Immigration 2015: Good Sound Bites, Bad Policy, and a Proposed Solution


The Recent Announcement by Ms. Clinton, and Mr. Brooks’ bill to keep DACAs out of the military

As many had expected and some had hoped, Hillary Clinton recently announced her position on immigration, confirming that she supported a full path to citizenship for the undocumented. Just prior to that, Mo Brooks’(R-AL) introduced a bill that would prohibit people holding DACA status from serving in the US military. Both Clinton and Brooks surely think that their positions reflect good politics, because they appeal to their core supporters. In retrospect, neither seems interested in finding a practical solution to the current stalemate between Congress and the Obama Administration.

Both Ms. Clinton’s announcement and Mr. Brooks’ bill are unnecessary: if DACAs are given a path to permanent residence, they can use the existing system to file for citizenship. As for Mr. Brooks’ legislation: with only very minor exceptions, current law prohibits anyone from serving in the US military if that person is not an LPR or USC.

Although Ms. Clinton’s position plays well to many audiences, it seems better designed to terrify Republicans who see the demographic changes in America and fear losing power at the ballot box. Likewise, Mr. Brooks’ bill seems designed to keep the line between “us” and “them” as clear and as bright as possible. Both Ms. Clinton’s promise and Mr. Brooks’ bill appear to satisfy that ever present temptation to poke one’s finger into an opponent’s eye.

The stalemate and why it seems unbreakable

For years the immigration debate has been blocked by extreme positions, based largely on what is the safest way that politicians can blame the other side without offering a common sense, practical resolution. The result has been a national stalemate that also is being used to justify holding the H-1B program hostage; that visa category has remained hugely oversubscribed and grossly under funded by Congress for at least 15 years. The unintended (to some) victims of this logjam are the US economy, US companies who need high skilled workers to fill critical jobs, and the talented immigrants who want to live and work here.

Conflicting values are at play in the debate over the undocumented population: we want to protect US workers who cannot find jobs, and we also want to support employers who cannot find qualified workers. But we do not want to signal to the world that, as long as immigrants can get here, they will receive legal status.

DACA’s limited purpose

After waiting and delaying while Mr. Boehner promised to have Congress take action, President Obama finally moved forward on his own. His DACA (2012) program was a legitimate attempt to protect children who came here at a very early age, never have left the US, have good records, etc. DACA gave temporary legal presence to millions of young children. That was important and fair, but even so, DACA was a temporary band aid, and never looked at broader issues, such as whether applicants were helping the economy.

In late 2014, President Obama tried to expand DACA (to remove the age cap from the program and to expand the legal presence from 2 to 3 years) and he also tried to create a similar legal program for parents of USC or parents of green card holders. Those programs have been stopped by an injunction issued by a federal judge in Texas; a ruling that is on appeal. Regardless of the appellate decision, that case will drag on for months.

A Proposal to link DACA with a new work status, and that status to the current system

While we wait for a ruling, Congress can do its job and pass legislation that recognizes the legitimate goals and concerns of all stakeholders. Everyone values stability, predictability, education, high-demand skills, family links, English skills, and relative youth. Congress can incorporate those and similar considerations, and at the same time create a way for desirable immigrants to obtain legal status and ultimately transition into green card status. There is no legitimate reason for Congress to delay taking action. It does not matter whether the pending lawsuit is resolved in favor of Congress or in favor of DHS and Obama; either way, this kind of legislation will advance the process from the dead spot where we now find ourselves.

A realistic solution would include these elements:

1. Keep DACA in place for those who can apply, and let those with DACA renew for at least another 6 years.

2. Remove the 31 year cap in original DACA.

3. Expand DACA registration from 2 years to 3 years.

4. After at least 2 years in DACA status, let DACAs apply for a merit based work visa that would assign points like the 2013 Senate bill did (and similar to current Canadian system). This work status would be valid for 5 years and would give the applicant the right, if our system otherwise provides for it, to apply for the green card.

5. Points assigned:

a. Education: High school or GED (5); 2 year degree (7); 4 year college degree (10)

b. Work history: using the DOL data base, give 3 points per year in Level III jobs; 2 points per year in Level II jobs; 1 point per year in Level I jobs (20 point max).

c. High demand job: Letter (under oath) from current employer confirming that the need for the applicant is significant (4)

d. Entrepreneurs: for applicants who have started businesses that employ at least 2 workers unrelated to the applicant (5)

e. Civic involvement: Community service (I pt per year; 5 point max)

f. English skills: Set score on ESL or TOEFL test (5)

g. Have USC or LPR sibling: only if applicant is under 40 (3)

h. Have USC or LPR spouse: only if applicant is under 45 (3)

i. Age:

i. 18-24 (5)

ii. 25-32 (4)

iii. 33-39 (3)

j. No serious criminal record: (use the current DACA definitions ) (5)

6. A person who achieves a score above a set minimum would receive a work visa that allows him to work anywhere in the US. A person who falls short of the minimum could apply again in one year. If the person fails to meet the minimum score a second time, he would have the right to renew his DACA for as long as that program is in place.

7. After he has been in this new work status for 5 years, if an applicant has a relative or employer who has filed a green card case for him, and there is a visa number available under the then-existing green card system, that person can finish the green card case without leaving the US. The 3 year, 10 year and “permanent” bars would not block green card applicants who apply while in this points-based work visa status.

8. Once the person has been a permanent resident for 5 years (or 3 for spouses of USCs), let him file for citizenship (i.e., no special path, just use the existing system).

Long ago time to fish or cut bait

This proposal can be criticized as being too generous to people who callously have broken our laws, and too strict because it does not create a special path to LPR status or citizenship. People should be as critical as they wish, but in the context of a compromise, trade-offs need to be made. This proposal does that, but it also allows Congress to assert control over the current debate, while recognizing that DACA was a good start. It combines the best of the current DACA program; recognizes that we can prefer younger, skilled workers and people with US relatives; and admits that the current enforcement only system has been a failure. It provides stability and predictability for the undocumented population as well as their employers, who have been completely ignored by multiple presidents and congresses. Finally, it injects a set of logical goals into our immigration system that will incentivize people to acquire valuable skill sets.

Reprinted with permission.

About The Author

Gerard M. Chapman

Gerry Chapman has been a Board Certified Immigration Specialist since 1997. He graduated from UNC-CH in 1973 with a BA in International Studies, and in 1978 he received his JD, cum laude, from the University of Georgia School of Law. He is a past Trustee of the American Immigration Law Foundation (2004-2008). He served as Chair of the Carolinas Chapter of the American Immigration Lawyers Association (AILA), as a member of AILA's Board of Governors from 1998-2000, and as Chair or Co-Chair of three national AILA Committees: the Immigrant Investor Visa Committee (1990-1993), the Committee on Intracompany Transferees and International Managers and Executives (1993-1994), and the Essential Worker Committee (1999-2004) (2007-2008). More recently, he served on AILA's Liaison Committee with the DHS Executive Office for Immigration Review (EOIR) (2008-2009), as a Mentor for AILA (2003-present), and on the 2008 Strategic Planning Committee to evaluate Missions, Goals and Programs for AILA. He has also served as member of AILA's H-2B committee and as Moderator for AILA Silver Circle in 2012. He is co-founder of the North Carolina Legal Immigration Coalition. In 2009 he served as counsel in Matter of Garcia-Arreola, in which the BIA overruled a long-standing precedent and changed the rules of Mandatory Detention. Mr. Chapman has authored articles in several AILA publications, co-edited the 2007 AILA Handbook on Workplace Enforcement, has lectured at immigration seminars in the United States and abroad, and served as Immigration Commentator for Triad Business Journal in 2011. He has been heavily involved in AILA's efforts to secure immigration reform on a national level. He is included in the 2007-2014 editions of The Best Lawyers in America, in the specialty of Immigration Law. He has also been chosen for inclusion in the Super Lawyers list for immigration specialists in North Carolina for the last seven consecutive years. He is also included in the 2013 edition of The International Who's Who of Corporate Immigration Lawyers and the 2014 Who's Who of Business Immigration Lawyers. He is conversant in Spanish. Mr. Chapman and his wife Linda, have two children and (soon) three grandchildren. He competes in US Masters Swimming on the state and National levels.