Seemingly distraught about the multibillion-dollar cost of hosting tens of thousands of asylum-seekers shipped north by Governor Greg Abbott of Texas, New York Mayor Eric Adams and Governor Kathy Hochul might usefully take a page from New York's past.
It was only in 2005 that New York City removed a regulation put in place during the mayoralty of Fiorello La Guardia in the 1930s to clear out Jewish and other "ethnic" vendors from the streets of the Lower East Side by requiring them to prove their citizenship. Bending to pleas from immigrants clamoring for a path to make a living, the City Council amended the administrative code to bar city officials from even asking: "Information about an applicant's immigration or citizenship status shall not affect the consideration of the application for a food vendor's license or renewal thereof," it decided.
That precedent holds some promise for solving the current urban migrant crisis. One of the urgent demands from New York's leaders is that Washington quickly grant prospective asylees permission to work so they might get a job now, instead of relying on the public purse while they figure out which application to submit for U.S. immigration authorities to then do their processing thing.
There's some theater to their pleas, though. Adams and Hochul know that untangling the bureaucratic knot preventing 60,000 or so asylum-seekers in city shelters (and many thousands more across New York and the rest of the country) from going to work requires a political decision that the White House is reluctant to take.
Moreover, their appeal elides that the city and the state possess tools that would go some way toward solving the problem. They are not using them for the same reason the White House is hiding behind a claim of impotence rather than coming to their rescue: Helping migrants, in today's polarized partisan cauldron, looks a lot like political suicide.
The Biden administration has tried to help a bit, extending temporary protected status to cover several hundred thousand recent immigrants from Venezuela. This does not solve New York's urgent problem, though: These folks must still apply for a work permit. Ariel Ruiz Soto from the Migration Policy Institute estimates that even if they were to apply for employment authorization tomorrow, they would get it, at best, in three months.
What's keeping hundreds of thousands of asylum-seekers from getting a job has little to do with the job market, which would love to have them. The barrier depends, to some extent, on how they got here. Folks who requested asylum before an immigration judge must wait at least 180 days to get work authorization. People granted humanitarian parole can apply right away but processing takes about four months.
But the two fundamental reasons so many people are not allowed to work are that they haven't applied for permission (or even know they can) or that officials at U.S. Citizenship and Immigration Services are stretched so thin that processing any application takes forever.
Despite the feigned helplessness of city, state and federal authorities, they have levers to pull. They are playing immigration hot potato so they don't have to pull them.
Cities have perhaps the simplest case. It rests on the legal fact that working on one's own account — as a street vendor, perhaps, or a hairdresser — does not count as employment, which immigration law forbids unauthorized immigrants from doing.
The hurdles for asylum-seekers to work as independent contractors are mainly municipal licensing rules. If cities like New York really want asylum-seekers out of shelters and in the labor force, they can ease the rules and maybe help them move into, say, food delivery.
The avenue that states have to help unauthorized migrants onto their feet is a little more novel but also seems legally solid. The 1986 Immigration Reform and Control Act that prohibited hiring undocumented immigrants did not explicitly extend the bar to state government entities. Under Supreme Court precedents, that means the act doesn't bind them.
Following a campaign by law scholars making this case, the University of California announced in May that it would grant equal access to employment opportunities to all students, including undocumented immigrants who until now have been barred from taking jobs at campus coffee shops, as research assistants or even as medical residents.
Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at the University of California at Los Angeles and one of the leaders of the effort, says he hopes the first U.C. hires of undocumented kids under the new policy will happen in January.
But, he adds, the same legal analysis could be applied much more broadly, to any state government entity doing whatever. The state of New York could establish a work program for recent arrivals to build, say, public housing. "Nothing about our theory is limited to universities," he said.
Even the feds could do more. Extending temporary protected status is a good start, but the administration could go further. Notably, why not simply suspend for a period the enforcement of sanctions against employers who hire unauthorized immigrants?
As Michael Wishnie, a legal scholar at Yale, told a conclave about migration policy and law organized by the Migration Policy Institute last week, this has been done before — by President George W. Bush, to cover employers of undocumented immigrants in Louisiana in the aftermath of Hurricane Katrina. If that emergency justified relaxing restrictions on unauthorized workers, the current emergency might justify it, too.
Sadly, none of this may end up happening. But we should at least acknowledge the reasons. "When the federal government says there is nothing it can do it often means there are things that it can do but chooses not to," Wishnie said.
The failure so far of President Joe Biden, Gov. Hochul and Mayor Adams to give these solutions a shot underscores how the seemingly unassailable barrier to allow asylum-seekers to get a job and move on is not technical nor bureaucratic but political.
With a tight presidential election coming up in 2024, and with New York Democrats hoping to recapture the congressional seats they stunningly lost to Republicans in the midterm elections, appearing to stretch the law for migrants' sake may seem like a losing political proposition.
Their analysis is probably right. But they might at least own up to it.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Eduardo Porter is a Bloomberg Opinion columnist covering Latin America, U.S. economic policy and immigration. He is author of "American Poison: How Racial Hostility Destroyed Our Promise."