Scott Kuhagen

Law school graduate; thoughts on law and policy, immigration-related and otherwise.


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President Obama’s immigration reform proposal

Released yesterday, President Obama’s immigration reform proposal seems to largely track with his 2011 immigration reform blueprint [PDF] that I discussed yesterday.

One place where Obama’s plan diverges noticeably from the new bipartisan Senate proposal is in not depending on a commission of officials from southwestern states to recommend when border security is sufficiently stringent to move forward with the legalization process for people here without status. Instead, under the president’s proposal, people without status could come forward and obtain a provisional legal status without significant delay, though they’d have to wait “at the back of the line” to wait for a green card.

Importantly, President Obama referred to the bipartisan Senate proposal unveiled on Monday, saying that he would have his own proposal debated if Congress didn’t move forward on the bipartisan plan: “But it’s important for us to recognize that the foundation for bipartisan action is already in place. And if Congress is unable to move forward in a timely fashion, I will send up a bill based on my proposal and insist that they vote on it right away.”  Whether that is a realistic expectation is another question, given that Sen. Marco Rubio (R-FL) has already issued a statement saying that he’s concerned with the lack of an enforcement-related trigger for the legalization process in Obama’s plan.


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What are we talking about when we talk about immigration reform?

Immigration inspection area, Blue Water Bridge Plaza, Port Huron, MI. Library of Congress, Prints & Photographs Division, HAER MICH,74-POHU,1--28

Immigration inspection area, Blue Water Bridge Plaza, Port Huron, MI. Library of Congress, Prints & Photographs Division, HAER MICH,74-POHU,1–28.

It’s been hard to escape in recent weeks: news coverage and speculation about how 2013 might be the year that Congress reforms immigration law and policy. President Obama alluded to the need for such legislation in his inaugural address. Prominent Republicans are getting behind the idea, perhaps motivated by the sobering statistics that Latino voters supported President Obama in record proportions. Outside groups and citizens are discussing the need for reform. The latest reports suggest that President Obama has a plan that will be released today (perhaps based on his 2011 blueprint), while a bipartisan group of senators released their proposal yesterday. Oh, and the House has an informal group working on it.

So what sort of options are actually being talked about? Most proposals focus on two big elements I want to discuss here: increasing the type and number of legal immigrants, and legalizing the status of those who are present in the U.S. without authorization. Of course, there are variations within each of these ideas, but the broad consensus at this point seems to embrace these two options. Most proposals also include various directives designed to augment immigration enforcement, as well, but that’s a subject for another time.

Increased Legal Immigration

In terms of increasing legal immigration, the ideas most likely to be discussed are:

  • granting permanent residency to foreign nationals that graduate with advanced degrees in the STEM subjects (science, technology, engineering, and mathematics). This idea seems relatively non-controversial, and is part of the Senate proposal released yesterday, as well as President Obama’s 2011 blueprint. Mitt Romney supported the idea during the 2012 election as well.
  • increasing the number of H-1B non-immigrant visas for highly-skilled workers, many of whom work in the technology sector. There is now a separate Senate bill that would enact this change.
  • some sort of guest worker program to admit lower-skilled workers. This option is also in both the Senate proposal as well as the Obama blueprint.
  • a start-up or entrepreneur visa. President Obama has this idea in his 2011 blueprint.

Legalization

Most comprehensive immigration reform proposals also include some type of legalization of the estimated 11 million people who are already present in the U.S. without any legal status. The proposals emerging now would put people in this category on a pathway to citizenship, though this has been a controversial issue in the past. Generally, these proposals dictate that those who are here without authorization register with the government, pay some sort of fine, pay back taxes, learn American civics and English, and “go to the back of the line” to wait for their chance to apply for permanent residency (i.e. people in the legalization program would not be able to receive green cards until those already in the queue for them have received them).

In the past, the question of whether a pathway to citizenship would even be included was not settled, but the debate seems to have shifted in the direction of most proposals including it, at least given the bipartisan Senate proposal’s inclusion of such a policy (though that proposal would require a commission of state officials to recommend that the U.S.-Mexico border had been sufficiently secured before people could move forward on the pathway to citizenship).

Other Options

While the two items above cover a lot of what could be included in a final bill, there are plenty of other things that could be included as well, such as (this is by no means an exhaustive list):

  • a version of the AgJOBS proposal, which would provide a legalization option for farmworkers, as well as a reform of the H-2A non-immigrant farmworker visa. The Senate proposal released yesterday hints at this, and the 2011 Obama blueprint endorses it.
  • the DREAM Act [PDF], which would provide permanent legal status to people brought to the U.S. without legal status when they were minors. The Department of Homeland Security’s executive action to grant deferred action to DREAM-eligible individuals last summer is not sufficient — on its own — to provide permanent status to those who received it. USCIS reiterates this point in their Deferred Action for Childhood Arrivals FAQs: “Deferred action does not provide lawful status or a pathway to citizenship. As the President has stated, individuals who would qualify for the DREAM Act deserve certainty about their status. Only the Congress, acting through its legislative authority, can confer the certainty that comes with a pathway to permanent lawful status.”
  • a more far-reaching reform of the method for allocating immigrant visas (a subject on which I posted once before). This doesn’t appear to be a likely option at this point, but it could emerge in the future. Former Florida Gov. Jeb Bush suggested something similar in an op-ed last week. For instance, there are some suggestions of adopting a Canadian-style points system to decide who can receive a green card, though such a system is not without its own problems.
  • the Refugee Protection Act, a proposal that would make a number of changes to increase the efficiency and fairness of the asylum process, along with changes to rules for immigration detention.

I’m looking forward to reading President Obama’s proposal, which is expected to be somewhat different from the Senate proposal released yesterday, along with what I’m sure will be plenty of other iterations as the debate moves forward.


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What I’m Reading: Nov. 29

Here’s what I was reading over the Thanksgiving holiday last week:

  1. Immigration Reform’s Wild-Card Power Broker: Eliza Gray takes a look at the influence of Univision anchor Jorge Ramos.
  2. The Voter-Fraud Myth: Jane Mayer of the New Yorker has a long article on the work of Hans von Spakovsky (who worked in the voting rights section of the Justice Department during the Bush administration) and his efforts to promote concern about voter fraud, a problem that doesn’t actually seem to exist.
  3. The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream, by Patrick Radden Keefe. This book focuses on the human smuggling trade in New York’s Chinatown and the controversy surrounding the survivors of the Golden Venture, which ran aground off Rockaway Beach in 1993, carrying many people from China that were to be smuggled into the U.S. There’s a documentary about the Golden Venture, too (the trailer is here).


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Thinking big on immigration reform

The election’s over. Some Republicans are realizing that to have any hope of future electoral success they’ll have to support policies and use rhetoric that appeal to all Americans, not just older white voters. Immigration reform quickly became one of the policy reforms that some prominent Republicans realized they could embrace to appeal to Latino voters, who voted at historic levels for President Obama (though some Republicans have supported some form of immigration reform for a while, such as Grover Norquist).  The National Immigration Reform has a great summary of where the debate is right now.

But some of the commentary has a fairly narrow focus; a focus that is on the familiar questions of the extent of immigration enforcement and whether those without an immigration status can be put on a pathway to eventual citizenship. A recent New York Times editorial is emblematic of this narrow focus. And while it continues to use the narrow focus, Steve Chapman has a blunt column in the Chicago Tribune on how even more stringent immigration enforcement is counterproductive.

Bill Ong Hing, a law professor at the University of San Francisco, and longtime immigration law and policy scholar, suggests a broader focus. Besides just the questions of immigration enforcement and legalization of those without status, he writes that our whole policy for allocating immigrant visas needs reform. In particular, formulas for awarding immigrant visas based on family ties should be reformed to eliminate years-long backlogs from high-demand countries, like the Philippines and Mexico, and that the employment-based system needs a substantial revamp to meet 21st century needs. Another area he highlights is “flexibility in terms of visa entries and residence requirements [that] should be built into our current system [to accommodate the need for greater flexibility in allowing people to come and go] . Movement circularity for visa holders is a feature that may accommodate working-class as well as wealthy individuals.”

These are all good points, and no doubt, legislators will try to reform some of these areas. But a focus in press commentary and elsewhere on what we overall want our immigration policy to achieve, and how to do so, will help move the debate beyond just the horse-trading between enforcement and legalization. It’s time to think big about the immigration policy we want as a nation.


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Now part of the club

A couple milestones this fall:
1. Passed the Illinois bar exam.
2. Got sworn in to the Illnois bar.

I’m staying busy doing some temp. work, volunteering, etc., but I’m hopeful for the future. Onward…

The marquee at the McCormick Place admission ceremony was unexpected, but a nice touch.

The marquee at the McCormick Place admission ceremony was unexpected, but a nice touch.


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Romney won’t deport DACA grantees, but won’t continue program

Previously I’d highlighted Mitt Romney’s mixed signals on the Deferred Action for Childhood Arrivals program. Now Romney has offered a few specifics. First, he told the Denver Post that he would not revoke approvals of deferred action if he became president:

“The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I’m not going to take something that they’ve purchased,” Romney said. “Before those visas have expired we will have the full immigration reform plan that I’ve proposed.”
…
He didn’t furnish specifics on that plan, but has said in previous interviews that students who served in the military may get a path to citizenship.

Then this today, from the New York Times’ immigration correspondent, Julia Preston:

Presumably part of his full immigration reform proposal would not include the DREAM Act as presently understood; rather, in the past Romney has only supported a pathway to permanent lawful status for DREAMers that would serve in the military, not those who would go to college.

Update: I noticed this in the Romney block quote above, but chose not to nitpick about it because we all generally know what Romney was referring to, but the New York Times correctly points out that deferred action is not a visa:

[Romney told the Denver Post:] “Before those visas have expired, we will have the full immigration reform plan that I’ve proposed.”

Sounds like great news! But what visa is he talking about? The policy does not involve visas. It is a presidential directive to the Department of Homeland Security to temporarily suspend, on a case-by-case basis, the deportations of people who meet certain criteria: young immigrants with clean records who were brought to the United States illegally as children.

The Times’s national immigration reporter, Julia Preston, spoke to an immigration lawyer, Margaret Stock. “It is disturbing that he does not know the difference between a visa and deferred action,” Ms. Stock said of Mr. Romney. “Nobody got a visa through this program. That would have required Congressional action.”

“This is Immigration Law 101,” said Ms. Stock, who is also a Republican. “It looks like a major fumble by whoever is advising him on immigration.”


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Immigration policy and the “dead hand of the past”

In no other realm of our national life are we so hampered and stultified by the dead hand of the past, as we are in this field of immigration.

President Harry Truman wrote these words about the national origin quota system, first instituted in the 1920s, for admitting immigrants when he vetoed the Immigration and Nationality Act in 1952. Congress overrode his veto, though, and ever since the INA has provided the structure for deciding who, and how, to admit immigrants to the United States. It would take over another decade for Congress to finally repeal the national origin quotas, which were skewed to exclude people from pretty much everywhere except Western Europe, by enacting the Hart-Celler Act of 1965.

I was reminded of Truman’s words when reading this week about the demise of a bill that would have granted green cards to foreign-born recipients of advanced degrees in the STEM subjects from American universities. The bill failed, in part, because while it had a majority in the House of Representatives, it did not have the two-thirds majority required to pass it using a fast-track procedure. Many Democrats opposed the bill because it would have eliminated the Diversity Visa program, which admits people from countries with low rates of immigration to the U.S., such as many countries in Africa.

Another reason the bill failed? The acrimonious past between the tech sector and other immigrant advocacy groups, which continues to affect current debates on these issues. Lydia DePillis writes for the New Republic:

Even the people who are generally pro-immigration have their favorite immigrants. Big agriculture wants people to pick their crops. Service industries want people to work in restaurants and hospitals. Left-leaning advocacy groups just want families to be reunited, and for the undocumented to have a path to citizenship.

So what’s the problem? Shouldn’t people who need highly educated workers to stay in the U.S. get on board with the people who want all those other things?

You might think so, but DePillis reviews the fraught history between the tech sector and other pro-immigrant groups, which includes the tech sector’s withdrawal of support for the potential 2007 comprehensive immigration reform compromise, and its absence from the DREAM Act debate in 2010. With one prominent startup advocate saying that with a modest, piecemeal immigration policy strategy “we could get something in seven, eight, nine, ten years,” there could be a long time before all the different players in the debate manage to achieve significant results. As DePillis concludes: “Tech has money, and immigrants have votes. [Progress on immigration issues will] just require leaving some baggage behind.”

Or, as Truman said regarding the unfortunate past history of discriminatory national origin quotas, “[t]he time to shake off this dead weight of past mistakes is now.”

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