Counterplan solves.

The use of parole by the Executive acting sua sponte in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict come readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. Even those who are in removal proceedings or have already been ordered removed, and are beneficiaries of approved petitions, also need not wait until eternity for Congress to come to the rescue. The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien.16 This safety valve will fix our broken system of future flows by allowing those who could not qualify for any other visa option to have new hope and unimagined choices. There are those who argue that only Congress can make immigration policy in this fundamental way and this reservation is both serious and worthy of deep respect. Yet, we have a dysfunctional Congress that is or appears to be incapable or unwilling to reach consensus on immigration. Do we as a society simply throw up our hands and do nothing, allowing a bad situation to become worse or do we use this challenge as an opportunity to create something better through temporary and targeted executive action that Congress can either overturn or accept at a later date? There are several examples of administrative action to create new immigration policy in the face of Congressional inaction in recent years. In the STEM OPT regulation, the USCIS openly admitted that granting an additional 17 months of employment authorization was a regulatory response to an inadequate H1B quota. When they limited the validity of a labor certification of 180 days, the US Department of Labor did so on their own without the fig leaf of legislative authorization.17 Remember when the AAO handed down the decision in New York State Department of Transportation,18 thus effectively repealing the national interest waiver statute for several years until the relaxation came?19 Finally, under the Cuban Adjustment Act of 1996, even if the Cuban national entered without inspection, the former INS Commissioner Doris Meissner clarified that the Service could use its authority under the humanitarian and significant public benefit criteria in Section 212(d)(5) to parole Cubans who had entered without inspection under the fiction that the individual would surrender to the government, which in turn would release or parole him or her, and thus render them eligible for adjustment of status under the CAA.20 Did Congress tell them they could do that? All of these actions, and many others not singled out, had profound effect but depended solely upon the imaginative exercise of executive authority yet consonant with a proper respect for separation of powers. So we can do so here. Those who do not think so ignore at their own peril and ours the fundamental distinction between making policy, which only Congress can do, and implementing tactical adjustments, which the Executive is uniquely suited to do. This is why only Congress can create a legal status while the Attorney General can authorize a period of stay. This is why only Congress can enlarge the EB quota but the Executive can allow adjustment applications without a quota expansion so long as final approval is not forthcoming. This is why only Congress sets visa limits while the Executive can grant parole. This is why only Congress sets work visa law but the Executive can issue EADs. To suggest that Congress must act in both a long and short term context is to ignore the historic and legitimate differences between the two branches of government. If Congress wants to overturn such executive action, it can do so. Likewise, if it supports the President, it can stay its hand. Either way, Congress is expressing its will, whether through positive action in the form of legislation or negative action in the form of silent acquiescence. Both action and its absence are authentic manifestations of congressional intent and expressions of congressional authority. In reality, we all know that there are 40 votes in the Senate to uphold such regulatory initiative. Congress will be more than content to allow the President to take the lead and solve what it has manifestly been powerless to solve- how to regulate both past and future migration flows; how to solve the growing unskilled worker backlog; how to ameliorate the gratuitous cruelty of the 3/10 year bars; how to reduce the size of the undocumented population who may already working here and contributing to the exchequer and how to satisfy the hungry manpower needs of employers once the dark cloud of recession lifts without creating a single new immigrant visa. When has so much come from so little? We do not say that CIR can be cast aside for there are many people who will never be the beneficiary of an I-140 or I-130. Ours is a far more modest proposal. We seek only to broaden the debate and widen the national conversation. Now is the time for what Franklin Roosevelt rightly called "persistent, bold experimentation." We must not wait for Congress to act. However important CIR remains, it is not the only way.