Obama’s immigrants: The best, the brightest and the borders

If you look around the campus of the Massachusetts Institute of Technology, you see a sea of young college students, scurrying from class to class with iPod buds in ears and heads probably bursting with complex logarithms that could make smartphones smarter and cars drive themselves. You may also notice one more thing: a huge number of them milling in and out of groups are Asian – Indian, Korean and Chinese.

You would be right: MIT like many other top science and technology programmes in the US gets 51 percent of its international students from Asia. It is these students, their F-1 visas now closely monitored by the International Student Offices at their institutions, that the US would like to keep forever.

Not far away from MIT, if you drifted into a Boston suburb or farther inland into the US to a rural meat-packing plant in Pennsylvania or Ohio, you would notice another skewed demographic. Nearly all the faces inside – sorting, packing and cleaning – would be brown, all the instructions and commands in Spanish, and all the facilities as worn and basic as use would allow.

Some are US citizens, but many are not, relegated, hence, to the lowest-paying, dirtiest and most unwanted jobs in the United States. These are America’s other recently arrived, the often undocumented and consequently invisible. They are the ones whose numbers the US government would like to cut down.

Reconciling the chasm between these two demographics into legislation that is both politically palatable and legally enforceable is the challenge before President Obama and the US House and Senate in the upcoming weeks. Within it lie questions of the meaning of citizenship, the pliability of borders and the challenge of keeping the US both secure and competitive in future years.

In his State of the Union address, Obama egged on the bi-partisan group of Senators allotted with the task of coming up with the immigration bill to hurry and bring a bill to him in the next few months so “we can get this done”.

So energising were the President’s urgings that an entirely separate group of Senators got going with their own plan the very next day. On February 13, 2013, Senators Mark Warner (Democrat) of Virginia, Chris Coons (Democrat) of Delaware and Jerry Moran (Republican) of Kansan introduced the “Startup Act 3.0” Bill in the Senate. Developed after meetings with CEOs of startups in Silicon Valley, Startup 3.0 attempts to keep the future technological wizards roaming the halls of Harvard and MIT from being shipped off to their home countries after graduation.

The Startup 3.0 Bill (its name an appropriate homage to those nostalgic for American’s evaporated tech bubble) would thus create 70,000 new visas for students in the “STEM” fields of “science, technology, engineering and math”. If passed, it would go further and provide them also a path to citizenship, making it as tantalising as possible to urge them to stay and innovate where they had come to study. 

Another of the Bill’s provisions would create 75,000 visas for any immigrant entrepreneur who could raise $100,000 to start a company in the US, while also tagging on an increase in the quota of “highly skilled” H-1B workers. The Startup 3.0 recipe for keeping the best and the brightest and inviting also some of the richest is simple: make them citizens and do it fast.

In the meantime, the Senate Committee – actually charged with developing the comprehensive immigration bill and including former Presidential candidate Senator John McCain of Arizona and rising Republican Senator Marco Rubio – faced more complex conundrums. One of them is the issue of balancing the needs of border security, while also keeping borders pliable enough to remain globally competitive in the international labour market.

Just as these other Senators were getting into the discussion and the details of instituting ID cards to verify employment, cutting down visas allocated to family members of immigrants and such, the White House’s own draft immigration bill was leaked to the press. A new round of touchy defensiveness was hence provoked, not least because the White House Bill includes a measure to provide the current 11 million undocumented in the country an amnesty that would grant them US citizenship.

In the days after the leak, Republican Senator John McCain announced that the Obama “administration’s efforts [at immigration reform] would come up short if the White House went forward with the proposal”. On the other side, Senator Chuck Schumer, a Democrat, urged his allies in the administration to give the group of eight lawmakers time to “hammer out a deal of their own” without pushing their own Bill.

Identity woes

Despite the moments of tumult, the hammering of immigration reform will indeed continue, along with the delicate political navigation required to please all the different lobbies watching for an outcome. Five of the eight Senators working on the plan have in the past championed Federal ID cards that could use fingerprints or other personal markers to determine a worker’s eligibility to work.

Unlike the e-verify system currently in place, this new one, to be used not only by immigrants, but by all US citizens, would be tamper-resistant, as undocumented workers provide fake or stolen social security cards, names and birthdates.

But this comes with a hefty price tag, amounting to $26.2bn to create and $2.1bn a year to operate the system. Furthermore, privacy advocates and civil liberties groups have already challenged the measure saying that once in place, it could well become a “permission slip” required to do everything, from voting to buying a firearm, becoming an unconstitutional addition to the exercise of rights guaranteed in the Constitution which does not stipulate the presentation of ID cards.

The tussle over the biometric identity card illustrates the roots of immigration and amnesty question. Many opponents of legalising undocumented workers having entered or stayed illegally believe that providing them amnesty and a path to citizenship is essentially rewarding those who bucked the system and are now managing regardless to reap its benefits.

Addressing this argument, while also recognising that the millions of undocumented present in the US cannot be deported, requires presenting amnesty as a one-time act that will not be repeated again or create incentives for new illegal entrants. This in turn requires ensuring that future lack of documentation can be monitored better (a study found that 54 percent of the current workers using the current e-verify system for foreign workers can trick it) without creating the need for another amnesty programme in 10 or 20 years.

One surreptitious way the Obama administration is trying to make amnesty for undocumented workers more palatable for those who believe it rewards lawbreakers is to reduce the numbers of those that are undocumented and so constrain the parameters for its eligibility.

One controversial method in this agency-led initiative has been to increase exponentially the numbers of deportations carried out by the Immigration and Customs Enforcement (ICE) Agency in the run up to comprehensive immigration reform. To corner possible deportees, ICE uses “detainers” which are sent to local police, who are then tasked with going out and arresting the person identified.

In the past, ICE detainers were usually issued only when a non-citizen (documented or not) was suspected of having committed a crime, hence making him or her eligible for deportation. But now, this is no longer the case. Since non-US citizens (including those legally present on visas) do not have the right to challenge arrests or searches and seizures, law enforcement can arrest them without a warrant issued by a judge. Once in detention, the apprehended persons can be deported not only if they have committed a crime, but also if they have simply overstayed their visas. 

It is this loophole which is now being used to stack up the number of deportations. One recent policy brief that tracked ICE detainers over the last 50-month period of the Obama administration revealed that two out of three detainers had been issued for individuals who had no criminal record.

Internal emails from ICE substantiated this pressure on agents to boost deportations, asking them to process more people at local jails, setting up traffic checkpoints that would stop purported undocumented workers and other measures for catching and rounding up more and more people to be sent away. Becoming a deportation nation then seems to have been identified as a step necessary to justify amnesty for the unwanted immigrants left behind and to implement a new regime of wanted immigrants.

Merit and citizenship

Balancing on the knife-edge of political viability and egged on by hungry companies eager to welcome hordes of engineers germinating ideas for the next technological marvel, the best and the brightest policy ignores the ethical and human dimensions of what liberal citizenship means.

Unaddressed, there are questions of whether a country that imposes an equality that recognises neither merit nor anything else can confer “special” rights to those in the ambit of “citizenship” prior to awarding it. An engineer or an entrepreneur who is a US citizen is not allowed to vote twice based on his or her higher intellectual capacity however useful such an idea may be for the betterment of the polity.

Indeed, if a test of merit is imposed on those wishing to become citizens, how philosophically defensible is it for a liberal state to exempt those already citizens from such a selection based simply on the accident of their birth in a certain geography? If intellectual or entrepreneurial capacities are qualifiers for becoming citizens, could they not be for those staying citizens who did nothing to deserve the title?

After all, if amnesty to the undocumented rewards an act of illegality, then liberal citizenship based on birth arbitrarily rewards luck.

Philosophical considerations may not be the only obstacles in implementing a “best and the brightest” immigration policy. A recent report presented at the annual meeting of the American Association for the Advancement of Science suggests that the job market for those getting doctorates in science fields is hardly magnetic. Not only are many doctoral graduates being forced to languish in post-doctoral programmes instead of tenure-track jobs, but they may have to do so for up to five years before hoping for a permanent spot.

In life sciences fields such as biology, graduates with PhDs are more likely to be unemployed at graduation than have a full time job. If the prospects of foreign students getting jobs altogether are indeed so slim, few are likely to be able to avail of the extra visas or consider staying in the US as a viable option.

These conundrums are not central to the political tug-of-war between the House, the Senate and the White House. Yet before they are discarded as tangential, it must be remembered that the realignment of US immigration may well be wrought by theoretical projections about the future rather than the present or the past. Viewed in these terms, the impetus to grant amnesty and legalise millions, and to open borders such that labour might flow more freely, is perhaps then a recognition by the US of the limits of citizenship in an emerging borderless world where closing off means losing out.

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.

Follow her on Twitter: @RafiaZakaria