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Immigration Gridlock Not Likely to End After the Election

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In yet another sign of just how deadlocked the US Congress remains on immigration reform, a bill that would have provided 55,000 new permanent visas for foreign-born scientists and engineers was defeated in the House of Representatives late last month. It was the first time in recent memory that the Democrats -- not Republicans -- blocked an immigration reform measure that many legislators in both parties say they support, in fact.

On its face, the GOP proposal seemed reasonable enough. After all, most experts say there simply aren't enough visa slots for high-skilled workers from Asia and elsewhere that the US economy badly needs and that are in high demand globally. If the U.S. immigration system can't attract them to stay and work in America - the argument goes -- they're likely to settle elsewhere, helping overseas businesses expand and weakening U.S. competitiveness.

In fact, a bipartisan group of legislators, led by Florida senator Marco Rubio on the GOP side and Virginia senator Mark Warner on the Democratic side, has already pushed through bills that would make it easier for foreign-born engineering students in US schools and foreign-born business owners with promising start-up companies to get "green cards," conferring permanent residency. The push hasn't received much press attention, but it's one of the first tangible signs of a budding thaw in the veritable Cold War in Congress when it comes to immigration.

Or so it was thought. This time, though, the GOP, led by the firebrand head of the House Judiciary Committee, Rep. Lamar Smith, a staunch opponent of illegal immigration, decided to go it alone, it seems. Even worse, the 50,000 high-tech visas called for in Smith's bill would have required a reduction of 50,000 visas from the so-called "diversity lottery," a special visa program that the Democrats and their base groups have championed for years. In other words, this wasn't a bipartisan bill at all -- but a power play.

The diversity lottery hands out green cards at random to applicants who don't typically qualify for one under the "normal" visa rules, which require that applicants be supported by a family member or an employer. Some 8-15 million people worldwide apply each year, and by law, just 55,000 diversity visas may be granted. In other words, Smith's bill wouldn't have just raided the diversity visa lottery -- it would have killed the program altogether. Why is the visa lottery worth preserving?

In fact, it's not clear that it is. Critics, mostly Republicans, backed by think-tanks like the Heritage Foundation, say it's a boondoggle and that a disproportionate number of lottery visa holders end up on welfare or unemployed precisely because they lack the family or employer support that other applicants have. They also charge that the lottery, which in recent years has been dominated by applicants from Africa (almost 50% in FY 2010), also encourages fraud and through lax screening may even expose America to security threats -- charges that a 2007 report by the US General Accounting Office commissioned by Republicans have echoed.

Democrats reject those arguments, of course. And the fact is, Republicans who oppose rising immigration across the board have wanted to kill the diversity lottery ever since it was first established in 1990 -- long before terrorist infiltration was much of an issue. Some Democrats also charge that Republicans are hostile to immigrants that aren't upwardly mobile, and that attacks on the diversity lottery are part of a much broader campaign to restrict visa admissions to high-skill applicants from Europe and Asia, as opposed to the many unskilled immigrants who enter the country, often illegally, from Latin America, especially Mexico.

The problem for Democrats? There is a growing bipartisan consensus that the current immigration system doesn't emphasize employment skills as much as it should, and that the system needs real overhaul. In fact, as early as 1996, a bipartisan immigration commission, set up by President Clinton under former Democratic Texas Senator Barbara Jordan (and known informally as the "Jordan Commission"), tried to resolve such issues. The Commission, to the chagrin of many Democrats, ended up calling for restrictions on traditional family-based visas, and an expansion of employment-based visas. It also called for eliminating the diversity lottery on the grounds that the program wasn't actually contributing much to the US national interest.

In other words, despite its partisan edge, there was clearly some constructive logic to the latest GOP visa proposal, especially since the country seems to be in no mood to see immigration expanded formally at a time of nationwide unemployment. And that's why some liberal lawmakers, led by long-time immigration reform champion Rep. Zoe Lofgren (D-CA), tried to offer a compromise measure that would have allowed Congress, and the two parties, to have it both ways: preserve the existing diversity lottery as is, but still allow for more high-tech visas. But Republicans would have none of it. That left Democrats facing a zero-sum trade-off: a GOP bill that most actually supported and an established visa program that many were not quite ready to jettison. In the end, all but 30 Democrats decided to oppose the GOP measure, leaving it just 20 votes short of passage.

Of course, it isn't just policy differences at work here, but late election-year politics, too. How many Democrats really wanted to help the GOP pass a pro-immigration bill at a time when they're portraying Republicans as a bastion of "nativists" and "bigots"? At the same time, for Republicans, depicting the Democrats as the immigration reform "obstructionists" for a change could provide useful political fodder -- if not now, then further down the road. Not getting to yes on immigration, it seems, is still a powerful bipartisan temptation.

In theory, the two sides might have worked out a deal, had they really wanted to. How? Trim both programs to 25,000 visas, ensuring that no net increase in annual visas would occur. But that would have required a genuine willingness by the two parties not to play politics with immigration, and for Democrats, perhaps, it would have meant a more sincere effort to negotiate and make concessions over a visa program whose days are probably numbered any way.

This was a small skirmish, perhaps -- so small that the media barely noticed it. It could be that once the dust settles from the presidential election, and the two parties get down to the nation's business again, that the immigration conundrum will finally be addressed without the usual partisan calculations. And a relative sidelight like the diversity lottery might easily be sacrificed by the Democrats to secure a deal on a much larger immigration reform package.

But don't count on it. With the GOP almost certain to retain control of the House, even an Obama victory probably won't move the needle much on immigration -- at least not in a direction that most Democrats would favor. House Republicans will be looking to expand immigration enforcement still further, and Obama, much like Bill Clinton did on welfare reform after his own re-election, may have to confront his own base and demand concessions -- on "amnesty" above all -- if he expects to end the partisan gridlock and broker a legislative deal that majorities in both parties can finally put their votes behind.

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