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. 

Stephen Miller's Demonic Plan to Prevent Permanent Residency for Undocumented Immigrants

Undocumented Immigrant.  Section 245(A).  Advance Parole. Marriage to US Citizen.   Permanent Residency.  Stephen Miller. 

The story begins with a policy under Section 245 (A) of Immigration and Nationality Act (INA).  This policy details the rules under which an individual may adjust his/her current immigration status (whatever that may be) to that of a permanent resident (a green card holder).  For rank-and-file cases with no deportation orders or criminal convictions, the rule states that an undocumented immigrant is able to receive a green card (permanent residency) while remaining in the United States if he/she marries a US citizen, granted he/she entered the United States legally (through a port of entry, checkpoint, airport, etc.).  

Because of this statute, an individual who crossed the border at the age of 2 cradled in the arms of his mother, would not be able to receive permanent residency after marrying a US citizen without leaving the country.  In other words, the undocumented immigrant from our example has to leave US to a country he has no ties with before his/her US spouse can even petition for a green card.  The issue is that any individual with unlawful presence in the United States for more than 180 days triggers an automatic 10 year ban to reentry once he/she leaves the country.

Desperate to circumvent a horrendous situation of being stuck for a decade or more in a new country, undocumented immigrants leverage what many conservatives refer to as a loophole in Section 245 (A) act.  Under this rule, adjustment of status may be approved for an individual who "was inspected and admitted or paroled into the United States" [emphasis added on purpose].  An individual, therefore, may still be eligible for adjustment of status if he/she leaves US after obtaining a travel permission document known as "advance parole."   This document, though unavailable for vacation purposes, may be obtained for a vast variety of reasons including business, humanitarian, and educational.  Many undocumented immigrants thus far had been able to adjust status through this clause. 

Then enters Stephen Miller, Trump's trusted adviser on all immigration matters and perhaps the umbilical cord between the President and most anti-immigration portion of his base.  It is well known that no immigration policy or action passes muster in Trump's administration without Miller's signature.  It is Stephen Miller who proposed through Trump massive cuts to legal immigration via limitations on family based immigration clauses, elimination of lottery system for underrepresented countries, refusal to political asylum seekers from Honduras, Guatemala, and El Salvadore at port of entries, as well as rescission of DACA, to list just a few of many others. 


In September of 2017, then-Attorney General Jeff Sessions announced at a press conference the administration's decision to end the DACA program.  However, because of a nationwide injunction, federal courts prevented DACA's dismemberment.   What the courts could not save was the "advance parole" clause attached with DACA.  Till that point, DACA recipients were able to use this permission to travel abroad for educational purposes, business trips, humanitarian reasons (meeting parents for the first time in decades, etc.), as well as to parole back into the United States so their status could be adjusted while remaining in the US. 

And this didn't sit well with Stephen Miller.  Trump Administration removed advance parole clause from DACA, primarily to prevent a vast majorty of DACA recipients from adjusting status while remaining in the US if they chose to.   There is still a strong minority of DACA recipients who came to US via a non-immigrant visa and overstayed.   Section 245 (A) allows them to adjust their status since they were "admitted and inspected at the port of the entry" (like JFK, etc.). 

The latest proposal offered by the Trump Administration to end the government shutdown included funding for the contentious border wall, in exchange of, as the administration simply puts, "one time 3-year extension of status of DACA and TPS recipients."  Even at first glimpse, the opposing party rejected the plan, however, its underlining "poison-pills" pertaining to DACA were brought to light later by CATO Institute in an article published on January 22, 2019.   In the tail end of the proposed Senate bill, which failed miserably to pass muster on January 24, 2019,  on page 1252 of a 1301-pages tome, Mr. Miller adds the language pertaining to advance parole for DACA and TPS recipients, "trip described... shall not be considered an admission for the purposes of Section 245 (A)."  That one sentence reveals the anti-immigrant sentiment roiling in the administration more than all the vile xenophobic rallies by our President. 

And therein lies the rub. 

Why path towards citizenship for DACA Recipients is a no-brainer!

If you're following mainstream news - then you've probably come across the term DACA.  If you have, then you must have inferred that DACA falls under the umbrella of illegal immigration which, perhaps, is one of the most incendiary political issues out there.  What you may not know is that a good majority of Americans would like to provide some form of path towards citizenship for at least DACA recipients if that measure is coupled with "real" border security.  However, the fringe element who is absolutely against providing any "amnesty", to the best of my knowledge, really hasn't had the chance to look just beneath the surface of what DACA is, and what DACA recipients are going through.   This article's primary audience is them. 

What is DACA? 
DACA stands for Deferred Action for Childhood Arrivals.   In 2012, President Obama announced that DHS, from this point on, will provide protection from deportation and work permits on a 2 year renewable basis to individuals who came to the US as minors (before turning 16), have been residing here since 2007, are "productive members of society", and show "good moral character".   During this 2 year duration, an individual is considered to be legally present in the US. 

Once the time comes for renewal, a DACA recipient has to reapply, pass background check again, and pay approx. $485 in application fee, to be considered for renewal.  If they have continued their "good behavior", they are granted DACA status for another 2 years.  And the cycle continues. 

What are the demographics of DACA recipients? 
As of today, approx. 700,000 individuals are protected by DACA status, with almost all of them granted work permits on a 2 year basis.   Vast majority of DACA recipients are from Mexico and Latin America, who accompanied their parents coming into the States through illegal channels. Average age of a DACA recipient at the time of entering US is 6, while the oldest DACA recipient can be no older than 15 as per the rules. 

Is DACA an immigration issue?
Technically, yes.   DACA is an immigration issue because we are dealing with a class of individuals who are undocumented immigrants.   However, there is a flip side to this particular issue - and that's why DACA is a unique subset within the larger undocumented immigration narrative. 

A DACA recipient came to this country at an early age with no knowledge of deliberately violating the immigration laws.   Next, it is our immigration system that turned its back onto these undocumented immigrants and let them assimilate into the society by allowing them access to schooling, healthcare, and other facilities within American fabric.  

Their formative years were spent in United States and with a tight relationship with American social structure.   They grew up as Americans. 

Now that they are adults and reaching adulthood, a massive wall stands between them and everything that they need to make a living for themselves in their home.  That wall is the tag of "illegal immigrant".  An entire subclass of individuals now face a major identity crisis where they suddenly find themselves rejected by the very society they grew up in and helpless in finding any solution to move forward. 

DACA is not an immigration issue.  DACA is a humanitarian crisis. 

Why DACA is not an amnesty? 
A strict of definition of amnesty comprises of two components: 1) a presidential AND congressional pardon for immigration violations, and 2) a path towards citizenship. 

DACA doesn't fulfill either.  In fact, DACA was not even a presidential pardon.  It didn't erase past unlawful accrual.  In other words, under current laws, if a DACA recipient who has accrued unlawful presence of more than 180 days in their adult life,  if they were to leave the US, an automatic 10 year ban is imposed upon them.  They cannot even apply for a non-immigrant visa for the next 10 years. 

DACA is a presidential deferral.   It doesn't pardon for any violation so far.  It simply prevents DACA recipient for any further unlawful accrual by placing them in a shielded bucket of deferred action. 

And second, quite obviously, DACA provides no path towards citizenship.

Case for Permanent Residency
Permanent Residency is generally granted on one of the following cases in the United States: 1) through family, 2) employment or some exceptional social standing, 3) investment, 4) other special cases including lottery system in underrepresented countries. 

Second option is perhaps the only path which comes closer to merit-based migration.  US has no point-based immigration system like Canada does.  Canadian immigration system allows individuals to apply for permanent residency independent of employers or any other institution.   Under their system, an individual receives points for certain factors which captures their social, technical, and educational skills.  It tends to bring in individuals who will best assimilate into Canadian society and be productive.  It must be mentioned that a Canadian job offer exponentially increases the chances of approval, but under the point-system, a job offer is not mandatory. 

In US, there is no clause under which an individual can apply for permanent residency independently - unless they happen to be world renowned intellectuals, artists, etc or seriously wealthy.   

Most would agree that a strong case could be made to include an amendment to employment based immigration to expand it to merit based (like Canadian system).  

A typical DACA recipient would handsomely pass a merit-based system.   The fact they've grown up here, they are socially qualified.  The fact that all of them are either studying, graduated, or gainfully employed, they have educational and technical merits.   In fact, most of the adult DACA recipients would handsomely qualify for "Federal-Skilled Worker" point-system program in Canada, and many have already migrated to Canada via this channel after giving up all hopes of any reform within their home country.  Alas, they now face a 10 year ban from US, while being productive tax-payers for Canada! 

On top of that, DACA recipients are the only class of immigrants who go through background checks and security vetting with such frequency (every 2 years!).   They are the most vetted class of young adults in this country. 

Cutting the line or not? 
One of the reasons a pathway to citizenship for DACA recipients is resisted by extremists or even right-leaning moderates, is that such a move would allow an "expedited" path for folks for violating our immigration laws. In essence, they would get "green cards" even before those who have applied legally. 

There are two counterarguments. 

1)   It is quite difficult to convince a grand jury that a minor (as young as a 2 year old) violated immigration laws.   Even older, young adults who came to the country through illegal channels with their parents would be easily absolved since even if they knew they were violating the law, they really didn't face any choice but to hold the hands of their parents.  Vast majority of DACA recipients, however, had absolutely no knowledge of the fact they were "undocumented" until they wanted to apply for SSN to work! 

2)  To be a DACA recipient, one must have entered the United States before 2007 as a minor.  In other words, a DACA recipient has been living in the United States for at least 12 years (as of 2019!).  Even if they were a granted a green card today, that's a 12 year path to permanent residency and 17 years to citizenship.  On the other end, a typical example of a 6 year old (average age of  DACA recipient at the time of entry into US) who came in 1993, if granted green card in 2019, had to wait for almost 26 years to get one!  These examples are not one of expedited path to citizenship! 

Last Word
DACA recipients are technically stateless children.  A stateless child differs from an undocumented immigrant in that the latter is an alien residing in a country without authorization, whereas in DACA's case, from a DACA recipient's point of view, their home country has refused to acknowledge them as one of their own. 

In a sane world, DACA recipients, at this juncture, would have been granted permanent residency within 45 minutes.  This tells us the kind of world we are living in today.