The last few weeks have witnessed severe shocks to the health care system known as Obamacare. The President has issued mea culpas
for the not-ready-for-prime-time web site, Health.gov
, and for his campaign promise to Americans that if they liked their health insurance plan, they could "keep it. Period."
Americans who've lost their preferred health plan have also experienced shocks, of the sticker variety, when they learn the price of replacement coverage. Viewers of Washingtonian pratfalls who look at Beltway antics through the prism of immigration are neither surprised nor amused. There is no surprise to immigration stakeholders that a government web site intended to transform the way benefits requests are managed would fail, for we can spell "Transformation
" and "ELIS
" -- two immigration software programs with scads of dollars spent and little tangible product to justify the pathetic bang for the buck.
We are also little amused about promises broken, like the one where a newly elected President would address comprehensive immigration reform during his first year in office
. When it comes to immigration, the President's effort might better be dubbed, IfOnlyObamaCared. To be sure, he's tried the bully pulpit with no tangible success in the recalcitrant House.
But squawking is not PIPsqueaking -- a pragmatic and tangible way for the President to grant the 11 million undocumented among us respite from deportation through expanded use of Parole-in-Place or PIP, the discretionary power of the President under Immigration and Nationality Act (INA) § 212(d)(5)(A) to transform an unauthorized noncitizen in the U.S. into an individual with legal status
PIPsqueaking for the undocumented is a low-decibel measure that would position the undocumented to qualify for green cards through adjustment of status in the future under any of the otherwise available family- or employment-based immigrant visa categories. All that's required would be to grant PIP concurrently with another § 212(d)(5)(A)
benefit known as "advance parole" and with the issuance of an employment authorization document or EAD. This would allow the undocumented to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required.
A PIP/advance-parole/EAD three-step wouldn't fix everyone's status violations (it wouldn't absolve those who have accepted unauthorized employment unless they are the spouse of a citizen or otherwise fall within a forgiveness provision). But it would go a long way to help the undocumented live in this country, under humane conditions, by giving them a chance to earn a living, buy a house or car, purchase insurance and care for their kids.
To its credit, the Obama Administration has approved PIP for citizens of the Commonwealth of the Northern Mariana Islands
whose work permits would otherwise have expired. More broadly, just last week the President's immigration-benefits agency, U.S. Citizenship and Immigration Services (USCIS), to its credit, issued a policy memorandum authorizing PIP benefits for the undocumented relatives (parents, spouses and children) of "active members of the U.S. Armed Services
, [as well as] individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve." USCIS approved PIP eligibility while mindful that active and former U.S. military personnel "face stress and anxiety because of the immigration status of their family members in the United States." Thus, the USCIS memo decreed:
| || |
Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.
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The President's choices are clear. He. . . . can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.
Had he exercised more mojo than compromise on health care, he would have instead pushed for a simpler "Medicare for all" program that would not have required entanglement and enmeshment with insurance companies that cancel policies. Nor would he have needed a highfalutin web site for Americans seeking insurance to career through the myriad choices of coverage under the new health-care exchanges.
Had he pushed on immigration reform earlier in his first term, he'd not be facing the dirge of mourners for the failure of comprehensive immigration reform today. America loves to give second chances. This is Barack Obama's. PIPsqueak your way to immigration salvation, Mr. President.
by Cyrus D. Mehta
, ABIL Lawyer and Gary Endelman The Insightful Immigration Blog
“The only true test of leadership is the ability to lead and lead vigorously”
President John F. KennedyT
he Republican National Committee passed a resolution
on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.
This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.
Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections. What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress
that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.
The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures
. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members
. It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party. First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border
(which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small. It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.
This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways. It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways
initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.
While the authors support the passage of S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN. Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals
, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.
The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized) may not be such a bad thing.
The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.). Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined
by Cyrus D. Mehta
, ABIL Lawyer and Gary Endelman The Insightful Immigration Blog
Since President Obama’s decisive re-election victory, there has been a growing realization, mainly among Republicans, that the party will continue to be decimated in future elections if it does not take action on reforming the broken immigration system. It is clear that Romney’s comments on self-deportation
, along with his embrace of Kris Kobach, the architect of the anti-immigrant laws of states like Arizona and Alabama, hurt him terribly among Hispanic voters in his quest for the White House. Recently, House majority leader John Boehner has pledged to work with the President and the Senate, which is controlled by the Democrats, to reach a deal on immigration
. This would have been unthinkable before the election results on Tuesday, November 7 and is like music to the ears of immigration advocates who have been complaining for years about the need to fix the immigration system.
This bonhomie among GOP leaders and pundits for positive immigration reform may be short lived. Rancor may soon set in, as it is already happening, with regards to preventing the “fiscal cliff.” The country is still divided evenly, and a foreign newspaper, the Times of India, after the 2012 elections, astutely called us “The Divided States of America.” We still ardently hope that Congress can bring about comprehensive immigration reform (CIR), which would include an expansion of green card categories and temporary visas, along with the legalization of the 12 million or so undocumented people living here and contributing to the US. In order to prevent a buildup of the undocumented population in the future, reform must also allow for visas that would facilitate future flows of legal workers.
While all this is achievable, and a deal can be struck, it could also come apart if the bottled up enmity between the two parties flares up again. Notwithstanding the likes of Sean Hannity moving over to the side of CIR
, there is bound to be rebellion in the rank and file of the Republican party, which considers CIR anathema. In his stirring victory speech
Obama said, “We believe in a generous America, in a compassionate America, in a tolerant America, open to the dreams of an immigrant’s daughter who studies in our schools and pledges to our flag.” But Obama still has the ability to deliver his promise to the Hispanics, Asian Americans and others who voted him in and routed Romney in the event that Congress enters into another stalemate. He has a powerful card up his sleeve, and this is his ability to provide relief through administrative action. Administrative action is not a perfect alternative, as the President does not have the power to give green cards without Congressional authorization. But he does have the power to defer the deportation of large groups of undocumented immigrants, as he did through the Deferred Action for Childhood Arrivals (DACA) program, which we have shown can withstand judicial scrutiny
. He can expand DACA to a broader group of undocumented immigrants who have lived in the US for say 5 years, and have not been convicted of a felony or three misdemeanors. As we have shown in our prior blog, Issues Ripe for Rulemaking: Some Modest Proposals
, there is no prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required. This could be done purely by act of regulation or even through a policy memo. For those who want a statutory basis, the USCIS can rely on its parole authority under INA 212(d)(5) to grant such interim benefits for “urgent humanitarian reasons” or “significant public benefit.” This we have explained previously in Comprehensive Immigration Reform Through Executive Fiat
Knowing the power of the President to take action on his own, Congress will want to remain relevant and protect its institutional prerogative by enacting legislation so as to avoid creating the opportunity for the exercise of presidential initiative. That is why Obama might want to enlarge DACA to other groups, not as an alternative to CIR but to make it more likely. If he announces broader initiatives, he can use them as a bargaining chip to withdraw if and when Congress acts. The President remains the First Officer of our Government and, as the Republicans are beginning to realize, the political saliency of the immigration issue can no longer be denied or deferred. By keeping the pressure on through the sustained but disciplined assertion of executive initiative, the President makes it more likely, not less, that CIR will make the bumpy transition from rhetoric to reality.
by Leon Sequeira
, Associate with ABIL Immediate Past President, Angelo Paparelli Nation of Immigrators
[Blogger's Note: Today's blog comes from an erstwhile Washington insider, Leon Sequeira, a former Assistant Secretary of Labor for Policy at the U.S. Department of Labor, who offers a view beyond the ken of most business immigration lawyers, including myself. Leon's topic is the arcane and dense subject of the H-2B visa category for skilled workers in short supply (proven through a labor market test) whose prospective job will be seasonal or "temporary." U.S. Citizenship and Immigration Services says a job is temporary if it involves "a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need." H-2B workers must also be coming "temporarily" to the U.S. (meaning that s/he can establish the intent to return to his/her permanent residence abroad). Moreover, not every foreign citizen can obtain an H-2B visa; rather, the individual must be a citizen of one of an alphabet soup of countries, ranging from Argentina to Vanuatu. Leon also represents a group of plaintiffs in a pending suit against the DOL challenging its administration of the H-2B visa program. Because he knows whereof he speaks, this post is a must read for anyone wanting a clear understanding of how the Executive Branch can reap chaos when it builds an immense regulatory superstructure to interpret spare legislative text and regulate the U.S. economy. The law of unintended consequences is thus on full display.] Immigration-Reform Duplicity: The Obama Administration's New Temporary Worker Rules By Leon Sequeira
We’ve all heard lots of happy talk over the past few years from the Obama Administration about the need for comprehensive immigration reform. Regular readers of this blog are no doubt familiar with the President’s platitudes
concerning his desire to do something about the undocumented and our broken guestworker programs. After three-plus years, however, many are left wondering where and when we’ll actually see some action. Lost in all the focus group-tested talking points and splashy videos on the White House website
, touting a commitment to fixing our immigration system, is the fact that one of the President’s cabinet secretaries has been quite busy implementing immigration reform – a very troubling version of immigration reform.
On January 21, the Department of Labor released a massive 145-page revision
of the H-2B temporary non-agricultural worker program regulations that will dramatically increase the bureaucracy, complexity, and cost of the program. This so-called “reform” follows closely on the heels of DOL’s revisions last year
to the regulations describing the process for calculating wage rates in the H-2B program. Taken together, the two regulatory packages look a whole lot like a comprehensive effort to destroy a guestworker program. The H-2B program
enables employers to hire foreign workers to fill relatively lower-skilled temporary or seasonal non-agricultural positions when U.S. workers will not take the jobs. H-2B should not be confused with the H-2A program
, which applies to agricultural workers and which is also under attack by DOL, but that is a post for another day. H-2B should also not be confused with the H-1B program
for specialty (often high-tech) occupations.
The H-2B program is capped at 66,000 visas annually, but in the past couple of years fewer than 48,000 visas per year
have been claimed. It should come as no surprise that with decreased business activity during the great recession, many employers need fewer employees to keep up with customer demand. But even with an average national unemployment rate of nearly 9% over the past year, there continue to be numerous temporary and seasonal jobs that U.S. workers simply do not want to perform. H-2B workers often fill these jobs and by doing so enable businesses across the country to flourish and employ scores of U.S. workers in other positions.
DOL’s culminated its first assault on the H-2B program in 2011 when the agency decided to dramatically accelerate implementation
of the new wage regulations and require employers to immediately increase H-2B wage rates by, in some cases, more than 120%. DOL launched this broadside based on an illogical premise that the wages being paid by H-2B employers, which are set by DOL to ensure no adverse effect on U.S. workers, were somehow causing wage depression. Never mind that DOL produced no evidence of wage depression caused by H-2B workers. Nor did DOL explain how a mere 48,000 H-2B workers, spread across dozens of occupations from coast to coast could possibly result in wage depression in an economy that employs nearly 140 million people.
Perhaps most glaring was DOL’s failure to explain why, even if wage depression did exist, it would not be more likely to be the result of some 10 million undocumented in the workforce, rather than the 48,000 H-2B visa holders who were in the country legally working (at DOL-mandated wages) for only a few months at a time. Just a few years ago in another rulemaking
, DOL reached that precise conclusion: to the extent any wage depression could be said to exist, it is likely the result of the undocumented who frequently toil in an underground economy.
In stark contrast to DOL’s current baseless assertions, economic studies
have found that rather than depressing wages, H-2B employment is associated with rising wages, and perhaps just as importantly, job growth.
Facing the ruinous costs that would be imposed by DOL’s 2011 regulations, several H-2B employers and industry trade associations filed two separate lawsuits in September (one in Louisiana and one in Florida) against DOL in an effort to block the wage regulations from taking effect. It turned out that employers were not the only ones outraged by DOL’s actions. Before either court could rule on the employers’ requests for an injunction, Congress entered the fray. Democrats and Republicans, in a rare show of bipartisanship, joined together to stop the DOL regulations for the remainder of the fiscal year with an amendment to the agency’s 2012 funding bill. Barbara Mikulski of Maryland, one of the Senate’s most liberal members, led that successful effort
. As a result of the political fallout, and in a major rebuke to his own Department of Labor, the President was left with no real option other than to sign the legislation into law.
Undaunted, however, DOL continues its White House-approved assault on the H-2B program with the latest round of regulations scheduled to take effect on April 23. Congress is watching and over the past couple of weeks, the Labor Secretary has been aggressively questioned
during budget hearings about the rationale for Department’s actions. Largely dissatisfied with her answers, members of both the House
have now introduced resolutions disapproving of the regulations. Unless these latest regulations are blocked by a federal judge or by Congress, 2012 could mark the beginning of the end not just for the H-2B program, but also for a number of U.S. businesses that rely on H-2B workers. As the old saying goes, actions speak louder than words. Unfortunately, the Administration’s troubling actions thus far implementing immigration reform are a long way from the President’s soaring rhetoric on the topic. This disconnect should give pause to both employers and immigration practitioners who believe we can’t wait for this President to act.
, ABIL Immediate Past President Nation of Immigrators
“Damn with faint praise, assent with civil leer And, without sneering, teach the rest to sneer"
~ Alexander Pope
, poet, satirist, and translator, “Epistle to Dr Arbuthnot
I hesitate to criticize the Obama Administration's immigration reform measures, having urged long ago that half a loaf, at least for now, will perforce suffice
. Hastily announced but untimely in manifestation, the slew of executive half-measures the President's team has lately proposed to improve the functioning of America's broken immigration system seem reminiscent more of vaporware
than tangible solutions.
With less than a year to go on his term, executive orders and departmental or agency press releases are spewing forth as if from a Gatling gun
Will these concepts really make a difference? Or are they merely pheromones
to attract progressive, young or Hispanic voters in November?
Consider how much has been said but so little done:
- Prosecutorial Discretion is announced as a measure to spare low-level immigration violators and slam dangerous foreign felons. So far the record deportations continue almost unabated and the few granted PD are permitted to remain at the pleasure of the President but without deferred action and its benefit of work permission.
- Stateside waiver processing for immediate relatives of U.S. citizens whose hardship can be proven as extreme is revealed in a seemingly humanitarian Notice of Intent and an FAQ. But no rules or procedures have yet been published, and the risk of death-by-visa-waiting remains as high as ever.
- An interdepartmental push to improve visa processing and promote tourism is inscribed in an Executive Order, with special focus on increased consular officers in Brazil and China. Still, nothing is said about tourists and business visitors from India whose rupees are as easily converted to dollars and spent in our malls. Worse yet, no reforms are made by the State Department that would moderate consular absolutism and encourage visa officers -- by amendment of the Foreign Affairs Manual -- to extend a welcome mat more often to foreign visitors with lucre to spend.
- A DHS grab bag of small measures are announced with the goal "to retain highly skilled workers." These ethereal proposals will likely affect only a tiny slice of the job-creating nonimmigrant population. The list of unrealized hopes includes a nebulous assemblage of H-4 dependents married to H-1B workers "who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S." It also makes note of the leisurely first convening on February 22 of an "Information Summit [at an undisclosed location] in Silicon Valley, CA [where is that? I can't find the city on my California map], that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies [first announced on August 2 of last year as step one of the Entrepreneurs in Residence program] to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent."
Desultory blather and high-falutin' promises will not jumpstart job creation. Deeds not words -- published forms, specific eligibility criteria and actual procedures to request new benefits -- are what real administrative reforms require.
There are many bold steps that could be taken to improve our dysfunctional system even while Congress remains comatose. Gary Endelman and Cyrus Mehta suggest a Presidential tweak in the interpretation of green-card counting procedures that would eliminate backlogs and do far more than merely granting spousal work permission "to retain highly skilled workers" ("Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen
"). Other proposals have been offered in this blog ("Executive Craftsmanship: Job Creation through Existing Immigration Laws
," "The Immigration Appeaser-in-Chief Should Try Some New Ammunition
" and "Immigration Reform with the Stroke of a Pen
"). When it comes to executive action on immigration, the nation needs a profile in courage not a silhouette of timidity. The first Tuesday in November is fast approaching. Time waits for no President.