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How Might Immigration Reform Happen?

The presidential election and the role immigration has played in it has politicians and pundits alike talking about the need for immigration reform. At, Jimmy Kemp and Ali Noorani quote a CNN/ORC International poll that says 82 percent of conservatives support legislation that “would allow undocumented immigrants to earn legalized status and eventual citizenship.” That number sounds high—or perhaps it doesn’t include conservatives with stronger ties to Donald Trump than any party or orthodoxy—but other polls reflect similar sentiments. In May, a Pew Research Center survey showed that 72 percent of Americans including 56 percent of Republicans say undocumented workers should be allowed to stay in the U.S. if they meet certain requirements.  

A year ago, Gallup’s numbers were lower—65 percent of Americans favored some sort of accommodation for undocumented immigrants, with only 50 percent supporting a path to citizenship—but as Jeffrey M. Jones writes, where immigration is concerned, “U.S. adults' views have been largely stable over the past decade.”

The question is what to do, and few pundits think anything comprehensive will get through what will likely remain a Republican-controlled Congress. Politico’s Seung Min Kim writes, “The deep partisan split over immigration casts heavy doubt that Congress could pass a comprehensive immigration overhaul early next year with a new occupant at the White House and a newly-minted Congress.”

Alex Nowrasteh, an immigration policy analyst at the Cato Institute's Center for Global Liberty and Prosperity, agrees. “Big comprehensive reforms that fix all portions of the system are politically difficult,” he writes. “Nevertheless, there are smaller changes that could make a big difference to the legal immigration system.” 

He sees the same way forward that President Obama did—executive action—and advocates two reforms that the next president could initiate on his or her own: 

The first such reform is an executive action by the president to reinterpret how the government allocates employment based green cards. Under current law, 140,000 highly skilled immigrant workers are supposed to be issued green cards annually according to a 1990 law. However, an erroneous interpretation of that 1990 statute counts the family members of those skilled workers against the cap. The result is that most employment based green cards are actually issued to the family members of the workers.

Nowrasteh also advocates reviewing the guest worker program with an eye toward streamlining the process. “Reducing the burden of regulations while complying with the statutes will make it easier for American employers to hire legal guest workers and thus reduce the demand for illegal immigrant workers,” he writes.

His third suggestion is more problematic on a couple of levels. He contends that allowing states to develop their own visa programs to help states get the guest workers that they need. Nowrasteh’s proposal could also be the first step toward a more complicated immigration system, one with national as well as state processes to manage. If states were given some latitude over immigration, its  easy to imagine that they would also try to exert greater, more restrictive control.  A number of states tried to stop Syrian refugees from settling there, and Governor and vice presidential candidate Mike Pence tried to discourage them from settling in Indiana by denying the refugees aid (an effort rejected by seventh circuit court of appeals). 

If Congress were to try to pass legislation along these lines, it would be an interesting test. What impulse would win? The conservative desire to shift power to the states, or the nationalist rhetoric of the election that demonized immigrants as job stealers or worse.

In ways, the writing of Nowrasteh and Kemp and Noorani echo the famed“Autopsy”conducted by the Republican National Committee after the 2012 election. They recognize the necessity of the United States and the Republican Party to deal with the reality of immigration. Kemp and Noorani lay out a series of conservative principles that should shape any proposal for immigration reform, and quote University of Miami’s Vice President of Government Affairs Rudy Fernandez, who says, “Modernizing our immigration laws will remain a pressing national priority regardless of who wins the presidential election or who controls Congress in 2017.”

As with the Autopsy though, the question is whether Republicans in Congress and in the Senate have the political will to act on such a clear reality.

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