The Hidden Obstacles to Legal Immigration Reform

You can’t blame the White House for being surprised and flustered that parts of its draft proposal on immigration reform leaked.

Such flustering vapors arise when you have precious little experience drafting legislation of your own and submitting it for agency review. Other than the Jobs Act, drafted almost entirely as a campaign document, the White House has no experience submitting policy ideas for the gantlet of agency review.

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All sorts of things can happen there. Rude questions can be raised, policies can be challenged, or things can be leaked for nefarious reasons. The White House's immigration plan made its way, at least, to the Office of Management and Budget and to Homeland Security. Its scant details on border security suggest, but in no way prove, a motive.

Senior White House officials insist that Homeland Security Secretary Janet Napolitano has been central to the immigration-reform drafting process. Groups pushing for legalization disagree. What is clear is that the White House is noticeably vague about future border-security efforts. It also draws a hard political line — by making no mention of it — against tying legalization efforts to a border-security “trigger.”

That trigger mechanism was crucial to knitting the bipartisan Senate working group together and will be important in keeping that group together. Republicans know that creating a path to legalization, politically, will be  impossible without linking it to definable and measurable border-security improvements. They include more Border Patrol agents, fencing, drones, and an integrated visa entry-exit system at airports and seaports. Current law calls for the visa entry-exit system. The working group also requires a legislatively created commission of border-state governors, attorneys general, and community leaders to advise Congress on the progress of border-security efforts.

This isn’t a fail-safe border-security plan, but it is the bare minimum Republicans can accept — and it still may not be enough (we won’t know until lawmakers start voting). But its absence from the White House draft conspicuously informs Republicans that the White House is pushing legalization, and the fight to come will be on many fronts — one of them over the GOP’s ability to push enforcement while embracing but not delaying reform. The White House knows it has the upper hand politically and intends to dare Republicans to slow immigration reform over any issue. Informally, the White House has signaled to the Senate working group that it has until late March to finalize its bill or President Obama will spring his.

As one top administration official told me: “The only thing that prevents the GOP from getting into a much worse hole with Latinos is a bill with a path to citizenship on the president’s desk. Anything else and they have killed immigration reform again. And Obama is by far the most popular player in this game in the Latino community. The last thing Republicans want to do is vote down a bill with the president’s name on it.”

Members of Obama’s inner circle well remember the days when Latino voters sided with his 2008 rival, then-Sen. Hillary Rodham Clinton of New York. They remember the sense of suspicion and distance that animated their initial relationship with the Latino community, one that slowly shifted during Obama’s hard-fought 2008 victory over Clinton and pro-immigration-reform advocate John McCain of Arizona, the GOP nominee. Obama’s team traveled the road from estrangement to enthusiasm and won’t give ground easily.  

But if you think questions of legalization, border security, and fundamental party politics are the biggest obstacles to reform, think again.

The toughest issue may be legal immigration. You know, the issue everyone is for. Who is against legal immigration? Obama is for it. Mitt Romney was for it. Our entire history is suffused with the narrative of dreams that began at the golden door first opened by legal immigration. We all agree, right? Think again.

Legal immigration is much tougher than that. It’s the stunningly underappreciated policy linchpin to reform. Its politics are even more complicated than border security or legalization of undocumented workers. And the White House draft said nothing about it. Nothing. The president’s speech in Nevada on Jan. 29 was similarly vacuous. The White House insists it has a plan, and Obama’s May 10, 2011, speech in El Paso made a glancing reference to helping immigrant entrepreneurs stay and create jobs and a way for seasonal agricultural workers to stay legally in America. That was it.

Legal immigration is far more complex. If Obama and Congress don’t create a workable balance of future legal immigration — in the argot, “future flow” — it might as well give up. Why? Because that’s what Congress did with the 1986 immigration reform act. It legalized 3 million undocumented workers here, didn’t tighten border security, and created a legal immigration system so small (in numbers) and slow (in terms of approval) that illegals flooded across the border for jobs in a variety of industries. That will happen again unless new numbers and rules are applied to all variety of work and immigrant applicants for it.

It is for this reason that Republicans — chief among them non-savior Marco Rubio, the senator from Florida — cannot and will not accept immigration reform that does not rewrite legal immigration rules.

Legal immigration is now the subject of intense outside negotiations between the AFL-CIO and the U.S. Chamber of Commerce (which are aligned in pursuit of reform, unlike in 2007), as well as other stakeholders. Business wants actual job demands to determine how many visas are issued for all varieties of work. Big labor wants — get ready — a commission to review the needs and decide how many visas should be allocated. There’s no resolution. Yet. The White House eyes this intense debate with Sphinx-like inscrutability.  

It’s a high-stakes fight over an alphabet soup of visas, which includes but is not limited to H-1B for immigrants with highly specialized “theoretical and practical” knowledge suitable for high-tech jobs; H-2A for seasonal agricultural workers who pick crops; H-2B for peak-season nonagricultural workers who toil at theme parks, hotels, restaurants, and ski resorts; and H-4 for the family members (nonworking spouses and children) of H-2A and H-2B workers, who are desperate to legally live in America.

According to the State Department, there were 117,409 H-1B visa recipients in 2010 and 129,134 in 2011 — not nearly enough, according to business leaders and those eager to keep top-performing immigrant specialists here. The Washington Post on Tuesday wrote of student visa recipients from India who have invented a “world-changing” system to decontaminate water from hydraulic fracking. They may have to leave America and take their plans to hire 100 employees to India or elsewhere. The story said that places like China, Canada, Germany, Australia, and Singapore are dangling cash and other incentives before visa-limited American innovators such as these.

And what about the workers who wash dishes, change sheets at hotels, mow resort golf courses, and provide home health care? Are they temporary? Are they high-skilled? No. Are they necessary? Absolutely. What are the legal numbers for these workers going forward? The choice will be a functioning U.S. economy, with a ready supply of legal labor, or a choked off and backward legal immigration system (like we have now), where the jobs are filled but by illegals … and we repeat the … cycle all over again.

The biggest immigration news of the weekend wasn’t the leak. It was what the leak exposed. And what the Senate working group, now on a tight deadline, will have to address with specificity, originality, and political deftness.

You read it here first. If immigration reform dies, it will not be because of disagreeable topics such as border security, legalization, or a “national ID card.”

It will be because of the agreeable topic of legal immigration.