Bifurcated U.S. Immigration Policy & the NYS Dream Act

The current version of the Immigration and Nationality Act, passed in 1952, is structured to provide 3 basic paths to permanent legal status in the U.S.:

1. Through family sponsorship by a close relative (US Citizen or in some cases, Legal Permanent Resident, spouse, parent, child over 21, or sibling);

2. Through employment sponsorship (which in most cases requires a test of the labor market to ensure that there are no minimally qualified U.S. workers who are qualified, willing and able to do the job); and

3. Asylees and refugees who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion if they return to their home country.

The Diversity Visa Lottery Program also allocates a small number (~50,000) of immigrant visas each year to nationals of countries with a low rate of immigration to the United States, to help promote diversity among our immigrant population. In addition, EB5 Investors can buy themselves green cards by spending $500K-$1 million to start up a US business that will employ 10 full-time equivalent US workers.

Each one of those categories enshrines a deep American value- family unity, a world-class & highly skilled labor force, and providing a haven of safety, hope, and opportunity for those subject to corrupt regimes. That is our official policy, and I love those values. As an immigration attorney, I've dedicated my career to helping people come to the U.S. in those categories and for those reasons. 

Unofficially, the U.S. has also long tolerated a constant flow of undocumented immigrants to the U.S. Those people often enter legally as visitors or students and overstay. Many others enter the U.S. without inspection along the northern and southern border, between ports of entry, by sneaking in. In 1996, Congress passed a tough immigration bill, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which, among other things, created the I-9 Form and employer penalties for hiring undocumented aliens, and created the concept of "unlawful presence," which imposes penalties on immigrants who enter the U.S. without inspection or overstay. IIRIRA rendered huge numbers of undocumented aliens deportable and also made it more difficult for those who were out of status to ever legalize their status. The law set up the massive deportation machine that we have in place today. 

Despite IIRIRA, there remains a huge undocumented population in the United States. There are over 11 million undocumented immigrants in the U.S. Despite stringent enforcement, this population remains, and they are contributing to the U.S. economy. The presence and contributions of this group of individuals, all of whom have broken the law to enter or remain in the U.S., and many of whom are also working without authorization, leaves the U.S. consciousness on immigration policy deeply bifurcated. We have harsh laws against illegal entry and unauthorized presence in the U.S., and a stringent enforcement regime, yet we by necessity value the contributions of those who stay here-- and lots of people are giving these workers jobs. 

So what do we do? 

First, I think we have to recognize that it doesn't make economic sense to simply deport everyone who is here illegally. Even if it did make sense to deport 11 million taxpayers, we don't have the means to do so. So the government has to prioritize who it will go after. The Obama administration prioritized deportation of foreign nationals who had committed violent crimes. That made a lot more sense than the de facto Trump era policy of deporting any and every undocumented individual who comes into contact with ICE or CBP. We have finite government resources and I personally would prefer to have the government focus on deporting people who are a threat to others rather than wasting that money deporting DACA recipients with no criminal record. 

Historically, the U.S. has answered the troubling questions about how to deal with our undocumented population by passing periodic legalization bills. The most recent such bill was passed over 30 years ago, in 1986. Each legalization campaign aims at ending the problem once and for all. The idea is that we will legalize everyone who's here now, and follow it up with stringent enforcement so that after this, nobody will want to come to the U.S. illegally. But it never works. It's always a stop-gap and the cycle begins to repeat itself. 

So what do we do?

Is DACA the answer? Or a part of the answer? DACA, or Deferred Action for Childhood Arrivals, allows people who are in the U.S. without authorization but whose parents brought them here as children to sign up for a promise from the US government that for a 2-year period, the won't get deported and will be authorized an Employment Authorization Document (EAD) and travel document. The EAD allows them to get a Social Security Number and driver's license, which opens up a whole host of new possibilities for their lives. One downside to DACA is that it requires the recipients to register with the government, giving the government a list of undocumented people who actually are deportable. So if DACA ends, they may have targets on their backs. Another problem with DACA is that from a policy perspective, it encourages more parents to bring their young families to the U.S. illegally because even though they may be undocumented, the U.S. government will eventually give in and give them, or at least their children, legal status.  There is real merit to the concept of a legalization bill, but more thought needs to be put into whether we want to incentivize illegal immigration in the process. And ultimately, legalization bills do not address the problem as a whole.

As the prospect of DACA legislation has become a political bargaining chip in the negotiation over a bipartisan spending bill, the New York State Assembly has, as it is so fond of doing, taken matters into its own hands. They passed the NY Dream Act, which, if passed by the Senate, will allow tuition assistance for undocumented students in NY State. While the idea of federal DACA legislation has merit, I see zero merit to this state plan. First and foremost, it makes no sense to spend billions of taxpayer dollars to fund a college education for people who are not legally allowed to work in the United States upon graduation. Second, the argument that "it's not fair" for us to provide public education to these students and yet not continue funding their education through college is a slippery slope. The next step is to say "it's not fair" for us to pay for their college education and then not let them work. There are a lot of things that aren't fair, chief among them being the burden of student loan debt that is placed on all but the most affluent U.S. college students. Let's help kids with that.

The U.S. needs a major and critical reassessment of its national values and priorities. The time is ripe for major reform, and there is a groundswell that demands it. The DACA population cannot be ignored.  But neither should our immigration policy encourage law-breaking, or put the middle class in direct competition with undocumented individuals for jobs and education funding. It is a truly out-of-touch elite class that fails to imagine how the middle class will be angered by working hard their whole lives only to be ousted from opportunities by those who are not legally authorized to be in the U.S. In the grand scheme of things, immigration may not be the zero sum game it appears to be when it comes to competing for jobs. Immigrants may, and often do, create jobs for U.S. workers by starting businesses of their own. But in some situations, U.S. citizens do lose out as a direct result of competition with undocumented individuals. It's hard to convince someone who has experienced that kind of competition that it's not a zero sum game. And when it comes to student loans, that is really just a sore spot for much of the middle class, who essentially live lives of poverty while they pay off their student loans for the entirety of their productive working years, and will probably never retire.

I am not against immigration; I love immigrants. But if our national policy forbids immigration by all but those who fit into the classes of individuals outlined above, then that is the policy that we should enforce. If we want to change our values to permit additional classes of people also to come to the U.S., then we should do so openly and not as a rearguard reaction to compensate for years of failed enforcement policy.