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.

Photo of Brian D. Smith Brian D. Smith

Brian Smith assists clients with challenging public policy matters that combine legal and political risks and opportunities.

Brian represents companies and individuals facing high-profile and high-risk congressional investigations and hearings, and other criminal, civil, and internal investigations that present legal, political, and public…

Brian Smith assists clients with challenging public policy matters that combine legal and political risks and opportunities.

Brian represents companies and individuals facing high-profile and high-risk congressional investigations and hearings, and other criminal, civil, and internal investigations that present legal, political, and public relations risks. He assists companies and executives responding to formal and informal inquiries from Congress and executive branch agencies for documents, information, and testimony. He has extensive experience preparing CEOs and other senior executives to testify before challenging congressional oversight hearings.

Brian develops and executes government relations initiatives for clients seeking actions by Congress and the executive branch. He has led strategic efforts resulting in legislation enacted by Congress and official actions and public engagement at the most senior levels of the U.S. government. He has significant experience in legislative drafting and has prepared multiple bills enacted by Congress and legislation passed in nearly every state legislature.

Prior to joining Covington, Brian served in the White House as Assistant to the Special Counsel to President Clinton. He handled matters related to the White House’s response to investigations, including four independent counsel investigations, a Justice Department task force investigation, two major oversight investigations by the House of Representatives and the Senate, and several other congressional oversight investigations.

Brian is a Professorial Lecturer in Law at the George Washington University Law School.

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 cross-border investment, national security, cybersecurity, supply chain security, and public policy matters. He has particular expertise representing leading global investors and U.S. companies…

Jonathan Wakely practices at the intersection of national security and the private sector, advising clients on a range of significant cross-border investment, national security, cybersecurity, supply chain security, and public policy matters. He has particular expertise representing leading global investors and U.S. companies in securing U.S. national security-related regulatory approvals for foreign investments, and has advised on transactions with a combined value of over $250 billion.

Jonathan 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). Clients regard Jonathan as “fantastic and a rising star,” commenting that he’s “an excellent lawyer” and applauding his “great understanding of CFIUS work” (Chambers USA).

Jonathan has represented clients on national security reviews in virtually all sectors, including semiconductors, telecommunications, financial services, software, IT services, energy, and real estate. His representations include, for example, the landmark CFIUS-based defense of Qualcomm against the attempted hostile takeover by Broadcom; representing Ford Motor Company before CFIUS in multiple strategic transactions, including the $2.6 billion investment by Volkswagen in Ford’s autonomous driving subsidiary, Argo AI; and securing approval from Team Telecom for Univision’s $4.8 billion merger with Televisa. He has also negotiated and advised companies on compliance with many of the most significant, complex, and sensitive national security agreements of the past decade.

Clients also turn to Jonathan for advice on strategic business and policy matters related to U.S.-China competition. He is regularly engaged by multinational businesses—including some of the world’s leading technology companies—to assist in developing legal and business strategies related to positioning with respect to China. He has recently advised clients on implementation of the CHIPS Act, the potential for regulation of outbound investment, and other economic “de-coupling” measures.

Jonathan has been recognized by various publications for his work on national security matters, including as one of the world’s leading foreign investment lawyers under 40 by Global Competition Review, as a “DC Rising Star” by The National Law Journal, as a “Rising Star” by Law360, and as a leading CFIUS expert by Chambers USA.

In addition to his legal practice, he is an adjunct professor at the Georgetown University Law Center, where he teaches a course on national security and the private sector. Jonathan 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.