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.

FILED UNDER: Borders and Immigration, US Politics, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. daryl and his brother darryl says:

    From what I can tell, the further you live from the border, the bigger the issue.
    That said…thanks Brandon!!!!

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  2. steve says:

    Since when has the GOP been concerned about workers and their conditions? Yes, they occasionally talk about jobs and the working class but if you look at the actions they take its hard to think of any that were aimed at helping the workers and they almost always favor employers.

    Steve

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  3. Matt Bernius says:

    James, if you have a moment could you unpack the conclusions you reach in this paragraph?

    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.

    I’m not sure I get the incentivization part.

    In theory, what this should do is–theoretically–help stop the race to the bottom by enabling the reporting of abusive behavior. Of course, that has to be coupled with serious investigations (which require adequate staffing) and strongly punitive fines/actions to disincentivize that type of behavior.

    I can see an argument that by stabilizing working conditions and preventing the bottom from getting “too bad,” this would also “legitimize” a two-tier system (legal worker scale and undocumented labor scale). Was that what you were thinking?

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  4. James Joyner says:

    @Matt Bernius: To the extent the workers are here because the wages and working conditions are better than they were at home, improving those only incentivizes more of it unless they get to the level where it’s simply more efficient to hire natives. Beyond that, yes, the policy essentially legitimates illegal workers by encouraging them to go on the record with their complaints with the promise of a two-year quasi-legal status to go with it.

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  5. steve says:

    But after that 2 year period everyone knows you are illegal and they know where you are working. So if you live in a red state where the state Ag has made it a priority to find and deport illegals you are now a target. I would think you would pretty much have to move and find a new job after that 2 years.

    Steve

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  6. Tony W says:

    Several problems here:

    1) If the right cared about immigration, they would shut down businesses that hire undocumented workers. It will never happen because their arguments and policies are about damaging people they see as lower caste than themselves, not concerns about “immigration”.

    2) If wages had to be increased to the point that “businesses were unprofitable” in order to maintain doing business, then those businesses do not deserve to continue, in a capitalist society. “The market has a solution for that,” and all.

    3) If one argues that the business is important to the welfare of Americans and that it should continue, then the market would suggest that you pay the workers what they can negotiate, and the ownership class takes the hit on “profitability”. The government certainly does not respond to rent-seeking by looking the other way at undocumented immigration in order to reduce wages by increasing the supply of labor.

    4) If the argument is that with good wages prices will be too high for ordinary Americans to consume the goods and services of the business, then the market has solutions for that as well.

    Every one of these arguments comes from the perspective that the profits of the capitalist ownership-class are immutable.

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  7. matt bernius says:

    @James Joyner:
    Ok that’s what I thought.

    Beyond that, yes, the policy essentially legitimates illegal workers by encouraging them to go on the record with their complaints with the promise of a two-year quasi-legal status to go with it.

    Good point. And in a world with a saner opposition party, that might lead them to finally being open to doing the hard work to formalize our guest worker policies to account for the fact that in many cases, that’s exactly what a lot of current undocumented folks are actually looking for.

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  8. drj says:

    @James Joyner:

    To the extent the workers are here because the wages and working conditions are better than they were at home, improving those only incentivizes more of it

    As @Tony W already noted, you look at his from the perspective that only workers can be incentivized (or perhaps disincentivized).

    But why shouldn’t the government disincentivize employers from engaging in predatory hiring practices?

    If there is no demand for illegal labor, illegal immigration will decrease.

    But somehow it’s only immigrants who can be discouraged from certain behaviors.

    And what do you think is more feasible, building a 2000 mile border wall or sending some labor inspectors to plants and farms?

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  9. Just nutha ignint cracker says:

    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.

    Agreements by societies that various sorts of jobs should be done by cheap immigrant labor are not particularly unusual. While I was in Korea, farms were starting to be tenanted by laborers from Vietnam and people from the Philippines and other locales find work in various factories where the work is considered difficult, dangerous, and dirty. The US had been a bit unique in agriculture in that we went from slaves (and subsequently sharecropping) to Okies to migrants, but the pattern hasn’t changed much over the ages. Big agriculture requires either big families or people who don’t need to be treated particularly well in order to get the work done. It’s human nature at its less exalted condition. No reason for the agreement to not be bipartisan considering that the people on the bottom aren’t citizens. The more surprising thing is that documentaries like (IIRC) Harvest of Shame did for the cause of migrants whatThe Grapes of Wrath had sought to reveal about the dust bowl migration.

    Everyone calls it “opportunity”–and to a certain degree, it is–but the rising tide doesn’t raise all the boats equally in these cases any more than it ever does.

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  10. Just nutha ignint cracker says:

    @drj: “But why shouldn’t the government disincentivize employers from engaging in predatory hiring practices?”

    I’m assuming that this question is rhetorical, but as to the practice of sending in labor inspectors, the outcomes on that practice have been spotty under the very best of circumstances. Counterfeit Green Cards and bipartisan support for the existence of migrant workers are only the tip of the iceberg.

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  11. Chip Daniels says:

    @James Joyner:

    To the extent the workers are here because the wages and working conditions are better than they were at home, improving those only incentivizes more of it

    We could just as well say that “To the extent the workers are here because crime/ disease/ living conditions are better than they were at home, improving those only incentivizes more of it”

    Which is obviously true, but seems more of a feature not a bug.

    Its almost like the gentrification discussions, where people in impoverished neighborhoods clamor for improvements, but bitterly resent people moving their because the neighborhood is now a nice place to live.

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  12. drj says:

    @Just nutha ignint cracker:

    bipartisan support for the existence of migrant workers

    That’s the real issue, of course. Workers who can’t complain about wages or working conditions are just too profitable to pass up on.

    Instead of bringing down the hammer on the workers, I would primarily go after the employers. Do you operate a meat packing plant in which 80% of the workers are undocumented? You are now fined 80% of your annual revenues (please note: revenues not profits).

    I strongly suspect that this would quickly motivate employers to reconsider their hiring practices.

    Not that Congress – Republicans first and foremost – would ever take such a step, or that SCOTUS would permit it. It’s so much better for your campaign donations if you only go after the little guys.
    Far less disruptive, too. Even if you have to deport some workers from time to time, there are always plenty more where the previous ones came from.

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  13. James Joyner says:

    @matt bernius:

    formalize our guest worker policies to account for the fact that in many cases, that’s exactly what a lot of current undocumented folks are actually looking for.

    A podcast I listened to a few years back says that we hired a former Marine Commandant, way back in the early 1970s, to be the new Customs chief. He secured additional funding to close up the border but wound up having the perverse effect of ending the old revolving door. Before that, people came seasonally and took their money home to spend the off season with their family. After that, it was just to hard to get back in, so they stayed permanently. Seems plausible.

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  14. James Joyner says:

    @drj:

    why shouldn’t the government disincentivize employers from engaging in predatory hiring practices?

    I’ve advocated that for decades. I was just responding to this particular regulatory change.

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  15. Just nutha says:

    @drj: Of course, the fact that the support for the status quo is bipartisan is exactly the reason that your policy will fail to get support, but I don’t suppose that’s a surprise either.

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  16. DrDaveT says:

    Why improving labor conditions falls within DHS’s remit is another question entirely.

    I’ll worry about that after we stop using the IRS for welfare programs and the DoD for racial equality programs.

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  17. drj says:

    @James Joyner:

    I was just responding to this particular regulatory change.

    But that’s the thing. This policy change makes it harder to exploit workers, which lessens the attractiveness of an undocumented workforce.

    Why hire illegal immigrants (instead of citizens or authorized guest workers) in the first place, unless you want to underpay them or have them work in unsafe conditions?

    While this policy change may benefit some individual undocumented workers, it will also disincentivize employers from hiring such workers in the first place. Isn’t that what the “protect our borders” crowd should want?

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  18. James Joyner says:

    @drj: Sure. To the extent they’re likely to object, it’s to the amnesty provision.

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