The Benefits of Obama’s Executive Action

December 5th, 2014

What’s the Plan?

On November 20th, 2014, President Obama finally announced his plans for executive action on immigration reform. While it’s only a temporary solution to a long-term problem, it will help almost half of all undocumented immigrants gain official status — nearly five million people.

President Obama’s plan extends the temporary relief from deportation of the Deferred Action for Childhood Arrivals (DACA) to undocumented parents of U.S. citizens and lawful permanent residents. In order to temporarily stay in the U.S. for 3 years, qualified individuals will have pass a background test and pay any back taxes. The plan also moves the window to include even more DREAMERs.

Who Benefits

The most obvious benefit will be improved quality of life for many undocumented immigrants. Moving from the shadows and into a fully recognized status can mean more opportunities, more work, and greater stability for their families. Also, many currently working in the gray economy will see an increase in wages.

That will also result in increased tax revenue for the U.S. Previously, only a third of undocumented workers and the people that employed them paid payroll taxes. Now, with official status, we can expect to see an increase in the gross domestic product up to .9% (nearly $210 billion over 10 years). The first year alone will net the federal government $3 billion.

But what about the “increased competition” for low-wage work? Many experts believe that the plan will lead to an increased average wage of about .3%. While not much, it’s certainly not the fall in wages that most opponents of immigration reform expect. And now that nearly one half of undocumented immigrants will compete on an even playing field with citizens, there won’t be such a large potential source of below-minimum-wage labor. Many companies have been asking for reform like this for quite a while.

Who Doesn’t Benefit

President Obama’s plan leaves some immigrants undocumented and negatively impacts at least one industry.

First, undocumented immigrants who arrived within the last five years don’t qualify. This means that over 10,000 Central Americans who have fled the violence in their countries since 2010 will remain undocumented for the time being.

Second, the private prison industry will lose out on the massive amounts of detainees awaiting deportation. While it’s unfortunate that an industry will take a hit as a result of the president’s actions, fewer detainees is generally a good thing.

Why It’s Good For Us

The President’s plan is certainly the temporary help that many both citizens and undocumented immigrants need — it’s just not the overarching reform that the U.S. desperately needs. While critics have found way to admonish the President, ImmigrationPolicy.org notes that every president since Eisenhower has executed similar executive actions for certain groups on immigrants. With nearly 39 examples, executive action for immigrants is essentially a Presidential precedent at this point.

Hopefully this plan will push Congress to finally bring meaningful reform when they see how much it helps immigrants, citizens and businesses all over the U.S.

 

Comment » | Immigration Policy Center, Immigration reform

Obama Executive Action Includes Business Immigration Reforms

November 21st, 2014

While most of the media attention concerning President Obama’s November 20 speech on immigration issues focused on the deferred action plan for certain undocumented immigrants, the White House also announced a number of significant business immigration initiatives.

Pre-Registration for Adjustment of Status and Enhanced Worker Portability

This was the big surprise of the night.

Individuals with an approved employment-based immigrant petition (Form I-140) who are caught in the green card quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment application.  Presumably this will include the ability to secure an EAD card and advance parole travel authorization for the employee and dependents. This is expected to impact about 410,000 people and  will be implemented by a formal regulation.

A memorandum released by Department of Homeland Security (DHS) Secretary Jeh Johnson stated that DHS will look to amend it regulations to “insure that approved, long standing visa petitions remain valid in certain cases where [the foreign national employees] seek to change jobs or employers.”

If adjustment of status (AOS) portability is expanded to include those who qualify for pre-registration, the implications for the businesses that sponsor foreign national employees for PERM labor certification are enormous. First, a company could promote an employee or transfer them to a new job location without having to file a second PERM application. Secondly, the foreign national employee would be able to change employers so long as the new job is the “same or similar” to the position for which a labor certification was obtained.

Secretary Johnson announced that DHS will issue policy guidance clarifying the “same or similar” standard. His memorandum included the following language: “This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.”

Foreign Entrepreneurs

Certain “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.” will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation. This will be done by regulation. Also, this group will be eligible for national interest waivers. This will be implemented through policy guidance.

L-1B Specialized Knowledge Workers

DHS will soon release a policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” We hope this guidance will reign in the arbitrary and capricious decisions coming out of the USCIS Service Centers in recent years as the denial rate for L-1B petitions has skyrocketed.

Work Permits for H-4 Visa Holders

A regulation will be finalized, probably in December or January, that will allow H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD card).

Optional Practical Training (OPT)

The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened. Other changes, such as allowing STEM OPT after receipt of a master’s degree where only the first degree is in a STEM field is under consideration. The number of degree programs eligible for OPT may be expanded. This will be done by regulation.

PERM Labor Certification

A full rulemaking will be undertaken to modernize the PERM program.

Visa Modernization.  A Presidential Memorandum will be issued directing federal agencies to look at modernizing the visa system with a view to making optimal use of the numbers of visa available under law.  Issues such as whether dependents should be counted against the employment based green card quota and whether past unused visa numbers can be recaptured will be included in this effort.

Important Reminder

None of the initiatives listed above have been implemented and no applications can be filed at this time. It could be weeks or even months before policy guidance or formal regulations are published. We will advise our clients as soon as any additional information is available.

Comment » | Department of Homeland Security, Department of Labor, I-140, I-485

The Immigration Reform Investment: More Legal Workers, More Tax Revenue

October 6th, 2014

As Congress continues to ignore one of the most important issues of this generation, the U.S. is losing valuable tax money. Without a safe path to legal work, many migrant workers don’t pay taxes, nor do their employers. In 2013, the Senate passed a bill that could have changed that, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” Also known as S. 744, the law would have provided a path to legal status for millions of undocumented workers in the United States. The House never even considered S. 744.

The Social Security Administration and Pew Research estimated that nearly 63% of undocumented workers don’t contribute to taxes. The 33% who do pay taxes currently contribute roughly $13 billion a year. S. 744 could have potentially tripled that number. The federal government wouldn’t be the only beneficiary — the Center for American Progress (CAP) believes that over a 10-year period, undocumented immigrants would pay $40 billion more in state and local taxes.

With legal status, migrant workers would be able to get better wages — CAP estimates undocumented workers’ wages could grow around 15% with legal status, and an additional 10% after citizenship. Higher wages for undocumented workers means they could contribute enough to reduce the federal deficit by $820 billion over 20 years, according to ImmigrationImpact.com. Thirty years of the additional taxes could extend Medicare for four years. And we could add $606 billion to Social Security, potentially funding 2.4 million more American retirements. But partisan politics have put any meaningful debate on hold, and our costly and broken immigration system continues to do more harm than good.

To put things in perspective, the Congressional Budget Office crunched the numbers for the potential law. By their calculations, every dollar spent on implementing S. 744 could mean two more dollars in taxes, effectively doubling the initial investment and making millions of peoples’ lives better. Beyond simple compassion, beyond American progress, immigration reform is a great investment. But political agendas stand firmly in the way of actual legislation, and undocumented workers continue to live and work in hiding.

Even temporary deferred action could bring in a significant amount — nearly $4.5 billion in the first year alone. And that number only includes undocumented workers who have been in the U.S. for 10 years or more. If President Obama offered deferred action to undocumented workers who have been in the U.S. for 5 years or more, the U.S. could collect $6 billion in the first year.

The numbers speak for themselves — immigration reform could have a major impact on the economy. Hopefully Congress can get past the partisan bickering and make some progress.

 

Comment » | Immigration reform

Executive Action: Using a Band Aid When We Need a Cast

September 15th, 2014

For the past 10 years, the debate on immigration reform has only intensified. With Congress repeatedly failing to act on any meaningful legislation for the sake of partisan politics, someone needs to step up and address the problem. And that someone should be President Obama.

With legislative gridlock firmly in place, official policy has been to simply reinforce the same broken laws — to the tune of $18 billion dollars per year. We currently spend over $3.5 billion more on immigration and border enforcement that all other federal law enforcement combined.

But President Obama doesn’t have much room to really make any permanent difference in immigration laws as his options are temporary solutions to a long-term issue. The controversial Deferred Action for Childhood Arrivals (DACA) program may serve as a model for next steps.

The president has the ability to determine how to enforce the laws, meaning that the Department of Homeland Security — the agency responsible for immigration enforcement — can decide to target higher-risk individuals and focus less on the undocumented parents or other relatives of citizens and the so-called DREAMers.

The president can also create a procedure for these individuals to come forward and seek out temporary relief until Congress can enact permanent reform legislation. This way, undocumented immigrants who are contributing members of our society can remain with family, local economies can stabilize and we can focus on the dangerous individuals trying to make their way into the US.

Since 2001, over 4,000,000 undocumented immigrants have been deported — 2,000,000 during Obama’s administration alone. Expansion of DACA is the first step in the right direction.

It’s important to remember that deferring actions is an administrative decision, meaning that these solutions aren’t the lasting legislation that we so desperately need. The next administration could reverse any decisions made by President Obama. For now though, temporary relief can help ease the burden of a broken immigration system.

 

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration reform

Unaccompanied Minors from Central America: What is Happening on the Ground and Why This is Not a Border Security Crisis But a Crisis Demanding Humanitarian Relief

August 26th, 2014

For much of the summer, the immigration news has been dominated by the recent surge of some 60,000 unaccompanied minors and young children with their mothers fleeing the violence and lawlessness in Honduras, Guatemala, and El Salvador. The Central American humanitarian crisis has resulted in a national debate about how to treat this vulnerable population: send them back to their home countries or grant them humanitarian relief in the United States.  Below is a very brief overview of what the federal government’s response has been thus far, a depiction of conditions on the ground, and a historical perspective on the numbers.

Shortly after the crisis emerged, the Obama Administration marshaled the resources of the numerous federal agencies involved in the apprehension, processing, housing, and repatriation of unaccompanied minor children, and sought emergency funding from Congress. Unfortunately, the Senate and the House of Representatives could not agree before their August 4 recess, and will have to resume negotiations and deliberations when Congress returns after Labor Day. In the meantime, the immigration courts have been instructed to expedite the hearings these immigrants are afforded to determine if their fears are credible, if they are eligible for asylum status, or if they should be deported.

While many of the children have been reunited with other family members who already live in the United States or have been released to sponsors, many others are being detained in detention centers awaiting hearings. One such center is the federal detention center at Artesia, a tiny town in Southeastern New Mexico. Artesia has been thrown into the national spotlight because the federal training center located there was turned into a make-shift detention center for women and children fleeing violence in Central America.

In the wake of the crisis, the immigration bar mounted a massive pro bono effort to ensure that detainees are afforded due process. Teams of experienced immigration lawyers, many of whom are members of the American Immigration Lawyers Association, are volunteering their time and experience to help these mothers and children. The following dispatches from lawyers who have spent a week at Artesia sheds some light on the conditions in these detention centers:

“I spent last week at the Artesia ‘family detention’ center, a 4-hour drive from both Albuquerque and El Paso. We had a group of roughly ten volunteers (attorneys, translators, and administrative staff) trying to stop the rapid deportations and see that the women and their children get some modicum of due process. This was the first week there has been a full time volunteer attorney presence on site during the month it has been open. 

“The first impression you get . . . is that all the children are sick, with coughs at minimum. They are dehydrated and listless. They are cold — there were two mornings where the temperature was around 60, and there were no jackets or blankets, so mothers and kids walked around with towels wrapped around their shoulders for warmth. Nearly all of them have valid claims for asylum — the majority based on domestic violence or gang issues. An unfortunate number were already deported without the opportunity to even consult with an attorney. Some mothers are giving up and asking to be deported because their kids are so sick.” [Editor’s Note:  Individuals are giving up even though the conditions in their home countries are dire.  For example, five recent Honduran deportees were murdered by gangs upon their arrival in Honduras. NPR, 8/21/2014.]

One pro bono lawyer from Oregon describes her experience in Artesia in this way:

“The lack of justice, due process, and the gross infringement on basic human rights at Artesia is truly staggering. . . . We need to send our members here to see and experience what is happening firsthand, so that they can shed light on this very dark place. . . . These are the most vulnerable people in the world, and our government is using them to send the message that America’s southern border is closed. As advocates, we can’t sit by and allow this voice of hate to be the loudest.”

A third volunteer lawyer reports:

“Women and children detained at length, being refused a chance for a fair hearing and access to counsel, and ultimately being sent back to the danger from which they fled. That’s what we’re seeing at Artesia . . . .

It shouldn’t be like this. But this is what we’ve come to. We need to help these families, to offer them due process and humane conditions, and ultimately address the root cause of this crisis: the conditions in Central America and the smugglers and traffickers who are making money off the misery of others.”

 

The New York Times highlighted a recent lawsuit filed by the American Immigration Council and other groups challenging the governments policies denying a fair deportation process to mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America and come to the United States seeking safety.

The August 26, 2014 editorial stated:

“But the treatment of hundreds of these migrants in a makeshift detention center in Artesia, N.M., is appalling evidence that this promise was empty, according a lawsuit filed Friday in Federal District Court by a coalition of civil-rights organizations.

The immigrant detention center was supposed to be a safe haven for mothers and young children as their cases go through court. Though the detainees, as unauthorized immigrants, have no legal right to lawyers, advocates and immigration lawyers have made strenuous efforts to provide representation. The migrants have fled countries racked by gang and drug violence, and many have credible claims to asylum.”

 

 

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration Policy Center, Immigration reform

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