OPINION:
Overreach has defined President Obama. Now determined to accomplish through regulation with a Republican Congress what he failed to do through legislation with a Democratic one, Mr. Obama may soon attempt another overhaul of America’s immigration system. Like the amnesty he declared in 2014 that was blocked by the 5th U.S. Circuit Court of Appeals on Monday, this one, too, creates more problems than it solves and, like last year’s effort, legal authority for this rule-making is absent. So is common sense.
A memorandum leaked last week from the Department of Homeland Security reveals administration officials proposing to scrap employer-based visa programs crafted under President Reagan in 1986 in favor of new regulations — and a complementary executive order — that gut these protocols. Twelve million illegal aliens now present in the United States would feel its impact, as would the 66 million Americans and legal immigrants still outside the work force since Mr. Obama took office.
Overreach may be an understatement. The proposals make work visas available to anyone — even those without work. More importantly, they benefit the many who entered the United States illegally as well those who overstayed their visitor visas. Because federal law rarely allows those who arrived or remained without legal status to gain citizenship, this latest scheme leaves these migrants in a limbo no regulation can fix. Call this Obamacare for immigration.
There are more than 20 types of visas for non-immigrant workers. Among these are visas for professional athletes, entertainers and skilled performers. The most common one is the H visa. It admits to U.S. employment both highly skilled and marginally skilled workers. To qualify, an applicant must prove a specific employer will hire him for a specific job. Since 2010, nearly 1.8 million such visas have been issued to workers across the globe. But adapted to Mr. Obama’s purposes, the focus of these visas will change. In reality, the administration’s proposal is not about legal employment. It’s about illegal presence.
Handing out work visas doesn’t create jobs any more than it creates employers. What the proposed visas would accomplish is permission to remain in the United States — in this case, as the memorandum admits, up to 7 million people could move to legal status and stay. Under current rules, once employment is lost, the foreign worker must either find a new job or return to his home country. Don’t look for such requirements in this newest plan. Look instead for rules that eliminate the need for a job as a precondition for obtaining the visa. Look again for unlimited renewals and extensions of these visas regardless of employment. These are incentives that make a bad problem worse, displacing the most vulnerable American workers, driving down wages, inhibiting payroll taxes, and encouraging more of the same dynamics that got us where we are today.
Such policymaking aggravates an already-foundering system. A recent study by Steven Camarota of the Center for Immigration Studies puts it in perspective. On Mr. Obama’s watch, some 2.5 million people have entered or stayed in the United States illegally and returned this population to the same levels experienced under George W. Bush. The high price of porous borders and timid enforcement matched by incentives called amnesties succeed only in tarnishing our once-elevated commitment to the foreign-born and turn us away from the solutions of immigration done right: attracting the talented, redeeming the persecuted, and removing the offender.
Among its signal failures, this administration’s immigration policies have frequently invited dismay from its supporters, distrust from Congress, contempt from the federal courts, and uncertainty, if not outright rejection, from the public. The proposed regulatory end-run around these constituencies only assures a further hardening of positions along already familiar lines and more of the same polarization that Mr. Obama pledged to transform.
Count on these proposals to do for immigration what the original Obamacare has done for medicine: create unsustainable costs, imploding programs, and most of all, outrage — from citizens and legal immigrants alike.
• Mark H. Metcalf served as an appointee in the administration of President George W. Bush in posts at the Justice and Defense Departments, including a judgeship on the Miami Immigration Court.
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