Dear Readers:
When the President held a press conference earlier this summer announcing that Speaker Boehner informed him that immigration reform in Congress was dead for the year and that the White House would go it alone via executive orders, I assumed he was setting things up for an August roll out. After all, this is when Congress is on a month-long holiday and the news cycle is pretty slow. The Administration had already been working for months vetting various options so August sounded about right.
Then as August came, talk shifted to mid to late September. Apparently, the review process has been taking longer than expected. But some observers believed this to be a good thing as the White House is apparently considering a variety of fixes that will affect both legal immigration and the sizable undocumented immigrant population.
This past week, however, brought news that the White House is now considering rolling out at least some of the more controversial changes until after the November elections. Some red-state Democrats facing tough elections are worried that announcing major action before the election could hurt their chances in the fall.
Whether that’s true or not is not entirely clear. First, national polling on this issue has generally favored the Democrats even after the child refugee crisis boiled up earlier this summer. Second, a lot of people would give the President credit for at least trying to solve the problem on his own since the very unpopular Congress is unable to do much of anything.
But assuming the political argument is a valid one and the White House decides to hold off, I hope they at least start rolling out measures less likely to garner too much blowback. For one, the President could change the way dependents are counted in the green card allocations. There is nothing in the Immigration and Nationality Act that mandates that spouses and children be counted against the quotas for family and employment-based immigration. I researched this issue and found that up until 1965, spouses and children had to be petitioned separately and could not be put together in a single petition by the principle applicant. When that changed, the government started counting all members of the family against the annual quotas. But this was not mandated by the statute. A lot of smart people have started pointing this out to the White House and if that interpretation alone were changed, it would have a dramatic effect both on legal and illegal immigration.
First, about 60% of the employment-based green card numbers are used by family members. So the long backlogs would be significantly reduced including the waits for Indians, Chinese and others in the longer per country quotas. Second, a lot of undocumented immigrants have pending green card petitions. Changing the rules for counting dependents would mean the lines would move a lot faster and many of these undocumented individuals would finally be able to pursue green cards.
The beauty of pursuing this change is that it is not a question of the President choosing to exercise discretion and not pursuing enforcement for some individuals. Here he is simply interpreting the law in a way it probably always should have been interpreted. And he is helping people going about it “the legal way” get here faster which is what many of the opponents of actions to help the undocumented say they want.
In that spirit, another thing the President could do is periodically make all family and employment-based green card categories current. We know this is possible because the State Department did this for all employment-based numbers back in 2007 and allowed about 400,000 people in long green card queues the opportunity to file adjustment of status applications. This was a huge relief to many who had been waiting years for green cards because they were able to file for employment authorization documents and also gain adjustment portability benefits which make it easier to change employers. If the President did this once a year or so, there could be substantial economic benefits. It would allow spouses to work which will have a positive economic impact and for many entrepreneurs, they would be finally able to start their own companies. The EB-3 backlog for Indians, for example, is expected to last decades for some. Periodically making the EB numbers current would allow this potentially large pool of startups to get going.
Hopefully, the President will simply roll out all of the changes he has in mind sooner rather than later. There will always be a good reason to delay so you might as well just do it when you’ve checked the legalities and you’re comfortable with the policy changes. But if President Obama is going to delay the most controversial measures, hopefully he will at least start with some of the other ones like these two.
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Welcome to Spencer Glaser, our newest lawyer who has just joined our office in Memphis. Spencer is not a new face at Siskind Susser as he spent some time clerking at the firm during his law school years. Spencer will be learning about a lot of areas of immigration law before he settles in to any particular specialties so I’ll get a chance to work with him as well as our other lawyers. This is an exciting time to be embarking on an immigration law career and we wish him the best.
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If you’re reading this article on our web site, you may have noticed it looks vastly different than what you’re used to. That’s because we’ve finally gone public with a design makeover that has been more than 18 months in the works. We’re still making tweaks so we’re not doing any of the announcements just yet, but we’re pretty proud that we’ve managed to simplify the look and feel of the old site while still keeping the thousands of pages of content people have come to rely on. More on the new Visalaw.com soon…
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As always, we remind readers that if they’re seeking the services of an immigration law firm, we’re a national practice that handles most types of immigration matters. Please call my office at 901-682-6455 or email me at [email protected] if you’re looking for an appointment with one of our lawyers. Or visit our site at www.visalaw.com and fill out our online consultation request form.
Regards,
Greg Siskind