QUESTION: How does the president have authority to grant work authorization cards to young illegal aliens? Under the Constitution, only Congress can create laws, so how does the President have the authority to do this?

THE IMMIGRATION ANSWER MAN – ARI SAUER: The answer is that the President did not create a new law or rule when he made his announcement on June 15th. The rule that the President discussed last Friday, Deferred Action, has been around for a while.

The Immigration and Nationality Act (INA) Section 103(a) grants the Secretary of Homeland Security  the authority to administer and enforce the rules of the INA, which includes the rules governing removal of aliens and the issuance of work authorization documents. Before the formation of the Department of Homeland Security, this authority was granted to the Attorney General. Deferred Action, which is the authority of the administration to give some cases lower priority in enforcement, has been around since at least 1974, when it was known as the “nonpriority” program, although it was not publicly known. In 1975 INS issued a public Operating Instruction renaming the rule the Deferred Action program and authorizing INS District Directors to grant Deferred Action in cases where it is determinied that deportation would be unconscionable because of the existance of appealing humanitarian factors. The Operating Instructions advised that the factors to be used in deciding whether to grant Deferred Action should be:  (1) advanced or tender age; (2) many years’ presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States- effect of expulsion; (5) criminal, immoral or subversive activities or affiliations- recent conduct. Although the INS Operating Manuals are no longer in effect, the rule of Deferred Action has continued to be used by USCIS where it is determined that humanitarian considerations warrant it. Recent USCIS guidance lists the current factors to be used used in deciding whether to grant Deferred Action as 1) the likelihood of removal; 2) the presence of sympathetic factors; 3) The likelihood that because of sympathetic factors, a large amount of adverse publicity will be generated; 4) The person’s continued presence is desired by law enforcement for an ongoing investigation or review; 5) Whether the individual is a member of a class of deportable aliens whose removal has been given high enforcement priority (e.g., terrorists, drug traffickers).

Congress has expressly recognized this authority of the DHS by making changes to the INA to require the DHS to grant Deferred Action to certain abused spouses and children of US citizens and to certain spouses and children of members of the US military who were killed in action.

The immigration regulations, at 8 CFR 274a.12(c)(4) allow for employment authorization to be granted to an alien who has been granted Deferred Action, if the alien can show an economic necessity for employment.

So the President did not make any new law with this Deferred Action rule. He has the authority as the President to instruct the Secretary of the Department of Homeland Security to us his authority granted under INA 103(a). Executive administrations have been using this authority for decades. All the President has done is stated that this particular group of young people are one group of people that we wish to grant Deferred Action to.

For more current information about this rule please see my other posts and please follow this blog for future updates and changes to the rule:

How do I know if I am eligible to apply for the Deferred Action Process for Young People that President Obama announced?

What do people need to do now in order to apply for the “DREAM” Deferred Action?

Can you benefit from the “DREAM” Deferred Action rule if you entered the US without inspection?

What kind of criminal convictions will make someone ineligible for the “DREAM” deferred action?

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* This is an advertisement. Ari Sauer is an attorney with the Siskind Susser law firm. www.visalaw.com/ari.html. On this blog we answer questions as a service to our readers, but we cannot assume any liability related to reliance on anything herein, and responses to questions are not intended to establish an attorney-client relationship. Immigration laws and regulations are constantly changing and the rules stated may not apply to your situation. Readers are cautioned to schedule a consultation with an immigration lawyer before acting on anything stated in this blog. This blog is not intended to substitute for a consultation with a qualified immigration law attorney. Ari Sauer is licensed to practice law through the states of New York and New Jersey. Certification as an Immigration Specialist is not currently available in Tennessee, New York or New Jersey. Siskind Susser limits its practice strictly to immigration law, a Federal practice area, and we do not claim expertise in the laws of states other than where our attorneys are licensed.