Mr. Lee's Article -The Renewed Hope for Immigration Legislation in 2011By Alan Lee, Esq.† Springing from defeat of the DREAM Act in the lame duck session comes renewed hope of immigration legislation in 2011. A number of forces will be in play both pushing and pulling for and against, but looking into our tea leaves, the author is prepared to say that the odds favor positive change in the new year. 1.) The President as catalyst has shown himself to be an effective leader during the lame duck session in repealing the don't ask don't tell policy on gays in the military, getting the Senate to approve the New Start arms control treaty with Russia, agreeing to an $858 billion tax cut package benefiting all Americans, along with his earlier achievements of Health Care and Wall Street Reform and a $787 billion economic stimulus package in 2009 that probably saved the nation from deflationary spiral. He stated a strong commitment on immigration on December 22nd that perhaps his biggest disappointment was the failure of the Dream Act, promising that in the next Congress "I'm going to go back at it." Renewed determination by a sitting president now getting higher marks for achievements will be an extremely positive factor. 2.) Negative will be the influx of Tea Partiers and other conservatives into Congress, many of whom will not be willing to budge on immigration. However, enough reasonable members of Congress should be found willing to pass limited and focused legislation where there are extreme humanitarian considerations with high benefit to the nation such as the applicants for the Dream Act or where the national interest of our food chain is at stake (and very few Americans willing to take on farm labor jobs) as the prospective applicants for AgJobs. 3.) The political winds are more favorable for change in 2011 than they will be in the 2012 election year. It has always been more difficult to pass immigration legislation in election years, and limited immigration benefits legislation in a non-election year is more palatable to many members of Congress. Despite the divisive nature of the immigration debate, everyone is aware that the immigration system is broken and that this nation short of bankruptcy cannot afford the cost of deporting 10-11 million illegal immigrants. Improvement of the jobs situation in the country would provide a welcome tailwind to the effort for positive change. 4.) Pressure from the Hispanic lobby will be central to obtaining legislative change. The Republicans with their concerted opposition to the Dream Act realize that they have placed themselves in a box for the 2012 elections in which the Hispanic population, now the largest minority population in the nation, will be prepared to vote overwhelmingly for Democratic candidates because of the high value that it places on the immigration issue. All minorities also realize that there must be a brake to the rolling tide of state legislatures making it easier to stop and harass all people of color. Unless the Republicans decide that they no longer as a party will court the minority vote with any sincerity, they must compromise on the immigration issue. 2011 is the year to do it since action in 2012 will either be seen as capitulation to the Democrats or the handing out of scraps to attract votes. 5.) What is the scope of possible change in 2011? The pro-immigrant lobby must accept the idea of lower expectations in light of the midterm elections. This corner does not see a massive immigration bill encompassing legalization coming anytime before the 2012 elections. The reality of the Democratic shellacking in November and the changing of leadership of the Immigration Subcommittee and Judiciary Committee make the writing and passage of a huge bill very difficult. However, there may be a way to gain significant immigration benefits for many without having to write and pass an encyclopedic piece of legislation. Besides the limited change espoused above for the Dream Act and AgJobs, the pro- immigrant lobby should push for an updating of Registry and/or Section 245 (i). We spoke of such in an Immigration Daily article, "Recommendations on Positive Immigration Options that the Administration Should Explore" in April 2010 when the atmosphere appeared much more favorable to positive change. At the time, these possible smaller steps were all but drowned out in the push for Comprehensive Immigration Reform, but should now be given serious consideration. 6.) Registry is a device which has been on the books since 1952 and allows adjustment of status to permanent residence for those who have been in the U.S. for a long period of time, are persons of good moral character, not ineligible for citizenship or deportable as terrorists, and are not criminals, procurers, and other immoral persons, subversives, violators of the narcotics laws or smugglers of aliens. Currently it is available for those who can prove entry before January 1, 1972. That date was set by President Reagan in the Immigration Reform and Control Act of 1986. Moving the date forward to at least within 5-10 years would rescue the provision from obsolescence and only require a change in date to be effective. A further recommendation is to include language automatically allowing forward movement of the date in subsequent years depending upon projected demand for numbers as established by studies conducted by U.S.C.I.S. This would allow for orderly registration of eligible illegal immigrants without significant burden to U.S.C.I.S. and in fact constitute a financial boon to the agency and U.S. government. 7.) Section 245(i) is a far better known device first in effect in October 1994 with two current versions depending upon the dates that illegal immigrants applied for either labor certification or immigrant visa petition. The section covers most illegal immigrants' mode of entry with the most notable exceptions of J-1 visa holders still subject to the two-year foreign residence requirement and fiancees/spouses entering on the K visas. For applicants who filed on or before January 14, 1998, no prior physical presence in the U.S. is required. For those filing on or after January 15, 1998, and on or before April 30, 2001, physical presence in the U.S. on December 21, 2000, must be proven. Eligible applicants must pay a current fee of $1,000 to utilize Section 245(i). The section has had three permutations plus a series of continuing resolutions to extend the provision over the years as past Congresses have considered it a device to be updated periodically. With the last permutation's eligibility date now almost 10 years in the past, it has fallen into almost the same obsolescence as Registry. In the Department of State monthly visa bulletin for January 2011, all immigrant visa categories' availability dates have exceeded April 30, 2001, with the exception of the F-3 category for married sons and daughters of U.S. citizens which has an availability date of January 1, 2001. It should be noted, however, that in the visa bulletin for December 2010, that category had actually moved to June 1, 2002, before retrogressing. Similar to Registry, the updating of Section 245(i) does not require major legislative change - merely an advance in the date of an already existing law. Section 245(i) updating would yield a smaller class of individuals to be benefited than Registry, but would give hope to many illegal immigrants that they might ultimately have an avenue to gain legal status. It would further allow U.S.C.I.S. a steady stream of revenue by which it could largely fund its own operations. As opposed to Registry, Section 245(i) updating would be to a date in the future instead of the past to allow applicants time to file the necessary paperwork for labor certifications or immigrant visa petitions. It should be noted that the first permutation following passage of the provision in August 1994 gave a three-year period starting from October 1, 1994 and sunsetting on October 1, 1997. 8.) There exists a school of thought that before any significant legislative effort is made, the President should first use his executive power to carve out administrative relief for certain classes of individuals, especially for those who would be eligible for inclusion in the Dream Act. That school characterizes the use of such executive order giving legal recognition with the ability to work as a "down payment" on future legislation. We believe, however, that such administrative fiat should be used as a last resort when it is apparent that there can be no legislative relief. The handing out of extended voluntary departure and work authorization while meritorious would most likely be seen as "poisoning the well" by any conservatives who might wish to negotiate on immigration legislation. It should be noted that the Republicans raised such a hue and cry to threaten passage of the New Start treaty with Russia when the Dream Act legislation was introduced in the lame duck session. President Obama will not be able to bring in as effective counterweights ex-presidents, former secretaries of state, and members of the military leadership as he did in the New Start push. Negotiations may prove painstaking, but first use of executive power will be a barrier rather than a persuasion of inevitable change. 9.) The President can make a better case for himself to the American people as an honest leader seeking bipartisan accord if he prioritizes immigration as he promised and attempts to attain legislative compromise through most of 2011. If the effort fails, he can then state the merits of administrative relief to the nation at the time of his executive proclamation. He would of course be subject to criticism as abusing his executive power to enact change that was defeated or not acted upon not only in the current Congress, but in former ones, and for pandering to Hispanics for their votes. The best answer would then appear to be a declaration of executive order before Congress finally breaks for 2011 to lessen the charges of political pandering. The charge of abusing executive power would be the same whether he used the power at the beginning of 2011 or the end of 2011, but at least he could explain to the American people that he tried it legislatively and then give all the reasons for which he was issuing the executive order 10.) 2011 will be a year of great uncertainty in the immigration debate. With some luck and dedication by the Administration and other reasonable parties, the prospect of positive change can burn bright. Copyright © 2011 Thomson Reuters. † The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.
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Copyright © 2003-2011 Alan Lee,
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