New York City June 9, 2015

The Republican Party needs to present an immigration position in 2016 that confronts the realities of the American economy, the international situation and helps fix those parts of our visa, immigration and nationality system that need ‘reform’. The reality is that almost every part of that ‘reform’ can be addressed in a bi-partisan manner, in ten minutes, except the elephant in the room: amnesty (aka legalization).

In order to take the wind out of Democrat Party proposals advocating amnesty, albeit under different names, the Republican Party needs to present a set of proposals that address most or all of the aspects that can be agreed upon. Presenting these proposals and having congress pass them will put President Obama and the Democrat Party candidates in a difficult situation. If he vetoes a Republican reform package the Republicans will have a valid claim that the Democrats are not really serious about reform but only about an amnesty. This will put any Democrat candidate on the defensive on this issue. This issue could determine the margin of victory or defeat.

The Republicans should take a centrist approach explaining that an amnesty will encourage tens of millions to come here for similar relief and create a cycle of ‘ignore the law and be forgiven’. The mass deportation of those already here would cause undo hardship on children and those Americans dependent upon those aliens and require an enforcement apparatus that would be unsustainable. The Republicans should position themselves as the rational alternative to the Democrats who want to dismantle an orderly immigration system on one side and the restrictionists on the other. [i]

The goal should be to have a long-term workable system that creates opportunity for many without opening the floodgates. That system should be fair for America, sustainable, and realistic.

Most items can easily be agreed upon.

WORK VISAS: Congress needs to either eliminate or significantly increase the H-1 visa quota. Companies need to know that they can get the skilled employees that they need. If the United States wants to be a player in global trade and finance, trade in human capital is part of that process.

Provisions should be added that liberalize eligibility for H-2 and H-3 workers.

The Republican Party position must be that ‘our system must be the oil of international trade and commerce’.

H-5 PROGRAM: We should consider a new Bracero program to allow those closest to us, Mexicans and some Central Americans and Caribbean workers to come and work here so long as they pay taxes, return home to renew their visas every year and not commit crimes. This would be recognition of the economic realities, as they exist. This should not be a path to legal permanent residence. I would call this an H-5 visa program.

QUOTA RELIEF: For those classes of aliens, family as well as employment, that congress has already decided are eligible to become legal permanent residents, relief from unbearably long quota waits are in order. Increased quotas or at least permission to come and remain in the states while their quotas are pending will have the effect of reuniting families and allowing eligible employees to begin their new lives in the U.S. This might be done through a new nonimmigrant visa.

TEN YEAR BAR: I estimate that at least one million aliens remain here illegally even though they have approved visa applications because they cannot go overseas and complete their cases without running into the ten-year bar. Eliminate the bar for those who can show a history of paying taxes and working or being the spouse of one who does or a student for the past three years or a combination thereof. We have already decided that these people are eligible for legal permanent residence so why not get them off the illegal roles?

ENFORCEMENT: Increased enforcement is necessary. I would argue that more spending on the border is necessary but may have diminishing returns. The reality is that no bill will pass without spending increases in this area. Do it.

IMMIGRATION COURT: The immigration court system is crashing with cases being adjourned for years. The court budget must be at least doubled along with the number of judges and along with enforcement to make the swift removal of those illegally in the United States meaningful. Justice delayed is encouragement to come here and evade the law as long as possible.

JUDICIAL DISCRETION: This is where the real rational alternative comes into play. This is where sympathetic cases need to obtain relief. In place of an amnesty immigration judges need to be given more authority to allow worthy aliens to remain here when they have a history of earning it. We do not need a DAPA program for parents that allow the worthy along with the deadbeats to get relief. Bring back Suspension of Deportation for those parents of DACA eligible people who can show a history of paying taxes and living with, and supporting and caring for those children. Let the immigration service or an immigration judge decide these cases on a case-by-case basis.

DACA: How to handle deferred action children? Compassion requires that we recognize that the United States is not going to deport these people. Their deportation is simply unrealistic and the Republican Party should recognize that fact.

They should be granted residence through the enlarged immigration courts or through applications that demonstrate one or a combination of educational achievement, military service or sustained, tax paying employment. The bar should not be raised too high for this class. No one who resided in the U.S. after June 2007 should be eligible and it should take an act of congress to change that date. We do not want to encourage more people to bring children here without going through the system.

REGISTRY: The longest remaining aliens in the United States should be covered with an amendment of INA 249 changing the date from 1972 to at least 1997. There is precedent for doing this since the law was last changed in 1986, from 1948 to 1972 (and it had been changed before). This would eliminate the need to remove the longest remaining aliens.

RETIREES: Several additional programs could be considered such as creating a new B-4 visa for retirees to allow them to remain in the U.S. if they satisfy certain financial standards. This should not be a path to residence. It should include a provision that those retirees will not be taxed on their worldwide income. Without that the provision would not be a draw to those who would live here, spend the most and do the most good for our economy.

CONCLUSION: This is meant as a general proposal. These proposals will not eliminate all illegal persons by legalizing them. We should not make that our goal.

I repeat: Our goal should be to have a long-term workable system that creates opportunity for many without opening the floodgates. That system should be fair for America, sustainable, and realistic.

The Republican Party needs make these proposals to demonstrate to the American people that it can govern rationally and effectively. The Republicans must show America that it can lead and not just criticize.

If the Republicans cannot do this they will cede the issue and possibly the future to the Democrats.

[i]The assumption is that most Republicans will oppose an amnesty but this may be incorrect if Jeb Bush or Marco Rubio gets the 2016 Republican presidential nomination.

Reprinted with permission.

About The Author

Harry DeMell

Harry DeMell has been practicing law in the areas of visa, immigration and nationality since 1977. He is a graduate of New York Law School.
Mr. DeMell is an active member of the American Immigration Lawyers Association (AILA). He has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members.
Mr. DeMell has also chaired committees for the Nassau County Bar Association and the Brooklyn Bar Association. He is a frequent speaker and a writer on important visa and immigration issues.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.