Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

Dear Mr. President:

With all respect, and lingering if flagging admiration, I write to help you tackle a problem -- America's broken immigration system. If you do the right, bold thing on immigration, it could well determine the success of your presidency and facilitate your reelection in 2012.

You've already admitted that the voters gave you a "shellacking" in the mid-term elections. You've also heard Mitch McConnell, Senate Minority Leader, announce that the overarching goal of Republicans in the next two years is to make sure that you turn out to be a one-term president. Despite your having cozied up to Sen. McConnell to cut a deal on prolonging the Bush tax cuts, he continues to give you the back of his hand by announcing today that he is opposed to the START treaty that you negotiated with the Russians.

By fixing our immigration system comprehensively, however, you'll win back the hearts and minds of your Democratic base and the independents who elected you, while exploiting an issue on which Republicans are clearly vulnerable.

Yesterday, as you know, a minority in the Senate (comprised mostly of Republicans and a few from your own party) prevented an up-or-down vote on the Dream Act. The result -- occuring ironically on International Migrants Day -- has caused the pundits and your supporters to say that your immigration policy is in "disarray," and that you broke a campaign promise to move forward on immigration during the first year of your presidency. Many believe that you squandered the best opportunity for comprehensive immigration reform (CIR) in years by taking too long to address health care with your "let-Congress-go-first" approach.

The DREAM-dashers have given you a foretaste of the difficulties you'll face with the coming Congress. They flouted the will of a majority of Americans and ignored the endorsement of the Defense Department. Republican anti-DREAMers justified their vote by falsely claiming that the GOP had no opportunity to offer amendments, even though, as Sen. Dick Durbin said at a post-vote press conference, the legislation had been approved by the Senate Judiciary Committee three times with the support of Republicans over its 10-year life.

The naysayers also ignored economic evidence cited by Sen. Majority Leader Harry Reid: (1) a UCLA study projecting up to a $3.6 trillion boost to the economy from the lifetime earnings of Dream-Act youth, and (2) a report by the Congressional Budget Office and the Joint Committee on Taxation that, if the now-defeated bill had been enacted, it would have reduced federal "deficits by about $1.4 billion over the 2011-2020 period." They also pooh-poohed the warnings of 381 university scholars about the dire consequences for America if the Dream Act did not become law.

Sen. Chuck Schumer, however, expressed optimism at the same press conference that comprehensive immigration reform is not dead in the near term. He predicted that Republicans would eventually support CIR once they take a closer look at the consequences of opposing it and at the surge of Hispanic voters who helped to elect Democrats in California, Nevada and Colorado. Reporting the more pessimistic view, The New York Times, Reuters, the Los Angeles Times and the Washington Post, in unison, quoted credible sources that announced autopsy results not only on the Dream Act but also on your overall CIR strategy.

The underpinning of your strategy was the belief that Republicans would ultimately support CIR if you demonstrated your toughness on border security and interior enforcement. And, you implemented your part of the strategy with a gusto unseen in decades. Deportations are at an all-time high, employer-sanctions enforcement has revved up following a six-year Bush Administration hiatus, and the border is more impregnable than ever, especially given the $600 million in funding for border security you signed into law last summer.

In reacting to the adverse vote, you sounded as if you're girding your loins to fight the good fight:

[My] administration will not give up on the DREAM Act, or on the important business of fixing our broken immigration system. The American people deserve a serious debate on immigration, and it’s time to take the polarizing rhetoric off our national stage. . . . Moving forward, my administration will continue to do everything we can to fix our nation’s broken immigration system so that we can provide lasting and dedicated resources for our border security while at the same time restoring responsibility and accountability to the system at every level.

With all respect Mr. President, my response to you is to quote President Reagan, a leader whom you professed to admire during the 2008 campaign. At his debate with the last one-term Democratic President (Jimmy Carter), candidate Reagan said: "There you go again."

The American people deserve more than a "serious debate on immigration." Because some in the anti-immigration camp are nativists, impure and simple, there is no way that you should even try in a vain attempt to remove "polarizing rhetoric off our national stage." You've had no success in eliminating the "birthers" from challenging your presidential legitimacy; rather, they've accused you of being an illegal immigrant from Kenya who should be deported rather than ensconced in the Oval Office. Despite the many tangible yet underappreciated accomplishments in your first two years, you've met with disprectful taunts like, "How's that hopey-changey thing workin' out for ya?"

I suggest you take a page instead from your own writing. No, I'm not referring to your evocative and inspirational first book (Dreams from My Father), or your inside-the-beltway narrative on life in the Senate (The Audacity of Hope). I'm talking about your latest book, Of Thee I Sing -- a children's book addressed to your daughters, Sasha and Malia -- a "Profiles in Courage" for the younger set. You offer vignettes on brave Americans who faced adversity with courage: Martin Luther King, Jr., Sitting Bull, George Washington and Jackie Robinson.

Each of these heroes took on the Establishment. They did not shrink in the face of opposition. They did not try to message their way to victory. They acted with bravery and a momentum born of the righteousness of their cause.

You need to dust off an approach that you summarily rejected, apparently before it was even formally presented to you. You have the power to issue executive orders that direct the behavior of your cabinet and the departments of government. We have an immigration emergency in this country. Huge numbers of children and young adults, on behalf of whom this country has expended vast sums for their education, are consigned to become fodder for gangs or to forage for a living in the underground economy because they have no way under color of law to come out of the shadows.

Grant these in-all-but-name-only "Americans" the chance to contribute to this country. Give them the benefit of "deferred action" -- a time-honored act of "administrative grace" that has been exercised for decades (witness the grant of that privilege to John Lennon, despite a marijuana conviction, as a stepping stone to his green card). Give them also permission to work in one- or two-year increments. Do these things by issuing an executive order, followed by formal rulemaking under the Administrative Procedures Act.

Of course the Republicans will shriek that this is a "backdoor amnesty" -- as they did a few months ago when a draft internal USCIS memo was leaked. They will of course summon Obama Administration officials for hearings to answer for your actions. But the Republicans plan to do that anyway. So what. With the Senate in Democratic control, they have no way of passing legislation to tie your hands, and even if laws somehow were passed, you could use your unused veto pen.

You should also step up to your bully pulpit to explain to the American people why executive action under law is necessary. Republicans have been moving the goal posts on DREAM and CIR for ten years. They would rather do nothing and say "no" with filibustering bluster than solve this most pressing human and national problem. You should also defend the good people in your administration who've come up with positive if piecemeal administrative fixes for the broken immigration system rather than letting them hang in the wind.

The American people will then see that you no longer shoot with blanks. They will see you standing up for the principle that children are not to be punished for their parents' sins, that (as the famous PSA reminds us) "a mind is a terrible thing to waste." The tide will then turn, wobbly Republicans will put their fingers to the wind and see that bipartisan CIR will make them more electable. The impasse will be resolved. If you don't act with the courage of a Jackie Robinson and the others whom you praise in Of Thee I Sing be prepared to have your presidency compared to another Of Thee I Sing -- the Gershwin brothers' 1932 musical that satirized the political folly that passes for governance in Washington.

It's your choice, Mr. President. As the Lion of Immigration, Ted Kennedy, famously said, "the DREAM will never die." Or, as Sen. Bob Menedez said at yesterday's press conference:

What happens to a dream deferred? Does it dry up like a raisin in the sun or does it explode? This dream is going to explode.

Mr. President, please do the right thing.

A fellow American,

Angelo Paparelli

Hilda Solis -- the Secretary of Labor -- hails proudly from immigrant stock. She understands the suffering immigrants endure for a chance at the American Dream. She also knows the importance of ensuring that U.S. workers are protected and treated fairly. I wonder how she continues to tolerate the abuse of American and immigrant workers, and of U.S. employers, perpetrated in her name under the Labor Department’s PERM program.

An acronym whose official name sounds at once Orwellian, shocking and bureaucratic, PERM stands for Program Electronic Review Management. It is the exclusive method that the Department of Labor (DOL) devised to eliminate a backlog of several years in a longstanding program of labor-market testing (known as a “labor certification”). With a labor certification in hand, a foreign citizen officially completes the first step in an elaborate and lengthy process culminating, if successful, in the grant of an employment-based green card.

The Immigration and Nationality Act (INA) -- at § 212(a)(5) -- says in bass-ackward and double-negative fashion that no foreign worker is admissible to the U.S. as a permanent resident unless the Secretary of Labor determines that no U.S. worker is willing, able, available and qualified to fill a job that a U.S.-based employer wants the foreigner to fill. Thus, § 212(a)(5) says that the hopeful foreign worker is inadmissible to the U.S. unless Secretary Solis is satisfied that at least one statutorily suitable worker in all of America cannot be found.

This law, as written, puts the duty of action and decision squarely on Ms. Solis’s shoulder. It imposes no burden on the foreign worker, on any U.S. worker willing to apply for the sponsored job, or on the employer. The perverse ingenuity of DOL bureaucrats, however, led the agency long ago to craft a method (now embodied in the PERM program) that unjustly transfers most of the onus of action under § 212(a)(5) from the DOL to the employer, to the foreign national and -- most cruelly -- to hapless U.S. workers who are duped into applying for a job that in most instances is already filled.

Under PERM and its predecessors, the DOL has illegally foisted on each of these parties various duties that fall squarely within its area of agency expertise, duties that it could do better and more quickly itself:

• The employer is commanded to prove a negative, i.e., that no statutorily suitable worker is available. The employer must also show that the particular job is open in good faith to any U.S. worker who meets the employer’s minimum requirements. (The good faith requirement in practice eliminates virtually all foreign entrepreneurs who set up their own U.S. companies since the DOL presumes that every entrepreneur will act in bad faith to secure a labor certification.)
• The foreign worker is ordered to prove by prior education, training or experience, that she satisfies the employer’s minimum job requirements. (The DOL’s minimum-job-requirements rule effectively bans merit-based hiring since any lesser-skilled U.S. worker who surfaces will cause a more-qualified foreign candidate to be denied a green card.)
• The U.S. worker -- treated the most shabbily by DOL of all -- is induced to act, unknowingly, as a naïve stooge. Under the PERM (DOL-work-avoidance) scheme, U.S. workers are “punk’d” into applying for jobs that in most cases they have no chance of filling. They are used -- at DOL insistence -- as guinea pigs merely as a means for the employer to prove to Secretary Solis’s satisfaction that a good faith test of the labor market has been conducted. The DOL does not require (indeed, it lacks legal authority to demand) that the employer hire any minimally qualified U.S. worker who applies for the job. All that happens if the employer “fails” the labor market “test” (meaning that a suitable worker applied who met minimum requirements of the job) is that the foreign worker will not be allowed to move to the next stage of the employment-based green card process under sponsorship of this employer at this time.

The bureaucratic charade known as PERM would be unnecessary if Secretary Solis were to instruct her minions to perform their statutory duties. If DOL were to identify more jobs for which the agency believes there are insufficient numbers of U.S. workers -- so-called “shortage occupations” that satisfy § 212(a)(5) -- the agency’s illegal burden-shifting to private parties would no longer be necessary. DOL defenders have claimed, however, that identifying shortage occupations is impossible. If that is so, then how did the agency determine under its Schedule A authority that jobs for physical therapists and registered nurses go begging for applicants and thus are exempt from the labor-market testing requirements? Congress certainly believes that DOL can and should identify additional shortage occupations since it gave DOL authority in 1990 (which the agency has not used) to expand the shortage list under the Labor Market Information Pilot program.

I suspect the reason for the Labor Department’s labor-avoidant reluctance to ferret out and declare shortage occupations is that announcing such shortages inevitably produces political heat. At a time of historically high unemployment, DOL likely finds unwelcome the prospect of being in the middle of a Dodge Ball game where U.S. worker advocates, labor unions, employers, business organizations, proponents of immigration and the media -- each disagreeing with some of the Labor Department’s worker-shortage declarations -- pitch painful spheres at the agency. Fear of a shellacking, however, is no excuse. Secretary Solis, together with the DOL technocrats who devised PERM, cannot continue to shirk the legal duties they voluntarily accepted when taking their oaths of office.

DOL cannot morph statutory duties that the agency finds distasteful into extra-legal mandates on employers and aspiring green-card holders while perpetuating a con-game that gulls employed and unemployed U.S. workers into applying for jobs which they have little hope of getting.

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Readers of this already too-lengthy post, just like silent film audiences viewing The Perils of Pauline, must wait till next time for our cliffhanger to end and find out what happens in the final episode of this electrifying and shocking bureaucratic drama, The Perils of Hilda and Her PERM.