Posted by Angelo A. Paparelli on February 26, 2012

No More Waiting on Legal Immigration

[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.]  

Waiting.jpg

No More Waiting on Legal Immigration

By Angelo A. Paparelli and Ted J. Chiappari 

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.

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Posted by Angelo A. Paparelli on February 21, 2012

Stumbling through Parallel Immigration Universes

childish fantasy.jpgI'm taking a short vacation -- which means that it's time to dive into another Haruki Murakami novel. My first encounter with Murakami, a Japanese author of some 13 books of fiction, involved his immersive fantasy, Kafka on the Shore.  This time its his latest tome, 1Q84, a 925-page behemoth. 

Both books are phantasmagorical journeys through parallel universes -- a fitting description of America's unique form of unreality, its extreme ambivalence toward immigration. Unlike insular and homogeneous Japan, the locus of 1Q84, where immigration is severely restricted, the U.S. imagines itself as welcoming.  We pride ourselves on our diversity and tolerance, our freedoms of thought, religion, press and assembly, and our American Dream mythology.  Yet all around us we see behaviors and attitudes toward immigration -- even in the same individuals -- that are inconsistent and contrary to type. 

I first witnessed this phenomenon at a bar liaison committee meeting with Immigration and Naturalization Service (INS) officials in Los Angeles shortly after enactment of the Reagan-era legalization program, a key provision in the Immigration Reform and Control Act of 1986 (IRCA). To qualify for legalization, a nonimmigrant entrant's unlawful status must have been "known to the government."  INS officials wanted the pool of eligibles kept small; the immigration lawyers wanted it as large as possible.  Attitude reversals manifested immediately.  What -- before IRCA -- the INS would view as major transgressions of the immigration laws, say, working without permission, these same officers now saw as "no harm, no foul" occurrences unless an unauthorized foreign worker wrote a letter confessing the violation that actually found its way into the individual's INS file.  Conversely, the immigration lawyers latched upon what we'd previously viewed as peccadilloes -- failing to file a change of address report -- as serious misdemeanors. 

Consider also these recent examples:

Murakami speaks to this phenomenon in 1Q84 when he has the Leader, who heads a violent cult, say:

Most people are not looking for provable truths. . . . [T]ruth is often accompanied by intense pain, and almost no one is looking for painful truths.  What people need is beautiful, comforting stories that make them feel as if their lives have meaning.

back_light_silhouette_of_man_holding_globe.jpgImmigrants are not memes; nor are the painful truths about immigration.  Yes, despite the flaws in a recent governmental investigation, immigration fraud does exist -- though probably not even close to the degree that the Inspector General for Homeland Security suggests.  Yes, many immigration and consular officers may operate on hidden agendas of Machiavellian proportions and deny cases unjustly, but others truly care that they make correct decisions based on law and fact.  Yes, immigrants bring energy, entrepreneurship, innovation and wealth to America, but some of our citizens -- particularly at the low end of the skills range -- may be displaced (and thus need extra help).

We as a people and a polity will not eradicate every scintilla of possible harm from immigration nor enjoy solely its benefits.  We must face the immigration truths, however painful, and eliminate as many dysfunctions as bright minds and compassionate hearts can achieve.   What we cannot do is continue to believe in "beautiful, comforting stories that make [us] feel as if [our] lives have meaning" but at bottom are palliative falsehoods.

 

Posted by Angelo A. Paparelli on February 11, 2012

Guest Post: DREAM or NIGHTMARE? Why Congress Should Reject a Military-Only Version of the DREAM Act

Thumbnail image for young soldiers.jpg[Blogger's note:  This week’s guest blog is by Steve Yale-Loehr, a good friend who teaches immigration law at Cornell Law School and co-authors the leading U.S. immigration treatise. Steve has just finished co-editing Green Card Stories, a book that features dramatic narratives of 50 recent U.S. immigrants—each with permanent residence or citizenship—in compelling essays by nationally recognized journalist Saundra Amrhein and exquisite portraits by award-winning documentary photographer Ariana Lindquist.

Steve addresses pragmatic, legal and moral questions raised by GOP proposals that would drop the option of pursuing higher education and instead require DREAM Act youth to serve in the military as the only way to attain legal status. 

Reading Steve's post, I am reminded of the despicable term, "cannon fodder," and the hypocrisy of sending "expendable" youth into harm's way, where many lives will likely be cut short, wasted in wars started by their elders.

Shakespeare penned it best when he had the cynical Falstaff say in Henry IV, Part I:  "Food for powder, food for powder; they’ll fill a pit, as well as better."

A military-only DREAM Act -- more aptly dubbed the NIGHTMARE Act -- sends a terrible message.  Congress should keep the education-option available to innocent men and women (brought here by their families) who by any definition -- other than in law -- are Americans all.

Blogger's postscript to his note: I must apologize for having used the term "cannon fodder" and suggesting that some might view soldiers recruited through a military-only version of the DREAM Act as "expendable."  I now understand and regret that reasonable readers might view this as a criticism of the U.S. military. My intent was to criticize politicians not our armed services.]

DREAM or NIGHTMARE?: 

Why Congress Should Reject a Military-Only Version of the DREAM Act

By Steve Yale-Loehr

First proposed in 2001 by Senators Orrin Hatch (R-UT) and Richard Durbin (D-IL), the Development, Relief and Education for Alien Minors (DREAM) Act would allow certain undocumented noncitizens a chance to legalize their status by going to college or serving in the military. Since then it has been introduced regularly both as a stand-alone bill and as part of comprehensive immigration reform bills, drawing bipartisan support each time in both the House and Senate. The closest it has come to enactment was in 2010, when it passed the House but failed to get through the Senate.

Congress has watered down the DREAM Act over the last decade.The original 2001 version would have granted permanent resident status (green cards) to any undocumented child who had been in the United States for at least five years, as long as they had good moral character and were attending a college or university.

By contrast, the Senate’s 2011 version of the bill would require individuals to have entered the United States before they were 15; have graduated from a U.S. high school or received a GED from a U.S. institution;be under 35 on the date of enactment; and have lived in the United States for at least five years. Prior versions of the bill did not include an age cap. Similarly, the current version of the bill would require beneficiaries to stay in conditional resident status for six years before they could get permanent green cards. Early versions of the DREAM Act would have immediately granted green cards to individuals who met the bill's requirements.

The current version would also make applicants subject to more grounds of inadmissibility, deportability, and other restrictions. Some want to water down the DREAM Act even more.Republican presidential candidates Mitt Romney and Newt Gingrich say they would support a DREAM Act — but only for young immigrants who join the military. Representative David Rivera (R-FL) has introduced a bill along similar lines.

Problems with a military-only DREAM Act range from the practical to the philosophical. For example, Representative Rivera’s bill would require people to enlist within nine months; otherwise they would lose their eligibility under the bill. The bill fails to realize, however, that people can’t start the enlistment process until they are legal and have a social security number. It can take longer than nine months to complete the enlistment process, and the military services have annual quotas that get filled quickly when the economy is bad, forcing people into the next fiscal year.

In addition, some potential enlistees may fail to qualify for medical reasons. Suppose someone gets temporary status under the Rivera bill, tries to enlist, and turns out to be colorblind. Do we tell them, "Sorry, we are deporting you because you are colorblind. No refund of the immigration fees you paid to start the DREAM Act process"?

The call for a military-only DREAM Act also poses moral problems. It effectively tells undocumented noncitizens that they are only useful for war, not for improving our economy through their hard work or inspiring the next generation by teaching in our schools. Those professions are just as noble as fighting for our country. As a new book, Green Card Stories, points out, people who legalize their status help this country in a variety of important ways.

Proponents of a military-only DREAM Act also forget the economic benefits of enacting a broader bill. For example, A 2010 study by the UCLA North American Integration and Development Center estimates that the total earnings of DREAM Act beneficiaries over the course of their working lives would be between $1.4 trillion and $3.6 trillion. Similarly, a 2008 study from Arizona State University found that an individual with a bachelor’s degree earns approximately $750,000 more over the course of his or her lifetime than an individual with only a high-school diploma. In these tough economic times, we need the earnings of everyone in this country as much as we need their military service.

Langston Hughes once wrote:

What happens to a dream deferred?

Does it dry up like a raisin in the sun? 


Or fester like a sore and then run?

Does it stink like rotten meat?

Or crust and sugar over, like a syrupy sweet?

Maybe it just sags like a heavy load.

Or does it explode?”

Politicians should watch out. Trying to dilute the DREAM Act may backfire on them and cause DREAMers to explode in widespread demonstrations and cries of outrage, if necessary to enact a true DREAM Act.

Posted by Angelo A. Paparelli on February 04, 2012

Faint Immigration Praise

“Damn with faint praise, assent with civil leer And, without sneering, teach the rest to sneer" ~ Alexander Pope, poet, satirist, and translator, “Epistle to Dr Arbuthnot”

clock face time 3.jpgI hesitate to criticize the Obama Administration's immigration reform measures, having urged long ago that half a loaf, at least for now, will perforce suffice. 

Hastily announced but untimely in manifestation, the slew of executive half-measures the President's team has lately proposed to improve the functioning of America's broken immigration system seem reminiscent more of vaporware than tangible solutions. 

With less than a year to go on his term, executive orders and departmental or agency press releases are spewing forth as if from a Gatling gun. 

Will these concepts really make a difference?  Or are they merely pheromones to attract progressive, young or Hispanic voters in November?

Consider how much has been said but so little done:

  • Prosecutorial Discretion is announced as a measure to spare low-level immigration violators and slam dangerous foreign felons.  So far the record deportations continue almost unabated and the few granted PD are permitted to remain at the pleasure of the President but without deferred action and its benefit of work permission.
  • Stateside waiver processing for immediate relatives of U.S. citizens whose hardship can be proven as extreme is revealed in a seemingly humanitarian Notice of Intent and an FAQ.  But no rules or procedures have yet been published, and the risk of death-by-visa-waiting remains as high as ever.
  • An interdepartmental push to improve visa processing and promote tourism is inscribed in an Executive Order, with special focus on increased consular officers in Brazil and China.  Still, nothing is said about tourists and business visitors from India whose rupees are as easily converted to dollars and spent in our malls.  Worse yet, no reforms are made by the State Department that would moderate consular absolutism and encourage visa officers -- by amendment of the Foreign Affairs Manual -- to extend a welcome mat more often to foreign visitors with lucre to spend.
  • A DHS grab bag of small measures are announced with the goal "to retain highly skilled workers." These ethereal proposals will likely affect only a tiny slice of the job-creating nonimmigrant population. The list of unrealized hopes includes a nebulous assemblage of H-4 dependents married to H-1B workers "who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S."  It also makes note of the leisurely first convening on February 22 of an "Information Summit [at an undisclosed location] in Silicon Valley, CA [where is that? I can't find the city on my California map], that will bring together high-level representatives from the entrepreneurial community, academia, and federal government agencies [first announced on August 2 of last year as step one of the Entrepreneurs in Residence program] to discuss how to maximize current immigration laws' potential to attract foreign entrepreneurial talent."

Desultory blather and high-falutin' promises will not jumpstart job creation. Deeds not words -- published forms, specific eligibility criteria and actual procedures to request new benefits -- are what real administrative reforms require.   

biohazard time.jpgThere are many bold steps that could be taken to improve our dysfunctional system even while Congress remains comatose.  Gary Endelman and Cyrus Mehta suggest a Presidential tweak in the interpretation of green-card counting procedures that would eliminate backlogs and do far more than merely granting spousal work permission "to retain highly skilled workers" ("Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of A Pen").  Other proposals have been offered in this blog ("Executive Craftsmanship: Job Creation through Existing Immigration Laws," "The Immigration Appeaser-in-Chief Should Try Some New Ammunition" and "Immigration Reform with the Stroke of a Pen").

When it comes to executive action on immigration, the nation needs a profile in courage not a silhouette of timidity.  The first Tuesday in November is fast approaching.  Time waits for no President.