Amid all the pre-election hurling of vituperative, partisan accusations this week over a Federal Court’s partial injunction against AZ SB 1070 (Arizona’s foray into federal immigration enforcement), you would be forgiven if you overlooked two small but significant creatures in the immigration ecosystem.

A pair of remedial immigration bills, passed by the Senate Judiciary Committee, awaits a vote in the Senate. Their significance is not merely because they are examples of a rara avis — that nearly extinct form of billmaking distinctive for its bipartisan features. Nor are they significant for the hopeful promise suggested by their titles — The Refugee Opportunity Act, S. 2960, and the Return of Talent Act, S. 2974. Rather, theirs is a semiotic significance in that they symbolize, in microcosm, many things wrong with the federal immigration system.

The purpose and scope of the measures are described in (a wonderful compendium of all things immigration):

Return of Talent Act.The Senate Committee on the Judiciary has approved S. 2974, the “Return of Talent Act,” which was introduced in the Senate by Senate Foreign Relations Committee Ranking Republican Richard Lugar (R-IN) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT). As approved by the Committee, S. 2974 would establish a new program, called the “Return of Talent Program.” The new program would allow up to 1,000 aliens per year who are legally present in the United States to return temporarily to the country of their citizenship or nationality and have the time spent outside of the United States count toward towards the naturalization physical presence requirement. In order to be eligible for the program, an alien would have to be returning to a country that is engaged in post-conflict or natural disaster reconstruction, and the alien would have to be “making a material contribution to reconstruction efforts” in his or her country of citizenship or nationality. . . .

Refugee Opportunity Act.The Senate Committee on the Judiciary has approved S. 2960, the Refugee Opportunity Act, which was introduced in the Senate by Senate Judiciary Commitee Chairman Patrick Leahy (D-VT) and Senate Foreign Relations Committee Ranking Republican Richard Lugar R-IN). As approved by the Committee, S. 2960 would exempt aliens who have been admitted as refugees or granted asylum and are employed overseas by the Federal Government from the one-year-long physical presence requirement for adjustment of status to that of aliens lawfully admitted for permanent residence. . . .

If the[se] measure[s] [are] taken up by the Senate, [they] likely would be taken up by unanimous consent. That cannot happen until the measure[s] [have] been cleared by the Senate Democratic and Republican Cloakrooms.

So what’s wrong with two benign measures that allow law-abiding foreign citizens to be absent from the United States for worthy reasons? The fault lies not in the good intentions of their sponsors but in the havoc they would unwittingly wreak on the administration of the immigration laws and the disrespect for the rule of law the measures would engender:

  • Both bills contribute to the public’s frustration over immigration in that they make small-bore corrections of comparatively minor problems when comprehensive solutions to much larger societal ills cry out for redress.
  • Both bills are unfunded mandates, unlikely to be paid by the government (despite the foreign policy interests that inspire them) but by the already rickety user-fee apparatus that leaves USCIS without a reliable and consistent revenue stream.
  • Both bills will likely require the revision and approval of new immigration forms and the writing of regulations in compliance with the Administrative Procedures Act — a time-consuming duty honored by agencies more in the breach than the observance — or by policy memoranda, agency documents of uncertain legal authority.
  • Both bills add to the towering babble of complexity that is the Immigration and Nationality Act (INA).
  • Both bills undermine existing legal principles and policy choices embodied in existing law (eligibility criteria for asylees to become permanent residents and for permanent residents to naturalize).
  • Both bills raise the question: If this measure is a good idea to solve an existing problem, then why does it stop short of a complete remedy?
  • Both bills create significant problems of proving eligibility in that they require the applicant for the statutory benefit to establish conditions that occurred abroad, often in countries facing significant turmoil and disorder.

Take The Return of Talent Act. The bill begins by making an absurd statement. A person shall be considered physically present in the U.S. even though the individual is in a foreign country. Why not just say that the physical presence requirement will not be imposed on persons who fit within the conditions stated in the new law. Mush that defies facts already exists in abundance in the INA. Congress should not add to the pile.

Furthermore, the bill allows doctors and health care professionals to be away from the U.S. and still qualify for naturalization if they provide services in a country “engaged in post-conflict or natural disaster reconstruction.” What about ecologists, builders, architects and scientists who want to help in natural-disaster reconstruction? What about lawyers and judges who want to help draft new constitutions and set up new court systems and democratic governments in countries that have achieved a fragile peace after prolonged conflicts ended? The Return of Talent Act does nothing for these worthy volunteers or for the U.S. national interests that they would serve. Worse yet, even if the bill takes only a first step in addressing a problem, and if it’s a good first step, why limit the law to only 1,000 persons per year? Why create a new and costly bureaucratic structure and an obligation to report results to Congress periodically for such a pittance of an improvement over the status quo?

The Refugee Opportunity Act is also flawed. It provides, among other things, that a person already granted refugee or asylum status can qualify for a green card even if the individual returns to the country of feared persecution. All that is minimally necessary under the bill is for the person to be employed by a U.S. contractor in the “alien’s country of nationality or last habitual residence [for up to one year] . . . under the protection of . . . a [U.S. government] contractor while performing work on behalf of the U.S. Government during the entire period of employment.” What does this provision say about asylum law? It suggests that the proven fear of persecution disappears if the person goes back to the country of persecution under the protection of a U.S. government contractor. How would the person prove that they were under the protection of the contractor? Would coming back alive be enough? Would the contractor’s word be sufficient, or, would USCIS require photos of armed security guards hovering around the asylee to protect her while she works for the contractor?

My point is that current immigration laws — as admittedly atrocious as they are in many aspects — should not be made more complicated, costly, illogical and unfair by small-scope measures that sound patriotic in theory but are woefully deficient and misguided when the laws of unintended consequences that they would unleash are considered. Congress must work together — Republicans and Democrats — to fix the broken system in a comprehensive way that fully achieves the important national interests that an enlightened immigration policy could serve. Don’t just put a bandage — even if it’s a pretty one — on a patient in extremis.