The executive action announced by President Barack Obama Thursday night is as much a game changer for labor policy as immigration. He will give some 5 million undocumented workers — the people who "pick our fruit" and "make our beds" — the chance to apply for work authorization and relief from deportation. This represents nearly half the country’s estimated 11.2 million undocumented population, 8.1 million of whom are in the workforce.
Building on his controversial decision to grant deferred action (DACA) to undocumented “childhood arrivals,” an incomplete substitute for the failed federal DREAM act, Obama is now attempting a far more expansive program. The three main categories of beneficiaries: parents of U.S. citizens or legal permanent residents with at least five years' continuous presence and a larger pool of DACA applicants. The action also increases funding for border patrols and raises the pay of certain immigration-enforcement agents.
Republicans have vowed to block and overturn Obama’s measures, what they see as an unconstitutional exercise of power, when they take full control of the legislature in January. But Obama argues that his executive strategy is both lawful and necessary in the face of Congressional inaction: The House has long refused to consider the bipartisan immigration bill that the Senate approved last year.
"To those members of Congress who question my authority to make our immigration system work better, or question the wisdom of me acting where Congress has failed, I have one answer: Pass a bill. I want to work with both parties to pass a more permanent legislative solution," the president said.
But backers and opponents of the White House plan agree on one thing — that this historic grant of work authorization is significant both for individual workers and the national labor market.
“Having Social Security numbers and work authorization is going to be huge in terms of workers feeling safe to go to work, fighting wage theft and taking more pay home,” said Haeyoung Yoon, an attorney at the National Employment Law Project. DACA recipients surveyed by the University of Southern California in 2013 reported “a pronounced increase in economic opportunities, such as getting a new job, opening their first bank account, and obtaining their first credit card.”
At a macro level, workers with deferred action may feel more comfortable joining or forming unions and other labor organizations, advocates say. “For undocumented folks, it’s difficult to organize because of fear,” said Adriana Escandón, a worker organizer with New Immigrant Community Empowerment in Queens, New York. “Having work authorization would help in terms of having that legality, though it doesn’t mean the conditions at work are any better.”
Ira Mehlman of the Federation for American Immigration Reform believes the president’s plan will hurt the prospects of job-seekers born and raised in the U.S. “By giving everybody work authorization, you’re increasing the pool of American workers who might be affected by illegal immigrations who take jobs in this country,” he said. “You can be compassionate and understand why people violate laws, but the people who say we have to make concessions ignore how it affects people here.” Jon Feere at the Center for Immigration Studies adds that heavy concentrations of undocumented labor, particularly in a time of high unemployment, can depress wages, though the research on this point is mixed.
The human rights group Families for Freedom questions the executive action on other grounds. “It’s a massive guestworker program. Business people are probably saying, ‘Go for it, Obama,’ so we have a surplus of labor. That means labor can be exploited more,” said organizer Donald Anthonyson. Underscoring Obama's record-setting deportation numbers, he said, “We don’t stand for deportation of some. We stand for deportation of none.”
Work permit, not status
Labor unions were instrumental in convincing the president to issue an executive action, insiders say. Contrast this with 1986, when the AFL-CIO, the country’s largest union confederation, joined big business groups to support the so-called “employer sanctions” law making it a crime to hire anyone lacking work authorization. The AFL-CIO has since reversed course (along with the U.S. Chamber of Commerce) to bill itself as a proponent of “equal rights for all workers,” including the foreign-born. Over the same period, unions have supported the efforts of non-profit “worker centers” focused on organizing low-wage domestic workers, taxi drivers, day laborers, retail clerks and, most recently, fast-food workers.
One industry-specific provision the unions pushed for — a process making it easier for high skilled, entrepreneurial immigrants to stay — made it into Obama’s plan. But other proposals did not: There will be no special consideration for farmworkers, a peripatetic labor force considered particularly vulnerable by some. Nor will there be deferred action for workers complaining of wage violations or other unlawful employer conduct, despite the efforts of advocates like Josh Stehlik, a lawyer at the National Immigration Law Center in Los Angeles.
Attorneys familiar with White House discussions believe the deferred-action program will roll out in stages, beginning with a spring pilot, then a larger group over the summer. The application could mimic that for DACA, which requires a fee of $465 and proof of continuous presence. Stehlik worries that some low-wage undocumented workers will have difficulty assembling such evidence, given their tendency to live and work in the informal economy. Alina Das, a clinical law professor at New York University, has a more basic concern: that thousands of otherwise eligible immigrants will be barred from applying due to past criminal convictions.
With two years of DACA applications and renewals under their belt, “DACAmented” youth and immigration lawyers are getting ready for this next round of deferred action. They will prioritize community outreach and warn hopeful immigrants about immigration fraudsters. “The thing with [deferred action] that we need to make clear is that, while you get a work permit and are low priority for deportation, it’s not a status. You can’t travel. You can’t petition for people,” said Natalia Lucak of New York Legal Assistance Group.
Even so, those who have benefited from DACA wish Obama’s executive action would go farther. “What we’re concerned with is that our parents will be left out,” said Jeff Louie, a recent college graduate who works as a graphic designer with DACA work authorization. “My family is different because my brother’s a citizen and my parents are green-card holders, … but what about the [undocumented] parents of people with DACA?”
Louie and his friends, many from mixed-status families, are realistic. “I think we have zero expectations. It’s a ‘don’t get our hopes up’ kind of thing.”