postpones wide-ranging reform until later in his first term.
Obama will be under pressure from interest groups to review or drop several administrative policies aimed at curbing illegal immigration, which President Bush enacted after he failed in 2007 to persuade lawmakers to pass broad legislation that would have put millions of immigrants on a path to citizenship.
"I think immigration is shaping up to be an issue that he is going to face a consensus of pressure," said Ali Noorani, executive director of the National Immigration Forum. "There is no reason a number of administrative actions can't be put into place in the first 100 days."
Immigration was not one of the top policy objectives laid out by Obama during the campaign. But labor, business and immigrant-rights groups sense an opportunity to push their agenda after Hispanic voters broke in large numbers for Obama and helped him win four battleground states: Colorado, New Mexico, Florida and Nevada. Noorani wants to see legislative movement on an overhaul of the country's immigration laws by Thanksgiving of 2009.
The Obama transition team did not respond to requests for comment.
The executive decisions Obama will inherit are relatively tame compared to the political firestorm Bush set off when he called for the most sweeping changes to immigration law in two decades - which included legalizing the undocumented population. Opponents criticized those efforts as providing "amnesty" to millions of illegal immigrants.
When the legislative effort fizzled, Bush settled for pursuing a more measured approach through stepped-up Border Patrol efforts and workplace enforcement by Immigration and Customs Enforcement agents, as well as supporting ways to check whether employers have workers who are in the country illegally.
"The administration acted when Congress failed," said Laura Keehner, spokeswoman for the Department of Homeland Security. "We had a number of different initiatives that we thought were important to gain back the people's trust to ensure our borders and crack down on illegal immigration. We have been working with the transition team to ensure they're aware of the important issues that will face them on day one. We have made no secret of how we think they should be dealt with going forward."
Several of those efforts are now subject to either congressional reauthorization or action by federal courts. Immigrant-rights advocates and their allies in the business community are ramping up their calls for significant changes or wholesale reversals. Advocates for immigrants are also looking to make hay out of the recession, arguing that the Bush administration's executive policies have further hurt employers and workers.
Workplace raids around the country in recent months have been only the most public of the Bush administration's efforts. Immigrant-rights advocates have criticized the raids heavily and intend to pressure Obama to shift course early in his administration.
Meanwhile, the advocates are pushing their cause in two legal cases that will likely be decided early in Obama's administration.
In the first case, pending in U.S. District Court for the Northern District of California, the Bush administration is defending an administrative rule that cracks down on employers with illegal immigrant workers. The rule would require employers to fire workers who cannot resolve discrepancies stemming from when their names do not match information in the Social Security Administration database. The legal battle over the "no match" letter rule has been waged since late 2007, but immigrant-rights lawyers expect a ruling in March or April.
The immigrant-rights community says the rule would go into effect at a bad economic time. The U.S. Chamber of Commerce, a key plaintiff in the case and supporter of expanding immigrant rights, commissioned an economic study earlier this year that found the rule could cost employers at least $1 billion per year. The study also showed that the rule could affect between 37,000 and 165,000 authorized workers who are unable to resolve the paperwork discrepancies.
The plaintiffs plan to make the economic argument central to their legal case early next year.
"This would be a disaster for U.S workers and U.S. small businesses even without the current economic crisis," said Laura Reiff, counsel to the Essential Worker Immigration Coalition. "To implement a rule like this that destabilizes the workforce so significantly would put the economy in more of a tailspin."
Opponents of ending Bush's executive orders believe the troubled economy makes the case for tighter illegal immigration policies.
"It seems to me this is exactly the time to purge illegal workers, because Americans can't get jobs," said Mark Krikorian of the Center for Immigration Studies, which opposes the expansion of immigration rights.
The immigrant-rights lobby says that the incoming administration could drop the government's legal case and let the rule fall by the wayside, or Obama could specifically lift the rule.
"The Obama administration could come in and settle it," said Randy Johnson, vice president of labor, immigration and employee benefits at the U.S. Chamber of Commerce.
Reiff said she expected the immigrant-rights community to prevail in court. "But it would gives us a little more comfort if the Obama administration lifted the rule," Reiff said.
Immigrant-rights advocates are also tackling a related homeland security system called E-Verify. The program, which Obama has supported, allows companies to voluntarily check whether their workers can be employed.
Keehner, the DHS spokeswoman, said there is "very little" reason for a company to avoid using the system, "unless you are for some reason in favor of hiring illegal immigrants."
The program is up for congressional reauthorization in March, but the more pressing matter is a planned expansion of the system next month.
The Bush administration issued an executive order requiring that federal contractors or subcontractors use the system. That has raised the ire of immigrant-rights advocates.
The Chamber of Commerce filed a lawsuit in federal court just last week against the proposed expansion. Unless there is a court injunction, the expansion will take effect on Jan. 15, less than a week before Obama is inaugurated.
"The DHS intends to expand E-Verify on an unprecedented scale in a very short timeframe, and to impose liability on government contractors who are unable to comply," Johnson said. "Given the current economy, now is not the time to add more bureaucracy and billions of dollars in compliance costs to America's businesses."