The most controversial element of President Obama’s executive action on immigration is on-hold for what could prove to be indefinitely. The Obama administration’s request for an emergency stay and appeal in response to a Texas court’s injunction of the president’s expansion of the Deferred Action for Childhood Arrivals (DACA) program has been denied.
The original DACA program began without controversy in 2012 and is not affected by the injunction. As a part of the president’s more comprehensive reform efforts in November 2014, however, the attempted expansion of deferred action and granting of employment permission to projected millions was met with immediate and vocal opposition. A coalition of 26 states quickly sought an injunction against the expansion of DACA and successfully established standing to bring their lawsuit based on the anticipated expenses associated with issuance of driver's licenses to undocumented immigrants in Texas.
In response, the Obama administration requested a stay of the injunction, along with an appeal on the merits. While the stay has been denied, a hearing on the appeal is set for July, which should make for an interesting backstory, as the presidential election season continues to pick up momentum. The crux of the appeal will be whether the president's executive action rises to the level of formal rulemaking, which requires specific notice and comment periods under the Administration Procedures Act, or whether it is a mere articulation of agency discretion on enforcement priorities.
Meanwhile, other less controversial aspects of the president’s executive action are moving forward, including acceptance of employment authorization applications from spouses of certain qualifying H-1B workers and rule-making on the L-1B program for specialized knowledge workers of international corporations. There has been no news yet on measures related to temporary solutions for foreign national entrepreneurs or those facing a decades-long backlog on green card issuance.