Obama’s latest plan to rewrite immigration law

The Obama administration is about to power up a massive new executive action on immigration and it’s far scarier than anyone could have imagined. Last November, when Homeland Security released its ten memos commandeering immigration policy from Congress, Secretary Johnson included a vague plan aimed at benefiting the tech industry, innocuously titled “Modernizing the Employment-Based Immigrant Visa System.” But a secret memo recently leaked on an immigration law blog now reveals that this ‘modernization’ plan will not only fast-track hundreds of thousands of work permits to employment visa-applicants in violation of longstanding U.S. worker protection laws, but will enable hundreds of thousands of illegal aliens to also receive work permits despite their unlawful status. As the full details leak out from the narrow clique of immigration lawyers and lobbyists advising the President, labor advocates are scrambling to warn the public.

Under our current system, most guest workers wishing to remain permanently in the U.S. must arrange for their employer to “sponsor” them by filing an I-140 application, putting them in a queue for a green card. When a temporary (“non-immigrant”) guest worker reaches the front of the immigrant visa queue, they are allowed to submit an application to “adjust” their “status” to that of permanent resident alien. Getting to this stage is key. By regulation an adjustment-of-status applicant automatically receives a coveted work permit or “EAD”. An EAD allows the alien to work anywhere in the country and apply for welfare. It’s the central reason foreigners line up to come here and it’s what Obama’s attempting to distribute to illegal aliens under the DACA and DAPA programs. And for those on guest-worker visas, EADs allow them to stay in the country even when their “temporary” visa (like an H-1b) runs out.

{mosads}The wait-time between filing an I-140 application and being allowed to file for adjustment-of-status (getting you the golden EAD) is regulated by the State Department and depends not only on one’s filing date, but also on one’s country of origin. But for the millions of aspiring alien workers from overpopulated countries like India, per nation visa quotas have meant a typical wait of 8 to 10 years to get their EADs—Non-skilled workers from any country are also given lengthy wait-times, as there has never been a shortage of poor Americans who need employment. This per-country wait-time is now what Obama’s unilaterally arranging to slash. From now on, filing an adjustment-of-status application won’t be necessary to receive an EAD and any alien who merely has an I-140 petition that’s been approved for a year can obtain the prized work permit.

The new executive action will cut the line of people waiting to get an EAD dramatically, a backlog of hundreds of thousands of people who would otherwise have to wait patiently in line. This action will be a major encouragement to come here by any means possible, with a likely surge of thousands of EAD applications hitting an already backlogged USCIS in the first week alone. For the weak labor market faced by most American workers, it’ll be like a dam bursting.

This is a major coup for the axis of open immigration and Big Tech lobbyists. Big Tech would prefer to hire millions of temporary workers on H-1Bs over American workers because their visas are tied to their employer making them docile and unlikely to unionize. But flooding the labor market with current and future computer technicians, even with workers who’ll have greater flexibility, is much more important—it also gets rid of H-1B renewal and administrative costs.

Perhaps the most striking part of Obama’s move: illegal aliens will also be able to get EADs. All one needs to file an I-140 petition is an official ID; proving lawful presence isn’t required. The thousands of business-owners around the country who knowingly hire illegal aliens can cynically sponsor petitions whether or not the underlying applicant is legal. Ultimately, the USCIS bureaucrats will reject his or her adjustment-of-status application (after 10 plus years), but they’ll still be able to get that golden EAD.

Generally, I-140 petitions require aliens to submit a so-called Labor Certification showing that the petitioning employer has advertised for the position in a newspaper. This is meant to ensure that foreigners are not hired over American workers. As immigration attorneys have admitted, however, they show employers how “to do exactly the opposite”, for instance, by creating deceiving advertisements or disqualifying American interviewees on false pretences. 

Filing costs for I-140 visa petitions are not cheap; with attorney costs, they can be several thousand dollars. But petitioning for an illegal alien-employee, with a promise to take the cost off his wages, could create a beneficial indentured servant relationship for employers. Larger employers may also file the petitions en masse if they feel a big crackdown coming (highly unlikely, of course). Furthermore, what’s to stop open-borders advocates, like La Raza, MALDEF, or LatinoJustice (where Justice Sotomayor was a board member) from creating a fund to finance the petition costs on behalf of employers? What about those groups’ billionaire-backers, like George Soros, Paul Singer, or the Ford Foundation?

The legal authority proffered by DHS in the leaked memo is predictably a deliberate misinterpretation of the law. These are the same DHS attorneys of course who, with help from immigration attorneys, produced the 2010 memo “justifying” the DACA executive amnesty program. They claim that two provisions of the Immigration & Naturalization Act, §205 and §274A(h)(3), give DHS Secretary Johnson discretion to issue unlimited numbers of EADs. Note that this is the same argument they’re employing in an attack against Texas’s amnesty injunction. The organization I work for, the Immigration Reform Law Institute, has eviscerated this argument in briefs submitted in support of Texas. Additionally, DHS has claimed the same authority for a separate move that would give work permits to spouses of H-1B-holders. We’re in the process of litigating against that rulemaking, which, if we’re successful, will be utterly disastrous for Obama’s amnesty as well as this new rule change.

Unlike the DACA executive amnesty program being challenged in the courts, USCIS is apparently opting to go through the normal regulatory process (although no details are up yet), complete with an opportunity for the public to submit comments. If enough patriotic American workers and their families flood the comment database, the agency may react like the ATF did when their proposed rule banning “green tipped” bullets was deluged with angry comments forcing them to rescind the proposal. If Americans care about their sovereignty like they do about their guns, Obama’s new immigration re-write won’t see the light of day.

Smith is an investigative associate with the Immigration Reform Law Institute.