Face-Off Over Immigration

Posted November 7, 2014

Highly recommended read.  For a powerful description of the intense political battle being waged in Washington, DC over immigration reform, see the Nov. 7 front-page Wall Street Journal article by Carol E. Lee and Peter Nicholas, Face-Off Over Immigration.  (Copyright 2014, WSJ – Nov. 7, 2014)

With this week’s significant Republican gains in Congress, which include shifts in chairmanships and rule-making power, the 2015 Congress may finally produce reform legislation that President Obama would not veto – likely piecemeal legislation, but nonetheless, progress might be made on updating wide provisions of an outdated U.S. immigration system that address lawful immigration.

Yet based on the tone and scope of disagreement by the principles related to illegal immigration (dramatically depicted in this article), concerning the need for legislation that looks back to address the millions already here, as well as forward, it becomes difficult to see how the legislative effort would succeed if, within the remaining lame duck Congress, President Obama acts unilaterally using so called executive action to grant provisional protected status to a wide pool of presently illegal immigrants, as he has promised to do.  (See Wikipedia explanation of Executive Orders here, including how past American presidents have wielded this unilateral authority without congressional backlash.)

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WAIT FOR IT. . .

Posted September 6, 2014

Upholding the time-honored maxim that indecision is the key to flexibility, President Obama has decided to delay any executive action on immigration until after the November elections.

The apparent political calculation bears enormous risk.  If the GOP wins the Senate, any such action would likely be scaled back to reflect shifting American sentiment on illegal immigration, lest the president feel that a looming lame duck stature would free his hand to cement a legacy through executive action that precedes narrower reform legislation.  If the Democrats retain control of the Senate, presumably comprehensive reform legislation would be back on the table, the House would continue to oppose, and the president can do as he pleases through executive action while blaming inaction on House Republicans.

Confused? Lo siento.  Law, as I say, is politics.

Deferred action clients: Your renewal period is approaching.  DACA remains in place.  Don’t delay!  Submit your bid for two more years of employment and prosecutorial discretion today.  The earliest you can re-apply is five months prior to the expiration of your current deferred action period.

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Obama Now Considering Post-Election Executive Action

Posted August 30, 2014

Latest media reports sourced to administration officials indicate President Obama has reviewed the menu of options for executive action on immigration, yet may close the flap and opt for another Arnold Palmer and idle chat with tableside donors until the elections pass.

In an appearance in the White House briefing room this week to address events in the middle east, Obama thanked everyone for coming and turned from the podium.  A forgotten reporter shouted out something to the effect of, ‘What about immigration?’  The president returned to the podium and said “[h]ave no doubt, in the absence of Congressional action, I’m going to do what I can to make sure the system works better.”

He then added “[s]ome of these things do affect timelines, and we’re just going to be working through as systematically as possible in order to get this done.”

(Seems rather the reverse is true, that timelines in fact affect these things, or maybe I’m metaphysically challenged.  But whatever.)

The deferred action (DACA) program was announced in mid-June 2012, and applications were accepted within 90 days, many approved prior to the government’s September 30 fiscal year end.  If the fiscal year ‘system’ is the prominent timeline, then it may be more an issue of appropriations, hinting at at sizable set of actions under consideration.

Another timeline that may have entered his thinking is the upcoming mid-term election. If the Houses of Congress remain divided until his second term ends, surely the president will have greater, uh, flexibility, and a wider range of options to effect change by executive order. If the GOP takes the Senate, then Obama will be much more constrained in his ability act.

My guess is that such a risk to establishing a legacy with U.S. immigration is too high to bear and Obama will act within a few weeks, incumbent senators in pink states be darned.  By accepting that risk and delaying action, whether by fiscal or political choice, he would be undermining a Hispanic caucus that will endure as a political force in America far longer than he.  The waitress is back and its time to order, Mr. President.

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State Department Cuts Off EB-5s for Chinese Investors

Posted August 27, 2014

Demonstrating the complementary international dynamics of China’s surging economic growth and America’s enduring appeal, the State Department has announced that EB-5 investor visas for Chinese nationals are unavailable and will no longer be issued through the 2014 fiscal year, ending September 30.

Get this: Cash capable entrepreneurs from China have obtained north of 80% of all EB-5 immigrant-investor visas issued during the current fiscal year.  10,000 EB-5s are allotted annually worldwide, but the law provides for pour-over of unused visas to countries willing to gobble them up, as China has wontonly demonstrated.

While USCIS approves EB-5 petitions, the State Department, through its embassies and consulates, has authority for final approval and issuance of the visas abroad.  The EB-5 program, despite widespread misgivings as pay-to-play immigration, involves an incremental and heavily scrutinized petition process and is intended to serve as a vehicle for eventual permanent residence in the United States if the investor remains actively engaged and invested in the U.S. enterprise for greater than two years.  Merely ‘showing the money’ won’t get you the visa.  Ten U.S. workers must be employed full-time by the investment enterprise, and the cha-ching amount exceeds $1 million at risk of loss, unless situated in a specially-designated high-unemployment region, where the investment amount is halved to $500,000.  (One wonders whether the Washington, DC area may soon provide low-fruit EB-5 opportunities for the savvy foreign investor.)

Complementing China’s ostensible commitment to American capitalism, South Korea, India and Mexico also heavily utilize the EB-5 program.  Money may not be able to buy happiness, but with a decent business plan and a roll of the dice, it can get you an American visa.  Not until next year for Chinese hopefuls.

 

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