“The only true
test of leadership is the ability to lead and lead vigorously”
President John
F. Kennedy
The 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.
The President cannot grant more L-1
intra-company transferee visas but he can restore the relevancy of those that
now exist by ending the war on claims of specialized knowledge. No new
allowances for extraordinary ability can come through the stroke of a pen but
an enlightened decision to banish the suffocating Kazarian final merits determination would give new
hope to aliens who now have none but otherwise satisfy what the law
requires. Only Congress can exempt green
card categories from the tender mercies of PERM but no legislative sanction is
required to halt the use of audits as a tool of intimidation. The need for
change should not blind us to the ample opportunities for remediation that the
present law affords. As valuable as
comprehensive reform is, as badly needed as the benefits it will bring most surely
are, no law will succeed if those who enforce and interpret it lack the moral
courage and political will to usher in a newer world. As that fan of Tudor
prerogative told us long ago in no less contentious times, “the fault dear
Brutus is not in our stars but in ourselves.”
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