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On Tap for Tuesday’s Hearing: Nonimmigrant Visas

After working its way through 32 amendments related to border triggers and the rest of Title I at their markup last week, the Senate Judiciary Committee is going to jump ahead on Tuesday to Title IV, which has a mixed bag of nonimmigrant provisions for business immigration.

These provisions came after what seemed like eons of negotiation between labor and business, so many of them may be considered “core” to the “Gang of Eight” bill and therefore the four members of the Gang that sit on the Judiciary Committee could vote en bloc to prevent any big changes that might endanger those compromises.

So what’s in there? Here’s a small sample:

The Temporary Visa for Lesser-Skilled Workers (W visa) addresses one of the most obvious shortcomings in previous immigration reform—future flow.  One vital component is that spouses and minor children are included and are work-authorized, providing much-needed family unity for those seeking to come to the U.S. temporarily to work.  It also importantly offers flexibility for workers by allowing them to switch from one registered employer to another, and by giving them a way to apply for the merit-based lawful permanent residence program or the employment-based system.  These elements mean that workers wouldn’t be potentially “trapped” in exploitative employment.

The drafters of the legislation are taking the slow road with the W visa by starting with a 20,000 cap on W visas, rising to 75,000 visas in four years. Conceivably, the cap could increase to 200,000, depending on operation of a formula based on unemployment, job openings, number of applications, and recommendations of a newly-created federal Bureau that would track relevant statistics.  That 20,000 starting point might be too small for the employer needs we know exist.

The most mixed portion of the bag relates to H-1Bs. The bill, by providing for an increase in the H-1B quota to a floor of 110,000 and a ceiling of 180,000, reflects an understanding that foreign talent, especially those educated in our nation’s graduate schools, can and do contribute to America’s economic growth. An amendment by Senator Hatch that might come up in tomorrow’s markup would improve this provision even further.

The bill recognizes the human face of the H-1B nonimmigrant:  it provides for work authorization for their spouses on a reciprocity basis and allows for a 60-day grace period after an H-1B nonimmigrant ceases the sponsored employment, enabling the individual to maintain lawful presence during that time.

But if the bill giveth, the bill also taketh away.  Some of the H-1B provisions are troublesome, adding burdens to what is supposed to be a visa that enables American businesses to be nimble in meeting specialty skill needs.  The bill requires invention of a new internet posting recruitment system by the Department of Labor (an agency notorious for non-reality based recruitment requirements in the permanent labor certification context), substitution of government judgment for employer judgment in who should be offered these positions of specialized skill, and a highly distorted wage requirement that will result in foreign workers being paid more—sometimes considerably more—than their U.S. citizen counterparts.

So on Tuesday, expect to see another long day of amendment consideration and voting by the committee members as they work their way through a few more of the hundreds of amendments filed last week.

By taking up Title IV this early in the markup process, the committee is showing how important it is that immigration reform not only find a solution for the 11 million undocumented, but also bring our immigration system forward into the 21st century to meet the needs of American companies.

Change? Yikes!

If we don’t change direction soon, we’ll end up where we’re going.”-Professor Irwin Corey

We’ve been hearing about it for a while now.  We at first thought, oh no, what if it happens? Will everything change? Will I have to learn a new system? What among my assumptions will have to be thrown out?  “What we call ‘Progress’ is the exchange of one nuisance for another nuisance.”-HavelockEllis

Then we stopped hearing so much about it. So we thought, nah, nothing is going to change. Yes, the system is a mess, but it’s our mess. We know and have learned to live with it.

Face it, we all hate change.  We may pretend otherwise, but having to learn something new, and figure out a new set of workarounds for the inevitable issues and a new way of addressing things we haven’t thought about in years, is daunting.  We don’t want it.  “The only sense that is common in the long run, is the sense of change-and we all instinctively avoid it.”-E.B. White

But now we know it’s coming. In fact, the first piece of it is here.  It was called Transformation when it was being discussed in the abstract.  But now it’s real, and it’s called  ELIS – the Electronic Immigration System

It’s USCIS’ new system for receiving and processing applications and petitions, and it’s going to change the way we prepare and submit those filings.  It started May 22, 2012  for certain actions on an I-539 for nonimmigrants in B, F, J or M status.  Now, nonimmigrants directly, or through their attorneys, are able to apply to change or extend status in a web-based environment, upload scanned documents, submit applications, and pay on line.

The system does not have an interface with popular immigration forms processing and case management systems–yet; USCIS wants to get the platform stable and working before releasing code to software vendors and developers. However, this initial release does have a number of features that look friendly to attorneys and their clients, including the ability to send notifications to both attorney and client at separate email addresses. USCIS is looking for customer feedback on this first release in order to make adjustments and improvements, and they are committed to an agile development plan that targets the release of new form types in four-to-six month cycles.

Obviously, if the system works, it will have an incredible impact on the way that we practice immigration law, and can lead to costs savings and efficiencies that result from a move from a paper-based system to a fully electronic system.  The only way we’re going to figure out whether it works, where it has kinks and glitches, where it needs tweaks, and what practitioners need to do to transform the way that we practice, is to use it.  USCIS wants to hear your feedback, and so does AILA.  When you send comments to USCIS at uscis-elis-feedback@uscis.dhs.gov, let AILA know as well by copying reports@aila.org.

Change is the constant, the signal for rebirth, the egg of the phoenix.”-Christina Baldwin

We might even like this.

 

Jumping Over Facts to Conclusions

Sometimes you read an article and think “something doesn’t quite follow here.”  An April 7, 2012 article in the Fort Worth Star-Telegram titled “Fort Worth engineer who got Obama’s attention still doesn’t have a job” is one such article.

The article lays out a tale with which one can readily sympathize: an engineer loses his job in the midst of the Great Recession, and remains out of work three years later.  He receives expressions of interest from companies and recruiters all over the country, but cannot pursue them because a custody agreement requires he stay in the area where he now lives. It’s an impossibly tough dilemma: wedded by a vitally overarching family commitment to a geographic location where your skills are not in demand, and unable to pursue opportunities in places where demand for your skills does exist.

But the article fills in some more information. The engineer’s job loss was being used by immigration opponents to argue that H-1B specialty occupation professionals should not be allowed into the United States because here is an engineer who needs a job.  This was raised with no less than the President of the United States in a video chat.

This chat exchange received considerable publicity, and immediately the engineer was being contacted by potential employers from all over the country.  Alas, none of these employers were in the North Texas area.  And the engineer couldn’t leave the area.  So the calls have stopped and the engineer stays unemployed.

But here’s what doesn’t follow.  The article goes on to quote Senator Grassley and the engineer’s wife as saying that the engineer is out of work because of  foreign nationals on H-1B visas.  The fact that the engineer cannot go where the jobs are does not seem to be considered a factor.  Leaping over barrels of  facts to a conclusion that doesn’t follow from the facts, the fault is placed at the feet of  foreign-born professionals who will go where the jobs are.

In those leapt-over barrels is the acknowledged fact that employers all over the country were beating down this engineer’s door.  Why would they do that unless there are jobs available in some fields and employers wanting to fill them with U.S. workers who have the right skills?  But these employers cannot pull up entire operations (and lay off their existing workforce) in order to move to the locale of a single person; the person needs to move to the job. If the person cannot move to the job because of a family obligation, that is to be respected.

But no one should blame “the foreigners” for it.

Silly in Alabama

This week a federal judge in Alabama enjoined key sections of that state’s radical “make life miserable for the undocumented and so what if others get caught up in it too” law. However, she let stand some other provisions of the statute, including the “papers please” provision for traffic stops and the requirement that schools check the immigration status of schoolchildren and their parents.

I will leave for the constitutional scholars the legal analysis of the judge’s decision. Instead, I’d like to focus on the utter silliness of the provision requiring a check of children’s immigration status.

How is it silly? Let me count the ways:

First, the cost. At a time when school budgets are being slashed, impacting the quality of education, schools all over Alabama are being asked to set up a bureaucracy to check all its students’ papers and maintain elaborate recordkeeping of what they find.

Second, the so-called reasoning. Alabama maintains that this is to gauge the cost of educating the undocumented (or the children of undocumented—their line gets fuzzy). But there is an assumption here that makes this whole premise ridiculous. They are counting only costs, but not counting the immigrants’ contributions. Overlooked is the fact that Alabama schools are funded by property and sales taxes. Everyone but the homeless pay property taxes, either directly or as part of their rental payments to landlords who in turn pay the taxes. And, anyone who buys anything pays sales tax. So how is Alabama going to tally how much immigrants are paying into the system?

Third, the inaccuracy of the figures this process will collect. Because of the way the law is written, if the documentation or information about status is not forthcoming, the student will be presumed to be undocumented. Anyone who has ever dealt with American citizens being asked for immigration status documents can tell you that many are outraged at the very idea of producing papers:  “Isn’t is apparent that I’m American?” Not to mention, the outright unfairness of the law is compounded immeasurably when you consider that Alabama is home to many military families. It’s not hard to imagine a child who was born outside the U.S. registering for school. Nor is it difficult to imagine an Alabama child who has one U.S. citizen parent (perhaps even a military parent) and one undocumented parent. So, many citizens will simply shrug off these demands, resulting in a much higher count of undocumented than is the reality.

Fourth, the impact on the children. Demands for immigration papers are intimidating to undocumented or mixed families. The temptation for some in the school to “turn them in” will be great, and even if families are aware of the law’s prohibitions against this, they will know about that temptation. Children will be taken out of school by their parents for the protection of the family. This will result in citizens (since the U.S. citizen children of undocumented parents are covered) and residents of the U.S. lacking education. Plus, if English is not spoken at home, these children will grow up unassimilated, as they will be denied the setting where English is learned most rapidly.

Fifth, the impact on society. The whole point of this provision is to discourage getting certain children educated. An uneducated populace hurts us all. That is why people like me, with no children, have willingly paid all these years to have other people’s children educated. We all benefit in the end.

But, in the end, Alabama loses here. Unfortunately, so does the rest of America.

MSU* on Steroids

In an announcement of a report released today, the Center for Immigration Studies (CIS) declares that “[n]early 200,000 children are estimated to have been born to women lawfully admitted as temporary visitors from all over the world in 2009.”  The report then goes on to suggest that these children may grow up to be terrorist threats.  Hmmmm.

First, let’s look at the actual report to see what CIS has done to concoct its numbers:  they calculated the number of births from foreign visitors by figuring out how many admissions to the U.S. were of women of child-bearing age that enter as visitors and stay for more than three months, and enter as longer-term nonimmigrants and stay for more than six months.   In the latter category, CIS acknowledges that multiple admissions of one person are common, so cuts the number in half (not sure why they don’t find that the case with the visitors).  CIS then assigns them an average fertility rate and assumes that they are producing children at that rate in the United States.

Even assuming that their estimates of the number of women of child-bearing age who visit the U.S. are correct—a doubtful proposition in and of itself—they reach the odd conclusion that an average of  5 to 10% of these female visitors are having babies while they’re here.

Really?  That would mean that one in twenty 18-year-old au pairs has a baby in the U.S.  Or that shopping malls, national parks and amusement parks would be hotbeds of foreign national births, since according to USA Today, the top two activities of foreign visitors are shopping and going to parks, both man-made and natural.  Clearly, that’s not happening.  I mean when was the last time you saw a foreigner having a baby while shopping at Nordstrom or visiting “Old Faithful”?

Could there possibly be something wrong with CIS’ numbers?  Perhaps that they were extrapolated out of thin air to scare the American public?

But the numbers part of the “study”  is actually the least cartoonish part of it.  The rest befits some extremist website lurking in the far corners of the internet and prone to espousing myths and half truths in support of some outlandish theory.

CIS claims, apparently seriously, that the Constitutional grant of citizenship to children born on American soil creates citizen terrorists.  Citing two accused terrorists as examples, CIS leaps to the conclusion, without citation to any credible study, that Constitutional citizenship is somehow a threat to America.  Of course, it does not bother to explain how these children, by virtue of being born to visitors, somehow pose a greater threat or are more likely to resort to violence than a Timothy McVeigh, Eric Rudolph, Ted Kaczinski, or Jose Padilla, all of whom were born to U.S. citizens.  Nor does it explain many thousands more of children born to non-U.S. citizens (including visitors) who have gone on to put their lives on the line defending the U.S. in the military, become community leaders, found businesses and create jobs, cure diseases, or invent shiny new toys for Americans to play with.

CIS, it’s time to stop *Making Stuff Up.

Really? You’re Proud of That?

Today, in front of the Senate Judiciary Committee, DHS Secretary Napolitano answered a query from Senator Grassley to the effect that this administration granted fewer deferred actions in the past year than the Bush administration did in its last year.  Deferred action:  that would be the legal amelioration of harsh results that is in the agency’s and administration’s discretion for many deserving cases.

Seems she was proud of this stinginess.  Just like the pride DHS takes in removing more people than did the Bush administration.

For a member of the cabinet of a President who has touted comprehensive immigration reform and spoken eloquently of the contributions of immigrants in American history and culture, these seem like strange accomplishments in which to take pride.

Does the administration think that tougher-than-thou will win over the hearts and minds of the “enforcement first” crowd to the importance of positive reform?  Surely they’ve learned otherwise by now.  That it will win the hearts and minds of the vast American middle?  Polls show that the middle is already there and supports the key elements of positive reform.  As a means to reform, none of this makes sense.

By the administration’s actions, and lack of action, many are concluding that expansive enforcement/little compassion are what this administration really thinks about immigration.  If that’s not the administration’s view, it is time for the administration to find the will and backbone to bring about change through means the law provides, and to generously and without embarrassment grant administrative relief to those who are deserving and eligible.  If it is their view that expanded enforcement and little compassion is the answer to America’s immigration questions, then come clean and just say so and we can all respond appropriately from there.  But this trying to placate the non-placate-able is no way to run an immigration policy.

USCIS: You Can Help the Economy

Ten Americans kept their jobs today in spite of USCIS, which seemed intent on ensuring that those jobs go overseas or just go away.

What happened? USCIS had refused to extend the L-1 status of a multinational manager, who had opened a new office and employed ten U.S. workers, finding that a small company could not possibly need a manager. Faced with this decision, the company had four choices: move to another country (and take those ten jobs with it); close down altogether (extinguishing those ten jobs altogether); appeal (which, given the nearly two years that that process takes, effectively would be one of the first two choices); or go through the costly, duplicative and time-consuming process of obtaining an E visa from the U.S. consulate in his home country. Though tempted to take the first option, this business leader was not ready to give up on the U.S., and instead took the fourth option. And the State Department did what USCIS would not: ensured the future of those jobs by granting the visa.

Money that could have been invested in further building the business was instead invested in preparing the E visa and traveling abroad for the interview to obtain it. While the AILA member who represented him was happy to have the fees, he’d rather have had a sensible adjudication of the L-1 extension.

This is not an economy in which we can afford to throw away jobs. And, while our immigration laws need fixing in many fundamental ways, there is a fair amount of sense in some of the rules, including those that have long governed the migration of multinational managers. But those rules need to be followed. Certainly, adjudicators are only human, and are undoubtedly responding to unemployment figures and concerns. But those responses overlook the macro-economics of immigration: it’s not a zero sum of immigrant equals job loss. Quite the opposite: study after study has shown that immigrants contribute to the economy. This is not counter-intuitive: this one L-1 plainly equaled ten U.S. jobs. There’s thousands more like him.

But where is USCIS? Senator Grassley has made a fuss about agency “whistleblowers” who decry the agency’s leadership urging a bit more generosity in adjudications. And certainly that generosity has not been forthcoming: if anything, adjudications continue to reflect a growth-killing stinginess. Is the problem entrenched biases? Lack of training? Lack of clear guidance? Some combination of all these factors? Whatever the problem, it needs to end here and now.

America cannot afford it any longer.

Sacrifice

It is always deeply sad to learn of the death of a man or woman serving in the military. Just by being in the war, they are sacrificing home, family, and much else to serve this nation. But today it hits deep in the AILA community, as we learn of the death in Afghanistan of Jonathan Curtis, son of Boston AILA member Phil Curtis.

Jonathan died a hero, guarding an entry control point when an Afghan National Army soldier approached and detonated a suicide bomb. Jonathan and his squadmate Andrew Meari were killed in the attack, but their actions saved the lives of seven others in the squad. Their heroism, undoubtedly a source of pride for their families, nonetheless cannot assuage the deep sense of loss they are experiencing. In addition to his parents, Jonathan leaves behind a wife and child.

Next week on Veterans Day the United States will honor those who have served in the military on America’s behalf. But there are too many who do not live to become veterans—those who die in the line of duty. They are remembered on Memorial Day, but they are much in our hearts every day. As AILA members continue to assist members of the military with their immigration problems through the Military Assistance Program, they do it on behalf of the far-too-many Jonathans who have bravely served our nation.

AILA sends its condolences to the Curtis family.

DHS: It’s Time to Act

“Representative [Lamar] Smith … called for the Immigration and Naturalization Service to exercise prosecutorial discretion in hardship cases. That is, immigration officials would simply decline to proceed with a deportation case… Second, Mr. Smith proposed that the attorney general use a provision of immigration law that allows her to ‘parole’ aliens into the country for ‘’urgent humanitarian reasons.’ Parole, he argued, could be used to prevent deportation as well as to allow entry… ‘The government can always do what it wants to do in hardship cases,’ the Congressman said. ‘We should not let the letter of the law get in the way of the spirit.’ … He also said that a large number of ‘hardened criminal’’ aliens were ‘’still slipping through the cracks’ and not being deported. ”Why not use your resources on them?” he asked. ‘Why are they spending their time on cases that cry out for compassion? They’ll never be able to persuade me that they can’t do that.’” –New York Times, March 18, 2000

 
In 2000, Lamar Smith’s 1996 legislation came under attack for its harsh and unforgiving nature, which resulted in the deportation of people in sympathetic situations, such as young college students who had grown up in the U.S. and gotten trapped in the system. However, rather than amend his law to ameliorate these effects, Mr. Smith (R-TX) urged the then-INS to exercise its discretion to avoid these results in sympathetic cases. The INS did just that, and prosecutorial discretion in the immigration context became a publicly articulated policy.

Fast-forward to today, when prosecutorial discretion has been largely ignored for years and when, in the intervening years, the cruelly indifferent 1996 Act has created countless more such sympathetic cases. Finally, in 2010, DHS officials have started to conduct internal discussions on how to deal with these kinds of cases, how to operate efficiently after years of disjointed tail-chasing, and how to go after hardened criminals instead of the cases that cry out for compassion, just like Mr. Smith urged.

So what happened? Entrenched interests within the department, fearful of this change, have leaked internal “think piece” discussion memos to members of Congress, including Mr. Smith. And the reaction? You guessed it: ” ‘The President has promised border security and immigration enforcement. He has said we must hold individuals accountable for their illegal acts,’ said Rep. Lamar Smith of Texas, the top House Republican on the Judiciary Committee. ‘But now we find out the truth: while saying one thing to the public, the Obama administration is scheming to ensure that immigration laws are not enforced.’”—per ABC News, July 30, 2010

The sheer hypocrisy of Mr. Smith and his co-ranters should be sufficient to enable DHS to treat these attacks with the lack of seriousness that they deserve. But instead we see very little of the Department standing up for the principles behind these discussions. Yes, they are not policy. They were just discussions. But many of the ideas in these memos are excellent, and should be implemented—soon. But instead of implementation, the Administration appears to be running for cover.

DHS, stand up. Say that we need these reforms, and why we need them. Then make them happen. Just because Congress is paralyzed doesn’t mean you need to be. As Mr. Smith told you a decade ago, you have the legal basis to do it. So do it.

10 Reasons Amending the Constitution to End Birthright Citizenship Is a Terrible Idea

guest blogger Greg Siskind, AILA Board of Governors

One of the greatest accomplishments of the Republican Party was actually one of its earliest. After winning the Civil War and freeing the slaves, the Grand Old Party worked to pass the 14th Amendment to the Constitution, the bedrock of civil rights protections in the U.S. that has served as a model to democracies around the world. The accomplishment was so significant that the GOP touts it in its list of greatest accomplishments   (http://www.gop.com/index.php/learn/accomplishment/).

So it is, of course, shocking that in the days following the defeat of the Arizona law by a judge in that state, a number of Republican Senators have come forth calling for the repeal of the 14th Amendment’s provisions on birthright citizenship.

The 14th Amendment guarantees that all children born in the U.S. (with narrow exceptions for children born to diplomats) are U.S. citizens. While some have argued that the 14th Amendment doesn’t clearly protect birthright citizenship, this has been established law for more than a century. The Supreme Court removed any doubt of this in the 1898 United States v. Wong Kim Ark case where, by a 6-2 majority, the Supreme Court held that:

The fourteenth amendment reaffirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single exception of children of members of the Indian tribes owing direct allegiance to their several tribes… To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treats as citizens of the United States.


Nearly three decades ago, the Supreme Court relied on Wing Kim Ark in the case of Plyler v. Doe to make clear that the 14th Amendment applies to ALL persons born in the U.S., whether their parents are legally present or not.

Extremists have been complaining about so-called “anchor babies” for some time. To listen to them, one would assume that millions of these children are growing up in America today or will one day choose to exercise their citizenship rights and enter the U.S. Few except politicians on the fringe were willing to support the extremists. But in the last several days, a number of lawmakers have lost their inhibitions and are openly calling for a Constitutional Amendment.

Once the shock of the suggestion wears off, it does pay to at least think about some of the basic reasons why we need to steer clear of an Amendment. Here are a number of reasons why.

1. This is a “solution in search of a problem.”

To hear Lindsey Graham’s and his allies’ description of “drop and leave,” Americans understandably might assume that there are millions of people coming to the U.S. to have children. Is there really any truth to this allegation?

The anti-14th Amendment folks simultaneously talk about two groups of individuals when discussing amending the Constitution. One is the group of mothers that is illegally present in the U.S. having children and the second are mothers who come on so-called “birth tourism” packages legally to the U.S. so they can claim citizenship for their kids.

On the first issue, there is little evidence that a significant number of mothers illegally enter the U.S. for the purpose of having children. The burden of proof should be on proponents of tinkering with one of the cornerstones of American democracy. Before changing the Constitution, we should have clear evidence that there is a problem rather than the anecdotes of politicians pushing an anti-immigrant agenda.

It is true that many mothers here illegally do have children, but their purpose for being in the U.S. is generally to work or to be with a family member who is the breadwinner. This is probably the group that Graham is targeting and he should be honest in saying that the goal is to punish people who are here illegally and to disenfranchise their children as opposed to stopping a mythical “drop and leave” crisis.

As for maternity tourism, there is actual real evidence to point to that shows that this problem is miniscule. According to the Center for Health Care Statistics, fewer than 7,500 births out of an annual 4,000,000 births are to mothers who report residing outside the country. And some of those mothers are U.S. citizens residing abroad as part of the community of 6,000,000 Americans who live overseas.

And perhaps the reason so few mothers come to the U.S. just to have a child is because the immigration benefits are not what these Republicans would have people believe. Children born in the United States cannot sponsor their parents for immigration benefits until after they turn 21 years of age.

Nevertheless, to the extent that there is a “maternity tourism” industry, the better approach to dealing with this is to enforce our existing laws that bar the use of visitor visas for such a purpose. Targeting companies and individuals engaged in this type of visa fraud would go a long way to curtailing this sort of activity.

2. Ending birthright citizenship would not end illegal immigration.

There is no evidence that immigrants come to the United States to have children. They come for jobs. Taking away birthright citizenship would not change this. What would happen is the number of illegally present immigrants would increase dramatically as many children of illegal immigrants are added to the ranks of the illegally present and who knows how many others would be added to the list of the undocumented because they are unable to prove citizenship even if they are entitled to it.

3. Implementing a Drastic Change to the 14th Amendment Would Be Enormously Difficult to Administer and Hugely Expensive.

Because U.S. citizenship laws are so complex and all Americans would no longer have the most basic proof of citizenship – the birth certificate – available, most would have to go through a legal process that would be expensive for the government and the individual. The government would need to hire thousands of lawyers and other examiners, and individuals would also need thousands of new lawyers to help with this process once we get through years of litigation to determine how we actually define citizenship and what is a fair way to prove it.

4. Where exactly do you draw the line?

One of the biggest potential problems with looking at something of this sort is figuring out which population to target. Just the children of illegally present immigrants? What about when one of the parents is a citizen and one is an illegally present immigrant? What about when the parents are unmarried. Does it matter if the father is the citizen as opposed to the mother? If not, in situations where the mother is not legally present and she is not married to the U.S. citizen father, the mother would need to first prove the paternity of the child, something that could be difficult or impossible particularly for individuals without the means to sue for paternity. Should it make a difference if the legally present parent is a lawful permanent resident and not a citizen? How about a legally present non-immigrant?

If the target is broader and we’re going after anyone whose parents are not permanent residents or citizens, does it matter what type of non-immigrant status the person holds? Should a tourist be treated differently than a student or a non-immigrant work visa holder? What about people working on non-immigrant visas but waiting on long lines for permanent residency such as Indian and Chinese advanced degree holders?

5. The citizenship of millions of Americans would suddenly come into doubt.

If birth in the United States is no longer proof of citizenship, a great number of people would have great difficulty proving they are entitled to citizenship. People would face extraordinary administrative obstacles and be forced to hire lawyers to prove entitlement to citizenship. Waits for passports would be extremely lengthy since for all people it would be the main way to prove they are American. Right now there is no registry of U.S. citizens and people generally rely on proving their birth in the U.S. to demonstrate citizenship. One survey by the Brennan Center at New York University found that more than 13 million people would not be easily able to prove their citizenship.

Many other questions would also naturally arise. What about the grandchildren of illegal immigrants? As noted above, figuring out what to do when one of the parents is legal and the other not raises a number of questions over how citizenship is transmitted in the absence of birthright acquisition. If citizenship is not defined by being born in the U.S., then how does one acquire citizenship? For most African Americans, citizenship was likely originally acquired in their families because of the 14th Amendment itself. Are only individuals who immigrated going to qualify? What about Native Americans?

A Pandora’s Box if there ever was one.

6. The American system of assimilating immigrants that has worked successfully for generations would be put under serious threat by creating a permanent two-tiered society with a permanent new underclass.

Taking away citizenship from the children of immigrants would mean more than just not being able to cast votes in elections. It means no driver’s licenses, no in-state tuition, no ability to work legally and so on. Instead, we would have a class of individuals with no real connection to any country other than the U.S., but no ability to become productive participants in our society. This new stateless class would be forced to live in the shadows. For some, they won’t be deportable because their parents’ countries are not legally obligated to take them. This new stateless group of individuals would be stuck in a limbo of not being able to participate in American society but having no other country to which to go as an alternative. Such individuals would be vulnerable to exploitation and criminal activity.

7. It’s a slap in the face to African Americans

After the Civil War, there were many, including President Andrew Johnson, who were prepared to continue to deny citizenship to slaves and their newly freed children because they were not “ready” to take on the responsibilities of citizenship. The Fourteenth Amendment guaranteed that no class of individuals would ever have to show they were up to snuff when it came to deserving citizenship, and it is the Fourteenth Amendment that has been the basis of major civil rights progress in the area of voter rights, equal access to justice, protection against workplace discrimination, etc.

The idea of scrapping birthright citizenship has been the cornerstone of nativist and racist organizations for some time and the fact that supposedly mainstream Republicans have suddenly started discussing this topic in polite company doesn’t make it less offensive. The sacrifice of countless individuals who gave their lives to win these rights is not honored by even having this discussion.

8. Birthright citizenship is in the Constitution precisely to avoid “the tyranny of the masses.”

The 14th Amendment is in place precisely to protect individuals from politicians with their own interests in mind as well as the sentiments of the time. The Constitution has only been amended 17 times since the Bill of Rights and never to take away civil rights from any class of people. The framers of the 14th Amendment made birthright citizenship an “inalienable” right and tampering with this really places into question whether our American system of rights and freedoms has been a failure.

9. Where do they stop?

The 14th Amendment has been in place since just after the Civil War and no Congress has ever opened the door to cutting out groups from its protection. Today the discussion involves the children of those illegally in the U.S. Some proposals seek to bar the children of anyone but lawful permanent residents and U.S. citizens. But what is to say that we don’t then move to stripping out other children of those who do not “deserve” to have their children awarded U.S. citizenship. Perhaps deny birthright citizenship to the children of those with criminal records? How about the children of same sex couples? What about where the parents express “anti-American” views? The folks pushing to repeal the 14th Amendment birthright citizenship rules are doing so to punish the behavior of the parents. Once we open the door, is it really that hard to envision pushing to add more and more groups?

10. Do we really want to start deporting babies?

That’s essentially what this proposal means. Is this really something our society has the stomach to do and is this really what Americans want to spend our tax dollars pursuing?

Even having a serious debate about this subject has the potential to tear society apart and the grownups in the GOP need to seize control and make it clear that the party does not endorse the idea. Aside from being the morally right thing to do, it’s also smart politics. At this point, the GOP is on the verge of so offending Hispanic voters in order to appease a tiny segment of the public that they risk losing the trust of Hispanics for generations.