DACA: Administration’s hard line scuttles hopes for bipartisan solution

When President Trump spoke last September about his decision to rescind DACA, the Deferred Action for Childhood Arrivals program, he stated that he had great sympathy (and even “love”) for these young adults (the so-called Dreamers), and urged Congress to get a deal done that would provide them with a path to stay in the U.S. permanently.

That was then.  On January 12, 2018, when presented with a bipartisan proposal to help the Dreamers, President Trump rejected the deal.

And this week, with debate on DACA underway on the Senate floor, and following countless hours spent by bipartisan groups of legislators to reach good faith compromises to allow for legalization of DACA/Dreamers, President Trump announced that he would veto any bill not incorporating his “four pillars”.  He then endorsed a 592 page bill sponsored by Sen. Chuck Grassley that went far beyond the scope of DACA and border security,  proposing arguably the most fundamental change in the values of U.S. immigration policy since 1924, when Congress imposed race-based national origins immigration quotas.

On February 15, 2018, the Senate voted on four immigration proposals. All of the proposals failed, including the bipartisan  Immigration Security and Opportunity Act (S.A. 1958) and the bipartisan  USA Act of 2018 (S.A. 1955), both of which were narrowly tailored to address DACA/Dreamers and border security.   MeBIC supported both of these measures, which had elements that both sides could like and hate, but at least were thoughtful compromises.  Of the four items voted on, S.A.1958,  sponsored by Senator Angus King and co-sponsored by Senator Susan Collins, gained the most votes in favor (54-45).  The Adminstration-backed Grassley bill received the least votes, suffering defeat  by 60-39.

The Senate will be on recess next week, while March 5, 2018, the last date of the DACA program (absent Court rulings blocking the rescission), looms.   When the Senate returns to work, it is imperative that they continue to make crafting a permanent solution for the Dreamers a top priority.

There is little doubt that President Trump’s veto threat influenced the outcome of this week’s debate.  Holding the nearly 800,000 DACA holders who are already integral members of our communities and the country’s economy hostage in order to achieve a massive overhaul of the U.S. immigration system is unconscionable from a humane perspective, and unwise from an economic one.   Any massive immigration overhaul should be the result of careful thought and a deliberative process, with hearings and input from a wide range of experts.   The 60 Senators who voted against the Administration-backed Grassley bill apparently agreed.

We can only hope that President Trump will revert to his earlier willingness to sign any bill that resolves the status of the DACA/Dreamers that gains bipartisan support, and will allow other immigration issues to be tackled at a later date.

Update: DACA Renewals Resume Following Federal Court Order, but Congress Must Act

Update:  On January 13, 2018, US Citizenship and Immigration Services (USCIS) announced that it will resume processing applications to renew DACA status and work authorization in compliance with the January 9th Federal Court order discussed below.  Only persons who already had DACA can apply; USCIS will not accept applications from persons who had never had DACA protections previously.

On February 13, 2018, a second Federal District Court in New York also ruled against the government’s rescission of DACA  and ordered USCIS to process DACA renewal applications under the same terms as defined by the California federal court order.

Those interested in renewing should consult with experienced immigration attorneys for more information.  Since the government is appealing the Court’s ruling, this relief may be short-lived.

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On January 9, 2018 the Federal District Court for the Northern District of California ruled that the Administration’s decision rescinding the Deferred Action for Childhood Arrivals (DACA) program was based on a “flawed legal premise” and should be blocked from taking effect. For background on DACA, read this post.

What does this decision mean for DACA holders?

The Court’s order applies nationwide.   It orders the government to continue processing DACA applications from those who already have had DACA. A person who has never had DACA will not be able to file a first-time application.

Estimates are that over 13,000 DACA holders have already lost their DACA status and their permission to work. Under this order, the government must allow them to apply to renew both their DACA status and their work authorization. Should this order stand, the more than 8500 people whose DACA status and work permits will expire each week starting on March 6, 2018, can apply to extend their status.   The order does not allow DACA holders to apply for “advance parole” so that they can temporarily leave and reenter the U.S., however.

What’s next?

In a highly unusual move, the government has asked the Supreme Court to take up its appeal, without first having appealed to the Federal Circuit Court of Appeals.  This decision is a reprieve, but not a solution for those with DACA. These young adults need a path to permanent residency, not temporary fixes that leave them and their families, communities and employers in a cloud of uncertainty.

Congress must pass a bill creating a path to permanent residency for the DACA/Dreamers.  That debate is ongoing as of this writing,

 

Myth vs Fact: What the Jordan Commission really said about Immigration Reform

In the run-up to his State of the Union address, President Trump issued a statement honoring the late Rep. Barbara Jordan of Texas, who chaired the U.S. Commission on Immigration Reform. In that statement, and in his address, he implied that the Administration’s call to drastically reduce immigration to the U.S., particularly the family-based immigration that has been the cornerstone of our immigration policy for generations, aligns with that Commission’s recommendations. Here’s an informative, and informed, rebuttal by the Executive Director of that Commission.

2018 Maine State Legislature: MeBIC supports LD 1492

LD 1492, An Act to Attract, Educate and Retain New Mainers to Strengthen the Workforce. Sponsor: Sen. Roger Katz

LD 1492 addresses Maine’s shrinking labor supply by recognizing immigrants as a critical part of the solution. Passed out of the Committee on Education and Cultural Affairs with 11-2 support, it was later carried over to 2018.   At a January 31, 2018 work session, LD 1492 once again received strong Committee support.  As amended, the bill would provide funding to expand the availability of adult English as a Second Language (ESL) classes, offer combined ESL and job training at worksites in public/private partnerships, expand the New Mainers Resource Center model operating in Portland into the Lewiston-Auburn area, and provide funds for planning grants for communities experiencing growing influxes of immigrants to assess services needed to help reduce brain waste and accelerate immigrant integration.

There was no 2018 testimony taken, but at last year’s public hearing, the bill received broad support from Maine’s business community, including several MeBIC partners, such as the Maine State Chamber of Commerce, Coastal Enterprises, Inc., the Maine Healthcare Association, Barber Foods, Pro Search, Inc., SIGCO, Inc. Smith’s Farms, as well as from adult education providers, the Lewiston City Council, other individual employers, and Maine residents. The Maine Innkeepers Association and the Maine Restaurant Association also submitted testimony supported key portions of the bill.

The bill is now headed to the full Legislature for a vote.  See a summary here.

English language skills are one of the biggest barriers hindering immigrants from reaching their full potential in the workforce and in our communities. Maine’s immigrants want to improve their English, but often face daunting waiting lists to get into adult education English as a Second Language (ESL) classes in Portland and Lewiston, or find that classes matching their level of English are simply not offered yet in communities whose immigrant populations have been growing recently, such Augusta, Bangor and Biddeford. Moreover, research has shown the effectiveness of contextualized ESL classes, and workplace based classes combined with job training, as proposed in the bill, improve both workplace skills, and also ESL class accessibility, so that students don’t need to choose between the short term need to work and their long term learning goals.  LD 1492 would take a strong first step at lowering barriers to immigrant integration, benefiting immigrants and Maine’s labor supply alike.

MeBIC urges Maine’s business community to contact their Representatives and Senators to voice their support of LD 1492.   For further information about LD 1492, contact Beth Stickney at MeBIC.

White House’s Immigration Pillars Would Harm Our Economy

On January 25, 2018, the Administration released its “White House Framework on Immigration Reform & Border Security”, whose “pillars” featured prominently in the President’s State of the Union address. Previously, the Administration had not been clear on what it would accept in any deal to provide a path to permanent legal status for those with DACA, the so-called “Dreamers”, but this framework makes a deal harder, rather than easier, to reach.

What are the “Four Pillars”?

The semi-good:

  • A path to legal status for those with DACA, and those who were DACA eligible but never got the chance to apply. This would legalize an estimated 1.8 million immigrants youth who are already integrated into our communities, studying, working, serving in our military, and paying taxes. While this is a good start, the proposed 12 year long process relegates these young adults to long-term second-class status, and prevents them for years from being able to work in jobs that are restricted to U.S. citizens, for no rational reason.

The bad:

  • Border security measures. This “pillar” would include billions of dollars for the border wall, despite its lack of public support, with even some border state Congressional Republicans and conservative think tanks While many Democrats would agree to technology and personnel security upgrades, the wall, as envisioned by the Administration, would be ineffective and a waste of taxpayer funds, especially when about half of the undocumented population enter legally and overstay their visas. This “pillar” would also strip due process rights from those crossing the border in search of asylum, in violation of U.S. obligations under international law.
  • Drastic cuts to immediate family immigration. The Administration proposes to “emphasiz(e) close familial relationships” and end “extended family chain migration”. This is patently false. Current law does not allow extended family to immigrate. Permanent residents (green card holders) can sponsor only their spouses and unmarried children. U.S. citizens can, over a period of many years, bring their entire immediate families, including their spouses, fiancé(e)s, children of any age and marital status, parents, and siblings. Aunts, uncles, cousin, grandparents and other extended relatives of U.S. citizens are not allowed. This “pillar” proposes restricting family immigration to only spouses and minor, unmarried children of U.S. citizens and permanent residents.   Under these terms, most of us would not be here, since vast numbers of our forebears immigrated in the categories being eliminated. (This includes the President, whose Scottish mother immigrated through her sister, and his German grandfather who immigrated through his brother.)
  • Elimination of the Diversity Visa (DV) lottery. The DV lottery was created by Congress in 1990 to give those without immediate family or employer sponsors a chance to immigrate and try their hand at the American Dream. Fifty thousand visas are available annually. The “framework” document states that individuals are selected “without consideration of skills, merit, or public safety.” This is disingenous. DV lottery visas are only issued to those who pass rigorous criminal and national security background checks, and can prove that they have, at a minimum, completed secondary or high school or have at least two years of experience in a skilled trade.  DV lottery “winners” also must prove that they will be able to support themselves in the U.S., and are ineligible for means tested public benefits for their first five years in the U.S. DV immigrants are a reliable stream of new workers for our economy. Changing or eliminating the DV lottery program may indeed be a viable negotiating pawn in the effort to create a path forward for DACA/Dreamers, but the Administration’s ostensible reasoning is dishonest.

The negative economic impact of the Administration’s framework.

In exchange for legalizing up to 1.8 million DACA/Dreamers, the Administration’s proposal would:

  • Dramatically reduce family-based immigration: The Administration has already endorsed proposals that are estimated to cut family based immigration by as much as 44 percent. The Administration’s premise is that we have too many immigrants, and that family-based immigrants do not add needed skills and talent to our work force. Centuries of immigration have proven otherwise; family immigrants come with a wide range of education and skill levels, from dishwashers to PhD scientists, and they overwhelmingly work. Current family-based immigrants have higher education levels than native-born U.S. citizens, and are essential to stem our shrinking labor pool as “baby boomers” retire.
  • Substitute our current employment-based immigration system with a “points” system: The framework does not mention this shift, but the White House has repeatedly stated its support for revamping our current employment immigration scheme with a system that would assign points for education levels focused on STEM fields, English proficiency, age, wealth, and extraordinary achievement (such as being a Nobel Laureate or an Olympic medalist), as proposed in the RAISE Act, which the Administration endorsed in 2017. While there is widespread agreement that the U.S.’s current employment-based immigration system needs an overhaul, the RAISE Act is not the solution. It would reduce our overall number of employment-based immigrants, and not be tied to job openings. Not every business needs a person with a doctorate in a STEM field. Moreover, most highly educated, motivated professionals who would not qualify. Use yourself as an example, using this tool.

In addition, the Administration would sacrifice family-based immigration for this new points-based system as if there must be a trade off. It repeatedly, but erroneously, states that this is the same system that Canada uses.   However, the Administration fails to mention that Canada’s points based system is in addition to its family-sponsored, employer-sponsored, and refugee immigration components. Moreover, the Administration would allow only the spouses and under 18 year old children to accompany the points-based immigrants. This would discourage many talented people, who would want their college aged children to be able to accompany them to the U.S., from choosing to immigrate to the U.S.

Finally, by endorsing the RAISE Act, the Administration also supports reducing the overall number of employment based immigrants from current levels. This is indefensible when the nation’s unemployment rate has held steady between 4.1% and 5% for two years, and our labor pool, both nationally and in Maine, is shrinking as the Baby Boom generation retires.

Bottom Line: 

Through the recently released “Framework” document and its support of the RAISE Act, the Administration has shown its hand, bowing to immigration restrictionists who categorize today’s immigrants as somehow fundamentally different from the generations of immigrants who came before us and built this country.   This characterization is false, and harms not only our country’s values, but also our ability to progress. Today’s immigrants, like the centuries of immigrants who came before them, bring energy, renewal, and optimism that the “American Dream” is still alive and well.   Our country, and our economy, needs them.

 

 

 

Updated: Federal Court Blocks Refugee “Travel Ban 4.0”

“Travel Ban 4.0”, described more fully in this post, applies to refugees only, indefinitely suspending the ability of refugees already in the U.S. to bring over their “follow-to-join” spouses and under 21 year old, unmarried children who are still abroad, and temporarily suspended refugee processing of any refugees from eleven countries, including Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen.  (Update:  On January 29, 2017, the government announced that it is no longer suspending refugee processing from the eleven countries listed earlier,  but will subject them to intensified scrutiny – this, notwithstanding that refugees have long endured more scrutiny than any other category of immigrant to the U.S., going through identity, background, and other verifications that typically take 18 to 24 months.)

On December 23, 2017, a Federal District Court in Washington State issued a nationwide injunction blocking enforcement of Travel Ban 4.0 against follow-to-join relatives.  (The court also blocked enforcement of the ban against any persons from the eleven designated countries who have a bona fide relationship with a person or entity in the U.S., as defined previously by the Supreme Court, but that is now likely moot following the government’s January 29, 2017 decision mentioned above.)

On December 27, 2017, the government challenged the District Court’s injunction against implementation of the Travel Ban 4.0 against refugees who have received assurances from refugee resettlement agencies.

Bottom line:    Under the Federal Court’s ruling the government should continue to process  visa applications for follow-to-join relatives of refugees already resettled in the U.S. while this litigation continues.

NOTE:          As a practical matter, the government has put a stranglehold on refugee processing irrespective of any court decisions. Fewer than a third as many refugees were admitted in the first quarter of FY 2018 as compared to the prior three fiscal years as explained in this Wall Street Journal article.  Refugee resettlement agencies across the country are cutting staff because not only is this fiscal year’s 45,000 cap on refugee admissions the lowest number since 1980, but also at the rate refugees are actually being allowed in, barely half that number might actually arrive.

How does this affect Maine’s businesses?

  • If you have refugee employees, be aware of their stress due to the uncertainty of whether this court decision will hold, and their worries about when their spouses and children, whom they may have been expecting to immigrate soon, will be able to reunite with them here in the U.S.
  • Maine has resettled hundreds of refugees annually for decades.   Refugees from four of the eleven targeted countries – Somalis, Iraqis, Syrians and Sudanese – have been long been the majority of those resettled here each year. They become integral members of our communities, working, volunteering, and spending their earnings locally.   With Maine’s historically low unemployment rate and shrinking labor pool, we need workers. Refugees already were subject to more strenuous vetting than any other category of immigrant. Choking off this regular source of new immigrants to Maine will hurt Maine’s economy.

Déjà Vu: H-2B Shortage Likely for 2018 Summer/Fall Tourist Season

On January 3, 2018, the U.S. Department of Labor announced that by January 1st, the first day that it accepted applications for the summer season, it had received applications covering more than 81,600 positions from employers hoping to obtain H-2B visas for seasonal non-agricultural foreign workers.  That number is triple that of January 1, 2017.  Only 66,000 H-2B visas are available annually, with a mere 33,000 allocated for April 1st to September 30th.  While certain seasonal workers are exempt from the cap, the majority of employers who hoped to meet their summer season labor needs in part with H-2B workers are likely to be sorely disappointed.  Employers can learn which H-2B employees are exempt from the 33,0000 cap, and track whether the cap has been reached here.

Last year, the H-2B summer seasonal visa cap was reached in mid-March, leaving Maine’s restaurants, hotels and other seasonal businesses scrambling to find staff.  Several had to open late or close early in the season, close some of their hotel rooms, or offer fewer meal shifts. Congress enacted a temporary fix applicable only to FY2017 that resulted in 15,000 additional H-2B visas  being added to the cap, but too late to benefit most employers.

When employers have to scale back because they can’t get the workers they need, this hurts entire communities.  States and localities lose tax revenues from the business’s reduced sales.  U.S. workers may lose their jobs or have reduced hours if a business decides not to open or limits its hours.  Local businesses lose the funds that foreign workers spend while living here.

Congress needs to enact a permanent solution to stop these perennial H-2B visa shortages.

Update on “Travel Ban 3.0” Litigation

“Travel Ban 3.0” applies to people from Chad, Iran, Libya, No. Korea, Somali, Syria, Venezuela, and Yemen. This ban affected those applying for visas or entry as immigrants (permanent residents) and nonimmigrants (temporary stays). Read this post for more details about the specific immigrants and nonimmigrants affected. It does not apply to refugees.

On Dec. 22, 2017, the 9th Circuit Court of Appeals ruled against the government and found that the President exceeded his statutory authority when he issued Travel Ban 3.0.   The Court issued a partial preliminary injunction of Travel Ban 3.0 while the case proceeds through the federal courts. The injunction would block implementation of the ban as it applies to persons from the 8 countries who have a “credible bona fide relationship with a person or entity” in the U.S. – including immediate and specified extended family members, and those with a “formal, documented” connection to a business or university etc.

However, the 9th Circuit court then “stayed” its own preliminary injunction pending review by the Supreme Court, in deference the Supreme Court’s earlier decision on 12/4/2017.

On January 19, 2018, the Supreme Court agreed to hear the government’s appeal of the 9th Circuit’s decision.  Oral arguments are expected in the spring, with a decision by the end of June, 2018.

Update:  On February 15, 2018, in a separate challenge to Travel Ban 3.0, the 4th Circuit Court of Appeals, similar to the 9th Circuit, affirmed the Federal District Court of Maryland’s ruling enjoining portions of Travel Ban 3.0 , but stayed implementation of its ruling since the Supreme Court will be considering the case.

Bottom line: Travel Ban 3.0 remains in effect pending the Supreme Court’s decision. See this post for the impact of Travel ban 3.0.

The Immigration Debate: Language Matters

The current Administration wants to drastically reduce family-based immigration to the U.S. and replace our current employment-based immigration system with a points-based one, as proposed in the Administration supported RAISE Act.    The Administration is also pushing to drastically cut family based immigration as part of any legislative deal to provide permanent status to those with DACA.

As part of its campaign for these reforms, the Administration uses terms that taint honest debate. First, referring to the proposed points scheme as a “merit-based” system infers that our current system is not already merit-based. In reality, immigrants through employment must meet strict educational and skill requirements. In most cases (with exceptions for immigrants already internationally renowned in their fields), the U.S. employer must prove to the government that the position requires highly specialized skill or professional education and experience, and that the immigrant it wants to hire meets or exceeds the requisite criteria.

Similarly, the Administration is wrong to describe family-based immigration as “chain migration” that floods the U.S. with immigrants’ extended family members.   In reality, immigrants can petition only for their immediate family members. Refugees and asylees can bring only their spouses and children who are unmarried and younger than 21. Permanent residents (“green card” holders), can bring only their spouses and unmarried children of any age.  U.S. citizens can bring, in addition to their spouses and unmarried children, their married children, parents, and siblings – in other words, their immediate family members.  The U.S., in fact, is more restrictive than some other countries.   For example, both Canada and the U.K. allow grandparent immigration, which is not allowed here.

For most of these immediate family members, the U.S. immigration process is punishingly long. For example, as of January 2018, there was a seven year wait for adult (over 21) children of permanent residents to immigrate, and the wait was only slightly shorter for unmarried adult children of U.S. citizens.  Married children of U.S. citizens waited nearly twelve years, and siblings of U.S. citizens waited over 13 years to immigrate. The waiting lists are even longer for certain countries.  A naturalized U.S. citizen originally from the Philippines must wait about 13 years to be reunited with her adult child, about 23 years to be reunited with her married child, and about 24 years to be reunited with her siblings.  A naturalized U.S. citizen from Mexico will wait over 21 years for his unmarried child, over 22 years for his married child, and over 20 years for his sibling to gain residency in the U.S.

The Administration also disparages family-based immigration by implying that these immigrants bring no talents and skills to enrich our economy and workforce. Throughout our recorded history of immigration, that has simply not been the case.   Whether they are Ph.D. researchers, engineers, and entrepreneurs, or caregivers, farm workers, and housekeepers, today’s  immigrants participate in the workforce at higher rates than native-born U.S. citizens, and like generations of immigrants before them, keep our country and our economy growing and vibrant.