Supreme Court hears clash over DHS immigration enforcement policy

The Supreme Court on Tuesday wrestled with an effort by the Biden administration to reinstate guidance that directed federal officials tasked with enforcing the nation’s immigration laws to prioritize public safety threats. During more than 90 minutes of argument, the justices heard sparring between lawyers for the U.S. government and Texas over whether executive branch officials have the latitude to focus enforcement actions on certain groups of undocumented immigrants over others. At issue was a Department of Homeland Security (DHS) policy — which was invalidated by a lower court — that instructed immigration officers to most vigorously pursue the arrest and removal of undocumented immigrants who pose a threat to public safety or national security. During Tuesday’s argument, that policy ran headlong into sharp questions over just how literally Congress meant the word “shall” in describing federal officials’ duties to detain broad populations of undocumented immigrants under the Immigration and Nationality Act (INA). U.S. Solicitor General Elizabeth Prelogar said it would be “impossible” to apply the law in a strictly literal sense that allowed no discretion. According to a DHS estimate, more than 11 million people in the U.S. are undocumented or considered “otherwise removable.” ADVERTISING “Make no mistake, it is impossible for DHS to comply with each and every ‘shall’ in the INA as truly a judicially enforceable duty,” she told the justices, adding that it would mean “we wouldn’t have the resources or ability to go after those individuals who are threats to public safety, national security and border security.” Several justices appeared sympathetic to the government’s claim that it lacked the resources to apply the INA’s language strictly across the board. Justice Brett Kavanaugh, one of the court’s conservatives, queried Texas’s solicitor general about what would happen if the red-state challengers won their case in light of DHS’ constraints. “I’m not sure much will change because they don’t have the resources to change. So what do you envision?” Kavanaugh asked. “I know Florida’s amicus briefs says, well, the executive will then strive to meet its obligations. ‘Strive to’ is not a usual term of a judicial order. So what do you think happens if you prevail here?” In response, Texas’s solicitor general Judd Stone said the result would be that individual officers “will go back to not believing their enforcement discretion has been restrained” as they were under the DHS guidelines. The DHS guidance under review, issued in September 2021, directed officers to make a comprehensive assessment of noncitizens before proceeding with an arrest or removal, in addition to spelling out enforcement priorities. The policy drew several lawsuits, including a challenge by Texas and Louisiana that secured a legal victory in the lower courts. The red-state challengers contend the INA obligates federal officials to detain undocumented immigrants found guilty of certain crimes or who have been ordered removed from the U.S. In June, a Trump-appointed U.S. judge in Texas sided with the state challengers, vacating the DHS policy after concluding the agency failed to follow federal immigration law. As a result, the policy is currently not being enforced. The Biden administration was rebuffed when it asked the U.S. Court of Appeals for the 5th Circuit to block the district court’s judgment, prompting the administration’s request to the Supreme Court. In July, the justices voted 5-4 to deny an emergency request from the Biden administration to revive the policy while the case played out. The court’s three liberals, joined by conservative Justice Amy Coney Barrett, indicated they would have sided with the administration. In that same order, the court treated the administration’s filing as a formal petition for appeal, which it granted. Much of the Tuesday’s argument dealt with whether the states had standing, or the legal right to sue, in response to the alleged harms suffered because of DHS’ guidelines. Pushing back against this claim, the solicitor general said such a finding would risk transforming federal courts into “open forums for each and every policy disputes between the states and the national government.” Justice Samuel Alito, a conservative, said Prelogar’s argument inverted the court’s tradition of providing states “special solicitude” on the issue of standing. Supreme Court approval ticks up in new poll Jacob Wohl, Jack Burkman ordered to spend 500 hours registering voters “This is a rule of special hostility to state standing,” he said. A decision in the case, U.S. v. Texas, is expected by this summer. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Immigration Bill Aimed at Workforce Needs Poised for House Vote

A bipartisan bill to ease green card access for legal immigrants is on track to reach the House floor next week, a rare bit of traction for immigration legislation as thornier debates continue. Democratic leaders are lining up votes on H.R. 3648, a proposal from Reps. Zoe Lofgren (D-Calif.) and John Curtis (R-Utah) to phase out per-country caps for employment-based green cards and lift annual caps on family-based green cards, according to an aide familiar with the discussions. Majority Leader Steny Hoyer (D-Md.) said the bill is on the House’s agenda next week. Many lawmakers have touted the bill, which has broad bipartisan support, as a way to streamline green card access for highly skilled immigrants and meet employer demands in the US. The effort is less politically volatile than fraught negotiations on undocumented immigrants and border security, although its Senate prospects are uncertain. Immigrants have requested the changes for years to address staggering backlogs in the US visa system, though many disagree over whether removing the per-country caps is the best approach. The caps on employment visas have an outsized impact on immigrants from India and China, who often must wait decades to get a green card. Per-Country Green Card Limits End in Bill Moving Through House Sens. Kevin Cramer (R-N.D.) and John Hickenlooper (D-Colo.) on Tuesday said they hadn’t coordinated with their House colleagues on moving the bill during the lame-duck period. Congress is working through several major packages in the final days of the session, including a government funding deal, a defense policy bill, and marriage equality legislation. The Senate passed a similar proposal under unanimous consent in 2020, but couldn’t reconcile it with a House version before the congressional session ended. Cramer said he’d like to see the bill again move through the fast-tracked unanimous consent process in the Senate, but was open to pushing other options. “It’s one of those things where you need to be prepared if a window opens to get it on something that can pass,” he said in an interview. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Scoop: Biden administration eyes border overhaul as Title 42 ends

Top U.S. officials are considering drastic measures — including barring some asylum seekers and surging prosecutions of illegal border crossings — in preparation for an end to the pandemic-era Title 42 border policy, Axios has learned. Why it matters: Some of the ideas under serious consideration echo controversial immigration policies from the Trump administration. Others could expand legal avenues for migrants and asylum seekers in the region to enter the U.S. That some of these approaches are being considered at the highest levels of government reflects the Biden administration's desperation to get a handle on unprecedented efforts to cross the U.S.-Mexico border. Top officials from the White House National Security Council, Department of Homeland Security, State Department and Justice Department have been involved in the discussions. Some of the potential actions would require cooperation from multiple agencies, according to two U.S. sources familiar with internal discussions. Driving the news: A federal judge is forcing border officials to stop using Title 42 on Dec. 21. Catch up quick: The Trump-era policy — continued under the Biden administration — cites public health concerns to allow Border Patrol to immediately expel migrants at the border without the chance for asylum. U.S. officials anticipate the loss of the tool and the narrative that there are "open borders" will lead to a jump in the already-high number of border crossings. Preparations for this scenario have been underway. Actions to expand legal pathways for migrants and asylum seekers and crack down on people who do not enter the U.S. at legal entry points were discussed in detail as recently as a Cabinet-head level meeting on Monday, according to the two sources familiar. Final plans are still in flux. The intrigue: The planning comes as House Republicans gear up for investigations into the administration's handling of the border — and a potential impeachment inquiry into DHS Secretary Alejandro Mayorkas. What they're saying: "As we prepare to transition to the next phase of our work to manage the border in a safe, orderly, and humane way, the Department of Homeland Security will continue to double down on these proven strategies," a Biden official told Axios, listing various efforts by the administration to tackle irregular migration. "At the same time, we’re eyes wide open to the reality that, despite all the progress we’ve made, we’re continuing to work within the constraints of a decades-old broken immigration system that Republican officials refuse to allow us to fix," the official added. Details: Officials are moving toward a multi-pronged approach involving both carrot-and-stick domestic measures and continued diplomatic requests for countries to do more on asylum and border controls. Two measures being considered appear similar to controversial Trump policies. One proposal would bar from asylum single adults who illegally cross the border and have not first applied for legal pathways offered by the U.S. or protection in other countries they traveled through. They would be placed in the expedited removal process. There would be exceptions for extreme circumstances, although the specifics of those exceptions are unclear. Another proposal calls for a surge in criminal prosecutions for single adults who have done nothing other than illegally cross the border — with a focus on those who evade Border Patrol. One source, however, said this would be a tough sell for the Justice Department. To incentivize people to apply and enter the U.S. legally, officials are looking at raising the 24,000 person cap on the number of Venezuelans who can be paroled via a new process started last month. The process forces back to Mexico those who instead attempt to cross the border illegally. The perceived success of this program has inspired much of the administration's planning for post-Title 42, sources said, indicating the program is set to continue even without Title 42 as the mechanism for returning people to Mexico. The number of Venezuelans attempting to cross the border has dropped significantly since its implementation, according to DHS officials. Officials are looking to expand the program to Nicaraguans, who like Venezuelans are often difficult to return to their home country due to frosty government relations. Any expansion would greatly depend on cooperation with Mexico or other countries to host people the U.S. kicks back. Officials are also eyeing an increase of refugee resettlements from the Western Hemisphere as another legal pathway for migrants to pursue before they can access the asylum process at the border. Lastly, the administration wants to use an app owned and managed by Customs and Border Protection to allow migrants to schedule a meeting at a legal entry point ahead of time, according to one source with direct knowledge of the idea. Reality check: The volume of people already attempting to enter the U.S. at the southern border will complicate any efforts to overhaul policy. Limited space and resources at Border Patrol stations, detention spaces or Mexican shelters could still prompt officials to release people into the U.S. while they await lengthy immigration proceedings. Some of the proposals eyed by the administration would require significant resources and coordination with foreign governments to get off the ground. The bottom line: Stretched-thin U.S. agencies find themselves preparing for another potential surge of migrants and asylum seekers at the border. Meanwhile, policymakers are yet again trying to thread the needle — enforcing order and immigration laws while creating a humane system for those seeking humanitarian protection. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Mayors call on Congress to protect DACA recipients

A group of 71 mayors from around the country called on congressional leaders to fast-track immigration protections for “Dreamers,” ahead of a GOP takeover of the House of Representatives. In a letter Tuesday under the Cities for Action banner, the mayors warned that court action could soon invalidate the remainders of the Deferred Action for Childhood Arrivals (DACA) program, leaving hundreds of thousands of Dreamers in the lurch. “A potential Supreme Court decision could strip DACA recipients of their work permits, threaten the livelihood of over 1.3 million DACA-eligible individuals, their families and their communities, and place them on a path to deportation,” wrote the mayors. The mayor’s argument for legislative action on Dreamers — undocumented immigrants who arrived in the country as minors — is moral, economic and political. Cyber Monday deals from BestReviews: These 100+ Cyber Monday deals have something for everyone on your shopping list 50 best Cyber Monday deals on Amazon today and counting The best deals on affordable tech from Apple to Samsung for everyone on your list “Over the last decade, more than 830,000 of our family members, neighbors, and friends have been protected under DACA. During the COVID pandemic, 343,000 or more than three-quarters of DACA recipients in the workforce were employed in jobs deemed essential by the Department of Homeland Security,” wrote the mayors. “It is estimated that over 2.5 million U.S. citizens live with DACA-eligible people. Ending DACA would have a devastating impact on millions of people including DACA recipients, DACA-eligible individuals, their families, friends and communities across the country.” Democratic leaders in the Senate have thrown their weight behind a bill protecting Dreamers, granting them some form of permanent extension to the work permits and deportation deferrals they received under DACA. At the same time, many farmers and agricultural labor organizations are pushing to pass a bill to grant a path to citizenship for agricultural workers who have been in the United States more than 10 years. The House has already passed versions of both the Dreamer and farm workforce bills, putting the onus on the Senate to act. With a Republican majority due to take over in the House in January, the mayors want that Senate action to happen in the lame-duck period. “From students and nurses to social workers and essential workers who served on the frontlines during the height of the COVID-19 pandemic, the U.S. is where each of these individuals go to school, hold a job, pay their taxes, and live as upstanding members of our society. I am joining mayors across the country to urge Congress to act on a permanent solution for our Dreamers. The time is now,” said New York City Mayor Eric Adams. The letter’s co-signers included Mayors James Brainard of Carmel, Ind., and Steve Collier of Lawrence, Ind., both Republicans. Although nearly 600,000 people are still protected by DACA, that number is decreasing by attrition, as the program only admits people who were in the United States by 2007. And a recent ruling by the Fifth Circuit Court of Appeals has put the legality of the program on the brink, while preventing the federal government from enrolling new eligible beneficiaries. Although the Fifth Circuit decision did not strip current DACA holders of their benefits, a Supreme Court ruling in theory could abruptly end the program. Supreme Court hears clash over DHS immigration enforcement policy Livestock farmers push for immigration bill An abrupt end could strip current beneficiaries of their work permits and place them in the federal government’s sights for deportation. “Dreamers are integral members of our communities – they’re our frontline workers who keep us healthy and safe, teachers and civil servants shaping the next generation, entrepreneurs who build businesses and revitalize our local economies,” said Denver Mayor Michael B. Hancock, a Democrat. “They’re our neighbors and friends, and so much more. This country is the only country many of them have ever known and call home, and they should be free from the fear of being driven from their communities. Congress must act now to protect DACA and the Dreamers we’re proud to call our fellow residents.” For more information, visit http://www.beverlyhillsimmigrationlaw.com/index.html.

Supreme Court hears Texas’ challenge to Biden immigration and deportation policies

The Supreme Court on Tuesday questioned the Biden administration’s authority to prioritize which non-citizens to deport when hearing a challenge brought by two Republican state attorneys general who say the Department of Homeland Security is skirting federal immigration law. The justices were considering three distinct issues in the case, which opens the door to shifting majorities. After arguments, it wasn’t clear if there was a clear majority in any one area. McCarthy speaking from an event at the southern border, El Paso, Texas on November 22, 2022. McCarthy demands DHS Secretary Mayorkas' resignation over border issues and warns of potential impeachment inquiry The case, brought by Texas and Louisiana, is the latest salvo from conservative states who have all but declared war on the Biden administration on immigration and have gone as far as busing undocumented immigrants to Democratic-led states in an effort to raise alarm about the issue. At the heart of the dispute is a September 2021 memo from Homeland Security Secretary Alejandro Mayorkas that laid out priorities for the arrest, detention and deportation of certain non-citizens, reversing efforts by former President Donald Trump to increase deportations. Several of the conservative justices on Tuesday seemed ready to rule in favor of the states on a major threshold issue: whether Texas and Louisiana had the legal right to bring the challenge in the first place. Justice Samuel Alito seemed strongly in support of the states, arguing they could show the necessary legal harm to get into court. At one point, Alito told a lawyer for the Biden administration that her argument against the states’ standing showed a “special hostility” to the states. Liberal Justice Elena Kagan, however, strenuously responded that immigration policy is the “zenith” of federal power and if the two states were to prevail in this case, “every” immigration policy going forward is going to be challenged. She said a combination of the states and sympathetic courts could bring immigration policy to a “dead halt.” Turning to the merits of the case – whether the Biden administration’s guidelines conflicted with two provisions of federal law – Alito, Chief Justice John Roberts and Justice Brett Kavanaugh repeatedly pointed out that the law says that some immigrants “shall” be taken into custody or removed, suggesting some skepticism about the administration’s discretion in the area. “Shall means shall,” Roberts said. “Shouldn’t we just say what we think the law is,” he suggested, and leave it to the other branches to “sort that out.” But later, both Roberts and Kavanaugh acknowledged a key argument put forward by the government: that Congress had not provided the necessary funds for the government to try to remove every non-citizen. Roberts told a lawyer for the two states that it was “impossible for the executive to do what you want it to do.” Kavanaugh picked up on that point, noting that the government has argued “we don’t have the money to comply.” He noted that the resources “aren’t there.” “If you prevail,” he asked the states’ lawyer, “what will happen?” Arguments lasted for over two hours. In court, Solicitor General Elizabeth Prelogar stressed that Congress has never provided the funds to detain everyone, prompting different administrations to consider how to prioritize limited funds. She noted that the executive branch retains the authority to focus its “limited resources” on non-citizens who are higher priorities for removal and warned if the states were to prevail it would “scramble” immigration enforcement on the ground leading to a totally unmanageable landscape. She said the states’ view in the case was a “senseless” way to run an immigration system. “I think that that is bad for the executive branch. I think it’s bad for the American public and I think it’s bad for Article Three courts,” she said. The guidelines call for an assessment of the “totality of the facts and circumstances” instead of the development of a bright-line rule. The government lists aggravating factors weighing in favor of an enforcement action including the gravity of the offense and the use of a firearm, but it also lists mitigating factors that include the age of the immigrant. Texas Solicitor General Judd Stone, representing Texas and Louisiana, argued that the administration lacked the authority to issue the memo because it conflicts with existing federal law. He accused the government of treating immigration law in the area as “discretionary” and not “mandatory” and argued that the executive branch lacks the authority to “disregard” Congress’ instruction. “The States prove their standing at trial based on harms well recognized,” Stone said, emphasizing the costs incurred when the government “violates federal law.” A district court judge blocked the guidelines nationwide. “Using the words ‘discretion’ and ‘prioritization’ the Executive Branch claims the authority to suspend statutory mandates,” ruled Judge Drew Tipton, a Trump appointee on the US District Court for the Southern District of Texas. “The law does not sanction this approach.” A federal appeals court declined to issue a stay of the decision, prompting the Biden administration to ask the Supreme Court for emergency relief last July. A 5-4 court ruled against the administration, allowing the lower court’s decision to remain in effect while the legal challenge plays out. Conservative Justice Amy Coney Barrett joined her three liberal colleagues in dissent without providing any explanation for her vote. In his memo, Mayorkas stated that there are approximately 11 million undocumented or otherwise removable non-citizens in the country and that the United States does not have the ability to apprehend and seek to remove all of them. As such, the Department of Homeland Security sought to prioritize those that pose a threat to national security, public safety and border security. Prelogar noted that the lower court holding against the government runs counter to longstanding practice. She said the guidelines are not binding orders compelling action, but instead, are an attempt to utilize available resources while leaving ultimate discretion to the judgment of individual immigration officials. As a threshold matter, she urged the justices to dismiss the challenge, arguing that the states don’t have the legal right – or standing – to be in court. Prelogar said if the lawsuit were allowed to go forward, any state could sue the federal government about “any policy with which they disagree.” “All 50 state attorneys general can come to court, they can file multiple suits, as they frequently do in multiple jurisdictions,” she added. In a separate dispute, Arizona, Montana and Ohio also sued the Biden administration. A district court judge issued a nationwide injunction blocking the guidelines, but the 6th US Circuit Court of Appeals put that decision on hold. “Federal law gives the National Government considerable authority over immigration policy,” the court held. It also expressed skepticism about whether the guidance directly injured the states. Critics also say that Texas is guilty of “judge shopping” the case at hand by filing it where it had a 100% chance of drawing a Trump-appointed district judge who has previously issued nationwide injunctions concerning other immigration policies. Prelogar nodded to the argument stressing that if the states’ are allowed to bring the challenge by the Supreme Court “any one single district judge in a forum of their choosing” can issue a universal remedy “that is going to put the federal government’s policies on hold.” “So far, Texas has taken the lead in 29 different lawsuits against the Biden administration, on immigration,” said CNN analyst Steve Vladeck who is a professor at the University of Texas School of Law. In a friend of the court brief filed opposing Texas, Vladeck noted that none of those cases had been filed where the Texas government is located in Austin. “This case is the latest battlefield in what has become an all-out war by red state attorneys general against virtually every Biden related policy,” Vladeck said. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

U.S. Sens. Sinema and Kelly ask DHS how it's preparing for the end of Title 42

U.S. Sens. Kyrsten Sinema and Mark Kelly are asking the Department of Homeland Security how it is preparing for the end of Title 42. The pandemic-era policy restricts asylum at the border on public health grounds and set to come to a court-mandated end in December. In a letter sent to DHS, Sinema, Kelly and fellow Democratic Sens. John Tester and Maggie Hassan say that change comes as record levels of migration are pushing shelters in Arizona and other states to beyond capacity. They argue those resources could become even more scarce after Title 42 ends and say DHS should work with local governments and aid groups to make the transition more smooth. The protocol has been used to turn more than a million migrants and asylum seekers back across the border since being implemented in the spring of 2020. Earlier this month, a federal judge in Washington, D.C., sided with the ACLU, which filed suit arguing Title 42 was enacted as an immigration enforcement tool, rather than to protect public health during the pandemic. The protocol is set to end Dec. 21. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Supreme Court to hear arguments over Biden immigration priorities

The Supreme Court will hear oral arguments Tuesday about the Biden administration’s immigration enforcement priorities, in a case that could bolster or curtail the power of states to challenge federal immigration policies. The justices will consider litigation brought by Texas and Louisiana to stop implementation of a Department of Homeland Security memo from last year that instructs immigration agents to prioritize the arrests of immigrants who threaten national security or public safety, as well as migrants who recently crossed the border. An eventual Supreme Court ruling on the legality of the immigration guidance could limit the government’s ability to set enforcement priorities, which “could be a blockbuster,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School. [McCarthy threatens to impeach Homeland Security secretary] But legal experts also say that how the justices rule on the more procedural issues in the case — whether states even have the right to file legal challenges over these kinds of immigration issues, or whether federal district court judges may strike down such policies — could carry sweeping implications for how immigration rules may be contested in court. A decision on those issues holds particular salience at a time when Republican state officials have emerged as frequent court opponents of the Biden administration on immigration, a policy area that has historically resided under federal purview. State lawsuits have frustrated immigration policy changes during recent administrations, including a June ruling that stopped DHS from implementing this internal guidance meant to focus limited departmental resources. “In the immigration context, courts have traditionally deferred to the executive branch because immigration touches on sovereignty and foreign relations,” Yale-Loehr said. But if the high court greenlights the state lawsuit against the administration’s immigration enforcement priorities, “it means that the federal government is no longer getting the benefit of the doubt” in this context, Yale-Loehr said. Litigation limits The Supreme Court case centers on a ruling from Judge Drew Tipton of the U.S. District Court for the Southern District of Texas, a Trump appointee, which found that the DHS enforcement guidance “flatly contradicts” a pair of immigration laws that mandate detention of certain categories of immigrants. The Republican-led states have argued that they have the right to sue, known as standing, because they would incur costs by having undocumented immigrants residing there. This echoes an argument that some Republican-led states have made in other challenges to the Biden administration’s immigration policies. The Department of Justice has dismissed these alleged harms as “incidental effects” that don’t give the states the grounds to take the issue to court. A decision that gives the states the right to sue on that basis “would inject the federal courts into all manner of policy controversies at the behest of States seeking to secure by court order what they could not obtain through the political process,” the DOJ wrote in a September court filing at the Supreme Court. Amber Qureshi, staff attorney at the National Immigration Project of the National Lawyers Guild, said a Supreme Court ruling that the states have the right to sue in this case “would allow any state to sue the federal government for virtually any policy where they complain that they have incidental costs associated with that policy.” The National Immigration Project, along with dozens of other immigrant and civil rights groups, also argued in a brief in the case that the states’ claim that they are injured by the presence of immigrants is rooted in “animus toward immigrants who are people of color.” The Supreme Court will also consider whether the Texas federal judge who blocked the enforcement guidance had the authority to do so. Earlier this year, the Supreme Court decided in an unrelated immigration case that lower courts do not have jurisdiction to issue certain forms of injunctive relief in immigration class actions. Now, the high court will decide if the federal immigration laws similarly bar judges from vacating immigration policies. If the high court decides that judges also may not issue orders to vacate immigration policies in this context, it could hinder the ability of all potential litigants — states as well as immigrant advocates — to have certain kinds of immigration policies blocked in court, legal experts said. Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office, called this question an “equal opportunity challenge” for its potential effects on immigration challenges brought by immigrant advocates and restrictionists alike. Broader implications If the states clear those initial procedural hurdles, a ruling in favor of the states could carry broad implications for federal agency policymaking, legal experts said. The states have argued that the Biden administration needed to have put the internal guidance through the full administrative process of soliciting public comments. A ruling that sides with the states on that issue, depending how the justices write the opinion, could usher in a “major sea change” over how federal agencies establish internal guidance, Yale-Loehr said. “It effectively gives states the power to overrule federal policy on immigration and allow states to challenge anything they want, not just in immigration but in other areas as well,” Yale-Loehr said. Max Wolson, a staff attorney with the National Immigration Law Center, said such a ruling would mark a “significant departure” from prior practices and “would dramatically expand the world of decisions that the administration has to make by going to notice-and-comment.” A high court ruling could also upend the way the federal government detains immigrants living in the country unlawfully and present severe implementation challenges for the federal government. The Supreme Court “could go so far as to say that anyone who could be subject to mandatory detention under our immigration laws has to be arrested and has to be detained, despite decades of case law saying that the executive branch has enforcement discretion in immigration,” Qureshi said. There are millions of undocumented immigrants living in the United States, but Congress has funded U.S. Immigration and Customs Enforcement, the Homeland Security agency that arrests and detains immigrants found within the country, to detain far fewer, roughly 34,000 in fiscal 2022. “If Congress says that you have to detain certain people who have committed certain criminal violations, but does not give the administration enough money to actually detain them, what is the administration supposed to do?” Yale-Loehr said. “I think it’s going to be a real conundrum, both for Congress and for the administration, if the Supreme Court rules in favor of Texas in this case on the merits.” For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

How Did a State Known for Its War on Immigrants Approve In-State Tuition for Undocumented Students?

Jose Patiño remembers how his mother cried when the acceptance letter from Arizona State University arrived in the mail in late 2006. There it was, the ultimate reward for her son’s hard work and the reason why they had sacrificed so much by leaving Mexico when he was six years old. He had not just been accepted, he received a full scholarship offer. Patiño was on the way to becoming the first member of his undocumented family to get a college degree. “I had never seen her that happy,” Patiño says. But their happiness proved short-lived. A few months later, Patiño received a different letter from the university stating that his tuition had tripled, and he no longer qualified for the scholarship. That abrupt change was a direct result of Proposition 300, a successful ballot measure that made university students in Arizona who were not US citizens or permanent residents and those lacking legal status ineligible for in-state tuition and federal and state financial aid. The referendum was approved with 72 percent of votes in November 2006. “I’m going to figure out a way,” Patiño told his mother at the time. “It will be difficult, but I’ll figure it out.” Patiño, now the education and external affairs director of the Arizona-based immigrant youth-led group Aliento, did figure it out. He went on to attend ASU on a private scholarship set up by university administrators sympathetic to the plight of undocumented students in Arizona. He received a bachelor’s degree in mechanical engineering, and then a master’s degree in secondary education from Grand Canyon University. But the impact of Proposition 300 was profound. A 2011 analysis by ASU’s Cronkite News found that between the Spring of 2007 and the Fall of 2010, the number of students without proof of citizenship in public universities in the state plummeted from 1,524 to 106. Proposition 300 effectively made college education unattainable for many of Arizona’s low-income undocumented youth. MOTHER JONES TOP STORIES Sixteen years later, that could change. The majority of voters in Arizona during the recent midterm elections were in favor of Proposition 308, a ballot measure that repealed provisions from Proposition 300 and opened the way for any high school graduate, regardless of immigration status, living in Arizona for at least two years, to access in-state tuition rates at state universities and community colleges. By some estimates, as many as 3,600 students might benefit from the policy every year. The successful ballot measure received 1,250,319 “yes” votes—or about 51 percent—a little shy of the 1,287,890 votes received by Gov. Katie Hobbs. That result puts Arizona alongside 22 other states and the District of Columbia that allow undocumented students to pay tuition on par with their US-born peers. “[T]he people advocating, finding sponsors for the bill, getting the legislature to pass it, and talking to voters were the same people [Proposition 300] was intended to bury.” “The beauty and the pain of this campaign,” says Patiño, who worked on the legislative proposal referring Proposition 308 to the ballot, “is that the people advocating, finding sponsors for the bill, getting the legislature to pass it, and talking to voters were the same people [Proposition 300] was intended to bury.” Considering its long history of policies and legislation openly hostile to immigrants and Latinos, Arizona would seem an unlikely place for a pro-immigrant measure to succeed. Indeed, Proposition 300 was only one of a series of restrictive proposals aimed at excluding and punishing foreign-born people that appeared in the early 2000s. Such efforts fell under what became known as “attrition through enforcement,” a harsh anti-immigration strategy championed by Kansas Attorney General Kris Kobach and once supported by then-presidential hopeful Mitt Romney. Its basic premise was to make the lives of undocumented people in the United States so miserable they would simply leave, or “self-deport.” Between 2004 and 2006, voters in Arizona approved ballot measures requiring proof of citizenship to register to vote and access state and local public benefits. One initiative denied bail to people charged with felonies and believed to have entered the country without authorization, and another made English the state’s official language and prohibited undocumented immigrants who won civil lawsuits from receiving punitive damages. “You are not going to come to America and get some lottery payout,” said then-Republican State Rep. Russell Pearce, who had been the main force behind most anti-immigrant initiatives in the state. Advertise with Mother Jones That anti-immigrant drive in Arizona reached its apex in 2010 with one of the most, if not the most, draconian legislation in the country. Informally known as the “show me your papers” law, SB 1070 required law enforcement to ask for proof of legal status if they suspected someone was undocumented. It also gave police the authority to arrest, without a warrant, those they believed to be “deportable.” That same year, Republican Gov. Jan Brewer signed a law, later ruled unconstitutional, banning a Mexican-American studies program in the Tucson school district. By then, Pearce, who authored SB 1070, was Arizona’s senate president and largely regarded as the most powerful politician in the state. Although the Supreme Court partially struck down the racial profiling legislation in 2012, it nevertheless made Arizona ground zero in the war on immigrants and spurred concerns of an “Arizonification of America” with other states enacting copycat laws. But how did Arizona become what the former Daily Show host Jon Stewart called “the meth lab of democracy”? Kristina Campbell, a professor at the University of the District of Columbia-David A. Clarke School of Law who lived in Arizona in the early 2000s, argues that it was a combination of “power, corruption, and white supremacy.” She had a thorough exposure to all three in her previous job. Prior to the passage of SB 1070, Campbell had worked as a staff attorney for the Mexican American Legal Defense and Educational Fund (MALDEF), a Los Angeles-based Latino legal civil rights organization. “What I did most was sue Sheriff Joe Arpaio,” she says. “I mean, talk about a reign of terror.” Arpaio, an immigration hard-liner and self-proclaimed “America’s toughest sheriff,” ruled over Maricopa County, Arizona’s most populous county, for more than two decades. (Pearce served under Arpaio as chief deputy.) He became notorious for housing inmates in so-called tent city jails in the desert and conducting discriminatory sweeping raids and traffic stops targeting Latinos. In 2017, a federal judge convicted Arpaio of criminal contempt after he violated a court order to stop the racial profiling practice. Soon after, the disgraced sheriff became the first person to be pardoned by one of his biggest fans, then-President Donald Trump. Advertise with Mother Jones Patiño has memories of the climate of fear while he was growing up. He would see signs on buses with a number to call to report unauthorized immigrants. Or he would hear alerts on the radio about the location of immigration enforcement checkpoints so people could avoid them. “You can’t let your guard down,” he says, describing a survival mode mindset that became normalized because “everyone you know is going through it.” But all those years of relentless assault on immigrants and Latino communities took a toll and ignited a movement. “There was a lot of crying all the time,” he says. “We came out of the shadows because we were tired of being afraid.” “There was a lot of crying all the time. We came out of the shadows because we were tired of being afraid.” The passage of SB 1070 served as a catalyst for change. Perhaps the best indication of that came in late 2011 with the once unimaginable ousting of Pearce, the first-ever Arizona legislator to be recalled. Voters rejected him with 55 percent of votes in a recall election interpreted, as the New York Times put it, “as a sign that Republican politicians like Mr. Pearce were pushing too far with their get-tough approach to illegal immigration and that there were consequences if they did not get in sync with voter concerns.” In describing the historic campaign spearheaded by organizer Randy Parraz, Jeff Biggers, the author of the 2012 book State Out of the Union: Arizona and the Final Showdown Over the American Dream, said in an interview for Democracy Now!, “There was this new generation of young Latinos willing now to work with these new Baby Boomers who were retiring in Arizona and come together and take on extremism and win.” They represented, he noted, the rise of the “other Arizona,” one that posed resistance to the “headline-grabbing nativists, frontier justice sheriffs, neo-Nazi marchers, gun-toting militiamen, and Tea Party political figures.” And they won again when Arpaio lost his reelection bid in 2016. At the age of 90, he tried to make another comeback this year running for mayor of 25,000-people Fountain Hills—but he was defeated by two-term Democratic incumbent Ginny Dickey. “Why has this change happened and why has it happened so relatively fast?” asks Campbell. “I have to give credit to the young generation that is not afraid to take on that type of intimidation, harassment, and discrimination. They have made some changes I never thought would happen in Arizona.” Advertise with Mother Jones Advertise with Mother Jones For many, the idea of restoring in-state tuition and financial aid for undocumented students seemed to be a long shot. Reyna Montoya, the founder of Aliento, recalls people laughing at the idea. “They didn’t think this was possible,” she says. “We got pushback even from some organizations because they didn’t think the timing was right.” The first step was for legislation to put the proposal on the ballot to be passed by the conservative Republican legislature. Previous attempts going back to 2018 failed to find a Republican legislator to sponsor the bill or even to get a hearing in the House. It wasn’t until 2021 that advocates were able to make progress, but not without reservations from both sides of the aisle. For some Democrats, the proposal didn’t go far enough as it didn’t constitute a full repeal of the original ballot initiative that additionally hindered access to adult education and childcare assistance. Meanwhile, Republicans pushed back against the financial aid provision. But in May 2021, the resolution introduced by Republican State Sen. Paul Boyer moved forward in the House on a 33-27 vote, with four Republicans supporting it. “Wow, so we did it,” Boyer said at a press conference. “It’s a rarity when you can say you passed a piece of legislation that truly changes lives, and this bill changes about 2,000 lives every single year. We are standing on the shoulders of giants.” Once the legislative hurdle was behind them, it was a matter of building on years of community organizing to educate voters about the initiative, which was one of 10 measures on the ballot. Most people Patiño and Montoya talked to in the lead-up to the election didn’t know access to in-state tuition for undocumented students was an issue, let alone one that they could vote on it. Patiño remained hopeful but skeptical until the last minute. “This is still Arizona and immigration is still a big issue,” he told me. “People are going to have camps already that they are going to be in because of the years and years of rhetoric that we have heard pro and anti. I knew it was going to be close.” On November 14, a week after Election Day, the votes were finally counted and their victory became official. “It gives me a lot of hope that we can make big transformational changes for the community,” says Patiño. “It may take longer than we would want to, but we can do it.” For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Livestock farmers push for immigration bill

Livestock farmers are pushing for the Senate to deliver a long-awaited immigration bill over the lame-duck session to modernize the agricultural visa system. The Senate is poised to consider at least one immigration-related bill between Thanksgiving and Christmas, and there are two House-passed bills that could get a vote. Democratic leaders have put their weight behind a bill to protect “Dreamers” — undocumented immigrants who arrived in the country as minors — while a broad swath of the agricultural industry is pushing the Farm Workforce Modernization Act (FWMA). The livestock farmers and their supporters argue that the existing system simply doesn’t address their needs. Livestock businesses require year-round workers who have experience with animals — all current agricultural visas are exclusively seasonal. “I honestly don’t know exactly how we ended up being overlooked. I think largely at the time the industry looked very different than it looks today. And it was predominantly a family workforce. And so there wasn’t there wasn’t the foreign-born workforce in dairy that you had in seasonal agriculture when the pieces were originally written,” said Rick Naerebout, the CEO of the Idaho Dairymen’s Association. Rebecca Eifert Joniskan, president of the Indiana State Poultry Association, said poultry farmers will make do with or without reform as they have in the past, but the visa impasse just adds to a series of challenges faced by poultry farmers. Joniskan said poultry is facing challenges finding qualified, willing and legally available labor at a time when the industry also faces high fuel and feed prices. On top of that, a wave of avian influenza is affecting 46 states, forcing some farmers to euthanize entire flocks. The ebb and flow of some of these issues is baked into the cake for the industry, but farmers are losing patience with the added pressure of preventable labor shortages. “This conversation is starting to get to a more apolitical situation. Industry needs this,” Joniskan said. The FWMA has already passed the House, and Sens. Michael Bennet (D-Colo.) and Mike Crapo (R-Idaho) are leading the effort to pass a Senate version. In essence, the FWMA provides a path to citizenship for farmworkers who’ve been in the country for more than a decade, but employers would face more stringent hiring protections to prevent more unauthorized foreign workers from joining the workforce. While the immigration side of the deal is generally agreed to, the FWMA also includes a proposed expansion of labor protections under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Those labor provisions are causing friction between the American Farm Bureau Federation and the state chapters of the Farm Bureau. The American Business Immigration Coalition (ABIC), a bipartisan pro-immigration reform group, released a study in August saying only 0.006 percent of farmers subject to the MSPA have faced lawsuits on the matter over the past 2 1/2 years. Supreme Court hears clash over DHS immigration enforcement policy Mayors call on Congress to protect DACA recipients Still, the viability of the FWMA, whether it’s presented as standalone legislation or within a must-pass bill, could come down to basic political math: Will 10 Republicans join Senate Democrats to pass an immigration bill in the lame-duck session? The bill’s proponents believe the FWMA’s economic benefits could put it over the top. “The Senate needs to pass their version of the Farm Workforce Modernization Act (FWMA) immediately. Majority of agriculture supports it. It caps expenses for the farmers, lowers food prices hammering American consumers and makes sure that we have a legal and reliable workforce for the agriculture industry,” ABIC Executive Director Rebecca Shi said. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

A fight over how to enforce immigration laws reaches the Supreme Court

The U.S. Supreme Court will hear arguments Tuesday in a long-running dispute over how to enforce the nation's immigration laws. President Biden's administration wants to set guidelines for whom immigration authorities can target for arrest and deportation. But a group of Republican attorneys general sued to block the guidelines, arguing that they were preventing immigration authorities from doing their jobs. The outcome of the case could have major implications — and not just for immigration enforcement. Former Department of Homeland Security officials and immigrant advocates say the case could hinge on the question of how much discretion law enforcement agencies have to decide how and when to enforce the law. The U.S. creates a legal pathway for Venezuelan migrants, but many won't qualify NATIONAL The U.S. creates a legal pathway for Venezuelan migrants, but many won't qualify "A cop doesn't pull over every speeder on the highway," says Jeremy McKinney, the president of American Immigration Lawyers Association. "So you have to make choices. All that the Biden administration was attempting to do was make choices, just like every administration before it." It's widely agreed that Immigration and Customs Enforcement does not have the resources to arrest or deport all of the roughly 11 million people in the country without authorization. So immigration authorities have to set enforcement priorities — priorities that have swung sharply from one administration to the next. Sponsor Message 'Prosecutorial discretion' During former President Trump's administration, ICE agents and officers were empowered to arrest and deport anyone who was living in the U.S. without legal authorization. "If you're in this country illegally and you committed a crime by entering this country, you should be uncomfortable," acting ICE director Thomas Homan told a congressional subcommittee in 2017. "You should look over your shoulder, and you need to be worried." Thomas Homan, then-acting director of U.S. Immigration and Customs Enforcement, testifies before the House Homeland Security Committee's Border and Marine Security subcommittee on Capitol Hill on May 22, 2018, in Washington, D.C. Aaron P. Bernstein/Getty Images When the Biden administration took office, it put on the brakes. Instead of arresting and deporting anyone they encountered who was in the country without authorization, immigration authorities were given a very different set of priorities. Homeland Security Secretary Alejandro Mayorkas described the new guidance as an exercise of prosecutorial discretion. "We have guided our workforce to exercise its discretion to focus on individuals who pose a threat to national security, public safety and border security," Mayorkas told NPR in an interview last year. There had been official immigration enforcement priorities at the Department of Homeland Security before. During former President Obama's administration, ICE officers and agents were also encouraged to use prosecutorial discretion, and focus on threats to public safety. But the announcement of the Biden administration's enforcement priorities prompted multiple lawsuits from immigration hardliners, who argue that this policy goes far beyond what any previous administration had done. Sponsor Message "They went way left on this. So it's almost like the Immigration and Nationality Act doesn't exist anymore," said Homan, the former head of ICE, during an interview last year. Texas and Louisiana win in federal court Part of what outraged Homan and other hardliners about the new priorities was that under the Biden administration's guidance, simply being present in the U.S. without legal authorization "should not alone be the basis" for immigration authorities to arrest or deport someone. "Saying that someone cannot be removed just because they're an illegal alien is a drastic change in our immigration law," says Christopher Hajec at the Immigration Reform Law Institute in Washington, which filed a friend of the court brief before the Supreme Court. "It's not within an agency's power to do that. Only Congress could do that." A federal judge in Texas blocks a major DHS policy limiting immigration enforcement NATIONAL A federal judge in Texas blocks a major DHS policy limiting immigration enforcement That's an argument that the states of Texas and Louisiana made in court. A federal judge in Texas agreed, and threw out the administration's enforcement priorities in June. But former DHS officials of both parties worry about the implications of that ruling. "Not everyone can be arrested or put in proceedings," said Julie Myers Wood, the head of ICE during the George W. Bush administration, and one of several former DHS officials who filed a brief expressing their concerns to the Supreme Court. Wood, a former federal prosecutor, says every law enforcement agency exercises discretion about how to deploy its resources — and that those decisions are too important to leave up to individual field offices. "What you don't want to see is a situation where a particular office is focusing on all noncriminal arrests simply because they are easier or more convenient to the detriment of individuals that have serious criminal histories," she said in an interview. Wood says she might not have chosen the same priorities as Secretary Mayorkas, but it's his call to make. Sponsor Message If the lower court's ruling is upheld, immigrant advocates worry it could signal a return to the more expansive priorities of the Trump administration. "There was a lot of fear in the community at that time," says Sarah Owings, an immigration lawyer in Atlanta. "And I did see some really awful things." Owings says she had a number of clients who had been following the guidance and checking in with ICE for years who suddenly found themselves in detention. She remembers one man in particular whose wife was pregnant at the time of his check-in with ICE. "He had a wife who was a high-risk pregnancy and a few weeks away from delivering, and they were like, well, he used a false name one time 10 years ago, so we're taking you in today," Owings recalls. "I really hope that we don't get back to that era." For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Democrats, migrant advocates reject GOP push to oust DHS secretary

EL PASO, Texas (Border Report) – Democratic lawmakers and pro-immigrant groups are pushing back against a GOP leader’s intent to oust Department of Homeland Security Secretary Alejandro Mayorkas. House Minority Leader Kevin McCarthy on Tuesday in El Paso gave Mayorkas until Jan. 3 to resign or face a congressional investigation and possible impeachment. U.S. Rep. McCarthy, R-California, is in line to become speaker now that the Republicans have regained the majority in the House of Representatives. “Our nation has never been so at risk and (border agents’) lives have never been harder. Together we bear witness to the worst border crisis in U.S. history,” McCarthy said in El Paso. “We have lost operational control of our Southern border, empowering drug cartels and human traffickers […] His actions have produced the greatest wave of illegal immigration in recorded history. Our country may never recover from Secretary Mayorkas’ dereliction of duty.” ADVERTISING But U.S. Reps. Veronica Escobar and Sylvia Garcia, both Democrats from Texas, characterized the threat as political posturing and a photo-op on the part of the Republicans. “Leader McCarthy’s threat to impeach Secretary Mayorkas does nothing to improve the situation at our border, and his visit to El Paso today was more of what Republicans have been doing at the border for years: they parachute in, use the border as a photo-op, and their only solution is to champion more of their same failed, expensive policies that address immigration as a border-only issue,” Escobar said in a statement. DHS: Secretary Mayorkas will not resign Escobar said she would continue to push for funding for border communities and reforms to the U.S. immigration system. “I hope Republican members of Congress one day soon decide to act legislatively instead of performatively,” she said. Garcia also called for Republicans to support Democratic bills that offer legalization of undocumented immigrants including those brought to the U.S. as children, and increased pathways to legal immigration. She disqualified McCarthy’s border visit. “It’s a broken record,” she told The Texas Tribune. “It’s all photo ops. The time has passed for photo ops and visits. The time to act is now.” House Democrats choose DACA over other immigration priorities in lame-duck session Vanessa Cardenas, executive director of America’s Voice, a nonprofit that advocates for immigrants, also called for legalization and more legal avenues for people to come into the country. “At a time when the greatest domestic threat to national security in America is the rise of white nationalist extremism, it is appalling that Kevin McCarthy and his minions have decided to investigate and try to impeach the very person responsible for America’s security against this escalating threat,” Cardenas said in a statement. She accused Republicans of failing to support additional funding for customs and cargo inspections. Instead, “they continue the same messaging and political stunts on immigrants and border security that gets headlines on Fox and Breitbart but fails the American people,” she said. Visit BorderReport.com for the latest exclusive stories and breaking news about issues along the U.S.-Mexico border Border Report reached out to Mayorkas’ office for comment and was told he has no plans to resign. “Secretary Mayorkas is proud to advance the noble mission of this Department, support its extraordinary workforce, and serve the American people. The Department will continue our work to enforce our laws and secure our border, while building a safe, orderly, and humane immigration system,” DHS said in response to a Border Report inquiry. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Would more immigration boost U.S. innovation?

Alec Stapp: What we're really seeing now is an increasing war for talent globally, where countries are trying new, intentional programs that make it very easy for talented people to move there. And I think, in the United States, we have yet to see a comparable effort. Stephanie Kelton: Welcome to the Best New Ideas in Money, a podcast from MarketWatch. I'm Stephanie Kelton. I'm an economist and a professor of economics and public policy at Stony Brook University. Charles Passy: And I'm Charles Passy, a reporter at MarketWatch. Stephanie Kelton: Each week, we explore innovations in economics, finance, technology, and policy that rethink the way we live, work, spend, save, and invest. Charles Passy: Today, we're going to start with a number, 0.1%. That's how much the US population grew last year, a slower rate than any other year since its founding, according to the United States Census Bureau. Stephanie Kelton: Back in July, a report from the Congressional Budget Office found that the US-born population will start falling around 2043, meaning that deaths will start to exceed births. At that point, the report says, population growth will be increasingly driven by one source; immigration. Charles Passy: Immigration is one of the most divisive issues in American politics today. But what sometimes gets lost or misunderstood in that passionate debate is something that we spend a lot of time thinking about on this show; the economic impact. This week, we're bringing you the first part of a two-part episode dive into the issue. Today, we're going to be looking at immigration from more educated, higher-income-earning immigrants. That's typically called high-skilled immigration. Recently, a pair of studies have zoomed in on two areas where high-skilled immigrants often contribute; innovation and entrepreneurship. The first, published in May 2020 and revised in November 2021 by the National Bureau of Economic Research, looked at how immigration impacted innovation in a given area. Tarek Hassan: So we have many canonical economic models that say if you have more people arriving in a place, then it's generally good for that place. Stephanie Kelton: That's Tarek Hassan. He's a professor of economics at Boston University and one of the authors of the paper. Tarek Hassan: Generally, we would expect that if you have more immigrants in a given location, that location would get more innovative, more what we call economically dynamic. And maybe the most straightforward thing is that the prediction of these models is that the wages of the people who are already in that location should increase as the result of more people arriving, at least over the long term. Stephanie Kelton: Economic dynamism refers to the idea that, when there are more people, more firms get created. More firms can also get destroyed, which Hassan says can result in more competition. Charles Passy: One of the things the paper looked at was the idea that immigration is good for economic growth because it can help foster more ideas. Tarek Hassan: One of the things that people, in general, not just migrants, but people, do is they invent new things. And whenever a person invents something new, that might be good for that person's career, but it's also good for everyone around them. So there's this famous idea that, once you generate new ideas or new ways of doing things, other people can use these ideas for free. So if I figure out how to build a car, I'm going to draw a blueprint of a car, and I might start my own car company. But once that blueprint exists, other people can use it, particularly if I take out a patent. That way that we have figured out to build a car then becomes accessible to other people. So as soon as that patent lapses, other people can use that as well. Charles Passy: Hassan and his colleagues look to patents as a measure of innovation. Tarek Hassan: If you have about 12,000 new migrants arriving in a given county in a given five-year period, then the number of patents filed per capita in that location increases by 27%. Charles Passy: But what does that increase of 27% really get us? According to Hassan, it means more innovation. Tarek Hassan: How innovative a place is, is very important for how economically dynamic it is. I live in Boston. Boston is a place that is famous for its economic dynamism in the sense that people invent new stuff in Boston all the time. And if you walk around Boston University or if you cross the river and go to Harvard and MIT, you'll hear lots of students talking about their startups and the new companies that they work at. And there's lots of young companies around. And that's a sign of economic dynamism. Those young companies generate jobs. And because there are so many companies produced there all the time, that's one of the reasons why wages, even if you adjust for how expensive things are, are quite expensive in Boston because it's such an economically dynamic place. Stephanie Kelton: Hassan brings up wages, another subject the study looked at. He says, if a lot of people move to a new county, you might expect that wages would go down. Tarek Hassan: So this is what I teach my students; supply and demand. So if you have more people willing to work in a given place, then, of course, wages should initially go down. But the economy is actually more complicated than that, primarily for the reason that the other thing that people do is they generate ideas. So we have these two forces that are battling against each other. More people or an influx of people, normally, if the number of ideas are fixed, would mean lower wages. But on the other hand, if people are creative and create more ideas, then more people also means more ideas. And ideas have this property that everybody can use it for free. So if you have more people, you're going to have more and more ideas generated. Charles Passy: But that's not the only thing that happens. Tarek Hassan: More natives, more people who are already in that location get hired to be researchers, and they also produce more ideas and more patents. So this creative counterbalance actually leads to, and we see this in the data, that, on average, if you have more people arriving in a given county, wages of the people who are already there actually go up. So we see that, within a five-year interval, if you look only at people who already lived in that county before the migrants arrived, their average wage increases by about 6%. Charles Passy: So it might be tempting to conclude that immigration is like a rising tide that lifts all boats, but Hassan's study also found that a rise in wages didn't apply equally. Tarek Hassan: One very striking finding and a paper that's also very worrying is the effect of immigration on inequality. We see that, across the board, the average wage goes up for people who are already in that location, but that effect is much stronger for people who are highly educated, meaning who have at least a college degree. There is a positive effect, on average, for people with a high school degree as well. But for people who do not have a high school degree, we see, on average, no effect. So it looks like the people, on average, who benefit most from the kind of immigration that we've seen in the US over the last 50 years are people who are highly educated. Stephanie Kelton: And it's also highly educated immigrants who tend to benefit from relocating to the US. Tarek Hassan: The top third of migrants arriving, in terms of the number of years of schooling that they have, have an effect that is approximately eight times larger than the mean migrant arriving. In other words, highly skilled immigrants have much larger positive effects on local innovation and wages. Stephanie Kelton: But innovation isn't the only area where researchers have found immigrants make an impact. Another study published this March in the American Economic Review took a look at one of the centerpieces of the discussion around immigration in the United States. Pierre Azoulay: Lots of debates about the desirability of immigration revolves around the question of whether immigrants crowd out the natives or the US-born in the labor market. Stephanie Kelton: That's Pierre Azoulay. Pierre Azoulay: I'm a professor at the MIT Sloan School of Management and a research associate at the National Bureau of Economic Research. And in addition, I'm an immigrant to the US. I grew up in Paris. And that might be relevant to the conversation we're going to have today. Charles Passy: For Azoulay and his co-authors, the discussion around the impact immigrants have on the labor market, that immigrant workers compete unfairly with Americans, was missing a key point. Pierre Azoulay: The thing that this debate has ignored to date is the possibility that immigrants are not just employees of firms. They can also create firms. And so we wanted to find whether or not immigrant entrepreneurs tend to create more firms and also to characterize those firms. Are those mostly small businesses, medium-sized businesses, tech startups, firms that will grow up to be really large? And so on and so forth. Stephanie Kelton: In the study, Azoulay and his colleagues looked at three sources of data. First, they looked at administrative records for nearly every firm founded in the US between 2005 and 2010. They also looked at the US Census Survey of Business Owners to study a representative sample of all US firms. Finally, they used the Fortune 500 to focus on the largest companies in the United States. Pierre Azoulay: So it's like three different cuts of data that let us, in some sense, count and compare the number of immigrant-founded firms versus the number of firms founded by US-born people. Stephanie Kelton: Azoulay and his colleagues counted the number of firms created by those born in the US and the number created by immigrants. And then they used the data to determine whether immigrants are disproportionately likely to found businesses. Pierre Azoulay: And it's kind of a large effect. So more firms are being created by the US-born because there are more US-born people than immigrant people in the labor market. But if you take the ratio to the underlying populations, immigrants exhibit an 80% higher entrance rate into entrepreneurship. And so that's the top result that people should understand. Stephanie Kelton: According to Azoulay, that result was seen across every size company. He says that's contrary to the common idea that immigrants mostly start small businesses. Pierre Azoulay: A restaurant, a laundromat, a landscaping business. And you might think that, in some sense, this is the hallmark that those small businesses... this subsistence form of entrepreneurship is the hallmark of immigrant entrepreneurship. And we find that that's not true. Stephanie Kelton: For firms of all sizes, the study found that immigrants disproportionately created new businesses and jobs. Charles Passy: Azoulay's research also looked at the impact on wages. The paper found that wages didn't change much if the founder was US-born or an immigrant. Wages of employees in immigrant-founded firms were slightly but not significantly higher at just 0.7%. But the shift to thinking about immigrants not just as employees but also as employers is an important perspective here as well, Azoulay says. Pierre Azoulay: Then it becomes, in our mind, increasingly hard to make a strong case against immigration on the basis of effect on the labor market because it seems not ambiguous that they have this big effect on job creation through the entrepreneurship channel. Charles Passy: Coming up, if you want to increase high-skilled immigration in the US, how might you do it? We take a look at a high-skilled visa program and the challenges facing immigration today. That's after the break. Stephanie Kelton: Welcome back to the Best New Ideas in Money. Before the break, we heard about two recent studies that explore the impact immigrants have on entrepreneurship in the United States. High-skilled immigration has long been seen as a key component of American progress, from Albert Einstein to Google Founder Sergey Brin. Alec Stapp: If you look, historically, immigration to the United States is what ends up revitalizing and renewing the US over time. It is something that is a superpower relative to our peer nations. We seem uniquely capable of attracting the best and brightest from around the world. Stephanie Kelton: That's Alec Stapp. He's the co-founder of the Institute for Progress, a new research and advocacy think tank that focuses on scientific, technological, and industrial progress. The group is funded from individuals and foundations, including Open Philanthropy, the Emergent Ventures program from George Mason University's Mercatus Center, Stripe co-founders Patrick and John Collison, Schmidt Futures, The Future Fund; and Sam Bankman-Fried, who resigned as CEO of the embattled crypto exchange FTX earlier this month. Stapp says that data bears out that America has long been positively impacted by high-skilled immigration. Alec Stapp: Between 2000 and 2010, America received more migrating inventors than every other country combined. And then even though foreign-born immigrants only make up 14% of our population, immigrants are responsible for 30% of US patents and 38% of US Nobel Prizes in science. And so what I really think we see here is that, even though immigrants are only a small fraction of our population, they end up having outsized returns over time and keep America the dynamic, open economy that makes it a world leader. Charles Passy: But that may be beginning to change. A recent survey from the Boston Consulting Group found that, in 2020, for the first time, Canada, and not the US, took the top spot for most desirable location for migrants moving for work. Stephanie Kelton: As we mentioned at the top of the episode, the US population, and especially the US-born population, is in decline. A shrinking population can have an impact on the economy, with implications for education and programs like Social Security and Medicare as the existing population ages. A fall in population can also contribute to declining entrepreneurship and innovation. Some say immigration is one solution to that problem. Alec Stapp: What we're really seeing now is an increasing war for talent globally, where countries like Canada, the UK, Australia, and even China to some extent, are trying new, intentional programs that make it very easy for talented people to move there. They're being proactive about recruiting talent. And I think, in the United States, we have yet to see a comparable effort to adjust our immigration systems. Charles Passy: So how exactly does high-skilled immigration work? Let's take a closer look at one of the most common visa programs for high-skilled immigrants; it's called H-1B. Stephanie Kelton: The H-1B visa allows immigrants to work for sponsored employers in so-called specialty occupations. There's a pretty broad range of what's considered a specialty occupation, but they're highly concentrated in science, technology, engineering, and math; or STEM fields. Charles Passy: Congress determines the annual cap on H-1B visas, which is currently at just 65,000, with an additional 20,000 for those with advanced degrees. In recent years, the number of applications has surged. For the next fiscal year, 483,000 applications were received. Just 26% were selected to be processed. Stephanie Kelton: The fact that few applications are approved, much less processed, isn't the only problem with this type of visa. There are also a number of criticisms of the program itself. For starters, because these visa holders are tied to employment at a specific company, some say the program can put employees at risk of being underpaid. They also may be more vulnerable to exploitation, like retaliation for reporting workplace misconduct. And if an H-1B holder loses their job, they face deportation. So, for critics, it's not just a matter of increasing the cap on H-1B visas and fixing the system, it's also about reforming the visa program itself. We'll talk more about that next week. Another important criticism of the H-1B program is that, unlike other visa programs, it doesn't always have a requirement that employers recruit US workers before hiring under H-1B. Charles Passy: That contributes to the concern we talked about earlier, that immigrants, quote, unquote, "take away jobs." Critics have also pointed out that many of the companies that rely on H-1B are outsourcing firms. Those companies move work abroad and, some critics say, exploit the system to hire workers at a lower cost. In 2020, 17 of the top 30 H-1B employers were outsourcing firms. There's also been a push lately for bringing jobs back to America. We explored that a few weeks ago in our episode on the semiconductor industry. As a quick refresh, back in August, President Biden signed the CHIPS and Science Act into law. That included a new 25% tax credit for investments in chip manufacturing in the United States. But, on the other hand, there's a question of whether the US has the skilled workforce necessary to take those jobs. Here's Alec Stapp again. Alec Stapp: So, for example, TSMC, the world-leading semiconductor firm in Taiwan that is building a chip fab in Phoenix, Arizona, data on their global workforce shows that 4% of their employees have a STEM PhD, but 45% have a STEM master's degree. And so, as you see there, about half of their workforce has an advanced STEM degree. And if we want to be able to build these chip fabs and re-onshore that critical supply chain for the entire technology industry, we need to make it easier for companies like TSMC and Intel and others to hire talent and bring them to the US quickly. Charles Passy: So the labor shortages that the US currently faces remain a problem, one that will only become more serious as the US-born population continues to shrink over time. While immigration remains a polarizing issue, Alec Stapp, the co-founder of the Institute for Progress, says high-skilled immigration is one area where Americans are actually more aligned across the political spectrum. Alec Stapp: And that's really what we see in polling. For example, according to a survey by Pew, we see that 78% of voters support high-skilled immigration, including 63% of those who said the country should allow fewer or no immigrants. So even among people who really subscribe to an immigration restrictionist philosophy, 63% say that they support high-skilled immigration. Charles Passy: Earlier this year, a bill passed in the House of Representatives called the America COMPETES Act. It proposed a green card cap exemption for STEM, PhD, or master's degree holders. It was ultimately blocked in the Senate, but it's possible more immigration reform will be on the horizon. Stephanie Kelton: The need to increase highly skilled immigration to the United States may be the element of immigration reform that sees the most bipartisan agreement, but it's not the only part of the legal immigration system. Far from it. Next week, we'll dive further into that system and hear about some new ideas in immigration reform. That's next time on the Best New Ideas in Money. Thanks for listening to the Best New Ideas in Money. You can subscribe to the show wherever you listen. And if you like what you heard, please leave us a rating or a review. If you have ideas for future episodes, drop us a line at bestnewideasinmoney@marketwatch.com. Thanks to Alec Stapp, Pierre Azoulay, Tarek Hassan, and Brett Arends. I'm Stephanie Kelton. Charles Passy: And I'm Charles Passy. The Best New Ideas in Money is a podcast from MarketWatch. The producers are Michael McDowell, (inaudible), and Katie Ferguson. This episode was mixed by Megan (inaudible). Melissa Haggerty is the executive producer. Jeremy Binckes is our news editor. Mark DeCambre was our newsroom editor on this episode. The Best New Ideas in Money theme was composed by Sam Retzer. Stephanie Kelton is an economist and a professor of economics and public policy at Stony Brook University and not part of the MarketWatch newsroom. We'll be back next week with another new idea. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

A Trump judge seized control of ICE, and the Supreme Court will decide whether to stop him

In July, a Trump appointee to a federal court in Texas effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within US borders. Although Judge Drew Tipton’s opinion in United States v. Texas contains a simply astonishing array of legal and factual errors, the Supreme Court has thus far tolerated Tipton’s overreach and permitted his order to remain in effect. Nearly five months later, the Supreme Court will give the Texas case a full hearing on Tuesday. And there’s a good chance that even this Court, where Republican appointees control two-thirds of the seats, will reverse Tipton’s decision — his opinion is that bad. The case involves a memo that Secretary of Homeland Security Alejandro Mayorkas issued in September 2021, instructing ICE agents to prioritize undocumented immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being” when making arrests or otherwise enforcing immigration law. A federal statute explicitly states that the homeland security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities,” and the department issued similar memos setting enforcement priorities in 2005, 2010, 2011, 2014, and 2017. Nevertheless, the Republican attorneys general of Texas and Louisiana asked Tipton to invalidate Mayorkas’s memo. And Tipton defied the statute permitting Mayorkas to set enforcement priorities — and a whole host of other, well-established legal principles — and declared Mayorkas’s enforcement priorities invalid. This is not the first time that Tipton relied on highly dubious legal reasoning to sabotage the Biden administration’s immigration policies. In July, shortly after Tipton handed down his decision, the Justice Department asked the Supreme Court to halt Tipton’s order while this case was still pending, but the Supreme Court voted 5-4 to deny that request — with conservative Justice Amy Coney Barrett crossing over to vote with the Court’s three liberal justices. That means that, even if the Court does ultimately reject Tipton’s reasoning, his erroneous order will have been in effect for months by the time the Supreme Court strikes it down. And for that entire time, Mayorkas will have been prevented from exercising his statutory authority over ICE. Tipton’s opinion is an embarrassment As a threshold matter, it’s important to understand why Mayorkas must have authority to set enforcement priorities for ICE. As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” So it is literally impossible for ICE to arrest or otherwise bring enforcement actions against every undocumented immigrant in the country. Priorities must be set. The Supreme Court has long acknowledged that law enforcement, by its very nature, requires police and similar officials to make decisions about which arrests to make, which enforcement actions to bring, and how to allocate the limited number of officers employed by an agency. And it has warned courts not to interfere with these kinds of decisions, especially when law enforcement decides not to target someone for arrest or enforcement. As the Court held in Heckler v. Chaney (1985), “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” This principle, the Court added, “is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.” So if the leaders of a law enforcement agency decide that a particular class of people are not a high priority for enforcement, even if those individuals have violated federal law, Heckler says that judges like Drew Tipton should generally stay the heck away from that decision. This general rule, that law enforcement agencies, not judges, should decide their own enforcement priorities, is known as “prosecutorial discretion,” and it is one of the fundaments of how police and prosecutors operate at all levels of the government. Here’s a fairly banal example of how prosecutorial discretion works: Suppose that there are a rash of home break-ins in Washington, DC’s Columbia Heights neighborhood. Police precinct commanders, the city’s police chief, or even the city’s mayor may respond to this development by ordering DC cops to spend more time patrolling Columbia Heights — even though that means that crimes in other neighborhoods might go uninvestigated or unsolved. Similarly, if you’ve ever been pulled over by a police officer for a minor traffic violation, then let off with a warning, you have benefited from prosecutorial discretion. It would be nonsensical for judges to monitor every decision made by every law enforcement officer and their commanders about when to make an arrest or bring an enforcement action. And the Supreme Court has repeatedly warned judges against doing so. This general rule is especially strong in the immigration context. The Supreme Court has said that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Even after the federal government decides to bring a removal proceeding against a particular immigrant, the Court said in Reno v. American-Arab Anti-Discrimination Committee (1999), that the government “has discretion to abandon the endeavor.” And it may do so for any number of reasons, including “humanitarian reasons or simply for its own convenience.” Indeed, the Supreme Court has held that law enforcement’s discretion to decide not to target certain individuals is so “deep-rooted” that it can overcome a legislative command stating that law enforcement officers “shall arrest” a particular class of persons. This principle dates at least as far back as the Court’s decision in Railroad Company v. Hecht (1877), which held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.” Which brings us to Tipton’s primary argument in ruling with the plaintiffs against the ICE enforcement guidelines. He relies on two federal statutes, one of which says that the government “shall take into custody” immigrants who’ve committed certain offenses, and another saying that the government “shall remove” immigrants within 90 days after an immigration proceeding orders them removed. To someone unfamiliar with the Court’s decisions in Heckler, Reno, Railroad Company, and numerous other precedents counseling judges not to interfere with non-enforcement decisions, Tipton’s statutory argument might have an air of plausibility. But, of course, judges are expected to actually familiarize themselves with controlling Supreme Court precedents before they hand down a decision — including the ones saying that the doctrine of prosecutorial discretion overcomes statutes with seemingly mandatory language. Also, even presuming that the Supreme Court’s precedents can be ignored and that Tipton is bound only by the text of the two statutes he relies upon, his decision is still wrong. The first statute provides that “no court may set aside any action or decision ... regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” And the second provides that “nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.” Both Congress and the Supreme Court, in other words, told Tipton not to interfere with Secretary Mayorkas’s decisions regarding law enforcement priorities. But Tipton didn’t care. There also are numerous other problems with Tipton’s opinion, some of which are so glaring that they suggest he’s operating in bad faith. Tipton claims, for example, that Mayorkas was required to complete a time-consuming process known as “notice and comment” before he could set new priorities for ICE. But federal law exempts “general statements of policy” from notice and comment. And, in Lincoln v. Vigil (1993), the Supreme Court held that these “general statements of policy” include “‘statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power’“ — such as the Department of Homeland Security’s discretionary authority over enforcement decisions. Similarly, Tipton faulted Mayorkas’s memo because it supposedly failed to consider “the costs its decision imposes on the States.” But a 21-page document accompanying Mayorkas’s memo includes a subsection titled “Impact on States.” That subsection concludes that “none of the asserted negative effects on States — either in the form of costs or the form of undermining reliance interests” — undercut the benefits of Mayorkas’s enforcement priorities. I could go on — and if you care to take a deeper dive into the many faults with Tipton’s reasoning, I’ll point out that the Justice Department’s brief in the Texas case also makes several strong arguments that Texas and Louisiana, the plaintiffs in this case, aren’t even allowed to file this lawsuit in the first place. But, honestly, listing all of the many errors in Tipton’s omnishambles of an opinion would require me to go on at such length, I fear my readers would lose interest. So I will do all of you the service of stopping here. It’s not a coincidence that this case was assigned to Drew Tipton According to an amicus brief filed by University of Texas law professor Stephen Vladeck, the state of Texas has filed 20 lawsuits in Texas federal courts against the Biden administration. All but one of those cases are overseen by judges appointed by a Republican president. As Vladeck explains, this did not happen by coincidence. Rather, “Texas has intentionally filed its cases in a manner designed to all-but foreclose having to appear before judges appointed during Democratic presidencies.” The federal court system includes 94 different district courts, trial courts that each preside over a geographic region. Texas, for example, is divided into four districts — the Northern, Eastern, Southern, and Western Districts of Texas. These four district courts, meanwhile, are chopped up into “divisions,” often named after the city or town where a federal courthouse is located. Tipton, for example, sits in the Victoria Division of the Southern District of Texas. Under a case assignment order handed down by the Southern District of Texas, virtually all civil cases filed in the Victoria Division are automatically assigned to Tipton. Thus, as Vladeck writes, “by filing this case in Victoria, Texas was able to select not just the location for its lawsuit, but the specific federal judge who would decide this case: a judge Texas likely believed would” rule against the Biden administration — “and who in fact did so, even as another court has rejected similar challenges.” The Supreme Court has thus far been very indulgent of this behavior, at least when it benefits Republicans. In 2021, for example, Texas chose Trump-appointed Judge Matthew Kacsmaryk to hear a lawsuit seeking to reinstate a Trump-era border policy known as “Remain in Mexico.” Kacsmaryk predictably did Texas’s bidding, and ordered the Biden administration to reinstate Texas Republicans’ preferred policy. Although the Supreme Court eventually reversed Kacsmaryk’s decision, which was as inconsistent with existing law as is Tipton’s decision in Texas, the Court sat on the case for nearly an entire year — effectively letting Kacsmaryk set the nation’s border policy for this entire waiting period. Now the Court appears likely to repeat this pattern in Tipton’s case. In case there is any doubt, this is not how the Supreme Court behaved when Trump was in office. During the Trump administration, the Court’s Republican-appointed majority was so quick to intervene when a lower court judge blocked one of Trump’s policies that Justice Sonia Sotomayor complained that her colleagues were “putting a thumb on the scale in favor of” the Trump administration. Even when the law offers no support for the GOP’s preferred policies, in other words, the Court permits Republicans to manipulate judicial procedures in order to get the results they want. The Texas attorney general’s office can handpick judges who they know will strike down Biden administration policies, and once those policies are declared invalid, the Supreme Court will play along with these partisan judges’ decisions for at least a year or so. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

Backers of Farmworker Visa Overhaul Make Year-End Push for Immigrant Labor Deal

WASHINGTON—Lawmakers, agriculture groups and farmworker organizations are pushing to pass an overhaul of the farmworker visa program through both chambers of Congress before the GOP takes control of the House next year. A bill providing a path to citizenship for about one million farmworkers—and creating a capped number of new year-round visas—passed the House in March 2021, with the support of 217 Democrats and 30 Republicans. The measure is generally supported by immigrant advocacy groups and by farmers who say they struggle to find enough people to harvest their crops. Republicans generally oppose efforts to provide legal status to people who immigrated to the U.S. illegally, though some have tentatively backed an exception for farmworkers, who work in a core business constituency. “It’s almost impossible to ever get an American citizen to come work on a dairy farm,” said Steve Obert, executive director of Indiana Dairy Producers, a trade group. The work involves manual labor in “conditions some people would say are smelly and dirty,” he said. SHARE YOUR THOUGHTS Should the Senate pass the farm labor bill? Why or why not? Join the conversation below. Supporters are now looking to the Senate, where Sens. Michael Bennet (D., Colo.) and Mike Crapo (R., Idaho) are trying to reach an agreement they hope could secure the 60 votes needed to clear the chamber. Time is ticking: If the legislation doesn’t pass this year, GOP leaders aren’t expected to be willing to bring it up once they have a majority in the House. Currently there is no cap on the number of visas for seasonal agricultural work, known as H-2A visas, but farmworkers are only allowed to remain in the country for up to 10 months. That has created a problem for employers who need year-round help, such as on dairy farms. Sen. Michael Bennet (D., Colo.) is pushing for a deal to overhaul farmworker visa legislation. PHOTO: ROD LAMKEY/PRESS POOL The House bill would establish 20,000 three-year H-2A visas for year-round work, with that number expected to be higher in a Senate agreement, according to people familiar with the discussions. At the heart of the bill is a trade-off. The legislation would provide a path to citizenship for the roughly one million farmworkers living in the U.S. illegally, long sought by Democrats. To satisfy GOP demands, the bill would also require employers in the agricultural sector to use an electronic system verifying the legal status of their workers. Despite that provision, any legislation providing a path to citizenship for some immigrants without legal status is anathema to many Republicans who first want steps taken to tighten border security. “Politically, the reality is that things will change next year and complicate moving an immigration bill,” said Rep. Dan Newhouse (R., Wash.), who is helping to spearhead the effort. Mr. Newhouse said many Republicans will first want to see border security tightened—a contentious issue with Democrats—“and until that gets, in their eyes, improved, they don’t want to move on anything else.” GOP leader Kevin McCarthy, who is expected to become the next House speaker, has said he wouldn’t support any bill to extend immigrant work visas without first addressing border security. Rep. Kevin McCarthy (R., Calif.), who is on track to become House speaker, emphasizes border security over immigrant-labor overhauls. PHOTO: TOM WILLIAMS/CQ ROLL CALL/ZUMA PRESS “In 42 days we end one-party, Democrat rule in Washington,” Mr. McCarthy said at a press conference this week at the Mexican border in El Paso, Texas. “House Republicans will work to stop Joe Biden‘s assault on our laws, our borders and our border agents.” The Senate will remain narrowly in Democratic control next year. But with 60 votes needed for most bills to clear the Senate, any legislation on farmworker visas will require bipartisan support. Messrs. Bennet and Crapo have been working for months on a bipartisan deal altering the House bill in hopes of securing 60 votes, but have yet to announce an agreement. If the Senate passes a bill with any changes, it will return to the House for another vote. Advertisement - Scroll to Continue Under the House bill, anyone who can prove they have worked on a farm for the last two years would be eligible for a new visa called a certified agricultural worker visa. That would allow them to work legally in the U.S. for five years with the possibility to renew indefinitely. Farmworkers who have worked in the industry for at least 10 years could apply for a green card if they work for four more years in the industry. If a farmworker has been in the industry for at least two years but less than 10, they must put in an additional eight to become eligible for permanent residence. Sen. Mike Crapo (R., Idaho) has been working on a compromise to secure 60 Senate votes for a farmworker visa bill. PHOTO: JACQUELYN MARTIN/ASSOCIATED PRESS The compromise Messrs. Bennet and Crapo are hammering out is expected to tweak several aspects to be friendlier to employers in the farm sector, according to the people familiar with the discussions. For example, the House bill expands the ability of migrant workers on visas to sue their employers for workplace abuses, but the Senate bill is expected to somewhat rein in that ability to prevent frivolous lawsuits. The issue has been a sticking point with the American Farm Bureau Federation, which advocates for farmers and ranchers. The Farm Bureau opposed the House bill on concerns that it could open farmers up to lawsuits from H-2A workers. “It’s blowing the door open on the potential for frivolous litigation,” said Ryan Yates, the managing director of government affairs for the Farm Bureau. Farmers “don’t have the capacity to pay expensive attorney fees and settlements for these potentially minor violations,” he said. NEWSLETTER SIGN-UP WSJ Politics & Policy Scoops, analysis and insights driving Washington from the WSJ's D.C. bureau. Preview Subscribe Others including the American Business Immigration Coalition Action, a pro-immigration group that includes many executives in the food business, have said those concerns are overblown. A review by that coalition in August of complaints filed under the Migrant and Seasonal Agricultural Worker Protection Act found that 36 lawsuits were filed in federal court against 34 different employers from Jan. 1, 2020 to June 30, 2022. That means of the 513,137 farms with hired farmworkers, 0.006% were party to a lawsuit under that law, the group found. Stabilizing the agricultural workforce would be a boon both to farmers and workers, supporters said. Being able to work on a visa would be life-changing, said Martha Espinoza, 51 years old, who has been working in the fields near Greeley, Colo., for three years, planting lettuce and picking berries. She knows that, under the terms of the pending deal, she would need to continue working in the fields. “But if I had legal status, I would have better work conditions and guaranteed rights,” she said. In April 2021, Idaho farmer Shay Myers had to throw away more than 130,000 pounds of asparagus when he couldn’t find enough workers to help him harvest it in time. That was about 10% of his asparagus crop that year, “but that’s about all the profit,” said Mr. Myers, chief executive of Owyhee Produce in Parma, Idaho. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.