H1B Travesty and the much needed reforms

Background - Introduction

H1B is a temporary, non-immigrant, dual-intent visa that allows foreign workers to come to the US to work in a specialized occupation. Before we move forward, let's break down the classifiers as it will shed light on broader immigration topics. 

H1B is a temporary visa. In other words, it can't be for perpetuity. It can be renewed or extended but not for eternity. 

H1B is a non-immigrant visa. It does not give you the right to "immigrate" to the US. The word "immigrate", in immigration parlance, means to come to US to reside permanently. 

H1B, however, is a dual intent visa. Immigration department ("USCIS"), that is, understands and acknowledges that once you enter the US on this visa, you may have intentions to change your status to another non-immigrant visa like student visa (or vice versa, from student to H1B), or to actually change your mind and stay in the country permanently ("immigrate"). In contrast, a tourist visa is a single intent visa. You, on tour, are not expected to then change your mind when in the US! 

Another qualifier that is important to note and is usually not made apparent is that it's not a self-petitioning visa. You can't just apply for yourself! A US employer must do so for you, either while you are here (on another non-immigrant visa) or while you are in your home country. 

If granted, you can work in the US for three years! After three years, your employer can have your status renewed for up to three more years. Renewal may be given in 1, 2, or a single 3 year increments, depending on various factors. 

After 6 years, you may get your status renewed under certain exceptional cases. 

Background - Journey to Permanent Residency 

Whoever comes to the US, generally speaking and for good reasons, would love to stay here permanently and proudly become its citizen. As Ronald Reagan put it, US is "the shining city upon the hill." 

This is where dual-intent comes into picture. If H1B wasn't dual-intent, you would have to leave the US after a maximum of 6 years on H1B and then apply for an immigrant visa from your home country. But is is dual-intent, which means you can attain an immigrant visa without leaving the US (or adjustment of status). 

It's a simple process. 

Technically, you need to have your status adjusted from a non-immigrant visa (H1B) to that of an immigrant visa. 

1. Your employer must first apply and receive a labor certification from Department of Labor (called PERM).  Basically, a labor certification process includes "certifying" that there is no other US applicant for this job available to work for your employer. Therefore, you are needed! 
2. With PERM approved, your employer can then sponsor you for an immigrant visa. There are several types of immigrant visas - E2 and E3 being the most common for H1Bs. This sponsorship (or petitioning) is done by filing a form I-140, and therefore the process has come to be known as simply "I-140". 
3. After your I-140 is approved, your approved visa is run against a visa quota. If a visa is available as per the quota, you apply for an adjustment of status to receive an immigrant visa ("the green card").  If not, you wait for a visa to be available in time and as per quota, and when available, you apply for an adjustment of status! 

It's not that complicated of a process. 

Background - The process is simple. But the problems are anything but! 

Vivek Ramaswamy, the 2024 presidential hopeful, has said many things on the campaign trail but some hit home! 

• H1B is an arbitrary lottery system, and 
• H1B is indentured servitude. 

Let's break the two bombshells apart. 

One, H1B is, to your astonishment, granted through a lottery based draw! A fishbowl!  Well, not a fishbowl but an electronic lottery - not too far from a fishbowl in concept. 

Why such a childish act? Well, in law, lawmakers allowed 85,000 H1Bs a year. And they wrote that if number of H1B applications exceed that limit then the applicants should be picked from a lottery for adjudication. Else, regular order! 

Well, did they think that there will come a time when H1B applications will exceed 85,000? Not really, but they should have. Starting 2008, lotteries galore. 

Founding fathers of H1B should have expected glass ceiling of 85000 to have been shattered for two main reasons. 

1. This one you may guess. Specialized jobs explosion.
2. This one you may not guess. Any employer can file for an H1B application. Obviously, there are perfunctory requirements that you wouldn't expect a legit employer to violate like labor conditions / fair wages but nothing much more technical than that! 

And it's the second point that ran a shotgun shell through the 85,000 limit! Yes, we have loads of specialized jobs that US labor may not fulfill.  But if your uncle's best friend can open a consultancy firm and file for an H1B (just like a major research institute) for 10 employees, then you see how we can end up playing Russian roulette with people's lives! 

A great majority of employers who file for H1B applications are the so-called consultancies. They are not implementers like IBM or Accenture. They are not businesses with enterprise work. They are not even preferred vendors of contractors. They are local/baby/mom-&-pop consultancies. These consultancy firms have a simple business model. Get H1B foreign workers and brute force them into roles in US through layers of contracting firms. 

 

 

DACA / BORDER Immigration Framework - Updates

The 2022 immigration framework circulated by Senators Sinema and Tillis is making headlines across the political spectrum. The framework includes: 

• Border security funding of at least $25 billion and upwards of $40 billion
• A minimum staffing level at 20,500 Border Patrol agents
• 14% pay hike for border patrol agents 
• Hire an additional 600 officers annually to staff the ports of entry
• Pathway to citizenship for two million for Dreamers - undocumented immigrants who came to US before 2018 as minors, including DACA recipients - as long as they have been in the U.S. since 2018, were under 18 when they arrived and were no older than 38 in 2012
• Title 42 in place for a year, with metric components in place for an extension
• "Make investments" in USCIS officers and immigration judges and courts for faster case processing 
• Recapture of unused employment visas. 

The two positive developments have been that it is under attacked by extremes on both ends- those who see any type of amnesty as a non-starter, and those who want amnesty for all or no one.  The moderates and more centrists groups seem to support the bill. 

Vote math seems to be there. Between retiring Senators, Senator Tillis as well as anti-MAGA and DACA supporting GOP Senators such as Lisa Murkowski and Susan Collins, the elusive 10 GOP Senators needed to pass the bill in Senate is not far fetched. Even though some members of the most progressive wing of House Democrats might step back, but a supermajority approval of Senate is bound to garner decent support from House GOP representatives, at least more than enough to offset House Democrats who choose not to support the bill. 

Really there are two potential snags. Smaller snag is any last minute poison pill for either side that ends up derailing the whole vehicle. This may include insistence on bringing the bill as a standalone instead of an amendment to a must spending bill like Fiscal Year Financial Plan (Or omnibus/continuing resolution) and NDAA. Standalone track is requires debate time, deliberation, and committee clearance, akin to landing a jumbo jet on a private runway meant for bushplanes given that Congress is scheduled to adjourn in 7-8 days. 

And this segues into the bigger potential snag - time. Framework has been finalized but not the actual text. Immigration reform of any scale or type is not going to have the support of even moderate GOP senators if they don't get reasonable heads up and time to read the bill. Unless text is finalized in the next couple of days and circulated, the bill is heading for a cliff. 

Hopefully, it is understood by both sides that the stakes have never been higher. Political math in the Senate to get enough GOP Senators is solid due to newly reelected as well as retiring anti-MAGA senators, who face little to no political fallout for supporting "amnesty". The next Congress, divided among extremist GOP House and Democratic Senate, will be a graveyard for any immigration bill. 

It's really now or never. 

 

Border, Asylum, and Citizenship for Dreamers - prospects

Senator Sinema has taken a lot of flack for being a bipartisan lawmaker in this partisan environment. Behind the doors, however, she was instrumental in garnering GOP support for Democratic bills such as infrastructure and gun control. And, as per the tsunami of news reporting, Sinema has apparently struck a deal on immigration with Republican Senator Tillis.

It is indeed different this time because in January 2023, a hard right-wing GOP takes the House killing any hope for immigration compromise in the next Congress, or even after that. And it is during next Congress, DACA will most likely make it to SCOTUS where it will be struck down as unconstitutional.

That time is of the essence is for the first time being acknowledged by Republicans who are eager to secure border and extend Title 42. 

What is happening behind closed doors is unknown. The key sticking point is whether a fully hashed out bill with complete language make it to the floor before end of the year.

For everything else, math's there.

GOP Republicans in play for DACA in December 2022.

 

DACA-fix looking unrealistic #DACA #Dreamers

The beat isn't positive, that's for sure. Mainstream media for the most part are acknowledging that DACA fix is one of the agenda items for Democrats, but reporters consider it as a "wish list" and something that is "not going to happen" because there is no "coordinated support for it." Senator John Thune (Number 2 in GOP Senate) also confirmed that a "DACA fix" isn't "going anywhere." Given the inflammable nature of the subject and less than 3 weeks to deal with, it was never a walk in the park. 

But the grave reality that DACA-fix is all but dead starting January 2023 when GOP takes the House with rejuvenated clout of the extreme right wing, seemed sufficient enough in the beginning for the hope to carry on. The elusive 10 Senate Republicans who hold all the power TODAY (to break filibuster in the Senate to pass legislation) will lose it all next year. Whether they vote for DACA or not, Kevin McCarthy (assuming he is the Speaker) isn't losing his speakership by putting a DACA bill on the floor. Next year, immigration is DOA (dead on arrival). 

Republicans know this. 

Democrats know this.

DACA Dreamers know this.

All hope mustn't be lost yet. Senator Durbin, while on the Senate floor yesterday, reiterated the urgency of a narrow bill for Dreamers (something Democrats have hesitated thus far) and also confirmed that he "is encouraged" by the conversations that are taking place. Activists for DACA have housed themselves in DC this week to convene with Democrats and Republicans in the Senate to "read the room" on DACA. 

Democrats need to focus on drafting a bill that can garner support of 10 GOP members (including 4-5 of those who are retiring and have no political fallout for supporting "amnesty"). 

This and next week will give us an accurate picture of where things are and where they are headed. 

For the DACA recipients, let's hope for the best (but prepare for the worst). 

 

DACA Dreamers face a Do-or-Die December

It is critical and, unfortunately, superbly difficult for Democrats to pass anything during lame duck session of 2022 for DACA dreamers. 

It is critical because Republicans take over the House in January 2023 with slim majority giving their hawkish Freedom caucus a massive sway in next Congress. It is not unimaginable to think that the GOP (especially the extreme faction of the party) House - the Jim Jordan House - is not going to let any "amnesty" be voted on in the next Congress even if DACA dreamers lose the battle in the high court and in turn their jobs, livelihood and means to live in the country. They just don't have the incentive to do it.

Between the-very-close then and now is December 2022 - the prime month of the lame duck session. As I have mentioned in my previous post, if Democrats can't close the deal in December of 2022, DACA dreamers face a doomsday scenario in next Congress. Citizenship for them will not be secured at least until the following Congress in 2025 (and that's assuming Democrats take the hold of Congress - which is highly unlikely). 

Even when the stakes for 800,000 DACA recipients couldn't be higher, it is going to be tough. In fact, next to impossible. Lame duck precedence is against DACA. Contentious legislation is usually avoided during this period as it is considered a transitional phase to the new congress and our political leaders start packing their bags for the Christmas holidays. 

Lame duck session is blink of an eye. Give or take, ongoing lame duck is around 2 weeks (10 days) of working calendar. Usually, congressional leaders need longer to just settle in their offices. Meeting with GOP colleagues, striking a deal, having a complete draft for a bill - that is way too much for this short period. Doable, but highly unlikely. 

GOP Senators are not incentivized to do anything for DACA during lame duck, other than goodwill and morality. And that doesn't bode well for DACA dreamers. The reality is that GOP senators who end up supporting an amnesty bill during lame duck (or anytime after that) will face an exceptional backlash from the extreme base of their party in Senate and especially the House in next Congress. Already the far-right news outlets and commentators have started hurling rocks and setting towns on fire at the whiff of some GOP senators just engaging in preliminary talks on this subject during lame duck. The names of those Senators have been placed on the "wanted" list. It is an uphill journey. Most of the GOP senators are ostensibly blaming the situation at the border for preventing them from signing off on any amnesty bill (knowing that DACA has nothing to do with border), it is really the backlash part that they are terrified of. Lindsey Graham, past proponent of Dreamers, at least admits it.

The only sliver of a light at the end of the tunnel is from the 4 out of 5 GOP senators who are retiring and have shown compassion towards DACA dreamers. Senator Blunt from Missouri, who enjoys great deal of goodwill with his Senate colleagues according to @PabloReports, is quite forthright in supporting DACA citizenship during lame duck for as long as the bill is limited to DACA. Given these senators are retiring and are immune from backlash, they may be more willing to support such an inflammable bill. The remaining 6 GOP senators would have to be those whose ability for reelection does not depend on the far-right flank of the party. They will have to step up and take this one. Again, where's the incentive? 

Really the only incentive for GOP senators is compassion. They, of all people, know their House colleagues better than anyone. They know the Jim Jordan House is the graveyard for immigration "amnesty" bill. It is this knowledge that may sway some surprising names in favor of DACA bill in December of 2022. 

Democrats have a massive role to play here which is another big problem for DACA. Historically, Democrats have used the term Dreamer quite broadly (covering as many as 4 million individuals) and tried to piggy back on DACA for amnesty for millions more. They will have to drop that strategy. GOP Senators are smarter. Democrats' job is to stick to amnesty for DACA recipients, no more no less. Keep it simple, clean, crisp, clear. Especially because it's really the livelihood of DACA that is on the line. Remaining undocumented population, albeit living by no means ideally in the country, will still continue their status quo. Democrats should try to find a bill around that which works for their GOP Senators. 

If anything comes to fruition for DACA, it will be attached to one of the year-end must-spending bills as an amendment. Some extreme Democratic House colleagues may try to use immigration to hijack must-spending bills but that won't work with Republicans. Bullying the opposition is not going to be the answer. A sober compromise is going to be. 

All of the above has to play out in December 2022. You do the math.

After lame duck session, Dreamers (DACA) don't stand a chance for years.

 It is important for the Democrats to realize that lame duck session is their only chance for getting pathway to citizenship passed for DACA recipients. If John Boehner could disallow vote on the bipartisan immigration bill back in 2013 that was passed by a veto-proof majority in the Senate, it is fair to say that Kevin McCarthy will most certainly follow that path come 2023. In the past 10 years, few would say that immigration debate has become less inflammable. 

More importantly, the 10 republicans, who stand between DACA recipients and a pathway to citizenship must acknowledge this fact. Their House colleagues are bound to reject any bill with a pathway to citizenship in 118th Congress, regardless of border security provisions tagged to it. John Boehner didn't care back in 2013 about the fact that Senate had thrown all the money it could on border security to appease their House colleagues. The poison pill was the pathway to citizenship. And if Republicans tried jamming an immigration restrictive bill with border security provisions without granting citizenship to some already within the country, Biden will veto it. 

So… the 10 Republicans, fateful 10, must know that any meaningful immigration bill - that helps them address border issues - must happen now during the lame duck. Even though some may say that lame duck is no time for major legislation. On the contrary, the lame duck session is especially for difficult but right bills to pass with little political fallout. 

A roller coaster named DACA (Deferred Action for Childhood Arrivals)

It took me 10 minutes to explain DACA to a life insurance agent, who'd been in the industry for over 20 years. "In my entire career I've never seen such a steep revision to initially quoted premiums." I paraphrased his remarks on the underwriter's decision to revise the quote for my monthly premiums for a million dollar, 30 year term life insurance from 67 to 248 bucks - a sweet 270% increase - based solely on my immigration status. "Does it matter for the underwriter to know that I have been in the United States for over 20 years and have never left the country once - not even for a brief trip." I told him as my final response. "It really matters on the card you have." He said. I could sense frustration with the decision and sympathy towards me. He knew the deal was off. 

This is what DACA is. It is a state of limbo that few understand. 

It is not a visa. It is not permanent residency. It is not citizenship. And also, it is not nothing.

Check out the immigration website for details but, at a high level, DACA is an executive policy that grants protection from deportation and, more importantly, work permits to those who came to US as minors by June 15, 2007. You need to renew the grant every 2 years. Obama put it in place in 2012 for folks like us after years, if not decades, of failure of Congress to pass any immigration law - the only way to grant permanent residency or green cards.

From the get-go, DACA was on shaky grounds. Question of whether a President has the authority to grant work permits was being debated. DACA ended up in courts and eventually a district judge deemed it as unlawful and stopped new enrollments but kept renewals in place. 

Now, fifth circuit has claimed it unlawful and for some weird reason continued to maintain status quo - i.e. no new DACA approvals, only renewals. Though the decision will be appealed and make its way to the supreme court for the second time (first time was about its implementation), and if, against all odds, supreme court sides with DACA (which it won't), there is the specter of a future President reversing the policy, easily.

In other words, DACA isn't going to stay for long. 

As many times DACA has seen the faces of disgruntled judges as it has seen Congress (particularly, Democrats) conjure some solution that has failed to garner sufficient support for it to see the light of day.  

Congress has tried everything. Green cards for Dreamers, Registry Date revisions, comprehensive immigration reforms in many forms, citizenship for DACA in military, and so on. But where is the solution in the form of a bill that grants green cards to all "active DACA recipients and those who would qualify for it"... and that's it?

Big non-profits, bullhorns for undocumented folks at the steps of the Capitol, have so far come out to use DACA as a pulpit to drag the dead horse of massive immigration hauls, last of its kind being passed in 1986 - a different world. You see I can use a million dollar in donations received for the eradication of homelessness and use about 800Gs to pay myself an administrative fee, and still have the whole shindig being called as non-profit. These "non-profits" really don't want a solution. They want a fight to fight over in their board rooms. Solving the problem isn't incentivized. Trying to solve it, is. 

With cell phones and AR-15s, seems like common sense is also checked out prior to entering special sessions where Democrats discuss legislative priorities, especially immigration. In a political environment where DACA - arguably the lowest hanging fruit in the immigration fight - is making its way to the guillotine, some of the measures proposed by Schumer's party are simply put batsh*t crazy.

Either it's the citizenship for "Dreamers, TPS, and essential workers", with two of the three critical words being so flexible that even the proponents of the bills can't seem to agree on their definitions. Who is a Dreamer? It covers DACA recipients, plus some say who came to US prior to turning 18 even as recently as by December 2021 (see US Citizenship Act), others cap the entry criteria to 4 years prior to enactment of the law. Who is an essential worker? There is the classical, written definition, of essential workers - like agricultural workers, utility workers, doctors, fire fighters, etc. Then there is the abuse of that definition. You get me an affidavit stating that I have hung out on your farms, and I become an essential worker.

These days you hear a lot about registry date. That's another number. Registry is an existing congressional law where anyone who came to US prior to Jan 1, 1972 (read more here), is eligible for a shiny green card. Democrats would like to revisit this and not just propose an updated cutoff date, but make the whole thing a "moving registry". That is, if you came to US X number of years ago, you may get yourself a green card. 

What we have yet to hear is the vote on the original question - a bill to provide permanent residency for DACA recipients, and those qualify for DACA. Why is it then Democrats aren't putting forth this rather simple, straightforward bill up for a vote? They may say that they just don't have the support of Republicans. Well, let's let them vote against it, because being the party in power it is at least incumbent to bring to the floor a bill that is hard to vote against. 

Circling back to the key about DACA, that it is on its way out. The program has changed lives, around 800,000 of them. And not just any lives but of those who have spent decades of their formative years in the States, studying, working, "growing". Spending 15 years of your life, for example (minimum number of years a DACA recipient had to have been in the country as of 2022 to qualify), from age 6 to 21 plays different than for a person who has been here from age 50 to 65. DACA is now not just an immigration issue, it is a humanitarian issue.

What happens next? Well, Republicans will control the less forgiving and more reactionary chamber - the House, at least, in 118th Congress (starting Jan 2023). Any chance of a meaningful legislation for DACA will be quite slim from that point on. I hate to say it, but if DACA is headed for the guillotine next year and the Democrats are poised to lose absolute Congressional control, then the only real chance for permanent residency for DACA is during the lame duck, i.e. last two months of 2022.

Midterm elections '22 will decide, as always, the lame duck dynamic though. The most likely scenario (not by far, though) is that Democrats lose the House but keep the Senate. This is the best chance for DACA as well. The 10 Republican senators of current Congress have to know that the House in next congress will vote, let alone pass, jack on DACA. This may be the best chance for them to secure some common sense border control provisions and in return give the relief to DACA recipients, which some of the Republicans actually are sympathetic towards.

The second most plausible outcome in November '22 is that Democrats lose both chambers. This will be the worst for DACA. Since they would have revamped negotiation power come Jan 2023, Republicans would want to not do much on DACA during lame duck, especially also when DACA is still on a ventilator and not pronounced dead. Then, come 2023, Republicans aren't even going to talk on DACA until and unless Supreme Court declares it as unlawful and DACA recipients in thousands are losing their jobs. This inevitable decision will probably not make it to the fore till the end of next year, at least. That's another year lost and we are about to enter the crazy 2024, the presidential election year. The best case in this worst case scenario is that Republican Senators allow a vote on a narrow, rigid, bill that provides some protections to DACA recipients (DACA extensions as a congressional action without pathway to citizenship is not off the table also!). This is to gain support of some House republicans. And then Kevin McCarthy, House Speaker, will not allow a vote on any such bill (just like John Boehner did).

I won't write much about the other possible scenarios (D's keep House and lose Senate, or, D's keep Congressional control) because they are almost next to impossible to occur. In both scenarios, talks on DACA will lose steam and spill into 2023 and if they do, then again those will hinge upon Supreme Court. 

To cut long story short, if no action is taken on DACA in the last two months of 2022, then a pathway to citizenship for DACA recipients is exceptionally unlikely under Biden administration, regardless of Supreme Court's decision. Democrats, please, please, get to work. 

Why the "Plan B" of the Democrats to pass immigration through budget reconciliation will FAIL.

If media is to be believed, the Democrats, with their collective wisdom, have devised a "Plan B" to have immigration reform passed as part of the budget reconciliation process. This is after their initial pitch was snubbed by the Parliamentarian in a rare written ruling. 

The Plan B is to move the so-called Registry Date from January 1, 1972 to a recent date (some reports hint towards a date in 2010). This registry date serves as a cutoff date for entry into the United States for non-citizens who have been continuously residing in the country and wish to adjust their status to that of a permanent resident.

This is not going to pass muster with the Parliamentarian. It fails to refute, or even address, the objections presented in the ruling over the original plan. If you've read my analysis of the ruling (the post is appended below), the objections can be summarized as: 

[objection # 1] the policy change creates a new class of aliens that will qualify for permanent residency, [objection # 2] and the social impact of which far outweighs the fiscal and budgetary impacts. [Objection # 3] Not only is the precedence for such a policy missing but [Objection # 4] this change may easily be reversed by a simple majority in future. 

Let's set aside Objection # 3 and # 4 since they do not strictly fall within the confines of the Byrd Rule - the criteria that decides which provisions are sound for a reconciliation package.

But the first two objections are absolutely legit. 

Let's start by tucking away, once and for all, the supporting argument for Plan B that does not even address the Parliamentarian's objections (makes you doubt the earnest of the Democrats). Moving the registry date is not akin to merely updating a date while keeping the law intact as some Democrats would have us believe (Senator Menendez from NJ, specifically). 

First, if the law remained unchanged with this plan, then what's the need to bring it to the floor of the legislative body? That's easy. Second, the date is the central pillar of the law. There is no other criteria in the relevant provision that comes close to defining the eligibility criteria. Therefore, if you change the date, you explode the scope of law beyond recognition. Changing the Registry Date is changing that law. Period. 

The Parliamentarian, however, did not raise a concern over the complexity or the language of the text. She did so over its consequences in practice. 

In theory, moving the registry date may not create a new definitive class of aliens, like the so-called essential workers, that is suddenly eligible to adjust their status. But in practice, it does. It brings into the fold all the aliens who have been residing in the United States since this new registry date and creates a new "unnamed" class of its own that is eligible to adjust status. 

And that is exactly what the Parliamentarian objected. A large part of this new class will be the undocumented population. And this population, with no immigration status heretofore, will be able to become permanent residents. That "journey" is too big of policy change as compared to the budgetary impact for the Parliamentarian. And thus it walks right into the second objection.   

THE ONLY POTENTIAL SOLUTION

Parliamentarian has left slightly ajar the door for some immigration provisions. Keeping aside the legal immigration provisions to clear the visa backlogs (they haven't been presented to the Parliamentarian), her objections seem to focus primarily on the "totally" undocumented population, and not those with some form of temporary legal status. 

If you revisit my analysis, it is clear that her objection is around a brand new class of aliens. One may argue, then, that population currently protected by statutes and orders such as DACA, TPS, and DED are NOT a brand new class of aliens. Most of this population is authorized to work in the United States (as a result pay taxes), eligible for a wide swathe of federal / state benefits including FHA loans to buy homes, and are protected from deportation.

The only argument that may refute the Parliamentarian's objections is to allow such population to adjust their status. It will still not be a sure shot win. The impact on the budget will not be as much because most of the population already enjoys a plethora of fiscal benefits that feed into the budgetary assessment. However, a hefty fee to adjust status and the eligibility to all federal benefits and safety net programs may just carry the boat across. 

It will still be a massive policy change. But comparative to finances involved, is allowing free travel, unconditional government employment opportunities, and petitioning relatives big enough for this plan to be excluded (since they already enjoy rest of the "securities" of being a permanent resident? 

Say what you will, this is a million times better of a response than what we are hearing in the media about the so-called "Plan B". 

<<< ORIGINAL POST - ANALYSIS OF PARLIAMENTARIAN'S INITIAL RULING >>>>>

"Within hours and days", as Senator Durbin (D-IL) on the Senate Floor announced, of being blocked by the Parliamentarian in their efforts to implement immigration reform (especially legalization for undocumented immigrants) the democratic leadership has begun to draft a "Plan B" for consideration.  And as per Senator Durbin, in their pockets also rest Plan C, D, etc. 

There are also lukewarm calls to fire the parliamentarian or at the very least overrule her decision, both of which seem unlikely for reasons not in the scope of this article. The most feasible path for any kind of immigration reform is to "convince" the parliamentarian to approve the revised proposals. 

In order for us to understand how the parliamentarian WILL rule on the revised proposals, it is imperative for us (and more importantly for the Democrats) to understand why the original plan was rejected.  So, let's use the privilege of having access to the ruling in writing to dissect it and understand objections of the Senate referee. 

Observation # 1:  Excerpt from the ruling: "While a portion of that 8 million has one form or another of temporary legal status under statute or Presidential order, the vast majority (nearly 7 million by CBO’s estimate) are unlawfully present and generally ineligible for adjustment of status under current law (as are some of the temporary status holders)." 

The parliamentarian clearly differentiates a subset of eligible immigrants with temporary legal status (such as DACA and TPS recipients) from those who are "unlawfully present".  Her stress is on the latter group of "nearly 7 million" people and the fact that the proposal would create a new class of immigrants eligible for adjustment of status. 

Parliamentarian's Objection # 1: The proposal creates a NEW class of immigrants applicable for permanent residency (differentiated from classes that already exist such as DACA and TPS). 

Observation # 2:  Excerpt from the ruling: "Broadly speaking, as most of the beneficiaries of this policy change are not in status, there will be other [than social safety net programs such as Medicare, Medicaid, etc.], life-changing federal, state and societal benefits to having LPR status... LPR status would give these persons freedom to work, freedom to travel, freedom to live openly in our society... and to reunite with their families and... to apply for citizenship – things for which there is no federal fiscal equivalent."

The parliamentarian details the benefits of having permanent residency as effecting MORE THAN just the financials of the recipient (in the form of opportunities) and budgetary (in terms of outlays for the governments in the form of safety net programs). "The value of having the security of LPR status [green cards]..." is immense with no "... fiscal equivalence."

Lastly, again the Parliamentarian cleaves out people with some form of temporary legal status (like DACA and TPS recipients) from this objection by stating that "MOST of the beneficiaries of this policy change are not in status". To state the corollary, SOME of the beneficiaries of this policy change ARE in status and as a result MAY already have many of the benefits outlined.  

Parliamentarian's Objection # 2: The proposal will grant benefits, by opening a pathway to residency, for a NEW class of immigrants that are FAR BEYOND just fiscal and hence outweigh the budgetary implications. 

Observation # 3:  Excerpt from the ruling: "Each provision [from several previous reconciliation bills] can be distinguished from the current proposal. "

The Parliamentarian essentially works through all the previous provisions in reconciliation bills and dismantles them as legitimate precedence for immigration reform. 

Parliamentarian's Objection # 3: The proposal has no true previous precedence to grant legal status to a new class of immigrants with no status. 

Observation # 4:  Excerpt from the ruling: "Finally, it is important to note that an obvious corollary of a finding that this proposal is appropriate for inclusion in reconciliation would be that it could be repealed by simple majority vote in a subsequent reconciliation measure."

This is self-explanatory. 

Parliamentarian's Objection # 4: The proposal can just as easily be reversed in future [that is green cards granted now can be "taken away"] as part of future reconciliation bills. 

If the democratic party is earnest in getting at least some immigration provision passed within reconciliation, they will heed to at least the first three objections and create proposals that are shielded from them. The last objection can be debated. It is not as easy to "take away" legal status, given the "reliance interest" clause (just ask President Trump who exhausted his presidency to repeal DACA, which was not even a Congress act but merely a presidential memo. It was, in fact, not even an executive order.)

Understanding the Parliamentarian's ruling on Immigration in Budget Reconciliation

"Within hours and days", as Senator Durbin (D-IL) on the Senate Floor announced, of being blocked by the Parliamentarian in their efforts to implement immigration reform (especially legalization for undocumented immigrants) the democratic leadership has begun to draft a "Plan B" for consideration.  And as per Senator Durbin, in their pockets also rest Plan C, D, etc. 

There are also lukewarm calls to fire the parliamentarian or at the very least overrule her decision, both of which seem unlikely for reasons not in the scope of this article. The most feasible path for any kind of immigration reform is to "convince" the parliamentarian to approve the revised proposals. 

In order for us to understand how the parliamentarian WILL rule on the revised proposals, it is imperative for us (and more importantly for the Democrats) to understand why the original plan was rejected.  So, let's use the privilege of having access to the ruling in writing to dissect it and understand objections of the Senate referee. 

Observation # 1:  Excerpt from the ruling: "While a portion of that 8 million has one form or another of temporary legal status under statute or Presidential order, the vast majority (nearly 7 million by CBO’s estimate) are unlawfully present and generally ineligible for adjustment of status under current law (as are some of the temporary status holders)." 

The parliamentarian clearly differentiates a subset of eligible immigrants with temporary legal status (such as DACA and TPS recipients) from those who are "unlawfully present".  Her stress is on the latter group of "nearly 7 million" people and the fact that the proposal would create a new class of immigrants eligible for adjustment of status. 

Parliamentarian's Objection # 1: The proposal creates a NEW class of immigrants applicable for permanent residency (differentiated from classes that already exist such as DACA and TPS). 

Observation # 2:  Excerpt from the ruling: "Broadly speaking, as most of the beneficiaries of this policy change are not in status, there will be other [than social safety net programs such as Medicare, Medicaid, etc.], life-changing federal, state and societal benefits to having LPR status... LPR status would give these persons freedom to work, freedom to travel, freedom to live openly in our society... and to reunite with their families and... to apply for citizenship – things for which there is no federal fiscal equivalent."

The parliamentarian details the benefits of having permanent residency as effecting MORE THAN just the financials of the recipient (in the form of opportunities) and budgetary (in terms of outlays for the governments in the form of safety net programs). "The value of having the security of LPR status [green cards]..." is immense with no "... fiscal equivalence."

Lastly, again the Parliamentarian cleaves out people with some form of temporary legal status (like DACA and TPS recipients) from this objection by stating that "MOST of the beneficiaries of this policy change are not in status". To state the corollary, SOME of the beneficiaries of this policy change ARE in status and as a result MAY already have many of the benefits outlined.  

Parliamentarian's Objection # 2: The proposal will grant benefits, by opening a pathway to residency, for a NEW class of immigrants that are FAR BEYOND just fiscal and hence outweigh the budgetary implications. 

Observation # 3:  Excerpt from the ruling: "Each provision [from several previous reconciliation bills] can be distinguished from the current proposal. "

The Parliamentarian essentially works through all the previous provisions in reconciliation bills and dismantles them as legitimate precedence for immigration reform. 

Parliamentarian's Objection # 3: The proposal has no true previous precedence to grant legal status to a new class of immigrants with no status. 

Observation # 4:  Excerpt from the ruling: "Finally, it is important to note that an obvious corollary of a finding that this proposal is appropriate for inclusion in reconciliation would be that it could be repealed by simple majority vote in a subsequent reconciliation measure."

This is self-explanatory. 

Parliamentarian's Objection # 4: The proposal can just as easily be reversed in future [that is green cards granted now can be "taken away"] as part of future reconciliation bills. 

If the democratic party is earnest in getting at least some immigration provision passed within reconciliation, they will heed to at least the first three objections and create proposals that are shielded from them. The last objection can be debated. It is not as easy to "take away" legal status, given the "reliance interest" clause (just ask President Trump who exhausted his presidency to repeal DACA, which was not even a Congress act but merely a presidential memo. It was, in fact, not even an executive order.)

One unelected person can CRUSH immigration reform in 2021

So much for democracy! It is not an exaggeration to say that come fall, one unelected official will decide the fate of immigration status for millions of undocumented immigrants!

Meet Elizabeth MacDonough, the Senate Parliamentarian. 

She was appointed by the then-Senate Majority Leader Harry Reid [1], and not elected by the people. And just like she ruled to remove $15 minimum wage provision from COVID Relief Bill [2] earlier in the year and keep the opening of oil drilling in Arctic National Wildlife Refuge in 2017 Jobs and Tax Cuts Bill [3], she will most certainly rule on whether legal status may or may not be given to qualified immigrants. 

So, how on earth is this possible? Before we hurl polarizing judgments at her, let's understand the current affairs and we will come back to this piece at the end. 

The two parties are not going to reach a bipartisan agreement on immigration and secure 60 votes (including that of 10 Republicans) necessary to pass a bill in the Senate. That's just the political reality of 2021 (post-Trump). Considering that the populace knows that Democrats control all three wheels of the legislative process (Senate, House, and the White House) and does not care (and frankly, should not) about the need for Democrats to convince 10 Republican Senators, has put the majority party under quite a pickle.

"We tried to pass but Republicans didn't let us, but still keep us in power" is just not as powerful a message for 2022 election cycle as "See, you got nothing for fighting to keep Dems in power, elect us!". 

Enter Budget Reconciliation Process.  

For certain types of bills that have significant budgetary impacts, they may be passed in the Senate through a majority (called simple majority) of 50 votes*. Democrats, obviously, have turned to that. Spearheaded by Bernie Sanders, the party has decided to add just about all of their legislative priorities into one massive legislative initiative. 

Relevant members of the Democratic party have been greenlighted to move forward on this [4]! By September / October 2021, they will put together a ginormous package with all the provisions that the party wants passed including a pathway to citizenship for certain immigrants (Dreamers, TPS holders, Farm Workers, and others). This will be part of the package [5]. 

The sticking point is that naturally there is a limitation to what can be passed through budget reconciliation, or else the whole super-majority requirement in the Senate would be moot. So, before the package is carried to the floor of the Senate for a vote, the minority party (or any Senator, for that matter) can object to any provision in the package. There is 99.9% chance that Republicans are going to object to the immigration provision (make it a 100%). I am leaving 0.1% because behind close doors even Republicans accept the merits of providing legal status to qualified undocumented immigrants but do not want to admit that in public for obvious reasons. So, they can let the provision slide and sloganeer "Dems passed mass-amnesty" without paying any political price for doing so (how many out there will know that Republicans could have at least objected its inclusion?).

In reality, they will object. And when they do, it is only then the provision is dumped onto the Senate Parliamentarian's desk to rule on the objection. And that's big question mark. How will she rule?

The rule says, in essence, that any provision in the budget reconciliation package must be in there because it impacts budget and may also just happen to be a policy change, but NOT the other way around. You can't add a policy change which may also just happen to have a budgetary impact. The scale and size of the budgetary impact and policy implications are important, but so is the intent. 

And that's the gray area. It is unquestionable that providing legal status to a wide swathe of qualified undocumented immigrants will have budgetary implications, but will the Senate Parliamentarian be convinced that the ENTIRE purpose of immigration reform is to "boost" the economy?

If she thinks so, then a whole bunch of people get green cards and a chance to a stable living! If she doesn't, you've got a HUGE problem. 

The historical trend isn't promising. She thought opening oil drilling in a national refuge area was for budgetary reasons, while the minimum wage provision wasn't. One can see why. And in that line of thinking, she might just rule against the immigration provision as well. Democrats misrepresent as a precedence the immigration provision added in budget reconciliation package in 2005. In that case, nobody had objected! So, it wasn't even sent to the Parliamentarian for a ruling. Objection is the whole point because raising none is akin to a super majority! 

How she will rule on the immigration provision is not the scope of this article. The point is that she will!  And if she rules not in favor of immigration, what can be done to save it? Nothing much, unfortunately. 

Technically, Senate Parliamentarian ADVICES and it is the presiding officer, someone from the majority party, who gets to have the final say. Generally the parliamentarian's rulings are echoed by the presiding officer (and hence, the majority) [2]. The presiding officer can technically ignore the parliamentarian but that will be the same as making do with the super majority Senate requirement and hence a spectacular precedence for future. This precedence is not something that Democrats (or any party) in general are supportive of setting, even when the progressive wing of the party tried persuading their leadership to do so after the minimum wage clause was ruled on unfavorably [6]. 

There is no good reason for the Democratic party to set the precedence for immigration provision this time around either. Having immigration provision as ONE of the many in the package, a partial setback is politically digestible if most of the rest of priorities are included. 

The rulebook, however, does allow a super majority to overrule the parliamentarian's ruling (it's technically the presiding officer's decision that has to be overruled). If it comes to this and overruling is put to vote, 10 Republicans will NOT agree to it because it's essentially a vote FOR immigration reform (with an appropriate right wing political price tag!).

It is more than unfortunate that United States, a nation of immigrants, has been a battleground for an immigration reform for decades. The fate of millions is either in the hands of the unwilling, or the unelected. 

*Assuming the 51st vote from VP to break the tie. 

[1] https://constitutioncenter.org/interactive-constitution/blog/who-is-the-senate-parliamentarian-and-what-does-she-do

[2] https://www.reuters.com/world/us/us-senates-reconciliation-process-its-not-way-it-sounds-2021-08-10/

[3] https://thehill.com/policy/energy-environment/365772-congress-votes-to-open-alaska-refuge-to-oil-drilling

[4] https://www.cnbc.com/2021/08/11/senate-passes-3point5-trillion-budget-resolution-after-infrastructure-bill.html

[5] https://thehill.com/latino/563047-manchin-signals-support-for-immigration-in-budget-deal

[6] https://reason.com/2021/02/26/democrats-cant-use-reconciliation-to-pass-a-15-minimum-wage-heres-what-they-might-do-next/

Developing Story: India - USA Travel Ban News

US Administration placed a sweeping travel restriction on non-essential travels by Indian nationals with no permanent ties to the United States. 

This is a developing story - follow this space frequently to stay posted.   

June 24, 2021 Update

Though there is no official confirmation, sources close to Aviation industry and American embassies in India have reported to us that an announcement about the timeline and conditions to lift travel restrictions are planned to be made by or close to July 1st, 2021.  Travel restrictions are planned to be lifted in the second or third week of July 2021. The leniency may allow fully vaccinated Indian nationals with recent negative COVID tests to commence travel to US.

June 23, 2021 Update

Though there is no official confirmation, sources close to Aviation industry have reported to us that the travel restrictions are planned to be lifted by or close to July 1st, 2021. The leniency may allow fully vaccinated Indian nationals with recent negative COVID tests to commence travel to US.

Democrats! Learn from Republicans!

What Senators Manchin and Sinema seem to ignore is the fact that voting to rescind the 60 vote cloture rule doesn't automatically sign them up for every legislation spat out from the House with support from remaining 48 Democratic Senators in the current Congress (The Confused 117th!). 

These two senators - for those who may not know - are the obstacle between Democrats and the end of Filibuster as we know it. The ostensible rationale for not siding with their party on this issue is that this will essentially abolish the last rule standing that encourages bipartisanship. 

This is notwithstanding the extended term lengths of 6 years and the election cycle for only a third of senators every two years, which were the instruments implemented by the Founding Fathers to make the upper house a more deliberative body than the impassioned House. Filibuster, on the other hand, isn't from the minds of the Founding Fathers. The two Senators seem to ignore these realities as well.

If we imagine a Senate with no 60 vote threshold for passage, then still only a unified majority party can move the bill to a passage. That is, the Democratic party would need the backing of the entire caucus to pass a legislation. And such a legislation that receives the blessings of centrists like Democratic Senators Manchin and Sinema are indeed worthy of the passage. After all, an equally divided Senate is a mandate for progressives to find common ground within their party and move the United States a bit to the left. A bit because Manchin and Sinema will not let it swing wild. 

Now imagine a majority of 54 Democrats with no cloture rule. This would be a mandate to steer the ship aggressively towards left. Even if Manchin/Sinema pair dissents, Democrats will most likely still have the votes to move forward. You get the point! 

This is exactly what the Republicans did when they were in the majority. For their tax legislation, they (including President Trump) came together and passed it with zero, zilch, Democratic support. Did McConnell stop for a second to question the partisan nature of the legislation? Of course, not. (Is he one of the longest serving, most consequential, Senator and Majority leader in the history of American Government? Undoubtedly, yes.) Granted they didn't need to because of the reconciliation rule that allows certain fiscal bills to pass with only a simple majority (51 votes). But neither do the Democrats need to keep the Filibuster. 

You see Republicans are content with keeping filibuster even when they are in the majority. Their agenda is more often than not fiscally oriented and, guess what, it's covered by the reconciliation. So, each fiscal year during which they hold the majority, they can come up with a mammoth omnibus bill, stuff all their pipedreams and pass it without Democratic support. They never, ever, care for it - including for the support of Manchin or Sinema, for that matter. 

Democrats, however, are concerned with social progression which deals with strengthening of social welfare for the poor and giving rights to underprivileged. Whether you agree to such an agenda or not, they are costlier! Hence, reconciliation process doesn't cover them! So what you end up seeing is desperate acts from Democrats to jamming social reforms for undocumented immigrants, for example, in the fiscal budget with hopes that the parliamentarian will not strike it down (which she will!).

So, what does this all come down to?  If Democrats don't end the Filibuster, other than passing a slim legislation to legalize DACA recipients (even this is a big maybe!) they really won't be able to pass any flagship progressive agenda. They would have failed. And McConnell is going to remind everyone of that come 2022 election cycle. 

President Biden's Executive Action on DACA

President Biden, on his first day holding the land's highest executive office, signed an executive order to "preserve and fortify" DACA. Though it has sent a wave of relief across affected immigrant population, the move is largely a symbolic one. 

The reason is simple. DACA, as it stands today, is fully reinstated by a federal court order from NY after the judge had deemed former Acting Secretary of DHS Wolf's actions unconstitutional in the light of the fact that he had yet to be confirmed by the Senate. On the other hand, DACA's constitutionality is being challenged in a "replay" federal court lawsuit in Texas. Judge Hanen, who happens to be an immigration hawk, had decided against nullifying DACA the last time the subject was brought to his desk. The reason was surprisingly seen to be driven by an entirely humanitarian rationale in that the judge was not willing to put hundreds of thousands of lives in peril because of a lawsuit brought few years too late in front of him. As of today, Judge Hanen is facing the question, this time head on, of DACA's  constitutionality as an executively authorized program.

Moreover, Supreme Court had kept DACA in place not because it had deemed the order to be constitutional (in fact, the court was crystal clear that it wasn't passing judgement on the constitutional merits of the subject), but because it wasn't repealed by Trump administration in an appropriate manner given the significant "reliance interest" of DACA recipients and their families. 

President Biden's latest executive order, if looked upon with a magnifying glass, really isn't going to amount to much. Current administration is going to keep the program in place, hence, the question of repealing it in any manner is irrelevant. If, however, Judge Hanen concludes the program to be unconstitutional and decides to scrap it altogether, there's nothing much Biden administration can do from an executive point of view other than gear up for a legal challenge. And if, by a miracle, Hanen marks it as constitutional, then DACA is free. 

For now, DACA, because of NY court order, is in place in full force. 

What Biden has done by signing this order is project DACA's place in his list of priorities. What really is needed is a legislative relief for the recipients covered by the program. Permanent residency and a life of dignity is all there is left to be given. But with Congress, it's still not inevitable. 

 

Immigration in 2021

 "Extreme demands followed up by small, slow concessions." This is the topmost negotiation tactic according to Program on Negotiation at Harvard Law School.  And that's what US Citizenship Act of 2021 is. It's an immigration package submitted by President Biden on his tenure's first day to Democratic leaders, which members of both parties would admit, huddled in the corners of Capitol Dining Hall, is bonkers. 

It's a posturing tool for both sides. Senator Chuck Grassley (R-IA) has already tagged the idea as "mass amnesty", rightly so. The bill provides a pathway to citizenship for almost all non-criminal undocumented immigrants who were present in the US before January 1, 2021. Even to a democratic-liberal like moi, it just doesn't sound right. It's not respectful to legal immigrants to grant pathway to green cards to those who overstayed their visa last Christmas! 

Democratic Hispanic Caucus, on the other hand, is on its way to handing out fliers and pamphlets on the streets of New York and Chicago hailing the greatness of the bill [metaphorically, although not far fetched!].

Both sides know this isn't going anywhere. 

The greater truth which cannot be ignored is that within four years since former President Trump took office, American people have decided to hand over the reigns of House, Senate, and the White House to Democrats,  including a surprise victory in Georgia for both President Biden and the two Senate seats. This is a clear message for Democrats to get something done on immigration grounds. The key word is "something". 

Or else, their majority won't survive come 2022. 

The one voice of reason and rationale is that of Senator Dick Durbin (D-IL), who is the great-grandfather of the Dream Act (having introduced the bill in 2001 for the first time). He understands that where there exists consensus, it must be reached. The one provision in this newly plated package that hands out permanent residency to Dreamers and TPS holders is what's doable. 

Rest is fluff. 

It is a fact that a filibuster proof majority in the Senate exists in support of providing legal status to Dreamers. And it is also a fact that perhaps nothing else can be shoved down Republicans' throats. So, unless Democrats go on a crusade to do away with filibuster and totally derail the immigration negotiations, Congress needs to close this chapter with Dreamers. 

President Biden and Democratic Caucus needs to portray a year from now that the gridlock has been unraveled. That will happen if they take advantage of small crannies through which some legislative water can seep through, instead of trying to axe out a gaping hole. 

Great cause, misplaced approach

 Editorial for Improve the Dream. (https://www.improvethedream.org/)

US immigration policy is a travesty to say the least.  Why a skilled worker / entrepreneur has to wait for decades to obtain residency is beyond me. After all, the mission statement for any immigration system is to attract and retain productive immigrants.

 

For what it's worth, you can count on my support to ImprovetheDream. E2/H4 child dependents should not have to face a situation where they "age-out" at 21 and have two choices - self-deport from a country in which they spent their formative years or go out of status. This is an ugly decision point. 

 

Having said that, I do not agree with your approach. For any cause to find a fruitful conclusion, it must first find its own voice and avenue toward justice. However, the first sentence on your website explaining the cause mentions DACA and Dreamers. This emphasis on a parallel fight by DACA risks reducing your cause to a mere "if undocumented immigrants can get work permits and fight for green cards, why shouldn't we be included in their fight."

 

That is not good enough. That is, sorry to say, piggy-backing.

 

The similarities in your cause and DACA's end at the word "childhood". The two groups have lived and led completely polar opposite journeys.

 

The reason DACA recipients are afforded work permits upon turning 18 and in-state tuition (in some states) is because they grew up in a household with undocumented parents with average annual income of around $36,000. It is driven by "economic necessity" (USCIS term). To request a work permit, a DACA recipient has to submit a worksheet (a balance sheet) with household income, assets, and expenses. USCIS uses this worksheet to adjudicate work permit cases.

 

Average household income of employment based visa holders is well above $100,000. And this number is at best on the lower range. Therefore, annual income, assets (most visa holders have multiple cars, own single family homes, etc.), and expenses will not justify economic necessity. The stress is on the term "necessity".

 

A DACA recipient may not leave the country but for exceptional reasons with no guarantee of being allowed to re-enter. If denied reentry, they face a minimum 10 year ban from a country they've called home (even after that, chances of being granted a temporary visa are slim).

 

Child dependents for visa holders do not face such unreasonable travel restrictions.

 

If not for DACA, these recipient would have two choices: continue to live under the shadows and never be able to pursue a professional career, or, leave the country and not be allowed reentry for at least 10 years .

 

Child dependents of visa holders have a path to transfer to another visa (like student, etc.) and eventually be able to acquire a work visa.  But most importantly, if they choose to leave the country, they are not barred from coming back.  These are not desirable choices, but any objective observer would pick these over the choices granted to an undocumented youth.

 

ImprovetheDream is not asking to be equated to DACA. It is not asking for a work permit until parents are granted green cards.  The ask is to be allowed to join the fight of DACA recipients close to the finish line. The ask it to be put on a path to a green card, when the journey to the finish line for these two groups was completely different. 

 

I would like to reiterate that if it was up to my vote, I would vote to give green cards to both DACA and child dependents of visa holders because it is the right thing to do and beneficial to the US.  But the reason your movement has not gained such traction as that of DACA's and is overtly not included in any immigration reform is precisely because your cause is out of focus. Your movement needs its story independent of DACA. That journey will reveal that the cause for aging-out is absurd wait times involved for residency for parents. That is what needs to be fixed.

 

Unless the movement embraces its story, which will lead to its own path, it won't get the support from the "immigration reform" movement. You will end up with support of only the likes of Senator Rand Paul who have a fairly unsuccessful track record of getting anything passed.

 

Fight for shorter green card waiting times for parents (which I support), and not for inclusion in the DACA population. Yours is not their journey, and theirs is not yours.

 

Best of luck. 

Ending Filibuster: a Distant Reality

 As we head into Georgia runoff, #Endthefilibuster has started trending. This is not to discount the probability that David Perdue and Kelly Loeffler are still the favorites going into January 5th extremely consequential election. 

The election can lead to a 50-50 divided Senate if both Democrats claim victories. VP Kamala Harris will break the tie handing the majority control to Chuck Schumer (D-NY). 

Most progressives, and even some moderates (including Joe Biden), are in favor of ending filibuster cloture rule. Today, at the core of legislative gridlock is the rule that requires three-fifth of Senate's approval (60 votes) to close debate and move on to vote. There are great many articles on the web in favor of and against this rule. 

If Democrats want any chance of making true of their campaign promises, they have to get ride of the filibuster rule as it stands today.  Or, else, the increasingly obstreperous opposition (that can be said for both Democrats and Republicans, to be fair) will use cloture rule as a weapon to bury Democratic agenda. 

Immigration, most inflammable agenda, is one that has been slaughtered most frequently on the alter of filibuster.  Recent memory recalls Dream Act of 2010 which failed to become law by 5 votes (including defection of 6 democrats - five voting "No" and one "intentional" abstention). 

However, there is one reliably opposing voice to ending the filibuster. It's not from Republicans. It's from this side of the aisle - that of Joe Manchin III's (D-WV). If recent interviews are any indication, Joe Manchin III is a vehement "No" for any change to existing filibuster rule. 

Therefore, unless a compromise rule that, let's say, allows 55 votes (and not 60 votes) to end filibuster is on the table and acceptable to Manchin III, hope to end filibuster as it stands today is slim to none (assuming Georgia Senators turn blue, of course). 

P.S. one "intentional" abstention from Democratic side during Dream Act vote was that of -- yes, you guessed it correctly - Joe Manchin III's. 

DACA in 2021

There is cause for cautious optimism. Democrats are two seats away from taking control of all the arms of Legislative body. The two senate seats in Georgia are up for grabs in a runoff election on January 5. If Democrats take both, the Senate will split equally between them and Republicans giving its control to Democrats after next Vice President Kamala Harris breaks the tie in her party's favor. 

Democrats, most importantly, can then set Senate's agenda and bring to floor bills that are critical to the party's narrative - including immigration reform bill in some shape or form. They will still need a filibuster-proof (that is, the support of at least 10 Republican Senators) but given Biden's experience, moderate stance in political arena and goodwill he has acquired from long-term  Republicans such as Lindsey Graham and even Mitch McConnell, this is not going to be as tough as it was for former President Barack Obama. 

With Biden, Schumer,  and Pelosi overseeing the three bodies, there is good reason to believe that even when Democrats can technically change the Senate rules without Republican support, they will not seek the abolishment of filibuster. The three stalwarts are well rattled by McConnell's answer to then-Leader Reid's decision to repeal filibuster proof majority rule in confirming federal judges below Supreme Court. A flood of confirmations from Obama for federal bench had ensued with absolute zero support of Republicans. "Democrats will rue the day" McConnell had said rightly so. McConnell, upon becoming the Majority Leader, pushed this rule to include Supreme Court nominees and ended up with three new Supreme Court judges of his liking, essentially shifting the balance to conservatives for generations! 

We can, therefore, expect a more traditional, less rancorous, approach to legislation in 2021. Regardless of what happens on January 5, Biden (along with Schumer and Pelosi) will most likely be able to brokerage a moderate immigration plan with friends on the other side of the aisle. DACA recipients, however, can be certain that an immigration plan will be brought to floor of the senate by March 2021 if January 5th witnesses Democratic landslide win.  

And this will be the bill that can actually pass both houses! It will not be a green card handout for all undocumented immigrants - that's not possible in current political atmosphere - but it will certainly include existing 700K DACA recipients and maybe others who will become eligible in future. It may even extend to a larger population with similar stories. Republicans will get some as well - concrete border security plans, restrictions on family sponsorships, merit-based immigration changes, to state the few. 

If things fall into place and immigration reform of some sort is passed, the most important question would be the procedure to get permanent residency and processing times involved. 

Some parallels can be drawn between the administration process that DED Liberian recipients have to follow to gain permanent residency and what possibly DACA recipients may have to follow if a law is passed in their favor. 

DED Liberian recipients, to give some context, were given temporary protected status (much like DACA) and few years later an omnibus bill was passed with a provision that granted path to permanent residency for them (approximately few thousand). The administration - this is Trump's administration - used the existing I-485 (adjustment of status) channel for this purpose. This meant there were no additional petitions that were involved in this process (like I-130, I-140, etc.) before adjustment of status maybe requested. Adjustment of Status maybe requested under the "Other Eligibility" category (applicants need to enter "LRIF" in the text box) and follow rest of the general application! 

There is good reason to believe that all DACA recipients would have to do is enter "DACA" for "Other Eligibility".  After all DACA, like LRIF, is also a deferred action and applicants have a well established paper trail with the government (every 2 years, DACA recipients must file for renewals and show that they meet requirements). This will cut down the processing times to months and not years! 

There is reason for cautious optimism. Path to permanent residency for DACA recipients has never been clearer. One issue - Congress's track record! 

Dream and Promise Act of 2019 House Vote Update

Dream and Promise Act of 2019 will be put to vote on the House floor in May of this year, according to Rep. Jerry Nadler (NY-10TH) at an event in NYC pushing for immigration reform, alongside Speaker Pelosi and Mayor De Blasio among other representatives.

It is expected to pass the House due to strong Democratic majority in the chamber.   Moving forward, however, the bill faces a steep uphill journey in the Senate, where it is highly unlikely to be put to vote as is, if at all.  

Going into the 2019 State of the Union

2019 State of the Union (SOTU) is going to be an interesting event for many reasons including the theatrics that will play out between Speaker of the House Nancy Pelosi and President Donald Trump - the two arch nemesis in the border wall debate.  

I am not overly enthusiastic from the news snippets claiming that this SOTU will have unity and bipartisanship as its central theme.   The President had made such claims days before his first SOTU and then entrapped us with an anti-immigration speech orchestrated by Stephen Miller - his hard-right policy advisor and, unfortunately, one of his most trusted confidants in the White House. 

Even though in his previous speech he had ostensibly offered a 12-year pathway to citizenship to so-called Dreamers (undocumented individuals who came to US as minors), his offer was coupled with major cuts to legal immigration as well as funding for his promised border wall.  Not only were objective points of this policy hard to swallow for most of the Democrats, his language - citing Dreamers repeatedly as "illegal aliens" and tonality that reminded not of a statesman but more of a King bestowing a general pardon to hardened criminals - didn't go well with folks on the other side of the aisle. 

If reports are to be followed this time, it is disquieting that Stephen Miller has returned again with a major editorial role in his speech.   Though reports also mention that Trump will encourage a wide immigration deal between the two parties (including fix for DACA, etc.) but given that Miller's specter still looms over the President's oval office, it is hard to imagine that his plan wouldn't include many unacceptable poison pills.  

Unless the President comes forth as someone genuinely interested in a bipartisan deal, stating as lucidly as he is possibly capable of that he will provide a path towards citizenship for DACA individuals, provide some sort of relief to TPS recipients, in addition to positioning his rationale behind a border wall in a conciliatory tone, he isn't going to get very far on his own. 

And the math of the political environment says he isn't going to get very far on his own (with brains of Stephen Miller).  Most of the Republican base outside of Trump base has been disillusioned by Trump, primarily because he has done way more damage than repair.  What he has achieved isn't extraordinary, but the cost he has paid and forced his party to co-sign on it is stupendously high.   The longest shutdown plummeted his popularity.  His anti-immigration rhetoric is getting old and irritating to centrist Republicans.  His tax-cuts bill hasn't done much to win the favor from blue collar working class.  His failure to repeal Obamacare despite all the parliamentary trickery Senate Majority Leader McConnell brandished to get the repeal passed. 

And, he is now gaining irks from the farthest quarters of the right wing as well - likes of Ann Coulter.  Lately, it had become quite apparent that a lot of the policy shifts the President made at the 11th hour were directly influenced by radio talk show hosts and columnists catering to the most right-wing fringe elements.  

The President needs to understand two things. First - unwavering support from his MAGA (cap wearing) base and Democratic flawed opposition were only two factors among many that won him the election.  Second - the unwavering support may still be there, however, the other side is preparing to get rid of its flaws.  Therefore, next Presidential elections, contrary to popular belief, is not going to be between hard left and hard right, it is going to be a contest in the field of Centrists.   And Trump needs to cater to the Centrist core if he wants to get re-elected.