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

[migo79]

Spec:

I was thinking overnight about the conversation and was asking myself, is there any rule in the law pertaining on how USCIS would accept the application for AOS?

in another word, the law doesn't mention either principal or dependent (agreed), the law says for each AOS application decrement the EB by 1 (agreed)

now if the EO reinterpreted the law to count dependent and principal as one, why would that prevent USCIS from creating a new form that would allow all applicant or one application, or interlinking the individual family application together to one [that should be a technical issue for USCIS to think about)

is there anything in the law can prevent USCIS from doing that if an EO is issued by the executive branch?

[moon80]

I totally understand what you want to say; but I dont want to kill my hopes as it is what keep us going on tough road.

On lighter note, I always admire 1-2 year kids who walk and then falls, but again stand up and walk with a smile.

[qesehmk]

Didn't Q warned me not to put soul and life into those bills and did I listen ? What do we do with all these Kanmanis' ? History repeats or what ?

History doesn't repeat but it sure does rhyme!

[Kanmani]

moon,

Yes! Hope is the best thing! Without hope I wouldn't have survived.

Hope is being served here with a pinch of warning that is it ( which would help us to stand again and walk, if not with a smile but at least without a cry)

[kkruna]

Some food for thought:

Apparently business has to provide some cover to Obama, as he goes about the real bang for undocumented ones. Now businesses want
1. More H1B
2. More Green Card

so that they supply side is increased.

But they sure do not want to expedite the process from Step 1 to 2 - which is the very reason for indenture nature of the visa system.

So between using 'Unused Green Card' and 'Not counting dependents', the first one helps them more in that it is one-time.

[pramod]

I know very little (minimum required for a scientist working on H1B) about the law.
Looks like there are so many 'No's as far as the EO for legals.
Just one question - What is possible? Is there anything that President can do for legals??
Thanks

[Kanmani]

Pramod,

Legal immigrants are bound within the limits of law. Anything signed as EO cannot be pasted into the Immigration and Nationality Act as such, it needs the congress (parliament in this country) to pass it into law and later to be printed in INA Sections.

Illegals may have a chance of getting waiver from the congress, as one time pardon in the form of executive order. No need of INA getting corrected.

My interpretations stand corrected, Spec, Q please correct me if I am wrong.

[qesehmk]

Kanmani - here is my understanding.

Democracy has 3 pillars. Legislative Branch, Judiciary and Executive Branch.

The President is the Boss and executive branch is completely subserviant to him while other two work with president using checks and balances.

The Executive Branch i.e. Bureacracy interprets laws and implements them. The president has some leeway to enforce some laws and defer others. How much is a matter of debate. The president can - in theory - choose to bend and break all laws.

We don't know what straw will be the last on camels back. At some point of time Congress will be so much upset that they will impeach the president.

Nowhere it is written what is that level or line that the president can or can not cross.

In other words Obama can issue any executive order since he is the Boss. Depending on how crazy it is Congress may suck it up or may move to criticize or worst case impeach the president.

Spec - what's your thoughts?

Pramod,

Legal immigrants are bound within the limits of law. Anything signed as EO cannot be pasted into the Immigration and Nationality Act as such, it needs the congress (parliament in this country) to pass it into law and later to be printed in INA Sections.

Illegals may have a chance of getting waiver from the congress, as one time pardon in the form of executive order. No need of INA getting corrected.

My interpretations stand corrected, Spec, Q please correct me if I am wrong.

[migo79]

Q:

i'm totally in agreement.
plus back to my Q if you have comments

Why can't the president reinterpret the law and USCIS come up with a new single application for AOS, DHS is part of the executive branch.
that way he wouldn't be breaking the law since a visa will be deducted already to satisfy the law.

call it a workaround

[kd2008]

I know very little (minimum required for a scientist working on H1B) about the law.
Looks like there are so many 'No's as far as the EO for legals.
Just one question - What is possible? Is there anything that President can do for legals??
Thanks

Yeah quite a few things:

1) Allow EADs after I-140 is approved.
2) Renew NIVs right here in the US
3) Make it easy to change jobs and retain PDs - basically do not require new PERMs after job change
4) Allow I-485 to be filed after I-140 is approved even if PD is not current etc etc

[qesehmk]

He will still be breaking the laws of INA that prescribe how the visas should be allocated across various categories.

However - in theory he can bend or break them.

But remember a president will only go so far - unless you are richard nixon.

Richard Nixon gave such crazy orders that finally executive branch refused to obey and some resigned leading to his own eventual resignation.

I think people should tone down expectations but not totally discount news that talk about EOs.

Q:

i'm totally in agreement.
plus back to my Q if you have comments

Why can't the president reinterpret the law and USCIS come up with a new single application for AOS, DHS is part of the executive branch.
that way he wouldn't be breaking the law since a visa will be deducted already to satisfy the law.

call it a workaround

[kkruna]

A cynical view is that Obama's team is indeed trying for impeachment talks to rev up - since Repubs are not in a position to actually succeed at it. The thought process is that whole talk will polarize the situation and result in more democrats cast their vote in Nov.

[qesehmk]

A cynical view is that Obama's team is indeed trying for impeachment talks to rev up - since Repubs are not in a position to actually succeed at it. The thought process is that whole talk will polarize the situation and result in more democrats cast their vote in Nov.

Or said in other way he is trying to rev up his base by talking about an issue that gets republicans in trouble - no matter what they do or say. Lets hope the rhetoric is followed by action that is beneficial to backlogged folks.

[moon80]

A cynical view is that Obama's team is indeed trying for impeachment talks to rev up - since Repubs are not in a position to actually succeed at it. The thought process is that whole talk will polarize the situation and result in more democrats cast their vote in Nov.

I agree impeachment or gov shutdown will be counterproductive for REPs..In such case Dems supporters will come out in big numbers for voting...

[migo79]

Q:
Well,

assuming one application or interlinking applications by USCIS:

*Considering dependents and principal as one application. (INA 203(d))
*Reduce Preference Visa by 1. (245(b))

and yes I agree with you that this will be extreme use of his EO.
comparing this EO to Nixon would be not fair IMHO.

GOP will not try to impeach him because they may be afraid of another GOP president with controlled congress by Dem to do the same, i guess max GOP will do is suing the president.

GOP also acknowledge immigration system is broken, the only thing i'm sure of is that they won't allow Dems to score a point in this matter.


The thing is all these media outlet are interviewing law people that encourage and support that move by the Pres. not sure if they didn't read the law or it's us who are very skeptical by the injustice immigration system.

I assume if the EO comes out. some people might lose their mind, GC process is an obsession, i read the posts in some forums and really wonder about the mental troubles some people are in because of that GC process.

at the end it is a card, but it's very important card that help people advance their careers.

I will remain optimistic guys, if no EO comes out or did nothing please don't laugh at me , i will keep being optimistic

[gcq]

With all these discussion about recapture being out of scope for Executive Order, how did Pres give EAD to illegals ? Isn't it the law that illegals need to be deported ultimately ? Sure Pres can delay their deportation. But how can he accord a legal status to people who broke the law ? ( Nothing personal, wondering from legal standpoint)

[qesehmk]

What I understand gcq is ... giving EAD is not against law. What Obama did was "Deferred Action" on illegals - especially dreamers. Basically he told his executive branch that we are not going to act on these deportation cases and give these dreamers a chance to work and come out of the shadows until the issue is settled in congress.

Thus he hasn't actually broken the law.

GOP folks cry fowl because they think by choosing the "defer" the deportations - he is breaking the law. But this is a classic case of walking the fine line. I think he served well to his constituency and to America. I think it made no sense on trying to deport kids who came to US and grew up here.

With all these discussion about recapture being out of scope for Executive Order, how did Pres give EAD to illegals ? Isn't it the law that illegals need to be deported ultimately ? Sure Pres can delay their deportation. But how can he accord a legal status to people who broke the law ? ( Nothing personal, wondering from legal standpoint)

[Jonty Rhodes]

From Oh Law Website. Personally, I don't think EO is possible on exempting dependents or recapturing visa as Spec has extensively described before. I think this EO is just a talk and I don't see anything significant happening for legals at this point. I think if President takes this EO, it is likely to be challenged in court.

08/21/2014: Clarification of Ongoing Consideration of Treament of Immediate Relatives of Principal Beneficiary of Immigrant Petitions in Immigrant Visa Counts

The current law involves Section 203(d) of 8 U.S.C, Immigration & Nationality Act which provides that "A spouse or child as defined in subparagraph (A), (B), (C), or (E)....shall,...be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent." As readers can see it, the statute does not specifically require that their immigrant visa numbers should be taken out from the numerical limit of various immigrant petitions. It is the INS and USCIS that have restrictively interpreted this statutory section to require to take out such visa numbers from various immigrant petitions annual national numerical limit. Thus whether or not the spouses and children must take out immigrant visa numbers from the annual quota remains a matter of interpretation. Should the President Obama interprete it different way and revises the rules that will provide that they do not take out from the annual national numerical limitation, it can prevail unless such executive action is challenged in the federal courts, eventually before the U.S. Supreme Court, that his interpretation is wrong.
When we reported this issue, we focused on the employment-based immigration quota system without mentioning other immigrant petitions, such as family-based immigrant petitions, diversity visa immigrant visa petitions, etc. etc. because we were discussing employment-based immigration system. However, the current statute encompasses all types of immigrant petitions and should the President exercise his executive power without limiting it to the employment-based visa petitions, it can cover any types of petitions and family members, which allegedly amount to 800,000. However, whether or not the President would go that far remains a question at this time. We will see whether he will indeed include this new interpretation in the forthcoming executive action and if yes, how far.

[gcq]

From Oh Law Website. Personally, I don't think EO is possible on exempting dependents or recapturing visa as Spec has extensively described before. I think this EO is just a talk and I don't see anything significant happening for legals at this point. I think if President takes this EO, it is likely to be challenged in court.

08/21/2014: Clarification of Ongoing Consideration of Treament of Immediate Relatives of Principal Beneficiary of Immigrant Petitions in Immigrant Visa Counts

The current law involves Section 203(d) of 8 U.S.C, Immigration & Nationality Act which provides that "A spouse or child as defined in subparagraph (A), (B), (C), or (E)....shall,...be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent." As readers can see it, the statute does not specifically require that their immigrant visa numbers should be taken out from the numerical limit of various immigrant petitions. It is the INS and USCIS that have restrictively interpreted this statutory section to require to take out such visa numbers from various immigrant petitions annual national numerical limit. Thus whether or not the spouses and children must take out immigrant visa numbers from the annual quota remains a matter of interpretation. Should the President Obama interprete it different way and revises the rules that will provide that they do not take out from the annual national numerical limitation, it can prevail unless such executive action is challenged in the federal courts, eventually before the U.S. Supreme Court, that his interpretation is wrong.
When we reported this issue, we focused on the employment-based immigration quota system without mentioning other immigrant petitions, such as family-based immigrant petitions, diversity visa immigrant visa petitions, etc. etc. because we were discussing employment-based immigration system. However, the current statute encompasses all types of immigrant petitions and should the President exercise his executive power without limiting it to the employment-based visa petitions, it can cover any types of petitions and family members, which allegedly amount to 800,000. However, whether or not the President would go that far remains a question at this time. We will see whether he will indeed include this new interpretation in the forthcoming executive action and if yes, how far.

That is a question of practicality. However he is free to limit it to employment based applicants. Remember when he gave EAD to illegal children, he could have given it to legal kids also. But he chose not to do. So if he wants to limit the visa number exclusion to EB category only, he can do citing "quality of life of high skilled immigrants" or whatever reasons a smart politician can come up with.

[qbloguser]

Whatever he is planning to do, he should not do it like his healthcare law which was challenged many times and is still being challenged and being implemented in parts like ok you are exempt; no you are not; yes you are! WTH!!

If he takes any EO and later on based on the current polarization in DC , it is challenged in court, the GC holders because of that EO will be in limbo until courts resolve it. No, I don't want something fast w/ sloppy legal arguments. I would prefer to wait!

That is a question of practicality. However he is free to limit it to employment based applicants. Remember when he gave EAD to illegal children, he could have given it to legal kids also. But he chose not to do. So if he wants to limit the visa number exclusion to EB category only, he can do citing "quality of life of high skilled immigrants" or whatever reasons a smart politician can come up with.

[aquatican]

Honestly if none of the ways to give us a few extra GC #s work I would just be happy if
We can ability to file I485 ( I am sure the legality of that is easier to clear by executive action
Than dependent exemption or even visa #recapture)

IMHO visa # recapture should not be that tricky .

But failing that just let us get EADs . At least we have a bone.

Whatever he is planning to do, he should not do it like his healthcare law which was challenged many times and is still being challenged and being implemented in parts like ok you are exempt; no you are not; yes you are! WTH!!

If he takes any EO and later on based on the current polarization in DC , it is challenged in court, the GC holders because of that EO will be in limbo until courts resolve it. No, I don't want something fast w/ sloppy legal arguments. I would prefer to wait!

[kkruna]

For EAD, all that is required is to make some error, and make all EB dates current. No EO required. Like what happened in 2007. Probably intentionally.

[qesehmk]

For EAD, all that is required is to make some error, and make all EB dates current. No EO required. Like what happened in 2007. Probably intentionally.

kk - If you remember 2007 then clearly you are in the queue for a long time. Sorry about that. Those who don't remember it - in 2007 all dates were made current because DOS was very unhappy with USCIS over lack of any visibility and probably was running into a situation where they would've wasted visas if they had not made dates current. Luckily they did and there was some drama around it. But finally they honored the dates that were made current.

[Spectator]

also Bruce M. who worked on the current bill says this is possible via EO?

"
The decision to count dependents against the caps "is an administrative interpretation" of the law, "and anything that's an administrative interpretation can be changed," said former U.S. Rep. Bruce Morrison (D-Conn.), who chaired the House Immigration subcommittee responsible for drafting the 1990 immigration reform legislation that created the present system.
"
http://www.computerworld.com/s/artic...hout_Congress_

always appreciate your comments

I said previously in a reply to this post:

Bruce Morrison should therefore also know that, in Conference (to reconcile House and Senate versions), a proposal for 75k EB visas (excluding dependents) was rejected in favour a 140k allocation which included dependents. This is discussed in the Endelman & Mehta article. Mr. Morrison seems to suffering from selective amnesia. That's probably more to do with who his paymasters are now.

I think I rest my case. It has been pointed out elsewhere that in the very same Endelman and Mehta article that discusses INA 203(d), footnote 8 says:

Former Congressman Bruce Morrison (D-Ct), the House floor manager for IMMACT 90, told the authors on August 31, 2009 that there is no basis in IMMACT 90 to argue that dependents should be exempt. He does say that the House bill HR 4300 would have exempted dependents but the EB level in the House bill would have been much lower-75,000 principals multiplied by 1.5 to give a grand EB total of 187,000; however, this House proposal was rejected in Conference. The goal in Conference was to set a total number. The House conferees wanted more but former Senator Alan Simpson (R- Wyo) wanted less and did not like exemptions. Ultimately, the EB number was set at 140,000. See Informal Interview of Congressman Bruce Morrison by Gary Endelman on August 31, 2009 (on file with the authors).

Politicians (or ex politicians) - they are all the same. Redacted, redacted, redacted!!

[gten20]

Looks like recapture, excluding dependents etc.. for helping legal immigrants is all smoke and mirrors.

Even the most optimistic of immigration reform proponents knows the chance of a legislative vehicle at this point is zero," says Emily Lam, vice president of health care and federal issues for the Silicon Valley Leadership Group, a technology company lobbying group that supports comprehensive immigration reform. In fact, SVLG is already planning a trip to Washington in December to express disappointment with Congress's inaction

source: http://www.inc.com/jeremy-quittner/s...ml?cid=sf01001

“With the problem at the border and the president’s rhetoric on executive action have totally poisoned the well,” said Charlie Spies, who helped organized Republicans for Immigration Reform. “I don’t think anybody believes anything can happen this year.”

source: http://www.politico.com/story/2014/0...sh-110211.html