As you probably all know folks, US Immigration policy is in its highest pitch fever the last two weeks, that it’s been in almost three decades. Not since the reforms of the 1980s and 1990s has there been so much focus on immigration policy — which currently stands principally unchganged since the 1990s- and so much of a real chance that it will be dramatically overhauled. Something we in the UK experience every day, but the US is not used to. So, what are the proposals, will something actually get done,  and how is it likely to turn out?

Trump has organised his position into “four pillars”, and that is probably an apt way to put it.

DACA – what is it, and who are the DREAMers? I wrote about it in detail a few months ago here, which I invite you to read, and so will not repeat myself. The important thing is – DREAM Act was a failed legislative proposal roughly equivalent to the executive action that is now known as DACA, that concerns relief from removal – and issued of work authorisation, along some other practical benefits making life possible – to illegal immigrants who were brought into the country illegally as children (but are now adults). By definition, it mostly applies to those who illegally crossed US-Mexican border (US immigration rules differ greatly on whether or not your ENTRY was legal – as such, if you entered illegally, even a marriage to a US citizen does not help you, thus creating the predicament).

Remember, the US does not have ECHR, Article 8 or any provisions that we derive from it (eg 7-year child concession or 276ADE). DACA, which was largely derided by Republicans when Obama introduced it — and it was Republicans who failed to pass the Dream Act, as well — is now popular. About 80% of the population supports DACA — or rather, some form of relief for about 800,000 peopel it covers.DACA itself ends in March (it was an Obama executive probram which Trump refused to renew, thereby forcing Congress into the position in which they have to agree on some way to put it into law before March). DACA is popular with both Democrats and Republicans. The only difference in opinion, in both groups, is whether these peoepl shoudl ever get a path to eventual  US citizenship. It was by and large accepted until last week that the answer was “no”, and Republicans vehemently oppose any path to citizenship for illegal entrants.   Trump, rather suddenly, seemed to offer it last week – the problem is, the more he puts on the table, the more he demands in return. Will DACA pass? Yes. Will there be a path to citizenship? I predict – no, but these are unusual times.

Second pillar is the Wall. Silly as the idea is — and notwithstanding the fact that we already have the wall – fence – along most of the areas of the border where it is feasible – democrats have now realised that te Wall is not actually going to get built, so voices ring higher and higher suggesting they should just say YES to it, because after that the issue will likely get dropped (of course billions of dollars will have to be appropriated to waste). No one really cares though, what will happen to the Wall that no one really will built. No one is against most of the other proposals enhancing border security in miriad different ways, even though some of them have distinctly unrealistic — just as unrealistic as the Wall – tones, for instance the hiring of thousands of more border agents. Existing border protection force is understaffed and hiring standards had to be dropped numerous times to staff it at all — US has low unemployment and the job isn’t particularly nice, and areas where one needs to be deplyed aren’t very populated – so basically, no one wants to work there. Already. So these thousands of new people can’t come from anywhere, no matter if you appropriate funds for it or not. It is partly because of that that we have fence(s) etc etc. Nonetheless, the Wall is probably going to get passed, in some form, maybe half a wall with  a combination of other measures protecting the physical border.

Until a couple of weeks ago, the whole conundrum seemed to be just DACA vs the Wall, which was the exchange Chuck Shumer, essentially, offered. It seemed like this could get agreed, and then “comprehensive immigration reform” can be “step two” — which, of course, was very likely to then never happen. Important bit of history here — about 5 years ago, democratic Sen Chuck Shumer and a bi-partisan group of Senators have introduced a comprehensive reform bill, which — surprisingly – overhauled the system of permanent legal immigration, in much the way Trump now wants – by introducing the merit-based points system and eliminating DV lottery. except now everyone says these ideas are evil because they come from Trump, end remember, everything just sounds like a worse idea when Trump does it. The gang of 6, or gang of 8 or whatever it was, bill, passed the Senate at that time – early in 2013-  but failed to ever pass the House of Representatives.

Third pillar is the DV lottery. No one likes the DV lottery, no one remembers why it exists (it was initially introduced in hope of bringing in the Irish!) and it does not help that its execution in recent years was fraught with technical conundrums, such as, the supposedly random winning allocator allocationg all wins to the entries in the first five days of the entry period a few years ago, or complete crash and erasure of data in this current lottery in October. Further, in recent years since teh lottery went online, the number of entries balooned to the point that it became both unworkable and unrealistic to win. When entries had to be posted in – in the 1990s -the odds of winning were realistic, but now they are much lower than those of picking a single number in a roulette. Shumer himself was always for getting rid of DV littery, I have absolutely no doubt that it will go – the currently running lottery will probably conclude and visas will be issued, but this will be the end. I believe that teh winners of the current DV-2019 lottery will be the last diversity immigrants to enter the United States.

The fourth pillar is what Trump calls “chain migration”, that is, the ability to sponsor for a greencard anyone outside of one’s “nuclear family” which includes, in Trump’s view, only minor children and spouses. The current law benefits also parents, adult children, brothers and sisters of US citizens, as well as immediate family members of greencard holders.This is where some explaining is needed, because the whole thing gets constantly mis-explained.

Firstly, majority of immigrants in the US never, or certainly not anytime fast, become US citizens.  Naturalization uptake is low and at any rate one must wait 5+ years after entry. Cost, and need for a civics exam, is one thing, various character vetting issues is another.

Secondly, the US immigration law related to family migration currently has two concepts – “immediate relatves” and “family based preference migrants (there are also different categories of preference).  Immediate relatives are currently defined as spouses, minor chidren (under 21) and parents of adult US citizens. Immigration visas – greencards – are available immediately to those people, there is no wait.

Thirdly, process differs for “immediate family members” of US citizens and more distant family members, as well as all family members of greencard holders (“permanent residents”) which, remember, comprise the majority of immigrants. Siblings and adult children of US citizens, and “nuclear family members” (spouses and minor children) of legal permanent residents, are “preference based migrants” – subject to annual caps on visas. LPRs CANNOT – already today – sponsor any parents, siblings and such. Family based preferences are all subject to annual caps, and therefore there is a wait – which,. again, differs by country of origin (there are pre-country caps). Therefore waiting times for people from Mexico and India in those categories can be ages, while for rest of the world it can be less. All US immigration is based on the country of your birth, not current nationality.  Currently, for “all other countries”  the shortest wait is for minor children and spouses of LPRs, around 2-2.5 years. Extended family memebrs of citizens wait so long, that even entry into the queue is impractical and, for recent years, decent attorneys have been advising against it. This is because we are talking 10-20 years in which peopel grow old and die or lose all interest in moving, and having an immigration application pending adversely affects one’s ablity to travel to visit the family memebr as tourists. There are, however, tens of thousands of people stuck in this queue.

There is little opposition to eliminating the preference categories for brothers, sisters and adult children  of US citizens- because of how unworkable they are. So this is clearly going to go. But this is not really a big or significant chunk.

No one obviously is going to touch minor children and parents of LPRs , and they already can’t bring anyone else.

The last and most contested thing therefore is parents – parents of adult US citizens (sponsoring citizen must be 21 or older). This is where the real battle right now is — rather unexpectedly, since this has never before been controversial. No one ever before suggested to amend the definition of “immediate relative” to exclude parents.  Trump is of cours emistaken that this creates “chains” — firstly, one person only has two parents, at most, and elderly do not immigrate in swarms. In fact many people are quite set to their countries of origin and do not like to change things, they have other adult children in home countries, etc etc whatever.

It is true that many prospective immigrants in this category are not elderly (I am a parent of an adult US citizen myself — who is currently 18.5  years old – and I will be 45 when she turns 21). Yet, in most cases these parents are older, and do not have any other family members who they can “chain migrate” who is not already a USC or eligible otherwise. It is of course conceivable that a younger parent may have a yet younger child who will still, after waiting in the queue, qualify – but these are rare cases. Most sponsors of parents are NOT aged 21, they are adult immigrants who immigrated in adulthood in professional categories or as spouses, and are now bringing elderly retired parents to stay with them.

US-born children of illegal immigrants who entered the US over the Mexican border — the largest category and Trumps’ favourite – cannot sponsor their parents under the law as it exists today, anyway – even when children do turn 21, parents remain ineligible, because, remember,  one cannot adjust status to permanent residence if they are an illegal entrant. Not sure anyone told Trump that. So the policy still benefits a rare occasional British lawyer one of whose children were born in the US while they were there on a work visa years ago — although most would have achieved a greencard in the intervening 21 years by othe rmeans, if they wanted it –  more so than it does any illegal migrants.

Because obviously Trump cannot get all he wants, and there is only residual discontent about anything else, I have to assume – hope- that this is one thing that the Dems will carve out. This is legally very easy to do, all you have to do it leave the existing “immediate relative” category untouched. I cautiously predict that this is what will happen.

 

 

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