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.
| || |
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.
Immigration law and tax law, although at first glance strikingly different, share much in common. Each rivals the other in complexity. Each permeates every nook and cranny of human behavior -- from commerce and criminality to love and divorce, from mental illness to extraordinary brilliance, from birth to death and everything in between. Though each is a distinct legal discipline, they are but variant species within the general fields of administrative law, litigation and appellate law, public and private international law, family law, estates and trusts, criminal law, and of course constitutional law. The sting of taxes -- forever coupled with death as life’s two unavoidable realities -- likewise is yoked to our all-pervasive immigration laws in ways both subtle and obvious. Yet Americans are outraged when tax laws and revenue agents bite them, but seem scantly or not at all troubled when our immigration laws and their bureaucratic enforcers devour people and property rights. No doubt this disparity of concern proves the maxim that it all depends on whether your own or your neighbor’s ox is gored.
Thus, amnesty generates nary a peep if granted to tax cheats
, but stands as an outrageous transgression against the rule of law if leniency and pragmatism are offered to aspiring Americans who lack legal status. So too with the terabytes of digital ink spilled over the recent revelation that IRS agents in Cincinnati
probed more searchingly applicants for non-profit designation of the Tea Party persuasion than supplicants on the left.
A scandal to be sure, but why is the public not similarly incensed when immigration agents cross the line and behave not as neutral technocrats but as political actors?
Consider the recent action of the federal union representing the officers of U.S. Citizenship and Immigration Services (USCIS) who announced in a press release
that it had signed on to a letter issued
by another government union, the National Immigration and Customs Enforcement Council, which represents officers of a different immigration component of the Department of Homeland Security (DHS), U.S. Customs & Immigration Enforcement (ICE).
As The New York Times
observed in a recent editorial
, “Leaders of [the ICE and USCIS] unions have joined antireform hard-liners in trying to kill the [comprehensive immigration reform (CIR) bill that just passed the Senate Judiciary Committee], showing an unbending hostility to its goals. The unions, sounding like health care workers forced to engage in practices that violate their collective conscience, and a bit like erstwhile presidential candidate, Rudy Giuliani, offer a scurrilous letter that resurrects all too familiar bogeymen as punching bags: “illegal aliens,” “gangs,” and “9/11.” Sadly, however, as The Times
observes, “[what] any of these false charges has to do with the work of immigration agents -- which is to enforce the immigration laws as written -- is beyond us.” Indeed, there is a "certain piquancy
" when "conservative" Republicans opposing CIR scurry to become bedfellows with federal labor unions, clearly miffed at not being consulted by the Gang of Eight.
Where is the popular outrage over the scandalous behavior of immigration officers
that is just as abhorrent as the misadventures of errant IRS officials? The actions of the IRS involved comparatively few agents in an understaffed local office, whereas the union leaders’ letter is offered as the shared belief of 7,000 ICE agents and 12,000 USCIS employees. To immigration lawyers
, the letter and press release are shocking not so much for their contents as the brazenness displayed in their publication. With far more visibility than Luther’s famous nailing of his views on the Wittenberg church door
, these unions are throwing down the passive-aggressive gauntlet
to Congress, the Obama administration, and the leadership of DHS. They declare, in essence, “pass what you will, but watch how we interpret, apply and enforce the law!”
The unions raise hobgoblins over the discretion that the Senate bill, S. 744, would give to "political appointees" who allegedly prevent these oath-bound officers from administering the strictest letter of the law. Yet they fail to recognize that the absence of discretion in enforcement created the pickle we are in. A nation that will not tolerate and cannot pay for the mass deportation of 11 million people must grant our only nationally elected leader, the President, and his chosen team, the power to be strict with those who threaten our safety and lenient with those who do us no material harm.
The immigration unions' power play has unmasked their insubordination
for all to see. They do not want merely to apply the law as written but to pick and choose the laws they will enforce and be the rulers themselves
. No government should tolerate this flouting of legislative will and executive authority.
Congress should recognize its mistake when, in passing the Homeland Security Act, it moved USCIS, the immigration benefits agency, from the Justice Department, where that function had historically resided, and co-mingled it irreconcilably with immigration enforcement at DHS. CIR should put USCIS back into DOJ. The legislation should also abolish USCIS's Fraud Detection and National Security Directorate
, and reaffirm that the immigration enforcers' power to nab fraudsters, terrorists and other lawbreakers is a shared but exclusive function of the interior and border immigration police, respectively, ICE and U.S. Customs and Border Enforcement. Congress must also recognize its failure of immigration oversight
that allowed the types of immigration scandals reflected by the unions' power grab to occur.
The President and the DHS leadership team must also grow spines. Discipline and pink slips are the proper responses to insubordination
. The wrong way to go would be to give the unions more power to fashion law in their image, as President Obama reportedly did in 2009 when signing an "an executive order to allow the [IRS] union to have pre-decisional involvement in all IRS workplace matters
In the final analysis, taxation and immigration -- and their associated scandals -- illustrate the same problem. It arises when career bureaucrats are allowed to trample the rule of law in fits of partisan excess, and elected leaders, failing in timely oversight, are outraged only when the spotlight of media attention leads to enough public discontent that tenure in office and the prospects for reelection are threatened.
With the Obama Administration
and lawmakers in both parties
promising to fix our dysfunctional immigration system, it's time for a reality-based understanding of global migration and a fresh choice of words.
As Prof. Fariborz Ghadar
, Senior Advisor and Scholar at the Center for Strategic and International Affairs, observes:
Just as a teenager grows up and dismisses the simplistic views espoused in the fairy tales of childhood, so too must we as a nation face the reality that we are no longer the world leader in welcoming talent.
Beyond global awareness, if we hope to make America more inviting to those whom we would woo, our words of intended welcome should not be unwelcoming.
Consider how, by statute, we label all manner of entrants, be they visitors, temporary workers, would-be immigrants or those long ago granted permanent residency. We call them "aliens" -- a word in all its inhospitable and off-putting variations that invokes the strange, the frightening, the incompatible, the dreaded other.
Consider too these dictionary definitions:
| || |alien
1 [more alien; most alien] : not familiar or like other things you have known : different from what you are used to
▪ She felt lost in an alien [=strange] culture when she moved to the city.▪ an alien environment▪ Honesty seems to be an alien concept in that family. [=people in that family are not honest]— often + to▪ The whole idea of having a job was alien [=unfamiliar, foreign] to him.
2: from another country :foreign
▪ alien residents
3 [more alien; most alien] : too different from something to be acceptable or suitable — + to▪ Such behavior is totally alien to the spirit of the religion.▪ ideas alien to [=incompatible with] democracy
4: from somewhere other than the planet Earth
▪ an alien spaceship▪ The movie is a story about an attack on Earth by an army of alien [=extraterrestrial] monsters. alienate
1.Cause (someone) to feel isolated or estranged.2.Cause (someone) to become unsympathetic or hostile: "the association alienated its members".
1: to make unfriendly, hostile, or indifferent especially where attachment formerly existed
2: to convey or transfer (as property or a right) usually by a specific act rather than the due course of law
3: to cause to be withdrawn or diverted
Synonyms: alien, estrange, disaffect, disgruntle, sour
When, decades ago, I first began practicing immigration law, I didn't give the word much thought, despite its alternative meanings, because it was -- as the law professors taught -- a "term of art
." As a technical matter, the Immigration and Nationality Act § 101 [8 U.S.C. § 1101], provides:
§ 101(a) Definitions As used in this Act-- . . . (3) The term "alien" means any person not a citizen or national of the United States.
Somehow, as a defined statutory term, it seemed less harsh. Perhaps the term also didn't bother me as much as its alternative meanings might suggest because of an early scholar of immigration who influenced and mentored many new practitioners, Maurice Roberts
, Editor of Interpreter Releases
(then the "Immigration Bible") and a former Chairman of the Board of Immigration Appeals. Avuncular Morrie pronounced the word with a soft voice in what seemed an even softer, almost affectionate, way. He called non-citizens "AIL-yuns," which to me sounded pleasant, like "millions," or impressive, like "stallions."
But times and phrasings have changed. We would never refer to people of color today, as "colored" -- the term generally used in the 1950s for African-Americans and other non-Caucasians. So, "aliens" -- the word -- must go.
We should also drop the term "nonimmigrant" from our statutory lexicon because it defines by negation and suggests an inhospitable negativity. Call everyone either visitors (entrants who will stay briefly), sojourners (temporary residents) or immigrants (permanent residents), depending on the envisioned length and purpose of their stay.
If the importance of welcoming words seems like over-the-top political correctness, pause before final judgment, and listen to journalist and poet Musa Okwonga performing "the Migrant Manifesto
America need not surrender its sovereignty. It need not open the borders for all to enter. It must make hard choices, yet do so with respect for the dignity of all. As we advocate for 21st Century immigration laws, and as Congress begins to fashion statutory text, we would all do well to consider these stirring words from "the Migrant Manifesto":
We have been called many names. Illegals. Aliens. Guest Workers. Border crossers. Undesirables. . . .
We demand the same privileges as corporations and the international elite, as they have the freedom to travel and to establish themselves wherever they choose. We are all worthy of opportunity and the chance to progress. We all have the right to a better life. . . .
We believe that the only law deserving of our respect is an unprejudiced law, one that protects everyone, everywhere. No exclusions. No exceptions. We condemn the criminalization of migrant lives. . . .
To be a migrant means to be an explorer; it means movement, this is our shared condition. . . . We have the right to move and the right to not be forced to move. . . .
When the rights of migrants are denied the rights of citizens are at risk.
Dignity has no nationality.
On a similar theme, as Ai-jen Poo
, the director of the National Domestic Workers Alliance and co-director of the Caring Across Generations Campaign, notes:
We need immigration policies that reject “us versus them” approaches and instead support integration and connection between all Americans, including aspiring Americans. What’s at stake is the future of all of our families, and the future of the economy.
Let's start by banishing bullying words, hate speech and statutory epithets. Let's stop the name-calling and start the welcoming
, ABIL Immediate Past President Nation of Immigrators
The Democratic Convention in Charlotte ended last week. The media has now turned to measuring and marveling at President Obama's post-convention bounce
despite weak Labor Department data revealing persistent joblessness.
The inevitable comparisons of the two parties' convention performances give the edge to the Democrats' oratory, production values, crowd enthusiasm and diversity. On immigration policy, the Dems offered more substantive messaging, while the GOP stressed photogenic speakers with ancestral memories of arrivals long ago
An historic moment
occurred with a convention address in Charlotte by an undocumented immigrant, Benita Veliz, class valedictorian and DREAMer extraordinaire, whose brief remarks Dan Stein of the anti-immigration hate group, FAIR
, predictably assailed as “nothing more than a celebration of lawlessness.”
Commentators contrasted Republican Marco Rubio and Democrat Julian Castro (“To Mr. Rubio, Hispanics are refugees from foreign oppression, who want government to let them alone. . . . In contrast, . . . Mr. Castro . . . sees government as an essential enabler of ethnic assimilation and success”). And insiders, perhaps unwittingly, assured full employment for dentists by their vigorous teeth-gnashing over the irreconcilable differences between the parties on immigration policy. The only item of apparent common ground is the issuance of quick green cards for STEM graduates. (See Immigration Impact's platform analysis here
, and AILA's take on the same topic here
[AILA InfoNet Doc. No. 12090541, membership required].)
Given the parties' chasmic differences, is comprehensive immigration reform (CIR) still a bridge to nowhere? Perhaps not. A convention segment last week on POTUS (Politics of the United States)
, the satellite radio station, entitled "Hispanic Voices," offered a plausible route to CIR:
- Latino voters turn out in large numbers;
- Obama is reelected, but one Congressional chamber remains under GOP control;
- Some Republicans -- at last seeing a desolate future because the demographic tide has washed away so much of their base -- want the contentious issue of immigration behind them;
- Obama offers the GOP a choice of legislative compromise or more executive orders on immigration that whittle down the undocumented population by creating administrative avenues for relief;
- This time a deal is struck.
Central to the success of this prediction is heavy Latino turnout, something to be swallowed with a sizable chunk of salt
. Many of his supporters are still smarting from the broken campaign promise
to address CIR in his first year as President, as well as his Guinness-record reputation as Deporter-in-Chief
. Others perhaps view jobs and the economy as more important than immigration. Still others fear that Obama may cave on CIR as he reportedly did in 2007
when casting an "Aye" vote on a killer amendment to limit the guest-worker program to five years, a move that derailed the Kennedy-Kyl CIR compromise, or question Democratic resolve
to pursue immigration reforms that fundamentally help people or merely curry favor and votes.
Even if Latinos flock to the polls, and the "Hispanic-Voices" scenario begins to materialize, CIR will be no cakewalk. Democratic versions of CIR
have favored more exacting worker protections in the H-1B and L-1 categories and more frequent audits of employers than the business community may be willing to tolerate. The allocation of visa quotas for H-1B jobs and family-versus-business green cards -- with family unity getting the lion's share over employment-based slots -- may create fissures in the CIR coalition. There remains contention over the Draconian 1996 smack-downs of due-process protections for immigrants, a bone of T-Rex proportions in an era where even the protection of abused immigrant women is the sticking point in the current fight over renewing the Violence Against Women Act. And almost no one is talking about sweeping changes that would make the system more user-friendly, rational and simple
-- a task that would require a kind of robust country-first statesmanship that, alas, has been AWOL for many years.
Maybe the parties can start building compromises on the business-immigration side, with solid assurances that other key elements of CIR will get their due as negotiations succeed on the low-hanging fruit; or maybe not.
Until November's outcome reshakes the political Etch-A-Sketch, the future foretells more DREAMers like Benita Veliz stirring our hearts with DACA-spawned inspiration while immigration opponents remain intransigent and hateful like the GOP's Steve King of Iowa who still claims to have complimented immigrants by comparing them to dogs
, ABIL Immediate Past President Nation of Immigrators
The portents were plentiful, reaching back 30 years. Yet none but a clairvoyant could have predicted the aftermath on June 15, 1982 when the Supreme Court in Plyler v. Doe
provided undocumented children with a guarantee of education through high school. Three decades to the day, a mixed-race president (whose Kenyan father was hounded out of the U.S. as a student by the immigration authorities
for dating a white woman) would provide paperless kids with a tenuous legal status and the right to work.
It took a long time coming but the crystal ball became as vivid as a 3D film on an IMAX screen:
- Undaunted by ten years of Congressional failure to enact legislation, DREAMers became activists, forming United We Dream and countless other grass roots initiatives.
- Over 90 law professors, scholarly colleagues in the immigration bar, and this blogger (here, here,here, here, here, here and there), provided the legal justification.
- A Pulitzer winning journalist and my client, 31-year-old Jose Antonio Vargas, revealed his undocumented status in a New York Times Magazine article, formed Define American and toured the country speaking out on the pressing need for a solution to the immigration problems of his youthful compatriots who, like him, are citizens except on paper.
- Vargas and fellow DREAMers -- just hours before the fateful change was announced -- appeared on the cover of Time Magazine and in this moving video:
The task now falls to the Homeland Security Department's immigration components, U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), to review the anticipated flood of cases for deferred-action eligibility and issue work permits to a population of DREAMers estimated by the Pew Hispanic Center
at 1.4 million.
Are they up to the job?
The challenge will be daunting. No new money has been appropriated. Existing agency personnel cannot possibly receive training and handle the workload without a funding mechanism.
Will the applicant tide overwhelm available resources? Can the foreseeable backlogs be avoided? How do those who want deferred action get it, given that DHS has consistently maintained that this act of prosecutorial discretion cannot be requested
but must be conferred?
Here's what should be done:
- ICE and USCIS should publish regulations and OMB should approve them on an expedited basis. Many informal pronouncements have been issued since Friday. The White House released a transcription of the President's Rose Garden announcement. DHS Secretary Janet Napolitano published a memorandum to the heads of her component agencies, a press release and an FAQ. ICE issued an implementing memo. While helpful, these are no substitute for the publication of regulations that comply with the Administrative Procedure Act and a host of other federal laws requiring regulatory analyses and opportunities for public comment. As Leland Beck urges in the Federal Regulations Advisor blog, "[w]ithout a regulation, the fragility of DHS’ policy position is clear – as a regulation may only be changed by another regulation, so a policy pronouncement may be changed by the whim of another policy pronouncement." Given that presumptive GOP nominee Mitt Romney has declined to say whether a President Romney would reverse the DHS actions on DREAMers, the Office of Management and Budget (OMB) should insist that ICE and USCIS engage in formal rulemaking but insure that the process is completed within the 60 days mandated by President Obama and Secretary Napalitano.
- USCIS should use the EAD application process as the platform for deferred action requests. USCIS already issues Employment Application Documents (EADs) to persons granted deferred action under the authority of 8 CFR § 274.12(c)(14). This regulation states that a foreign citizen "who has been granted deferred action, . . . [can receive an EAD] if the alien establishes an economic necessity for employment." The application is made on Form I-765 and requires a filing fee of $380 (although fee waivers are possible). Since Secretary Napolitano has announced the deferred-action criteria "to be considered" for persons in the defined DREAMer class, USCIS should treat the Secretary's directions as a presumptive grant of deferred action as to those who submit evidence to show economic hardship and satisfy the deferred-action standards (entry to the U.S. before age 16, no older than 30, presence here for five years, presence on 6-15-2012, background checks, and absence of disqualifying criminal history). By using the EAD application form to adjudicate deferred-action requests of persons never in removal proceedings, USCIS would streamline the process and receive $380 per application to pay for the cost of adjudication. In addition, ICE and USCIS should agree that USCIS -- as the adjudication agency -- should make a preliminary decision on deferred action, subject to an internal ICE veto, before approving or denying an EAD.
- USCIS should deploy officers trained in adjustment of status to adjudicate the deferred action EAD applications. USCIS has trained adjudicators on hand to determine the key eligibility criteria to qualify for DREAMer classification. Comparable criteria, involving essentially the same analysis, apply under the green card application process known as adjustment of status for persons seeking forgiveness from ineligibility under Immigration and Nationality Act § 245(i). Given the unavailability or retrogression of most employment-based immigrant visa quotas that begins next month, these officers will likely have time on their hands quite soon. Additional adjudicators from the USCIS Fraud Detection and National Security Directorate (FDNS) -- once trained on DREAMer eligibility adjudications -- can be assigned to augment the adjustment adjudicators. If needed, USCIS can also hire and train more adjudicators -- assuming that $380 per EAD application is sufficient. If the current EAD filing fee is insufficient to cover the cost of deferred action EAD adjudications -- a proposition I doubt given my insider sources with knowledge of filing-fee economics -- USCIS can make its case by publishing a proposed rule seeking to justify a higher fee.
- USCIS and ICE should apply the spirit of the new policy to deserving persons who fall outside its terms. There is no reason why the policy announced on Friday capped DREAMer eligibility below age 30 (other than that the age was reduced from less than 35 in the last failed Congressional effort). Authority for the exercise of prosecutorial discretion and the grant of deferred action still exists and can appropriately apply to many others because -- as Secretary Napolitano stated in her memo to agency leaders: "Our Nation's immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here."
- Newly legal DREAMers, their supporters and the American people must push President Obama and Congress to enact Comprehensive Immigration Reform (CIR). As Fareed Zakaria has demonstrated in his compelling CNN special report, America's success in the global economy hinges on CIR. Like a balloon held under water, CIR must eventually emerge. Possibly ephemeral deferred action status and evanescent work permits are insufficient. They are revocable, and offer no path to citizenship and no route to full integration into American society. The undocumented parents of citizens and DREAMers alike also need to be allowed out of the shadows. We must reform a system that New York's Mayor Michael Bloomberg calls "national suicide."
As Martin Luther King, Jr., the quintessential Dreamer, reminds us
, "the arc of the moral universe is long but it bends toward justice." Let's make sure our leaders are forced to shorten the arc and bend it quickly to reach its destination, equal justice under law.
, ABIL PresidentMusings on Immigration
, en español
President Obama announced a significant change in its previously announced prosecutorial discretion program. Effective immediately (although without a process to use yet), any person who meets the following criteria can be considered for an exercise of prosecutorial discretion, can live free of the fear of deportation, can get a work permit:
- came to the United States under the age of sixteen;
- has continuously resided in the United States for a least five years preceding June 15, 2012, and is present in the United States on June 15, 2012;
- is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
- has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
- is not above the age of thirty.
Here is the really important part: No individual should receive deferred action under this policy unless they first pass a background check and requests for relief pursuant to this memorandum are to be decided on a case by case basis. DHS cannot provide any assurance that relief will be granted in all cases. That means that if you apply and are denied, you can be placed in removal proceedings, OR if a new President comes in and decides to change the policy, you can be put into removal proceedings. How Will People Apply?
The Secretary of Homeland Security has ordered Immigration and Customes Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) to do the following for the following types of people: 1. With respect to individuals who meet the above criteria, ICE and CBP should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
- USCIS is instructed to implement this memorandum consistent with its existing guidanceregarding the issuance of notices to appear.
This means that there is NOTHING to apply for today. This will likely take, at least for USCIS at least 60 days to put into effect. Do NOT trust Notarios, and understand there is nothing to file now.2. With respect to individuals who are in removal proceedings but not yet subject to a final order of removal, and who meet the above criteria:
3. With respect to the individuals who are not currently in removal proceedings and meet the above criteria, and pass a background check:
- ICE should exercise prosecutorial discretion, on an individual basis, for individuals who meet the above criteria by deferring action for a period of two years, subject to renewal,in order to prevent low priority individuals from being removed from the United States.
- ICE is instructed to use its Office of the Public Advocate to permit individuals who believe they meet the above criteria to identify themselves through a clear and efficient process.
- ICE is directed to begin implementing this process within 60 days of the date of this memorandum.
- ICE is also instructed to immediately begin the process of deferring action against individuals who meet the above criteria whose cases have already been identified through the ongoing review of pending cases before the Executive Office for Immigration Review.
- USCIS should establish a clear and efficient process for exercising prosecutorialdiscretion, on an individual basis, by deferring action against individuals who meet the above criteria and are at least 15 years old, for a period of two years, subject to renewal, in order to prevent low priority individuals from being placed into removal proceedings or removed from the United States.
- The USCIS process shall also be available to individuals subject to a final order of removal regardless of their age.
- USCIS is directed to begin implementing this process within 60 days of the date of this memorandum.
For individuals who are granted deferred action by either ICE or USCIS, USCIS must accept applications to determine whether these individuals qualify for work authorization during this period of deferred action.
So, what should you do right now? First
, make an appointment and go see an experienced attorney, do NOT go to a Notario
, Take a picture with a newspaper from June 15, 2012 to document your presence in the United States today. Third
, begin collecting evidence of your physical presence in the United States for the last five years, for most folks this will be through school records and tax returns; Finally
, relax! There is no ability to apply immediately. At least for those not in removal proceedings there is no set process yet to follow.
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 and Ted J. Chiappari Nation of Immigrators
Surprising as it may be to Italian-American youth of today, with a Cuomo as governor of New York and a Scalia and an Alito as Supreme Court justices, this kid of 1950s' Detroit hated his Italian name and resented his father for having conferred it. "Angelo Alfredo Paparelli" was too much ethnicity to bear. I'm not named "Angelo" because of my father's fondness for heavenly creatures, nor was I given the middle moniker "Alfredo" for his love of a certain pasta sauce. Under the Italian naming tradition of primogenitore
, my name was predestined. The first-born male would take the first name of the paternal grandfather and the middle name of the father, and that was that.
I hated my name, not for any dislike of Italy, but because I yearned to be accepted as an American, just like the Nelsons
on TV. My supposed TV role model, alas, was Private Dino Paparelli of the depressingly-titled You'll Never Get Rich
series (later known as The Phil Silvers Show
), with the dim-witted Dino as one member of a crew of conniving Army motor-pool conscripts who regularly hoodwinked their WASPish officers.
I remember precisely when my name went from personal abhorrence to appreciation. The scene: Cass Tech High School, near Downtown Detroit, during auditions for The Solid Gold Cadillac
. When the director called my name to audition, a beautiful blonde senior named Barbara exclaimed: "Angelo Paparelli! What a wonderful name!" I didn't get the part, but I had a more valuable epiphany. My name could be Ishkabibble
or Geronimo -- it didn't matter. I was just as American as former Michigan Governor G. Mennen Williams
, who had a house in Grosse Pointe, and the Boyd and Williams families of Black Americans in my neighborhood; no more or less American than the Poles of Hamtramck
, the Mexicans who lived near Briggs (now Tiger) Stadium, the Jews of Oak Park, the Arabs of Dearborn, or the lesbians who frequented the bar around the corner. This epiphany probably had something, at least subliminally, to do with my becoming an immigration lawyer.
Once ensconced in my chosen vocation, I learned, however, that immigration law is not ecumenical. I discovered that until 1952, non-whites could never become citizens (although native-born Blacks were Americans from day one under the 14th Amendment's birthright citizenship clause). As my colleague Prof. Kevin R. Johnson
notes in "THE 'NEW' CIVIL RIGHTS: IS THE 'NEW' BIRMINGHAM THE SAME AS THE 'OLD' BIRMINGHAM?," a paper he'll discuss with me at a Chapman University Sociology conference
next week: During the post-Civil War period, the largest groups of immigrants affected by the whiteness prerequisite for citizenship came from Asia. Asian immigrants perpetually were denied the opportunity to naturalize and become U.S. citizens (and thus were perpetually disenfranchised from the political process). [FN] [FN] See, e.g., Ozawa v. United States, 260 U.S. 178, 190 (1922) (finding that Japanese immigrant was not eligible for naturalization); United States v. Thind, 261 U.S. 204 (1923) (same for immigrant from India).
Indeed, it was not until 1965 that the National Origins Formula
which effectively barred Asians from immigrating, was abolished with the passage of the Hart-Cellar Act
Over the years, I've seen the immigration color and national-origin barriers resurface repeatedly. If you're a Cuban and arrive at Florida's shores, we release you to family, let you stay and give you a green card under the Cuban Adjustment Act
; not so, if you're a Haitian.
In the late 1980s, if you sought an L-1B work visa from the UK or France to work for a car company, you were in like a swoosh; but if you hailed from Japan and were destined for a job in the auto industry, the U.S. Consulate in Osaka persuaded INS that an extralegal moratorium on L-1B issuance was necessary.
Today, if you were born in Mexico, China or India, you face decades of waiting for your date with immigration destiny -- your green card priority date. Although this may change with enactment of a bill enjoying bipartisan support -- The Fairness for High Skilled Immigrants Act
-- nothing will happen to eliminate this disparate treatment by place of birth until a certain senator from the Cornhusker State lifts his hold on the legislation
. And Osaka Redux: The U.S. consular posts in India
and the latter-day INS, USCIS
, now have been unmasked as inexplicably denying a much larger percentage of L-1B visas and petitions for Indian citizens, while those from Europe sail through.
Even though Congress remains in suspended animation until November's elections, immediate corrections are nevertheless possible. The Obama Administration can help eliminate these unlawful barriers. A simple but emphatic executive order would do the trick.
The President should declare that -- unless affirmatively mandated by law -- the federal immigration agencies shall:
- Judge people seeking immigration benefits or relief from removal as individuals, based on the merit or demerit of their factual and legal circumstances.
- Refrain from profiling people by color or national origin.
- Apply neutrally phrased legislation even-handedly, without regard to any personal agenda of the adjudicator to serve as an unappointed line of defense against an influx of applicants from a particular country or with a certain complexion.
The President's order should require the Secretaries of State, Labor, Justice and DHS to produce a formal plan in 90 days to investigate and eliminate racial and national-origin profiling, discipline or dismiss any immigration officials who are found to have engaged in prohibited profiling, and publish periodic progress reports. Under the order, claims of racial or national-origin profiling should be jointly investigated and violations enforced by the DHS Office of Civil Rights and Civil Liberties and the Justice department's Civil Rights Division.
As I write this blog, urging one more measure to make America a truly welcoming country, I sense my father is smiling from the grave. He (very likely) and I (absolutely) are chuckling as we recall Mark Twain's wisdom:
When I was a boy of fourteen, my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished at how much the old man had learned in seven years.
By the way, for those of you who've met me and are wondering why I have Americanized the pronunciation of my name, sounding out the letter "a" like the "BAA" of bleating sheep, just ask Antonio Mendoza in this classic Saturday Night Live sketch
, ABIL Immediate Past President and Ted J. Chiappari Nation of Immigrators[Blogger's note: This article is reprinted with permission from the February 22, 2012 edition of The New York Law Journal. ©2010 ALM Properties Inc. All rights reserved. Further duplication without permission is prohibited. The authors thank the Journal for permission to reprint this article.]
President Barack Obama has professed a new strategy of impatience. With the economy still in malaise, and the unemployment outlook only a tad improved, the White House has begun to implement a reelection gambit entitled, "We Can’t Wait." The waiting is not for Godot, but rather for a moribund Congress to pass his largely ignored proposal, the American Jobs Act: Without a doubt, the most urgent challenge that we face right now is getting our economy to grow faster and to create more jobs…. we can’t wait for an increasingly dysfunctional Congress to do its job. Where they won’t act, I will. —President Obama, October 24, 2011.
In an effort to jumpstart the economy, the approach taps his exclusive authority over federal departments to craft executive orders. Hoping to avoid the fate of Jimmy Carter, a one-term Democrat who also faced malaise, Mr. Obama’s first foray into economy-goosing executive orders has involved housing, education and veterans’ affairs. His more recent jobs-focused directives have begun (albeit too timidly and slowly in the authors’ view) to address administrative reforms to America’s system of legal immigration.
As this article will show, an assertive President Obama, with his eyes transfixed on the reelection prize, can do much more to improve our immigration regulations and agency practices, which the President oversees through the Departments of Homeland Security, State, Justice and Labor. With presidential orders on legal immigration, he can recharge the economy in countless ways while protecting American jobs and creating hundreds of thousands of new ones.CONTINUE READING
, ABIL Immediate Past PresidentNation of Immigrators
President Obama had a macho moment this week when he suggested, rhetorically, a poll of ghosts. "Ask Osama Bin Laden" and the "22 out of 30 top al-Qaeda leaders who've been taken off the field," he proposed, "whether I engage in appeasement." The storied bugaboo of foreign-policy appeasement
, best typified by the flaccidity of British Prime Minister Neville Chamberlain in the face of Nazi aggression, was the GOP charge
that the President debunked so handily.
and boots on the ground to fortify and defend America's borders successfully has produced nothing but a failed effort at GOP appeasement.
The President probably won't ask the 80 or so U.S. citizens held illegally from a day to four years in just two immigration detention centers
if he engages in appeasement. He'd probably also decline to float a survey of the statisticians who count border crossings, for they would say that illegal inbound migration is at its lowest in over four decades
. The rhetorical flourish this time won't work because he knows these responders would surely say "yes" to the appeasement charge. No poll is necessary because he already knows the answer. He told us so last summer
: "Maybe [the Republicans will] need a moat. (Laughter.) Maybe they want alligators in the moat. (Laughter.) They’ll never be satisfied. And I understand that. That’s politics."
Presidential swagger would be more impressive if he used his clout to circumvent GOP-erected gridlock in Congress. Imagine if he decided to eschew drones and troops and went low tech. Imagine if he looked back among the weapons of his and every American boy's childhood and pulled out his lowly pea shooter
. Rather than appease
, he could shoot peas
-- fresh green orbs of power in the form of executive orders that he alone propels from the White House. No more appeasement
but fusillades of executive (made-to-) order peas
that would sprout the jobs he so desperately needs created pronto to save his presidency.
Some might argue that he's already begun the effort by authorizing ICE and USCIS to exercise prosecutorial discretion
(PD) more frequently in favor of leniency for low level immigration violators. But that effort has yet to fire off enough salvos to hit the target. It would be better to accelerate PD reviews, expand them to include all the unauthorized among us rather than the current triage of only 300,000 deportation cases
, begun as a timid six-week pilot project in Denver
. Moreover, he should order the agencies to grant the formal status of "deferred action" (which includes the right to a work permit) rather than just PD (which merely prolongs the individual's agony by preventing them from progressing in their lives and pursuits, but only allowing them to wait to the unknown day when the grim deporter returns for them).
He could also aim his shots at the legal immigration system. Nothing but his own policy of GOP immigration-appeasement prevents him. He seems to understand the concept, as his "We Can't Wait
" campaign addresses housing, student loans, energy efficiency and health care. There are gobs of jobs he could create if he turned his sights to tweaking the employment-based immigration laws, as I suggest in this post, "Executive Craftsmanship: Job Creation through Existing Immigration Laws
Would that he were so forceful against Republicans on the immigration front, where a foreign policy challenge morphs into a domestic concern, one that starts at both the water's edge and the nation's earthly boundary. This time his use of
Why is President Obama so un-macho on immigration? Alas, maybe he's just too wim-