Discussion On The Politics of Immigration Reform (Comprehensive Or Otherwise)

[imdeng]

IIRC - Spec (aka CO's Alter Ego) does not believe that either Recapture or Dependent Exclusion meet the legal requirements for EO. Again - this is from memory and I might not be recalling it accurately - but I believe Spec's POV is that they can only be done through congressional action and not EO. I will see if I can search the right post out.

They are calling it a path to citizenship - which technically is correct but the question is where will the numbers come from.

Last time there was a visa recapture - it was via a legislation. I am not intelligent or knowledgeable enough to say that the president can in his authority ask DoS to issue more visas. Probably he can because if you read carefully any visa bulletin - it talks about the visa limit as "at least". So perhaps there is no legal upper bound on the number of visas. Perhaps Spec (our alter ego for CO) can talk to this. But I think he is busy with something!

[sportsfan33]

Spec has said and I clearly remember that both dependent exclusion and recapture cannot be done via an EO. His citations were very clear on these topics.

I am very curiously following these developments. They have a bigger subplot IMO. There is just no precedent for a mass amnesty for illegals/relief for legals without congressional support. Both Reagan amnesty and AC21 were achieved by a legislation change.

[imdeng]

Spec's view on dependent counting: http://www.qesehmk.org/forums/showth...4191#post54191

[kd2008]

http://www.nytimes.com/2014/11/14/us...tion.html?_r=0

Mr. Obama’s actions will also expand opportunities for immigrants who have high-tech skills, shift extra security resources to the nation’s southern border, revamp a controversial immigration enforcement program called Secure Communities, and provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history.

The dole out for legals is fairly ambiguous. It may amount to nothing. Please do not have ANY hopes! Be forewarned. In some ways, I wish our relief comes through a well written law. But at this point I will take anything.

Another observation, Obama's advisers are so lame it is not funny. How much of foot dragging can a President do? Take a dump or get off the pot! This media planting of stories and leaks is tiring. Why can't the WH officially be upfront? Instead they do these leaks and everything to "gauge" the temperature. Bah! What ever!

[gcseeker]

http://www.nytimes.com/2014/11/14/us...tion.html?_r=0



The dole out for legals is fairly ambiguous. It may amount to nothing. Please do not have ANY hopes! Be forewarned. In some ways, I wish our relief comes through a well written law. But at this point I will take anything.

Another observation, Obama's advisers are so lame it is not funny. How much of foot dragging can a President do? Take a dump or get off the pot! This media planting of stories and leaks is tiring. Why can't the WH officially be upfront? Instead they do these leaks and everything to "gauge" the temperature. Bah! What ever!

Could not have said it better. It would be better if releif came through a well written law....there is a silver lining though, executive orders can be fairly resistant to legal challenge as long as "Prosecutorial discretion" clause is met . This is how Bush got away with many EO's.

http://www.thelegalintelligencer.com...20141013134811

If this is done right...will be one final master stroke for the democrats , the thing that worries me most is the incompetence of Obama's advisors...they could have done this a long time ago since they knew it would come down to EO.


Still will not put it beyond the president to snatch defeat from the jaws of victory.....

[gcseeker]

Logically thinking this has strong chance of happening...I never felt comprehensive Immigration reform will go through. As with any issue , better to understand the business reasons behind it rather than hope for altruistic motivations for both parties..

Dems

-Badly demoralized, base is disilluisioned with Bama....Need a motivating factor and this will energize the left.
-Will strengthen Dems with Latinos
-Might be crucial for 2016 elections.
-Legal protections in place, will not get dragged through courts....
-Obama cannot grant citizenship through this route, can only grant EAD's and right to stay.....This will be bitter for Latino activists but everybody cannot get everything.

Repubs

-Will force them to take a stand very early ...they will not want to be seen as alienating the mass Latino base ....they are trying to re-invent themselves ( first african american woman senator from the south for the repubs etc..)
- They can use the no citizenship provision to soothe their base ....no amnesty , no path to citizenship...deported if convicted of felony....
-Repubs will shut down pretty much any other bills for the next two years...

Will be an Scorched earth play by Obama.....It will be pretty much this EO vs anything else passing...Repubs can also fight this in creative ways by hitting the financial funding of the program etc.... depends on how much the Dems feel they lost in the midterms and are willing to risk it

[Spectator]

They are calling it a path to citizenship - which technically is correct but the question is where will the numbers come from.

Last time there was a visa recapture - it was via a legislation. I am not intelligent or knowledgeable enough to say that the president can in his authority ask DoS to issue more visas. Probably he can because if you read carefully any visa bulletin - it talks about the visa limit as "at least". So perhaps there is no legal upper bound on the number of visas. Perhaps Spec (our alter ego for CO) can talk to this. But I think he is busy with something!

Q,

I think the "at least" refers to the minimum number as defined in the INA.

For FB, INA 201(c)(ii) says:

(ii) In no case shall the number computed under subparagraph (A) be less than 226,000.

and for EB, INA 201(d)(a) says:

(1) The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to-


(A) 140,000 plus

The final number can't be computed without some numbers from USCIS, which they release as late as possible in the FY, so most VB use the "at least" language.

[gs1968]

http://www.nytimes.com/2014/11/14/us...tion.html?_r=0



The dole out for legals is fairly ambiguous. It may amount to nothing. Please do not have ANY hopes! Be forewarned. In some ways, I wish our relief comes through a well written law. But at this point I will take anything.

Another observation, Obama's advisers are so lame it is not funny. How much of foot dragging can a President do? Take a dump or get off the pot! This media planting of stories and leaks is tiring. Why can't the WH officially be upfront? Instead they do these leaks and everything to "gauge" the temperature. Bah! What ever!

Ambiguous it definitely is! The same line in the Fox news report is being interpreted by different people in ways that suit their narrative.
This from FAIR

http://immigrationreform.com/2014/11...-amnesty-plan/

A State Department program will offer visas with a pathway to citizenship for 500,000 new technology workers.

This interpretation does not seem to relate to EB GC seekers already in the backlog

[imdeng]

I don't think new visa programs, especially with path to citizenship (i.e through GC) can be established by EA. In general, no new numbers can be issued by EA - it can only be re-configuration of otherwise available numbers.

DACA and relief for undocumented is different since there are no GCs involved - its just deferring enforcement of deportation and providing an EAD/AP meanwhile. This can (and has, in case of original DACA) be done and is likely to pass legal muster. Relief for legal immigrants stuck in GC queue is on much shakier legal foundation.

...
A State Department program will offer visas with a pathway to citizenship for 500,000 new technology workers.

This interpretation does not seem to relate to EB GC seekers already in the backlog

[kuku82]

Is that within EA's scope?

[gcq]

http://www.imminfo.com/News/2014/20141114.html

Information leaked concerning the President's executive orders

Initially reported by Fox News, but subsequently confirmed by the New York Times, a White House memo describing the President's proposed administrative immigration relief has leaked. The memo is said to describe ten separate actions. Between the two reports, it's possible to determine nine of them:

1. Obama intends to order changes that will significantly refocus the activities of the government’s 12,000 immigration agents.
2. One key piece of the order, officials said, will allow many parents of children who are American citizens or legal residents to obtain legal work documents and no longer worry about being discovered, separated from their families and sent away.
a. That part of Mr. Obama’s plan alone could affect as many as 3.3 to 4.5 million people who have been living in the United States illegally for at least five years, according to an analysis by the Migration Policy Institute, an immigration research organization in Washington.
b. But the White House is also considering a stricter policy that would limit the benefits to people who have lived in the country for at least 10 years, or about 2.5 million people.
3. Extending protections to more undocumented immigrants who came to the United States as children, and to their parents, could affect an additional one million or more if they are included in the final plan that the president announces.
4. Mr. Obama’s actions will also expand opportunities for immigrants who have high-tech skills, making about 500,000 visas available.
5. shift extra security resources to the nation’s southern border,
6. revamp a controversial immigration enforcement program called Secure Communities,
7. provide clearer guidance to the agencies that enforce immigration laws about who should be a low priority for deportation, especially those with strong family ties and no serious criminal history. A new enforcement memorandum, which will direct the actions of Border Patrol agents and judges at the Department of Homeland Security, the Justice Department and other federal law enforcement and judicial agencies, will make clear that deportations should still proceed for convicted criminals, foreigners who pose national security risks and recent border crossers, officials said.
8. Increase pay for ICE employees
9. DHS also is planning to "promote" the new naturalization process by giving a 50 percent discount on the first 10,000 applicants who come forward, with the exception of those who have income levels above 200 percent of the poverty level.


What will likely happen?
http://www.imminfo.com/News/2014/wha...ly-happen.html
The most likely result for employment based immigrants will be all employment based visa preference categories, for all countries, becoming "current" immediately. If, as reported, this proposal injects a half million new visas into the EB quota, the number of available visas will be larger than the current backlog - much larger!

The head of the State Department's Visa Office has already offered his opinion on this matter. He believes that all visa categories will become "current" immediately and remain that way for many years into the future.
Prospective employment based immigrants with approved labor certifications or approved I-140 petitions will become eligible to apply for green cards immediately. Others, with labor certifications in process will become eligible to apply as soon as their PERMs are approved.
For those who have adjustment of status applications pending, their applications will become eligible to be approved immediately. As a practical matter, it is going to take the USCIS some time to recall all of those cases from archives and process them to completion, so don't expect to receive an approval notice the day after the President's announcement.

What is the likely timing?
The news reports said that the planned release date is November 21st. Now that the story has been leaked, it may be that the White House will change that date. Over the past few weeks, the President has said consistently that he will act "before the end of this year." Assuming that date is close to the actual announcement date, then it is possible to make some further assumptions as to the timing of subsequent events.
The December Visa Bulletin has already been released. While it is possible that the State Department will issue an update to make all employment based categories "current" as soon as the announcement is made, it is more likely that they will wait until the January Visa Bulletin to do this.
The January Visa Bulletin will be issued around the end of the first week in December, though it will not take effect until January 1, 2015. New applications for adjustment of status, based on that bulletin, may not be filed until the new year. Applications submitted prematurely will be denied. Given the massive number of expected new filings, it will be in your interest to be among the first to file.
For those who have pending AOS applications, it will be possible to begin making inquiries in December. Even though visa numbers may not be current yet, you can still make the USCIS aware of your pending application so that they can order the file returned from archives.
In reality, it will likely be months or years before the USCIS adjudicates all of the currently pending adjustment of status applications. For new filings in 2015, three to five years is a reasonable processing estimate. The USCIS simply doesn't have the bandwidth to process massive numbers of applications.
In the next edition of this newsletter, we will discuss the alternative of overseas consular processing.

[imdeng]

I believe so.

Is that within EA's scope?

[CowBoyInDenial]

Visa recapture is real:

http://online.wsj.com/articles/white...ion-1415912319

Other White House orders are expected to benefit businesses that use large numbers of legal immigrants, such as technology companies. One change under consideration would “recapture” unused visas from previous years to make more visas available to such companies, according to one person familiar with the deliberations.

[imdeng]

This could be the 10th item to add to the list below, from the WSJ article:

the administration also leans toward a change that would make it easier for foreign students to stay in the U.S. after graduation while awaiting employment-based visas.

Visa recapture is real:

http://online.wsj.com/articles/white...ion-1415912319

Other White House orders are expected to benefit businesses that use large numbers of legal immigrants, such as technology companies. One change under consideration would “recapture” unused visas from previous years to make more visas available to such companies, according to one person familiar with the deliberations.

[imdeng]

If you only add up the negative numbers, then you get a number pretty close to 500K (486K in fact). Wonder if that is the rationale for the number floating around.

S.No FY EB TOTAL QUOTA Delta
1 1991 59,525 140,000 -80,475
2 1992 116,198 140,000 -23,802
3 1993 147,012 140,000 7,012
4 1994 123,291 140,000 -16,709
5 1995 85,336 140,000 -54,664
6 1996 117,499 140,000 -22,501
7 1997 90,607 140,000 -49,393
8 1998 77,517 140,000 -62,483
9 1999 56,817 140,000 -83,183
10 2000 111,166 140,000 -28,834
11 2001 186,536 140,000 46,536
12 2002 171,583 140,000 31,583
13 2003 83,020 140,000 -56,980
14 2004 157,107 140,000 17,107
15 2005 242,335 140,000 102,335
16 2006 133,622 140,000 -6,378
17 2007 154,460 140,000 14,460
18 2008 162,949 140,000 22,949
19 2009 140,987 140,000 987
20 2010 150,262 140,000 10,262
21 2011 139,302 140,000 -698
22 2012 144,648 140,000 4,648
23 2013 161,269 140,000 21,269

Totals 3,013,048 3,220,000 206,952

[qesehmk]

Thanks Spec. So where do you think these 500K are coming from. A president can't do a visa recapture on his own - can he?

Q,

I think the "at least" refers to the minimum number as defined in the INA.

For FB, INA 201(c)(ii) says:



and for EB, INA 201(d)(a) says:



The final number can't be computed without some numbers from USCIS, which they release as late as possible in the FY, so most VB use the "at least" language.

[Spectator]

Thanks Spec. So where do you think these 500K are coming from. A president can't do a visa recapture on his own - can he?

Q,

If I had to bet, I think that is what he may well do.

The potential problem is that the law already deals with how unused visas should be dealt with (INA 201 (c) & (d)). It's double counting to recapture them in my view because the visas come back from FB under the current law anyway, but there is a precedent, since Congress has recaptured visas in the past. Unfortunately, I think there is a reasonable chance that it could be challenged by the antis.

Personally, I think the non-counting of dependents won't happen, because it is difficult to get around the law (INA 245(b)) that each AOS application approved must reduce the preference visa numbers by one. Each individual, whether the primary applicant or a dependent is currently required to submit an individual AOS application. The Endelman and Mehta article missed that and did not discuss it.

The language about the 500k released to date is very vague and it is not possible to be entirely sure what is being talked about.

Despite my misgivings about the legality, I really am hoping that BO goes large (and takes a calculated risk) in providing relief to the legal community.

[abcx13]

I think as long as the Republicans are unable to get a stay on the EO, any AoS GC applications that are filed and approved while the EO is in force will likely be grandfathered in even if the Republicans win in court later. So this could be huge, particularly if you leverage the EO via CP.

The other thing that you guys aren't factoring in is the business lobby. If Obama does pass an EO, there will be tremendous pressure on the Republicans from big business to not actually challenge it even if they raise hell to pander to the base.

[imdeng]

I guess Obama is counting on the fact that the DC Court of Appeals (which would most likely be the one dealing with any challenge) has recently been "enhanced" with four Obama nominees. The court currently tilts 7 Dems, 4 Reps. Although you can still get an occasional red leaning 3 judge panel (like in the stupid decision on the recent Halbig v. Burwell case), odds are that Obama will get a favorable set of judges who will be dis-inclined to kill his EA.

...
Unfortunately, I think there is a reasonable chance that it could be challenged by the antis.
...

[qesehmk]

Thanks again Spec. I think he will be inclined to do something strongly. This is his last chance to something .... anything. Come may 2015 .... he is going to be a lame duck president once 2016 season starts.

Despite my misgivings about the legality, I really am hoping that BO goes large (and takes a calculated risk) in providing relief to the legal community.

[Kanmani]

I guess Obama is counting on the fact that the DC Court of Appeals (which would most likely be the one dealing with any challenge) has recently been "enhanced" with four Obama nominees. The court currently tilts 7 Dems, 4 Reps. Although you can still get an occasional red leaning 3 judge panel (like in the stupid decision on the recent Halbig v. Burwell case), odds are that Obama will get a favorable set of judges who will be dis-inclined to kill his EA.

imdeng, Obama care was challenged in court because it passed the House and Senate and signed as a law. EO is entirely different from that. Congress would challenge the EO with law codes straight away.

Today, Obama's statement from Burma on Immigration reforms is burning in news . He says before holidays this year!

[kkruna]

imdeng, Obama care was challenged in court because it passed the House and Senate and signed as a law. EO is entirely different from that. Congress would challenge the EO with law codes straight away.

Today, Obama's statement from Burma on Immigration reforms is burning in news . He says before holidays this year!

I hope he staggers the implementation - those already in queue first!

[anuprab]

I have a crazy question and I know the answer is No...so if I am legal and my children are US citizens and I have been living here for more than 10 years can I then ask for reprieve under the provisions for the undocumented that has been floating around? I meet all the criteria and in fact much more This will surely wipe away a large part of the EB backlog...ha

[sportsfan33]

I have a crazy question and I know the answer is No...so if I am legal and my children are US citizens and I have been living here for more than 10 years can I then ask for reprieve under the provisions for the undocumented that has been floating around? I meet all the criteria and in fact much more This will surely wipe away a large part of the EB backlog...ha

I am not 100% positive on what the EO will accomplish. I have a feeling that millions of undocumented people will get temporary status. I am not convinced that the president can manufacture green cards with a simple EO.

If you are a legal, you already have a temporary status.

If green cards are being given away, then in a way, this reprieve will make sense for legals too. And in fact the 500K people may get in exactly that way. It remains to be seen.

Exciting times!

[anuprab]

http://www.forbes.com/sites/stuartan...mmigrants-too/

finally someone talking about legals. I hope there is something to reduce the backlogs. without that any EO for legals is useless.