Will President Obama Help Legal Immigrants, Too?
by Foster, on News
While commentators have focused on the politics of President Obama’s anticipated executive action on immigration, there is a more important question for those waiting in legal immigration backlogs: Will the president focus on providing protection from deportation for individuals here in unlawful status or will he also help those who have applied legally for admission to the United States?
Congress making legislative changes to the legal immigration system is the best way to address problems in the system that include the lack of a visa category for year-round lower-skilled jobs, which contributes to illegal immigration, and the short supply of temporary visas and green cards for highly skilled professionals, which affects competitiveness, growth and innovation. However, as a National Foundation for American Policy analysis explains, administrative measures to increase labor mobility and help talented people remain in the United States can be good reforms.
Approximately 500,000 or more people, many working on legal temporary visas, have applied for employment-based green cards and have been waiting in line 6 to 10 years or more. More than half of the annual limit on employment-based green cards is used up by dependents (spouses and children), rather than the principal individual sponsored by an employer. An important reform the President could make administratively would be to reinterpret the current statute so that dependents are not counted against the 140,000 annual limit for employment-based immigrants. Experts note there is enough ambiguity in the statute to make this a reasonable and legal interpretation of the law.
Long-time immigration attorneys Gary Endelman and Cyrus D. Mehta have argued in favor of counting all derivative family members in the immigration preference categories as “one unit” rather than as separate individuals. Endelman and Mehta explain: “There is nothing in section 203(d) that explicitly provides authority for family members to be counted under the preference quotas . . . nothing requires that family members be given numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees, it makes no sense if half or more are used up by family members.”
Contrary to some concerns, not counting dependents toward the annual limit on employment-based green cards would not double legal immigration. Calculating the number of dependents per principal over the past three fiscal years finds that if that the reinterpretation of the law had been in effect in FY 2011, 2012 and 2013, the annual level of legal immigration would have risen approximately 17 percent or about 170,000. Almost 90 percent of the people in the employment-based backlogs are already in the country, so in general we’re not talking about new people coming in.
Many U.S. citizens have family members waiting 3 to 10 years or more in the family preference immigration backlogs. Not counting the dependents of those sponsored in the family categories would likely increase legal immigration by about 14 percent or 142,000 a year. S. 744, the Senate-passed bill the Obama Administration strongly supported, would have increased legal immigration by much higher levels.
There are other important administrative reforms that could be made in legal immigration, such as streamlining the H-2A and H-2B categories for low-skill workers, expanding additional years of Optional Practical Training for international students to fields such as economics, accounting and health care, and improved administrative guidance to ease the way for professionals transferred to work in America with “specialized knowledge.” Some have also advocated making available employment visas (H-1B and green cards) unused in prior years.
An important reform would be to increase the labor mobility of individuals mired for years in employment-based immigrant backlogs. Many highly talented professionals wonder about staying in the United States because they feel unable to change jobs, accept promotions or start businesses since it could force them to re-start their green card applications.
The best solution for them and the country is for Congress to pass legislation to increase the employment-based immigrant quotas and eliminate the per country limits. But the Obama Administration can increase labor mobility on its own by simply issuing employment authorization documents and advance parole after an individual has an approved I-140 employment-based petition. The Department of Homeland Security would likely need to issue additional regulatory guidance to protect the individual’s pending green card application if they change jobs.
Until the time Congress coalesces around bipartisan proposals to change the law, executive actions by President Obama are likely to remain part of the immigration system. That makes it important that changes to the immigration system include helping those who have applied to enter and stay in the United States through legal immigration.