Did Biden Pull a Fast One on Immigration?
A modest regulatory change may have a big impact.
WaPo columnist Greg Sargent contends “Biden just outmaneuvered MAGA Republicans — and they barely noticed.”
If President Biden rolls out a major new pro-immigrant policy, and MAGA Republicans don’t make any noise about it, did the announcement happen at all?
Why, yes, it did. Homeland Security Secretary Alejandro Mayorkas unveiled an initiative on Friday that would extend more protection against deportation to undocumented immigrants who report labor rights violations by employers.
This is a big move by the administration, one long sought by immigration advocates. Biden’s immigration record is decidedly mixed, but this would address a serious problem: Undocumented migrant workers often fear reporting workplace violations — ones they were victims of or just witnessed — because it could lead to their deportation.
Now they will have improved access to a legal process that can defer their deportations for two years and potentially extend them work permits. The hope: To encourage them not just to report unsafe or exploitative working conditions, but also to cooperate with ongoing Labor Department investigations, improving working standards for all workers.
Reading through Mayorkas announcements, it doesn’t strike me as all that big a deal. It basically streamlines an existing program:
Effective immediately, this process will improve DHS’s longstanding practice of using its discretionary authority to consider labor and employment agency-related requests for deferred action on a case-by-case basis. Workers will be able to visit DHS.gov for additional information in English and Spanish and to submit requests. These improvements advance the Biden-Harris Administration’s commitment to empowering workers and improving workplace conditions by enabling all workers, including noncitizens, to assert their legal rights.
DHS has long considered requests for deferred action submitted by noncitizen workers who fall within the scope of a labor agency investigation and/or enforcement action. Noncitizens will now be able to submit such requests to U.S. Citizenship and Immigration Services (USCIS) through a central intake point established specifically to support labor agency investigative and enforcement efforts. For deferred action requests from noncitizens who are in removal proceedings or have a final order of removal, upon reviewing the submission for completeness, USCIS will forward such requests to U.S. Immigration and Customs Enforcement (ICE) to make a final determination on a case-by-case basis. USCIS will consider all other deferred action requests on a case-by-case basis. USCIS will also consider all related employment authorization applications, including those related to deferred action requests decided by ICE. Given the often time-sensitive labor agency enforcement interests, efficient processing of deferred action and related applications for employment authorization will reduce potential risks to workers and retaliation by their employers under investigation.
In addition to satisfying individual criteria to facilitate case-by-case determinations, requests for deferred action submitted through this centralized process must include a letter (a Statement of Interest) from a federal, state, or local labor agency asking DHS to consider exercising its discretion on behalf of workers employed by companies identified by the agency as having labor disputes related to laws that fall under its jurisdiction. In addition to other elements, as detailed in DHS’s Frequently Asked Questions (FAQs), the letter from the labor agency should include:
- The enforcement or jurisdictional interest of the labor agency and how it relates to the mission of the labor agency;
- The workers covered by the Statement of Interest;
- Why DHS’s consideration of prosecutorial discretion with respect to these specific workers supports the labor agency’s interest.
This is still a lot of hoops to jump through. Regardless, I can see why immigration advocates would be happy with the potential expansion of the program. Why improving labor conditions falls within DHS’s remit is another question entirely.
Back to Sargent:
So far, this policy has sparked relatively little outrage among MAGA Republicans and right-wing media. Yet it has hallmarks that typically anger the right. It would allow some migrants here unlawfully to remain in the U.S. interior, based on the use of prosecutorial discretion to defer deportations, something the right has long raged against.
What explains the quiet response? It might be that this change creates an awkward political situation for the anti-immigrant right, one that says a good deal about its ideology and its limitations.
Here’s why: This policy attempts to align the interests of undocumented workers with those of native-born workers. For some on the right, casting those interests as irrevocably in conflict has been essential to their project. This zero-sum agitprop packages the nativist impulse to drastically limit immigration as all about protecting the American worker.
But this new move undermines that rhetoric. In describing the shift, Mayorkas took pains to note that it will facilitate holding “exploitative employers” accountable for taking advantage of vulnerable workers who are in the U.S. lawfully. Mayorkas added: “Employers who play by the rules are disadvantaged by those who don’t.”
In other words, allowing undocumented migrants to speak out about exploitative labor violations without fear of retribution helps aboveboard employers and U.S. workers, too.
That strains credulity. The whole argument for extending this protection is that illegal immigrants are afraid to report violations because it could lead to their deportation; native workers do not face that risk. The reason native workers would be afraid to turn in their employers is that doing so would put their livelihood at risk; that would also be the case for illegal immigrants.
Chris Newman, general counsel of the National Day Laborer Organizing Network, has long argued this would help resolve perceived conflicts between migrants and U.S. workers. “It removes the pernicious incentive for predatory employers to hire undocumented immigrants with the intent to abuse them,” Newman told me.
“All workers, whether documented or undocumented, have an interest in being compensated, in not being abused, in being able to blow the whistle,” immigration lawyer David Leopold added. When the undocumented are exploited, Leopold said, “that brings down the wages and working conditions of U.S. workers as well.”
Well, yes. Which, oddly, is the point conservatives make: illegal immigrants are willing to work under conditions that native workers aren’t and thus create a race to the bottom. This policy would seem to address this at the margins, if at all. Indeed, one imagines that it would further incentivize illegal immigration.
It will be hard for Republicans to attack this policy without lying about it or revealing deeply unpopular priorities.
Some might argue that employers who hire undocumented workers without exploiting them are also bad actors. But after we relied on millions of undocumented migrants to perform essential work during the pandemic, it’s self-evident that many non-exploitative employers are hiring undocumented migrants because of our disastrously structured system, which makes it harder to work here legally. We should make it easier.
For a whole variety of reasons, I think it should be easier to immigrate legally to the United States. But it seems odd to argue from the left that we need more immigrants because the lowest-paying jobs are unfillable by native workers. The leftist argument is that employers should raise wages, benefits, and working conditions to the level that those jobs are attractive. The conservative counter is that the market simply doesn’t support paying middle class wages for every job, in that consumers won’t pay high enough prices to make doing so profitable.
In fact, some Republicans do support making that easier, particularly for farmworkers. Though there are fewer such Republicans these days, they’re distinct from MAGA Republicans whose demagoguery about the migrant threat is bottomless.
For reasons I don’t fully understand, there has long been a bipartisan agreement that work in the agricultural sector should be done by cheap immigrant labor, preferably on a seasonal basis.
Which highlights another way this move challenges MAGA Republicans. Many are so focused on demagoguing about the border — as a symbol of the supposed threat of demographic change — that they often have little of value to say about the real-world complexities created by millions of undocumented immigrants in the interior.
For instance, MAGA Republicans often talk a good game about deportations. But they all know we can’t deport 11 million people, especially ones who serve asessential workers. MAGARepublicans alsorail against granting citizenship to “dreamers” brought here as children, refusing to entertain a worthwhile fix targeted at what the dreamers truly are — culturally American and would-be legalcontributors to our country.
Now that the administration hopes to protect undocumented migrants who blow the whistle against exploitative employers, will MAGA Republicans attack it? Ifthey do, they should be challenged to say why they oppose holding employers accountable for their abuses. That wouldmake their lack of constructive solutions on immigration even more glaring.
So, much of this has nothing to do with “MAGA.” Certainly, demagoguery on illegal immigration is higher than it was in the 1980s, when Ronald Reagan signed a massive amnesty bill. But that happened well before Donald Trump emerged as a serious player. While George W. Bush was still largely an old school Republican on the issue, frequently speaking Spanish to demonstrate his “compassionate conservative” approach to immigration, John McCain, also an old schooler by conviction, was forced to shift to a “secure the borders first” approach during the 2008 primaries.
Offhand, I’d say that Western Republicans, who have a more direct experience with the issue, have historically been far more nuanced than Southern Republicans. But the party as a whole has taken on a nativist bent that’s less policy-driven than it used to be.