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.