The fatal flaw in Obama’s plan to let unauthorized immigrants into the military

On Thursday, the Obama administration announced that it was going to allow unauthorized immigrants who have already been protected from deportation (under the Deferred Action for Childhood Arrivals program, or DACA) to serve in the military.

The announcement was something that some young unauthorized immigrants, or DREAMers, have been waiting to hear for years. They’d been frustrated that, since 2012, many of them had been able to work legally in the US under DACA, but hadn’t been able to serve in the armed forces. And they’d gotten their hopes up when news had leaked in May that the administration was going to allow them to serve — only to have the administration put that plan on hold less than a day later.

But when it comes to the details, it turns out the administration’s move will, in a best-case scenario, only affect a very limited number of DREAMers — an estimated “few dozen,” in the words of one leading advocate. And that’s, again, the best-case scenario. In the worst-case scenario, a catch-22 could make it impossible for any DACA recipient to enlist under the new program at all.

What the Obama administration is doing is expanding an existing program for certain types of immigrants: the Military Accessions Vital to the National Interest program, or MAVNI.

Currently, MAVNI is only open to legal immigrants. The Obama administration is now opening it up to unauthorized immigrants — as long as they have protection under the deferred-action program — as well. But MAVNI is only open to immigrants with very particular skills: they have to be experts in a particular foreign language (Spanish doesn’t count), or have medical expertise.

There are “DACAmented” immigrants who have expertise in an uncommon language, or want to go into health care. But medical colleges have only started accepting them, meaning that no DACAmented immigrant will have the medical degree needed for MAVNI for several years. And it’s not clear at all how many of the DACAmented immigrants who want to serve in the military will qualify through the language requirement.

Cesar Vargas of DRM Action Coalition, who’s been the most visible “military DREAMer” since he “came out” as unauthorized in 2010, said that of all the would-be immigrant service members he’s in touch with, he only knows of two people who could be eligible for MAVNI under the current restrictions.

Cesar Vargas says that some branches of the armed forces take the current restrictions on enlisting more seriously than others: “It’s not uniform. Some people have undocumented siblings, or undocumented parents, and they’re fine,” he says. “I’ve heard the Marines are pretty tough. US citizens are getting turned away” if their relatives don’t have the right immigration status.

But for immigrants who are trying to apply under the MAVNI program, the immigration status of their relatives might not be something a recruiter can wave off — because it’s part of a mandatory background check. As Margaret Stock, an immigration lawyer who came up with the idea of the MAVNI program to begin with, explained to me in May:

As of 2012, the requirements for enlisting under MAVNI include what’s called a “Single Scope Background Investigation,” or SSBI — an investigation used throughout the government, usually to give people security clearances. And according to Stock, it’s impossible for an unauthorized immigrant, with or without temporary “deferred action” protection, to pass an SSBI.

“SSBI items that cause ‘failure’ include having undocumented relatives, as well as any ‘law violations’,” Stock writes in an email to Vox. “I don’t see how any DACA can ‘pass’ unless the contractor doing the investigation ignores his or her instructions.”

In theory, the military (or at least the branches of it that are currently taking a more lenient attitude toward citizens with unauthorized relatives) could choose to “override” the requirement in the background check. But that means, for the “few dozen” DACA recipients that Vargas estimates might qualify for MAVNI, getting approved for the background check will be a massive risk.

In order to apply, they’ll have to tell contractors which of their relatives aren’t in the US legally. Even if that’s not going to make them ineligible to enlist — which looks like a pretty big “if” — that could be a pretty big chilling effect on them wanting to apply at all. And even those immigrants who manage to jump through all those hoops are still fighting for a limited number of slots, as I wrote in May:

For all of these reasons, many of the politicians and advocates who had been asking Obama to allow DREAMers to serve in the military are taking the news as a defeat.

Rep. Luis Gutierrez (D-IL), the biggest supporter of executive action on immigration in Congress, released a statement Thursday saying that the administration has “decided not to let DACA recipients enlist in the military except in very limited circumstances.” And United We Dream, one of the leading DREAMer advocacy groups, titled their statement “Nice Try.”

Gutierrez’ statement floated one possibility: “Maybe after the season of midterm elections passes and the Obama Administration makes a top-to-bottom review of its immigration policies and its ability to make adjustments under current law this matter will be revisited.”

That suggests that Gutierrez and advocates aren’t giving the administration any credit for making this move before the midterms. And it suggests that the advocates and Latinos who are waiting for the administration to do something really big on immigration aren’t going to stop holding their breath.