The Obama Administration’s Immigration Announcement is NOT an Amnesty Program!
What the new policy is NOT:
The Obama Administration announcement is NOT an amnesty, it is NOT about granting legal status, and is NOT something that you can sign-up for! The Obama Administration made very clear that the announcements do NOT provide any way to “apply” for a work permit or “EAD” nor is there a new way to apply to remain in the United States. The change announced is not about giving people work permits or legal status. The announcement applies ONLY to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.
What the new policy IS:
The Obama Administration announced the creation of a high-level working group made up of Department of Homeland Security and Department of Justice officials who are to do the following:
Review all cases already pending before the immigration courts. Those that are considered “low priority” may be administratively closed. Those that are considered a “high priority” will be prosecuted more aggressively. There are no rules or guarantees that a particular type of case will be considered a “low” or “high” priority. Recent guidelines are helpful, but no one can tell you if your case is a low priority–only immigration authorities will make that decision.
In the future, immigration authorities will review the cases people before they are placed in removal proceedings. Those that are “low priority” may not be referred to the immigration court.
Create department-wide guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings.
Issue guidance on providing discretion in compelling cases for persons who already have a final order of removal.
In other words, the August 18th announcement was preliminary and nothing has been implemented yet. Any details about how the review process will work, what cases will be considered low priority or how to have a particular case considered have not been decided.
The best course of action is to consult an immigration lawyer or accredited representative, not to take action because a friend, neighbor or coworker encourages you to act.
The Announcement does NOT mean that all “low priority” cases will automatically be granted a work permit or EAD The Administration’s announcement said that if a case is administratively closed, the individual will be able to apply for a work permit (employment authorization document or “EAD”). But there are no details, guidelines or instructions on how to apply for an EAD, or who will be eligible for an EAD. Unless you are already eligible for an EAD under existing regulations and guidelines, you should not go to immigration and ask for an EAD, or apply to immigration for an EAD or you risk losing several hundred dollars in filing fees. More information on what an EAD is and how much it costs to apply for one is found below.
What are “low priority” cases?
The factors for determining low priority cases will likely be based on the June 17, 2011 memo on prosecutorial discretion. However, just because a case seems to fall into one or more of those categories, does NOT automatically mean that it will be considered “low priority.” The people reviewing the cases will be looking at the “totality of the circumstances” and each file will be reviewed on a case-by-case basis. It is unclear how different factors will be considered and weighed. Given that there are approximately 300,000 cases pending, it is also unclear WHEN a particular case might be reviewed.
What is administrative closure?
Administrative closure applies only to an individual whose case is already before the immigration judge. When a case is administratively closed, it means that the case is no longer active and no action will be taken, including no future hearings, unless and until either the government or the noncitizen asks for the case to be made active again. A person whose case is administratively closed is still in removal proceedings.
Administrative closure is NOT legal status. It is simply a temporary suspension of an immigration court case.
Will I get legal status from the Administration’s announcement?
No. According to the announcement, cases that are deemed to be of low priority will either (1) be administratively closed, or (2) no enforcement action will be taken. This is not an amnesty or legal status, but rather a temporary decision not to use limited government resources to deport low priority individuals. The Administration has also stated that individuals whose cases are administratively closed will be eligible to apply for a work permit (or EAD). An EAD means that an individual can legally work in the United States and obtain a social security number for work. In some states, having an EAD also means you can apply for a drivers license or other identification). An EAD does not give a person legal status–it is just temporary permission to work.
What is an EAD?
An EAD or employment authorization document (also known as a work permit) is a temporary document that gives an individual permission to work lawfully in the United States. An EAD is generally valid for one or two years (though it is unclear at this time how long an EAD under this policy will be valid), and can generally be renewed. The application fee is currently $380, though individuals who can demonstrate financial hardship may be eligible for a fee waiver. An EAD is NOT an immigration status in and of itself.
Immigration Books: A Nation of Immigrants by Susan F. Martin
Tamar Jacoby
Cambridge University Press, 335 pp.
THEY ARE LESS WELL KNOWNthan their counterparts in the world of foreign affairs, the mandarin caste of experts who cycle in and out of government and provide the brainpower behind American foreign policy. But immigration policy also has its mandarins, and Susan Martin is one of the most distinguished. Research Director for the Select Commission on Immigration and Refugee Policy (it provided the blueprint for the landmark Immigration Reform and Control Act in 1986), later executive director of the U.S. Commission on Immigration Reform, she is a respected scholar who has had a ringside seat on three decades of behind-the-scenes policymaking. A Nation of Immigrants is a relatively slim, readable volume summing up the lessons she learned in the course of that career—a thumbnail history of American immigration since the founding of Jamestown in 1606, seen through the prism of Martin’s personal politics and forcefully argued ideas. It is not a book for casual readers—Martin is the policy world’s equivalent of a lawyer’s lawyer. Still, it is a commanding and impressive account of economic, demographic, social, and political history.
It is also a sobering story. Essential as immigration has been to our history, prevailing American opinion through the centuries has been anything but welcoming toward newcomers. Martin cites not just the famously skeptical Benjamin Franklin (he opposed German immigration as early as 1755) and Theodore Roosevelt (he railed against hyphenated identities and wanted to deport any newcomer who failed to learn English in five years), but also an array of other American giants—Thomas Jefferson, Alexander Hamilton, Woodrow Wilson, and even to a degree FDR—who were dubious or downright opposed. The Know-Nothing Party that emerged in the 1840s in response to new waves of German and Irish immigrants managed to elect eight governors and more than a hundred members of the House of Representatives. The restrictionist crackdown of 1924, slamming the door on immigrants from southern and eastern Europe and drastically reducing legal inflows until 1965, was no historical fluke or right-wing coup: it was more than four decades in the making and widely popular. Every fresh wave of newcomers to the United States has triggered a broad-based backlash. Immigration has been a wedge issue—maybe the quintessential American wedge issue—since before 1776. And if public opinion had had the last word, we would not be a nation of immigrants.
Martin tells the tale chronologically, and she is an able and efficient storyteller. Among the episodes that stand out are the economic and political developments in Europe that drove eighteenth- and nineteenth-century immigrants to America; the rise and fall of the early twentieth-century Americanization movement; the growing indifference and isolationism that barred Jewish refugees from Nazi Germany and culminated in 1939 in the return of the ocean liner St. Louis—all these stories are sharply etched in just a few densely packed pages. But the book is as much an argument as a narrative, and in this it is somewhat less successful.
Martin organizes her vast canvas with a typology borrowed from the colonial era. In her view, “America has been settled from its very origins by three different models of immigration.” The Virginia model imported workers, including indentured servants and slaves, but denied them full membership in settlement society. The Massachusetts model screened newcomers on the basis of faith, accepting only those who embraced the established religion in the colony. The Pennsylvania model was open to anyone regardless of religion, promoting tolerance, pluralism, and full membership for all. Subsequent American history is presented as a shifting kaleidoscope: the approach in any given moment either a relatively pure or mixed form of these three elements. The recent Bush years seem to Martin a mix of Massachusetts and Virginia, with the Patriot Act sanctioning unfair treatment of Muslims while illegal immigration created an expendable underclass, foreign workers living among us but not as members of our society.
This theoretical framework works up to a point. The three models provide Martin with a useful shorthand. She isn’t wrong that the three strains have been present from the beginning, and that they come and go with striking regularity. But the types are oversimplified, and they give rise to a disturbingly Manichean view of the rest of American history. Take the Massachusetts model. It is not wrong to read the history of that colony, as Martin does, as a story of exclusion and persecution. But it can also be seen as an early New World example of what is surely America’s crowning and most influential ideal: organizing a political community not along blood lines or by ethnic origins, but rather around members’ belief in a set of shared ideas. For Martin, the Pennsylvania model is only good, the Massachusetts and Virginia models only bad. She hardly has to examine or think through any later era’s approach: it is enough for her to decide that it follows the Massachusetts or Virginia template and it is pernicious. Owing to the way she sets up the categories, the mere mention of an ideological test or an economic rationale is enough to remind readers of the horrors of Puritan persecution or chattel slavery.
Martin has a particular blind spot when it comes to economics. The book never looks squarely or directly at contrasting economic views of immigration—an inexplicable omission. With one somewhat tendentious exception, none of today’s leading immigration economists are mentioned even in passing. And in Martin’s telling, even the immigrants of ages past invariably undercut American workers, taking Americans’ jobs and lowering their wages. Martin is not falsifying the evidence—she’s too serious a scholar for that. But again and again she tells only one side of the story. She accepts at face value and without question the labor union view of any episode and any dispute with business. She assumes, again without question or nuance, that American employers are exploitative. And deft as she usually is in sorting through arguments, her economic history is distressingly selective.
Among the most interesting analyses she cites is the one by the leading economic historians Timothy J. Hatton and Jeffrey G. Williamson. Their book, The Age of Mass Migration, which appeared in 1998, does indeed argue, as she claims, that late nineteenth- and early twentieth-century immigrants competed directly with unskilled Americans and probably lowered their wages, perhaps significantly. But Hatton and Williamson also show that the presence of these foreign workers in the United States attracted significant foreign capital—capital that built the American industrial economy and created jobs for untold American workers. That point is conveniently left out of Martin’s account.
Martin’s fundamental values are not wrong. The traditional American way of immigration—the approach on which the nation was built—worked because it was inclusive rather than exclusive, pluralist rather than sectarian, legal rather than illegal, and based on the ideal of membership. Newcomers came, in Martin’s words, as “proto-citizens”, not as “indentured laborers.” The fact that we encouraged most of them to assimilate as Americans is what guaranteed their success—and ours. Today’s large-scale illegal immigration undermines that ideal, and it must be stopped.
Still, many of the policy ideas that Martin derives from these values are questionable at best. Not all labor-market migration is exploitative. Even in a downturn, the nation needs foreign workers—to grow our food, care for our elderly, and develop the technology of the future. And we need an array of visa programs that admit these workers for both the short and the long term. Martin is correct that we should make every effort to avoid treating immigrants as a caste apart. But giving them the same welfare benefits that we grant citizens, as she advocates, is untenable politically—and taken together, her recommendations would seem to encourage just the wrong kind of newcomers, luring welfare recipients while turning away needed workers.
Perhaps most misguided, in my view, is her approach to the number of immigrants we should be admitting. Martin cites no specific figures, but in keeping with the recommendations of the Hesburgh and Jordan commissions, everything she says points in the direction of radically lowered immigration quotas—ceilings that I believe would have stifled the economic growth of the 1980s and ’90s and, if imposed in coming years, would choke the nation’s economic recovery.
A Nation of Immigrants is an exemplary synthesis and interpretive history of its urgent subject. It is also a deeply considered and thought-provoking book. I believe many of its policy recommendations are dead wrong, but in today’s confused, emotionally inflamed immigration debate, Martin’s illuminating analysis cannot be ignored.
Tamar Jacoby is the president of ImmigrationWorks USA, a national federation of small business owners in favor of immigration reform.
It is published by the Law Offices of Curtis Pierce, 213-327-0044.
Disclaimer: The information contained in this newsletter is analysis and commentary of a general nature. Nothing in this newsletter applies to a specific case nor does it constitute legal advice.
Schedule appointment: For legal advice on your case, please schedule an appointment with Curtis Pierce, Certified Specialist, Immigration & Nationality Law, The State Bar of California Board of Legal Specialization.
“The only title in our democracy superior to that of President (is) the title of citizen”.
Former Supreme Court Justice Louis Brandeis. (In the case Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), Justice Brandeis wrote that deportation can deprive an individual of "life, or of all that makes life worth living.")
In the words of President Kennedy,
the United States is a "nation of immigrants."