The Hill (Op-Ed)
By Ian Smith
October 19, 2015
The
Obama administration is about to power up a massive new executive
action on immigration and it’s far scarier than anyone could have
imagined. Last November, when Homeland
Security released its ten memos commandeering immigration policy from
Congress, Secretary Johnson included a vague plan aimed at benefiting
the tech industry, innocuously titled “Modernizing the Employment-Based
Immigrant Visa System.” But a secret memo recently
leaked on an immigration law blog now reveals that this ‘modernization’
plan will not only fast-track hundreds of thousands of work permits to
employment visa-applicants in violation of longstanding U.S. worker
protection laws, but will enable hundreds of
thousands of illegal aliens to also receive work permits despite their
unlawful status. As the full details leak out from the narrow clique of
immigration lawyers and lobbyists advising the President, labor
advocates are scrambling to warn the public.
Under
our current system, most guest workers wishing to remain permanently in
the U.S. must arrange for their employer to “sponsor” them by filing an
I-140 application,
putting them in a queue for a green card. When a temporary
(“non-immigrant”) guest worker reaches the front of the immigrant visa
queue, they are allowed to submit an application to “adjust” their
“status” to that of permanent resident alien. Getting to this
stage is key. By regulation an adjustment-of-status applicant
automatically receives a coveted work permit or “EAD”. An EAD allows the
alien to work anywhere in the country and apply for welfare. It’s the
central reason foreigners line up to come here and
it’s what Obama’s attempting to distribute to illegal aliens under the
DACA and DAPA programs. And for those on guest-worker visas, EADs allow
them to stay in the country even when their “temporary” visa (like an
H-1B) runs out.
The
wait-time between filing an I-140 application and being allowed to file
for adjustment-of-status (getting you the golden EAD) is regulated by
the State Department
and depends not only on one’s filing date, but also on one’s country of
origin. But for the millions of aspiring alien workers from
overpopulated countries like India, per nation visa quotas have meant a
typical wait of 8 to 10 years to get their EADs—Non-skilled
workers from any country are also given lengthy wait-times, as there
has never been a shortage of poor Americans who need employment. This
per-country wait-time is now what Obama’s unilaterally arranging to
slash. From now on, filing an adjustment-of-status
application won’t be necessary to receive an EAD and any alien who
merely has an I-140 petition that’s been approved for a year can obtain
the prized work permit.
The
new executive action will cut the line of people waiting to get an EAD
dramatically, a backlog of hundreds of thousands of people who would
otherwise have to wait
patiently in line. This action will be a major encouragement to come
here by any means possible, with a likely surge of thousands of EAD
applications hitting an already backlogged USCIS in the first week
alone. For the weak labor market faced by most American
workers, it’ll be like a dam bursting.
This
is a major coup for the axis of open immigration and Big Tech
lobbyists. Big Tech would prefer to hire millions of temporary workers
on H-1Bs over American workers
because their visas are tied to their employer making them docile and
unlikely to unionize. But flooding the labor market with current and
future computer technicians, even with workers who’ll have greater
flexibility, is much more important—it also gets rid
of H-1B renewal and administrative costs.
Perhaps
the most striking part of Obama’s move: illegal aliens will also be
able to get EADs. All one needs to file an I-140 petition is an official
ID; proving lawful
presence isn’t required. The thousands of business-owners around the
country who knowingly hire illegal aliens can cynically sponsor
petitions whether or not the underlying applicant is legal. Ultimately,
the USCIS bureaucrats will reject his or her adjustment-of-status
application (after 10 plus years), but they’ll still be able to get
that golden EAD.
Generally,
I-140 petitions require aliens to submit a so-called Labor
Certification showing that the petitioning employer has advertised for
the position in a newspaper.
This is meant to ensure that foreigners are not hired over American
workers. As immigration attorneys have admitted, however, they show
employers how “to do exactly the opposite”, for instance, by creating
deceiving advertisements or disqualifying American
interviewees on false pretences.
Filing
costs for I-140 visa petitions are not cheap; with attorney costs, they
can be several thousand dollars. But petitioning for an illegal
alien-employee, with a promise
to take the cost off his wages, could create a beneficial indentured
servant relationship for employers. Larger employers may also file the
petitions en masse if they feel a big crackdown coming (highly unlikely,
of course). Furthermore, what’s to stop open-borders
advocates, like La Raza, MALDEF, or LatinoJustice (where Justice
Sotomayor was a board member) from creating a fund to finance the
petition costs on behalf of employers? What about those groups’
billionaire-backers, like George Soros, Paul Singer, or the Ford
Foundation?
The
legal authority proffered by DHS in the leaked memo is predictably a
deliberate misinterpretation of the law. These are the same DHS
attorneys of course who, with
help from immigration attorneys, produced the 2010 memo “justifying”
the DACA executive amnesty program. They claim that two provisions of
the Immigration & Naturalization Act, §205 and §274A(h)(3), give DHS
Secretary Johnson discretion to issue unlimited
numbers of EADs. Note that this is the same argument they’re employing
in an attack against Texas’s amnesty injunction. The organization I work
for, the Immigration Reform Law Institute, has eviscerated this
argument in briefs submitted in support of Texas.
Additionally, DHS has claimed the same authority for a separate move
that would give work permits to spouses of H-1B-holders. We’re in the
process of litigating against that rulemaking, which, if we’re
successful, will be utterly disastrous for Obama’s amnesty
as well as this new rule change.
Unlike
the DACA executive amnesty program being challenged in the courts,
USCIS is apparently opting to go through the normal regulatory process
(although no details are
up yet), complete with an opportunity for the public to submit
comments. If enough patriotic American workers and their families flood
the comment database, the agency may react like the ATF did when their
proposed rule banning “green tipped” bullets was deluged
with angry comments forcing them to rescind the proposal. If Americans
care about their sovereignty like they do about their guns, Obama’s new
immigration re-write won’t see the light of day.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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