That's kind of my level of engagement when I'm so close to a vacation :POriginally Posted by chengisk
That's kind of my level of engagement when I'm so close to a vacation :P
If he really wanted, he could have easily done something to pass this bill. All was required was to pass motion to proceed. I do not think it would have been hard to find 60 votes. But obviously, this is not on his agenda. I feel that on legal immigration, he talks the talk but does not walk the talk. Another blatant example is EAD for H4. That was announced in earlier this year but that is not even in DHS's agenda. He has made H1 and green card process harder than ever before. Below link gives good analysis.
http://www.ilw.com/articles/2012,0716-Bier.shtm
I doubt anything would happen on "hold" concept. If Reid really wants to do something about it, he needs majority in house, senate and democrat president. I do not think that will be the result of the election. And even if that does happen, I am doubtful on his intentions.
Now that they have agreed on six months spending program, I doubt that there will be lame duck session. That leaves only September and I do not have high hopes for that. Now, EB5 is also gone. 3 year extension takes out the urgency part. So, 3012 has lost that advantage. If I have to bet, I will bet that 3012 will not pass this year. If there are reservations about Grassley's amendments by US chamber of commerce, then I would think that the bill would not be taken up next year also. Either Grassley or companies have to budge. And at this point, it is hard to imagine why any of them would budge because budging won't give them any benefit.
I hope all of the above analysis is wrong and something positive happens as soon as possible.
I read eslewhere from ROW point of view !- HR3012- 'Advantage to India rule' - LOL
good points, O can just pass an executive order and remove country limits
Moreover Congress will be in campaigning mode as the Prez, half senate and all house members are up for reelection.
Last edited by vizcard; 08-03-2012 at 03:31 PM.
When you say "he", I not sure if you mean Harry Reid or Obama. On introducing a motion, Harry Reid can do it - not Obama. On immigration Reid doesn't talk much at least not that loudly and the only way for him to walk the talk is by introducing bills. its not on anyones agenda to get this bill passed given the timing but no action at this point in time doesn't mean one is pro or anti immigration. Its politics.
Also, keep in mind that the President does not (and by law cannot) drive Congressional matters. There is a reason the Office of the President and the Congress are in different branches of the government. Obviously on important policy matters, he makes his opinion known but cannot drive legislature until it comes to his desk (at which he can veto or sign in to law). CIR is the next big agenda item so if he gets re-elected, I full expect this to be addressed. The EAD for illegal immigrants is a "policy directive" aka "executive order", not a "law". For all intents and purposes they are the same but the path used is different. It was done because Congress sat on the DREAM Act AND for the latino voters (a political game).
Bottom line is that the Democrats are not going to do anything that will not gain them political mileage between now and November .... and just because we think HR3012 is a big deal, doesn't mean Congress or the President does too.
As for the "lame duck" session. Congress has to be around till their term ends. So there will be a session. Whether or not anything is done is a different issue. The 6-month spending thing is only to get through the elections. This will come up again as will taxes.
I think (hope?) you were being sarcastic here.good points, O can just pass an executive order and remove country limits
I am not kidding dude, He can just do waiver of the country limits for a period of time just the same way he is allowing 1million illegal kids to be legal for 2 years......what he did abt the illegal children waiver may be an abuse of his executive power, but it is legal.
Can you reason why he cannot waive the country limit for 2 years?
vizcard,
I totally agree with you.
The 7% per Country numerical limits and exceptions to them are hard coded in the law. Only Congress can alter the law by passage a of a Bill. Previous examples would include the recapture of visas in the AC21 Bill and another Bill which recaptured visas for Schedule A workers in 2005.
Deferred Action for Childhood Arrivals, on the other hand, is just the exercise of Prosecutorial Discretion, which is within the remit of the Executive branch. Another fairly recent example of this would be the instruction to DOJ to no longer defend DOMA.
There can be no magic "waving of the hand" through an Executive Order as far as the 7% limit is concerned. Only a Bill, duly passed by Congress and signed by the President can change the law of the land.
Similarly, as discussed above, the same applies to visa recapture. It would also apply to not counting dependents IMO, since the law would need updating to add them to the categories exempt from numerical limits.
Without an irritant, there can be no pearl.
See Specs comments
To all - there is a process as Spec describes and there are reasons for having it even if it doesn't suit us at this time. Its about checks and balances. How would you feel if the President (whoever it is) issued an executive order to take away EAD for pending dependent 485s? It is by no means a perfect system but it is a very good system. There is no doubt that practices like "Hold" are abused but if you look at the history of why it was instituted, it makes sense.
Don't get frustrated. hope and pray that, if not now, the new Congress picks HR3012 up and pushes it through.
Got it Vizcard and Spec, I totally like the check and balances system, it does not give the free hand to the Prez to do whatever he/she pleases to..... how did BO allow or give waiver to undocumented students to work for 2 years based via deferred action while there is law that states only legal folks can work, isnt the legal abiding law violated overridden by executive order?
Spec - I too agree. An executive order has to be within the bounds of the law. It can't surpass or bypass the law. Doing that would be a good way to be impeached or worse kicked out of the office - nixonesque way!
I no longer provide calculations/predictions ever since whereismyGC.com was created.
I do run this site only as an administrator. Our goal is to improve clarity of GC process to help people plan their lives better.
Use the info at your risk. None of this is legal advice.
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I am not going to say I am wild about it either, given the fact that dependents in lawful status for several categories cannot obtain an EAD.
Who is eligible for an EAD is covered in 8CFR 274a.12(a) Several of the eligible categories couldn't actually be described as "lawful" in the sense you mean.
8CFR 274a.12(a)(11) seems to cover it.
(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive
Without an irritant, there can be no pearl.
For the record, defered action is not codified in the INA, but is an "equitable relief", part of the legal tradition of the United States, which was inherited from England.
In the US, there are two sources of law:
-Positive Law - Laws that have been passed by congress and affirmatively say something is allowed or prohibited. Most immigration laws are this kind of law.
-Common Law - Legal traditions inherited from England, and precedents of the Supreme Court (or other courts). This is when the courts have to interpret a law, or fill a gap that a law has not explained.
The INA leaves a gap: what to do when the US government has limited resoruces to enforce the INA? Common law has an answer: deferred action.
I do have to disagree with Spec on one thing: I think excluding dependentes from the cap can be done without touching the INA. The INA has a gap there, and the DOS regulations have filled the gap by saying they are included. However, DOS can go through the rule-making porcess again and change that. It can't be done by executive order though, it has to be done through formal rule-making.
From,
http://www.immigration-information.c...=17688&page=37
So, going back to actual updates... A certain group claiming to represent immigrants, but really representing backlogged applicants, is going to have a rally in support of H.R. 3012 in the home district of their friend Rep. Zoe Lofgren (D-CA), who first introduced legisalation to remove per country caps in 2008. Of course, her bill was part of a larger package that included recapture. Why hold the rally in her district is a mystery. In following their traiditonfor secrecy, their announcement made no mention that they were having the rally in her district.
I think this again shows that the bill is stuck and it seems change of strategy to make the bill more visible and bring it out in open.
ya, at the point they are trying to organize rallies makes me think the chances of passage are slim to none... unfortunately
credit to ** for taking it so far though...not an easy effort in such a tangled environment for issues such as immigration
justvisiting,
Thanks for an interesting post.
I know that a number of people feel that excluding dependents form the cap could be achieved via rule making. I don't completely discount that, but what is already contained in the INA complicates it.
A dependent (spouse or child) of an EB primary applicant can be said to be an "Immediate Relative".
Section 201(b) of the INA contains a list of categories that are outside caps or numerical limitations.
Included in that list are Immediate Relatives including a definition.
I think this would have to be updated to include dependents of EB primary LPR, possibly something like this:(2)(A) (i) Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. .........
where 203(b) refers to Employment Based Immigrants.(2)(A) (i) Immediate relatives. - For purposes of this subsection, the term "immediate relatives" means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age, or for the existing children and spouse of an applicant granted Legal Permanent Residence under Section 203(b) of the Act. .........
Had Immediate Relatives not been defined and excluded from caps in the INA and the current exclusion for Immediate relatives of US Citizens had been granted by rule making, I would share your view.
Alternatively, an entirely new paragraph is needed dealing solely with EB dependents.
I don't think there is a definitive answer and it is an interesting subject. Certainly several attempts to exclude EB dependents have been made previously, all via a Bill. The last one I remember was in the H.R.2161 IDEA Act, introduced in this Congress.
PS I have paused composing this message to look at the language used to exclude EB dependents from the caps in the Bill above. It actually added an extra sub-category under 201(b)(1). That does seem to be a better way to do it.
(b) Spouses and Minor Children- Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)), as amended by this Act, is further amended by adding at the end the following:
‘(G) Aliens who are the spouse or child of an alien admitted as an employment-based immigrant under section 203(b).’.
Last edited by Spectator; 08-06-2012 at 09:42 AM.
Without an irritant, there can be no pearl.
Ya, but I still quite can't understand the reason though. If Grassley's amendment was a problem, then would not it have been negotiated with all the concerned parties ? If election year was a problem, then what was the need to negotiate and lift the hold ?ya, at the point they are trying to organize rallies makes me think the chances of passage are slim to none... unfortunately
credit to ** for taking it so far though...not an easy effort in such a tangled environment for issues such as immigration
This EB immigration mess is created by none other than **. So they have the responsibility to make it alright. I always wonder how come just before the VB is out, ** predict the date movement and add a line that we proposed to USCIS to do such and such thing.
Is that sarcastic? Or is it really so? Or am I reading it wrong?
I don't know what's going on behind the scenes and I don't know what ** is really doing. I would imagine that if you want to get it passed in the senate then you will try to get atleast one senator to represent it. I do not see any senator who we can say will try to bring it on the floor.
Sending emails, posting flyers in indian grocery shops etc may be good to show that something is being done but I doubt it will get the real thing done.
Exactly. I think that is the problem. Senate support for the bill is just about lacking. Someone has to step up and ask for consideration of the bill. I think they were expecting Sen. Schumer, but he was only interested in this bill so can get some 'Irish' into it. So was Sen. Brown. Sen. Reid has no compulsions for a 'piece-meal' bill. Sen. Leahy and Sen. Conrad on the very last day got up talked and asked for EB-5/Conrad 30 and they got it. No one did that for H.R. 3012.
I do not think it is no one asking for it kind of a problem. ** would have surely tried to push it together with other immigration bills on the last day but somewhere it is stuck. When they have gone as far as negotiating with Grassley for lifting the hold, just getting someone to push it on the floor does not look like a bigger problem than lifting the hold. We are not getting any news on where it is stuck so we have to keep guessing and we might never know.
The rally's date is decided to be Aug 25 probably to push this in September. I think instead of doing nothing, we should spread the word and push people to join this who are in bay area. ** Administrator has called this be make or break moment. Without doing nothing, this is dead. We might as well do something about it.
I can't find it now, but the ILW blog had an extensive anlaysis of how the INA did not expresselycpount dependents either as immediate relatives no as quota-subject immigrants. It had to do with the 1990 reorganization of the INA and the creation of the current system. Basically, you are correct. The INA does not count dependents as immediate relatives. But it doesn't expressely say the are subjet to the quota. This is simply a reasonable (but not the only possible) interpretation of the INA, and the DOS could adopt another interpretation.
The fact Congress has tried to pass a bill would not impede administrative action - because Congress could be trying to clarify or fill a gap in the INA. But the other 2 branches of government can also fill in a gap like this one.
To justvisiting
This is probably the article you are looking for
http://www.ilw.com/articles/2012,0201-endelman.shtm
Pay special attention to the footnotes esp #8
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