Questions Everyone Should Ask about Executive Amnesty

For months leading up to President Obama’s November 20th executive amnesty announcement, political leaders (from both parties – including the president himself up until about March), legal experts, and many in the media have been questioning the constitutionality of such a plan without legislative approval from Congress.

This fundamental question must continue to be asked until there is a definitive ruling from the courts. It is a question that goes beyond immigration policy; it goes to the very heart of our constitutional form of government.

The president’s move has also raised questions about whether granting amnesty, work authorization, and access to many government programs and benefits is good public policy. The American public seemingly answered that question on November 4 when it soundly reputed the president and his party at the polls.

But there are many other questions that need to be answered. Many of these questions have scarcely been raised, even as the administration gears up to implement the president’s amnesty program and Congress weighs its options for responding to this sweeping, unlegislated executive action.

The Federation for American Immigration Reform encourages the media and public to ask the questions that the administration and congressional proponents of the proposed legislation are avoiding:


How many people will receive amnesty? 

The figure commonly bandied about is about 5 million illegal aliens will receive formal protection from removal, known as deferred action, and be granted work authorization. The administration has laid out various categories of illegal aliens who will be eligible for deferred action and work authorization, but it has not set any numerical caps on the number of beneficiaries. At a time when jobs and stagnant wages remain the top domestic concern for Americans, what impact will these policies have on American workers and what measures, if any, will the administration put in place to protect these interests?

How will massive fraud be prevented? 

Eligibility for deferred action will be based on variety of criteria, such as family connections to U.S. citizens and legal permanent residents, and length of (illegal) residency in the U.S. According to information obtained by the chairman of the House Homeland Security Committee, about 20 percent of the applications for President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA) amnesty are fraudulent, even though the denial rate is about 5 percent. How will similar, or even higher, rates of fraud be prevented under the much larger executive action announced in November?

Marriage fraud has long been a serious problem. Even under its current workload, USCIS lacks the resources necessary to prevent significant numbers of people from gaining immigration benefits through marriage fraud. What additional resources will be made available to prevent fraud under this executive amnesty program?

In addition to marriage claims, how will USCIS verify claims of other family connections required for eligibility? Will DNA tests to determine paternity or maternity be required and, if so, what sort of technological capability would be necessary to carry out such tests on a scale anticipated by this program?

Since most illegal aliens have lived surreptitious existences using a variety of aliases how will the residency requirements for deferred action be verified? Proof of eligibility is likely to rely on a variety of self-serving attestations and easily acquired pay stubs, rent receipts, and utility bills. What systems are in place, or may be reasonably established to prevent widespread fraud?

Could the bureaucracy handle an amnesty? 

Although officials at USCIS claim that the agency is prepared to carry out an executive amnesty program, the agency is already crippled with massive backlogs from its current caseload, about 2.5 million according to the latest count. How would the agency cope with the pressures of administering a massive amnesty program while still carrying out its other duties?

The best estimates are that about 5 million people will qualify for deferred action under the Obama amnesty. There are approximately 500 working days for the balance of Obama’s presidency – meaning that USCIS would need to process and review an average of 10,000 applications each day. Even with a minimal review and processing time of 30 minutes per application, it would require 300,000 man hours each day to carry out the task. Has the administration added staff resources to deal with the flood of applications and at what cost to taxpayers?

Will personnel be shifted from other legislatively sanctioned duties to process deferred action applications?

There is nobody at USCIS whose job description includes processing applications for deferred action for the simple reason that doing so on a large scale has never been authorized by Congress. Thus, the only conceivable way that applications can be processed would be to reassign existing employees from existing duties to the task of carrying out the president’s amnesty program. What overall impact would reassignment of large numbers of USCIS and workers at other government agencies have on the provision of services to others who depend on these agencies?

How will processing deferred action and work authorization applicants be funded?

USCIS is largely funded as a fee-for-service agency. Has USCIS calculated the full cost of carrying out the key components of processing and reviewing applications for deferred action, verification of support material provided by applicants, the issuance of work authorization documents, criminal background checks, and other necessary procedures? Will the entire cost be passed along to applicants?

How will costs incurred by federal agencies outside USCIS be covered?

Carrying out the executive amnesty will require the participation of federal agencies outside of USCIS. These departments and agencies are not fee-for-service agencies. Will these costs be covered by the fees charged to applicants, or will the costs be covered by the general revenues appropriated to these departments and agencies?

Will USCIS have discretionary authority to offer fee waivers for those who demonstrate financial hardship?

Under the Deferred Action for Childhood Arrivals (DACA) program, a previous unlegislated amnesty program implemented by the administration in 2012, USCIS was granted the discretion to waive or reduce fees to applicants who could not afford the $465 charge for collection of biometric information and the issuance of work authorization documents. Will similar discretionary authority be granted to USCIS under the president’s newly announced amnesty program? If so, how will the processing costs be covered for those granted fee waivers or reductions?

How will effective background checks be carried out within a reasonable period of time?

The president’s executive amnesty program requires that each applicant undergo a thorough background investigation to ensure that criminals and terrorists are not granted legal presence in the U.S. Which federal agencies would be responsible for carrying out the background investigations? How much additional resources and personnel would be necessary to do meaningful checks on a caseload estimated to include about 5 million people?


Does the president’s executive action grant de facto amnesty to virtually everyone who does not receive deferred action?

A DHS memo that accompanied the president’s November 20th announcement states, “Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal.” Thus, virtually every illegal alien, “never convicted of a serious offense,” will be exempt from removal under the president’s action although they will not formally be granted deferred action or work authorization. (N.B. “never convicted of a serious offense” is not the same as never committed a serious offense.) How is this different from the de facto amnesty of the status quo that the president claims is unacceptable and is attempting to remedy through his executive action?

How will the administration’s priorities for removal – criminal aliens – be identified and removed?

The majority of criminal aliens removed in recent years were identified by police and sheriffs’ departments around the country through the Secure Communities program, not by Immigration and Customs Enforcement (ICE). The November 20th DHS memo states that Secure Communities is being terminated and will be replaced what is being called the Priority Enforcement Program (PEP). In what ways will PEP be different from Secure Communities and when exactly will it be operable? Will it rely on matching fingerprints collected by police and sheriffs with ICE’s database of criminal aliens and, if so, what is the point of terminating Secure Communities? Without Secure Communities, how will ICE continue to identify and remove criminal aliens?

In a memo addressing termination of Secure Communities, DHS Secretary Jeh Johnson directs that under the new PEP program, “ICE should only seek the transfer of an alien in the custody of state or local law enforcement through the new program when the alien has been convicted of” a very limited number of criminal offenses. He further clarifies that “unless the alien poses a demonstrable risk to national security, enforcement actions through the new program will only be taken against aliens who are convicted of specifically enumerated crimes.”

Given the elimination of the Secure Communities program and the narrowly defined limits on the use of the new Priority Enforcement Program, what assurances will the American public have that their security will be protected and how will the administration continue to pursue its stated priority of removing criminal aliens?

Will fugitive aliens with unexecuted deportation orders be removed?

According to the stated policies of the Obama administration, executing removal orders issued prior to January 1, 2014 will no longer be a priority. As a result, an estimated 900,000 such illegal aliens will be allowed to remain in the U.S. How much taxpayer money, court time and law enforcement man hours necessary to produce 900,000 deportation orders will be wasted as a result of this unilateral decision by the administration?


How many additional American workers will be affected by executive amnesty?

Many of the illegal aliens who will be eligible for deferred action and work authorization are already working illegally. However, their employment is limited to a relatively small number of employers who are prepared to violate federal law and hire illegal aliens. Once the president’s plan is implemented, some 5 million illegal aliens will be legally eligible for virtually all jobs in the U.S. economy. What impact will granting work authorization to millions of illegal alien have on U.S. workers?

How much will tax credits and government benefits and service to illegal aliens cost the federal Treasury?

According to data from the pro-amnesty Migration Policy Institute, 74 percent of adult illegal aliens living in the U.S. have a high school diploma or less, including one-third who have an 8th grade education or less. People with low educational attainment overwhelmingly earn low wages. As a result, nearly all who receive executive amnesty will become tax filers, not taxpayers. According to the Heritage Foundation, the net cost for government benefits, services and tax credits to those granted amnesty under the president’s program will be $2 trillion over the course of their lifetimes. What are the estimates of the Congressional Budget Office or the Office of Management and Budget of the costs or benefits of this presidential action?

If deferred action beneficiaries are exempted from the requirement of the Affordable Care Act (Obamacare), will it create an incentive for employers to hire them in place of American workers?

Administration officials have stated that illegal aliens who receive deferred action and work authorization will not be eligible for subsidized health insurance under the ACA. As yet, however, no regulations have been written restricting their coverage under the ACA. While barring them from ACA subsidized health insurance will save taxpayers money, it will also exempt their employers from contributing to their health coverage or paying a fine for not providing health care coverage to these employees. Thus, won’t employers have a significant financial incentive to hire work authorized illegal aliens American workers?

December 2014