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  • Article: GOP PRINCIPLES ON IMMIGRATION - A PATH TO LEGAL STATUS By Gary Endelman and Cyrus D. Mehta

    GOP PRINCIPLES ON IMMIGRATION - A PATH TO LEGAL STATUS

    by


    The Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states:
    There will be no special path to citizenship for individuals who broke our nation’s laws that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the US, but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits). Criminal aliens, gang members, and sex offenders and those who do not meet the above requirements will not be eligible for this program. Finally, none of this can happen before specific enforcement triggers have been implemented to fulfill our promise to the American people that from here on, our immigration laws will indeed be enforced
    Even if there is no special path to citizenship, the GOP document does not state that such legalized individuals cannot seek permanent residence and citizenship through normal channels within the existing, and most likely a reformed immigration system. While it would be really beneficial for the integration of the nation to have a special pathway to citizenship, like the Senate bill after individuals are put in a provisional status for 10 years and 3 more years as a permanent resident, such a proposal would still be welcomed by those who are out of status or have removal orders, with no other forms of relief to remain in the US. They will be able to live and work freely, and even potentially travel outside the US.  For those who presently lack such basic freedoms, who among them would not readily embrace their new life even if it is not all we or they would have hoped for?  If the existing immigration system is reformed to include more pathways to legal residence, then such individuals can still hope to become US citizens. Indeed, they could also potentially become citizens more quickly than the 13 year special path to citizenship under the Senate immigration bill.

    Thus, as explained in our prior blog, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary. The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Many may have adult citizen children or spouses who can petition for their lawful permanent resident status.  Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

    Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long under the existing system. Then, there are also few avenues for obtaining a green card. If the GOP cannot provide a direct pathway to citizenship, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story. 

    Whether to have a special pathway is not the only sticking point. The GOP document adamantly refuses to go to conference on the Senate’s immigration bill. Still, the other goals in the GOP principles have much in common with the Senate bill. Border security and interior enforcement must come first, there must be a fully functioning entry-exit visa tracking system, and like the Senate bill, a firm insistence on abandoning the paper-based work eligibility verification system with an electronic version. Such common goals can potentially still result in a compromise between the Senate and the House, even if the GOP document presently states that it will not go into conference on the Senate bill. 

    Of course, the GOP appears to display a complete dislike for President Obama’s prosecutorial discretion policies – and there will also most likely be a legislative proposal stemming from it that would prevent the President from stopping immigration enforcement. On the other hand, prosecutorial discretion has always existed in law enforcement from time immemorial, and it will be impractical to prevent the Executive from exercising this prerogative. It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system for all these years, any administration, devoid of ideology, would have exercised discretion to remedy the imbalance. People on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 10 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it was wiser for this Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. This happened with the Deferred Action for Childhood Arrivals (DACA) program. The young individuals who have been able to legalize their status have gone onto completing college, getting jobs and benefiting the country.  The GOP document recognizes that it is time to allow children who were brought into country for no fault of their own, and who have no status, to obtain both legal residence and citizenship. DACA is a clear example of how bold administrative action by the Executive, based on prosecutorial discretion, can build consensus around a righteous principle that can ultimately be enacted into law. If the immigration system becomes more viable after reform, there will be less of a need for prosecutorial discretion. Still, there may be some cases that would deserve the exercise of discretion, and this should never be taken away from a President, whether Democratic or Republican, through legislation. 

    Finally, the GOP document recognizes the need to attract foreign nationals who pursue degrees in American colleges to remain in the US, so that they can use their expertise in US industries that will spur economic growth and create jobs for Americans. “When visas aren’t available, we end up exporting this labor and ingenuity to other countries,” the document states. No one can dispute this.   The GOP document, also takes into account the need for future flows of temporary workers to come into the US legally in order to sustain the needs of the agricultural industry, among others.

    All advanced industrial economies throughout the world, including the United States, must confront the prospect of dealing with aging populations and the societal challenges that result. Demographers have a term for those societies where the birth rates have fallen so low that they do not keep up with those who have died:” demographic winter”. Some nations, such as Japan, Italy and Russia are at or will soon reach this state of “demographic winter”.  In the United States, the Census Bureau estimates that, as the massive baby boomer generation slouches towards retirement, the number of elderly people over age 65 could soar to 82 million by the year 2050. Immigration provide the magic elixir , the fountain of youth. Compounded by growing automation, America will have fewer workers to pay for more social benefits to sustain a hugely expanded senior citizen population.  If such demographic projections are correct, continued high levels of immigration will be necessary to provide a large enough workforce to sustain a rapidly aging citizenry. Absent a sudden and unexpected rise in the birth rate, there is no other answer.

    It is time that both sides of the aisles compromise to forge immigration reform that would be beneficial to the United States. According to a new Pew Report,  America with a 28% growth rate is in good shape, compared to its economic rivals including China and Brazil, and we have immigrants to thank for this. America can only continue to rely on immigrants to boost its workforce, widen the tax base and support the social security net if it admits more immigrants through immigration sensible reform. The GOP document does provide some chance for this to happen in 2014. 
      
    There is a larger reason beyond the merits of the House GOP proposals why all sides should welcome this statement of principles as a step in the right direction.  It is vitally important for America to remain a healthy and functioning democracy that it have a political system where both major political parties accept the complexity of governing and confront the challenges of modernity. We tend to forget it now, and so do they, but the Republican Party was born in protest. The political expression of the Northern revulsion against the Dred Scott decision, the GOP embodied an aggressive nationalism that helped to usher America into the modern era. For some time now, there has been a civil war within the GOP over immigration between those who viewed immigrants as an asset to be maximized versus those who saw it as a problem to be controlled. There are historical antecedents for both camps. The pro-side can look back to Theodore Roosevelt, the first modern Republican president who was an outspoken advocate for the immigrant masses of the early 20th century while the nativist wing finds their ancestral justification in 1924 Immigration Act whose purpose and effect was to go back to the America of 1890 before the tsunami of Jewish and Catholic migration. Just as America needs true immigration reform, it needs both the Republican and Democratic Parties to be national in scope and outlook. What happened today is step in this direction. As the refugee Austrian actor Paul Heinreid (Victor Lazlo) tells Humphrey Bogart (Richard Blaine) in the immortal movie “Casablanca”: “Welcome back to the fight. This time I know that our side will win.”


    *********

    Originally appeared on the Insightful Immigration Blog. Reprinted with permission.


    About The Author

    Gary EndelmanGary Endelman is the Senior Counsel at FosterQuan, LLP in Houston, TX. His practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he worked at one of the largest immigration firms in the country. From 1995 to 2011, he worked as the in-house immigration counsel for BP America Inc., a multinational energy company ranked as one of the top 5 largest companies in the world. Mr. Endelman is board certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization and Chair of the Examinations Committee in Immigration and Nationality Law for the Texas Board of Legal Specialization. He is a frequent national speaker and writer on immigration related topics including several columns and blogs on immigration law. He served as a senior editor of the national conference handbook published by AILA for ten years. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. Please contact Gary Endelman at gendelman@fosterquan.com. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan, LLP.

          

    Cyrus D. MehtaCyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
    Comments 3 Comments
    1. sequinlan@earthlink.net's Avatar
      sequinlan@earthlink.net -
      Mr. Endelman's analysis is extremely valuable. Any granting of legal status that places undocumented persons in the position of being able to adjust status through family or employer without any of the bars and without departing the U.S.will go very far to legalize those who have the closest associations with the U.S.. On top of that, providing "Dreamers" with some type of provisional status and then the opportunity to adjust status after, say two years of college or military, will provide a second platform. The important difference between 2014 principles and the mid-eighties amnesty is sheer numbers. Latino political power due to sheer percentage of our population will increase. This time around, with a partial fix to our system, with increasing number of Latinos being provided civil rights, there are likely to be future waves of reform. When Dreamers reach their thirties they will be pushing for further reform. Ten years ago, the gay rights, as we now have them today, were an unthinkable political reality. Now it is hard to fathom that time when we did not have these rights. The same will be true for civil rights for our undocumented population. I hope the Democrats and AILA will not be too critical of any Republican House plan that provides some form of legal status to many of our clients. It is not a dead end. Give us some law to work with. There is strength in numbers. Sheila Quinlan, AILA member.
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      I am a great admirer and avid reader of Gary Endelman's and Cyrus Mehta's always thoughtful and insightful writings. I have some reservations about their analysis of the Republican leaders' immigration reform principles, as follows:

      First, in their first three paragraphs, they discuss the issue of a pathway to citizenship for immigrants who are now out of status but would be legalized according to current reform proposals. Therefore, the whole citizenship issue becomes relevant only if legalization goes through.

      But the GOP "Principles" make legalization dependent on enforcement triggers which in all probability would be unacceptable to anyone who is serious about reform.

      Even though the "Principles" do not say what these triggers might be, one proposal that GOP leaders have mentioned is giving state and local government more enforcement powers over immigration, i.e. putting Arizona Sheriff Joe Arpaio and the Alabama anti-Latino bigots back in business.

      How can any immigration advocate accept this as a price of legalization? One has to ask whether the enforcement "triggers" are put forward in good faith at all, or merely as poison pills to scuttle reform and blame the Democrats for "not negotiating".

      Mr. Endelman and Mr. Mehta also present an eloquent defense of executive power over immigration enforcement. No one can argue with that - except the Republicans, that is, as indeed the authors point out themselves.

      It is hard to see how there could be any room for executive power in the Republicans' enforcement ueber alles "Principles".

      Next comes the issue of making more visas available for legal immigration, especially by skilled workers. I agree with Mr. Endelman and Mr. Mehta that this is a positive feature of the GOP "Principles". But how positive is it?

      To be continued.

      Roger Algase
      Attorney at Law
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Continuing my previous comment, the GOP "Principles" state that there needs to be less family-based immigration and immigration by "luck", and more emphasis on employment based immigration. "Family-based" immigration is a code word for immigration from Latin America.

      "Luck" means the DV Lottery, which is a code word for immigrants from Sub-Saharan Africa and from South Asia (Bangladesh), who are among the main beneficiaries of this program. One does not have to scratch the surface very far to see the GOP's traditional racism here.

      But let us suppose, for the purpose of argument, that reducing family immigration and eliminating the DV lottery are good policy. OK, those are both already in the Senate S.744 Senate bill!. So why are the Republicans so adamantly insisting that they will never, ever go to conference on that bill, which also has $43.6 billion dollars worth of the Border Security which the Republicans say is so essential for America?

      The second catch with more visas for skilled immigrants (if this is really what the Republican "Principles" mean), is that favoring skilled immigrants - which all of us strongly support, of course - at the expense of throwing millions of unskilled ones (other than agricultural workers) under the enforcement first triggers bus will divide the immigration community and make it harder to accomplish any reform at all.

      The authors close with references to both "pro-immigrant" and anti-immigrant wings of the Republican party historically.

      Their view of history on this point is somewhat questionable to say the least. Theodore Roosevelt did make some pro-immigrant comments, to be sure. But he was always suspicious that immigrants might have "divided loyalties" and refuse to become "fully American."

      And it was Theodore Roosevelt who forced Japan to enter into the notorious "Gentlemen's Agreement" to restrict immigration from that country to America in order to appease racist sentiment in California.

      Two decades later, in 1924, the infamous, openly racist "national origins" immigration law which Mr. Endelman and Mr. Mehta rightly mention in their comment as an example of GOP bigotry was enacted by a Republican Congress and signed by a Republican president.

      This law was repealed only in 1965 under a Democratic president, Lyndon Johnson, and with great pressure from a Democratic Senator, Edward Kennedy, who many years later was to become one of the leaders of the failed attempt to pass immigration reform in 2007 (along with John McCain - a true pro-immigrant Republican).

      But even without disputing the dubious assertion that the Republican party has traditionally had a pro-immigrant wing, it is more relevant to look at what the reality of the Republican party is today. It is, above all, a party of older, more affluent white men.

      And, let us face it, the GOP has become, not only on immigration, the party of bigotry -toward non-white minorities, toward women, toward gays, toward Muslims, and, above all, toward the less advantaged in our society - people who cannot find jobs no matter how long they have been looking - people who cannot afford to buy enough food even though they may be working, and 40 million people who would not be able to afford health insurance without the ACA, which almost all Republican politicians bitterly oppose.

      In many states, the Republican party is also the party which is trying to destroy the essence of American democracy by keeping minorities, the less well off, and younger voters away from the polls through fake voter ID laws that are designed only for that purpose. But without these voters, immigration reform would not even be under discussion, let alone having any chance of actually becoming a reality.

      Immigration supporters should be wary of trying to sugar-coat or put a rose-tinted gloss on the Republicans' latest enforcement-first "Standards" or "Principles".

      These are, in all likelihood, just the latest move in what has become the "standard" Republican "unprincipled" and hypocritical campaign to let reform die a slow death and blame the Democrats for doing so just before this year's election.

      Roger Algase
      Attorney at Law
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