The Page 113 Conspiracy

Posted on: January 4th, 2016
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I don’t think most people have bothered to read the new proposed regulation on I-140s, AC21 and EADs in its entirety. Most people have been celebrating the new year and, besides, the proposals were hardly earth-shattering in their scope. I spent all day Wednesday reading the 181 page proposal and summarizing it. So I think I’ve got a pretty good handle what the proposal does and doesn’t do. And it helps that I’m an immigration lawyer and write a blog about immigration law and policy.

So I was surprised when I’ve seen quotes like this one from presidential candidate Mike Huckabee:

With Congress away on recess and the American people distracted by the holidays, Obama’s New Year’s amnesty power-play is classic dictator. This 181-page immigration amnesty rule is an unconstitutional assault on America’s workers. Why are we robbing seniors and veterans of their hard-earned benefits to give handouts to illegal immigrants and foreign blue-collar workers? Why did we fight a revolution against the tyranny of one, unelected monarch so we could surrender our Constitution to this out-of-control president?

Huh? An amnesty? Benefits for illegal aliens? Seriously? Where?

It looks like the source of the problem is an article by anti-immigrant reporter Neil Munro (himself, ironically, an immigrant) who posted an article on Breitbart.com making some pretty outrageous claims about the regulation.

We know where the article is headed from the beginning from its headline “Obama’s New Immigration Plan Offers Work-Permits To Foreigners Slated For Deportation.” Where did Munro get this idea? Well, he does do us the service of citing the pages he’s misreading – pages 112 and 113.

So what are those pages talking about? The proposed rule deals with time limits for adjudicating employment authorization documents. Current regulations require DHS to adjudicate employment cards for those eligible in 90 days or less. The list recited on pages 112 and 113 are groups ALREADY ENTITLED TO WORK CARDS under long existing regulations. DHS wants to scrap the 90 day adjudication requirement – which one would think would make immigration restrictionists tingle with excitement.

Coupled with this was a proposal that for people who already have work cards and who are applying for extensions and who are entitled as a matter of law to those extensions to be considered work authorized while they’re waiting on their cards in the mail. Under the current law, any of these people would be entitled to interim work cards if they’ve been waiting more than 90 days and all they need to do to have that right is to make sure they apply 90 days before their existing cards expire.

If that sounds like no big deal, you’re right. No one new is getting a work card and all that’s happening is USCIS will no longer have to go to the trouble of issuing two documents – an interim work authorization document and an actual work card for people entitled to the benefit. Not a single new person is getting a work card under this policy change. The policy change doesn’t change the rules in any way as far as what it takes to qualify for the 180 day automatic extension provision.

Munro might be legitimately confused when he claims 100,000 skilled workers will get employment authorization documents under the proposal. USCIS offers a bizarre estimate of 155,000 as the number of people who will get EADs in the first two years. But as I explained in my summary, the program requires applicants to show “compelling circumstances” and USCIS’ description of what this means is what it sounds like. Highly unusual cases where remaining on an H-1B or other non-immigrant work status is basically impossible and the person or his or her employer are in dire straights as a result. Most people in the know believe only a few hundred people or maybe a few thousand will qualify per year. I certainly will be presenting a pessimistic view to most of my clients who ask me if they’ve got a shot.

Breitbart and other publications are certainly entitled to their opinions regarding how open or closed our immigration system should be. But they need to be called out when they are simply inventing facts as they’ve done here.