What a week it has been. There has been more positive discussion of immigration reform in the last week than in the past decade and while none of it is perfect, it is a huge improvement over Mitt Romney endorsing self-deportation and SB 1070. Hard to believe that that was just six months ago. In the past week, there has been two major comprehensive overhaul plans, word of a third, and the introduction of independent bills that would make discrete but needed improvements to the system. We will lay out the basics on all these developments in the next few posts. And we’ll start with the President, not just because he is President, but because it is the better plan.
The President’s Plan focuses on four major areas of reform: (1) continuing to strengthen border security; (2) cracking down on employers hiring undocumented workers; (3) earned citizenship; and (4) streamlining legal immigration.
The President’s plan will continue the militarization of the border. The President’s plan talks a lot about working with local communities and foregoing governments to combat transnational crime. It goes without saying that by creating a legal and efficient immigration system, immigration reform will allow the Border Patrol to focus on the criminal gangs operating in the border region. We have said it before and will say it again: the lack of a reasonable immigration policy is the biggest reason for illegal immigration.
Adam Serwer reports on immigration and he wrote: “[T]he fact is that enforcement can only do so much to deter illegal immigration, because those seeking a better life will brave ever more dangerous obstacles to get here. What’s needed is an immigration system that allows enough people in to work so that people think they have a decent enough chance to get here that risking their life to do so isn’t worth it.” The President’s plan seems to get this even as it talks about more Border Patrol resources. We will not spend a lot of time discussing the technology and resources being thrown at the border. The border is more secure than ever and the immigration enforcement agencies have a budget in excess of $18 billion, yet everyone wants to throw more money at it. As immigration and immigrant rights and not the budget are our focus, we will leave these matters to the budget hawks.
Cracking down on employers hiring undocumented workers
The President came into office promising to end the Postville-style raids that rounded up hundreds of immigrants who were doing nothing more than working. He has largely stuck to that promise and has devoted his employer verification efforts to identifying employers who are violating documentation requirements. For example, a couple of years ago, there was a lot of news about ICE actions against Chipotle for hiring undocumented workers. While the ICE action resulted in many immigrants losing their jobs, they were not put through an expedited criminal-deportation program as occurred in Postville. We have heard of very few cases of individuals placed into removal proceedings for being on Chipotle’s payroll.
The President’s plan will include phased-in nationwide use of E-Verify. E-Verify is the online verification system to let employers know if documents presented for employment authorization are bona fide. It is already required by several states and required of employers with federal contracts. E-Verify is coming nationwide and seems to be one of the prices paid for immigration reform.
It is the earned citizenship portion that we are most interested. The President’s program will require undocumented individuals to come forward and register. Applicants would have to undergo biometrics and a background check and “pay fees and fines” to receive temporary status. This temporary status seems little more than a work permit and the security of knowing that you will not be removed. DACA is a good indicator of what this might look like. Then, once the line has been cleared, individuals would be able to seek residence. It is unclear whether they will have a new means of seeking residence or whether they must use the extent process. We have written before of the fallacy of the line and how tying meaningful change to “clearing” the line makes no sense. “Going back to the end of the line” has become a political phrase, divorced from any meaning or reality and no one really believes that people will have to wait 25 years for the Filipino fourth preference to clear before people starting seeking residence. Applicants for residence will be required to “pay their taxes, pass additional criminal background and national security check, register for Selective Service (for men between 18-26), pay additional fees and penalties and learn English and U.S. civics.” It appears that the President’s program would create a new means to apply for residence rather than requiring immigrants to go through the current broken system.
The bill does exempt DREAMers and certain agricultural workers from the back of the line requirement. The President’s plan seems to indicate that DREAMers would, well, get the DREAM Act, which would allow them to obtain residency through a new system. The President’s plan calls for strong administrative and judicial review procedures of legalization decisions.
Streamlining Legal Immigration
The President also addresses future flows. The plan states that it will increase the numbers of family based visas and allow the State Department to “recapture” unused visas. In addition, employment-based visas would be more plentiful in an effort to alleviate the backlog in the employment based categories. This has the potential to be a tremendous improvement as the backlogs are caused by the simple economic principle that demand exceeds supply for immigrant visas. The problem is exacerbated by the fact that unused visas are “lost” at the end of the year. So, there are currently too few visas and the government is failing to distribute all of them. The question is whether the President’s program would create sufficient visas and efficiencies to meaningfully address the backlog.
The President’s plan promises “to staple green cards to the advanced degree diplomas of STEM graduates” who are going to work in their field in the U.S. STEM refers to graduates in science, technology, engineering and mathematics. This is a terrific idea that has very widespread support. It is widely acknowledged that the U.S. needs to do a better job of providing a fast track to residence for STEM graduates. As conservative columnist David Brooks wrote in today’s New York Times: “Because immigration is so attractive, most nations are competing to win the global talent race. Over the past 10 years, 60 percent of nations have moved to increase or maintain their immigrant intakes, especially for high-skilled immigrants. The United States is losing this competition. We think of ourselves as an immigrant nation, but the share of our population that is foreign-born is now roughly on par with Germany and France and far below the successful immigrant nations Canada and Australia. Furthermore, our immigrants are much less skilled than the ones Canada and Australia let in. As a result, the number of high-tech immigrant start-ups has stagnated, according to the Kauffman Foundation, which studies entrepreneurship.”
The President also proposes a vibrant “start-up visa” to provide residence to foreign nationals who start businesses and create jobs in the U.S. and would expand the immigrant investor visa classification. It would also create a new visa for employees of federal national security science and technology laboratories.
Other important parts
- The President’s program recognizes that the immigration court system is underfunded and hopelessly backlogged. The plan discusses additional funding for the immigration court system. Additional funding for additional judges and support personnel could go a long way to easing procedural hurdles and pressures that often result in quick orders of removal.
- The President’s program states “The proposal streamlines immigration law to better protect vulnerable immigrants, including those who are victims of crime and domestic violence. It also better protects those fleeing persecution by eliminating the existing limitations that prevent qualified individuals from applying for asylum.”
- Finally, the President’s plan also makes clear that the same-sex partners and spouses of American citizens and permanent residents will be treated equally under immigration law.
We think, overall, that the President’s program is very good. There are reasons that we are reluctant to pronounce it as “excellent.” We would like to see a greater commitment to restoring due process to the immigration courts, restoring discretion to immigration judges, and an effort to re-balance the grotesque overreaction that has allowed so many permanent residents with minor and ancient crimes to be locked up and deported without any chance to explain to a judge that they should be allowed to remain. We would like the plan to abandon the meaningless “back of the line” language. We would prefer more full-throated defense of asylum and the need to keep families together.
However, there is much to like in the President’s program. The inclusion of GLBT families into immigration reform is a big deal and we applaud it. In addition, we like the increase in visa numbers, which might render the “back of the line” garbage moot. And we like that the President has made a path to earned citizenship an essential part of his plan. Too many of us have been afraid that we would get an enforcement heavy bill that does little to benefit immigrants. We do not see a lot of new enforcement here and we see several benefits.
Next post, we will address the Senate’s “Gang of Eight” plan and the reasons we feel that the President’s program is better.