Sunday, March 24, 2013

Immigration Reform -- Addressing the Most Pressing Problems

March 24, 2013
 
For those of us who have believed that Congress finally will do the right thing and pass common sense immigration reform, this looks more and  more like the year that it will.

 

The list of problems with the system is a large one, and not every problem can or will be solved by this Congress.  However, the ones that are hurting the most people are:

 

1.      Essential Workers (perform year round jobs that do not require a college degree) cannot apply for temporary visas

 

Since 1965, there have been no temporary visas for these workers.  Employers only can file green card cases for them, but there is a minimum six year backlog in the applicable category, so the green card system is useless.  In short, no visas for these critical workers who support our entire economy.

 

2.      No driver’s licenses for the undocumented, except in about 3 states

 

Millions of people are driving without licenses, without insurance, and without basic knowledge of the rules of the road.   If they were licensed, police could spend time on more serious matters.  Some of them come from cultures where drinking and driving is common, and the result in the US can be fatal.  In the work context, any employer whose unlicensed driver has an accident almost surely will have any insurance claim denied, which can be devastating financially for the employer.  Until the undocumented can obtain legal status, lives will be lost, claims will be denied, and police resources will be wasted.

 

3.      Employers being set up to fail E-Verify

 

Under NC law, by July 1, virtually all employers will have to use E-Verify for all new hires.   For industries that rely on manual laborers, it is highly likely that they will not be able to hire the workers that they need, because most such workers are undocumented.  In theory, it makes sense for E-Verify (if it is reliable) to be required of all employers.   And when federal law provides a way for these workers to be authorized to work, E-Verify makes perfect sense.  But until then, employers face an impossible choice: don’t hire needed workers, or intentionally violate federal law. 

 

4.      Severe lack of visas for highly educated workers

 

H-1B visas are available for computer design engineers, accountants, teachers, and similar professionals.   Each year the US gives out 65,000 (plus an additional 20,000 to those who get advanced degrees from US schools).   For the last 10 years, these visas have been used up before the end of the fiscal year, and sometimes they are gone before the fiscal year (October 1-Sept 30) even begins.  In 2013, estimates are that all of the H-1B numbers will be gone by April 5, five days after employers can begin filing for this year’s crop  of numbers.  Unlike other areas of the law, immigration law essentially scorns the law of supply and demand.   The current quota of 65,000 was arrived at during a committee hearing  in 1990.   It was and is an arbitrary number, totally divorced from reality, and one that no one can justify in rational terms.   For years US employers have begged Congress to either increase the numbers or create some kind of formula that would allow one year’s usage to determine the following year’s allotment, or something similar.  Congress has refused every year.

 

5.      No work permission for spouses of H-1B visa holders

 

Some visas held by spouses of foreign workers (E-2 and L-2) allow the derivative spouse to file for a work permit.   The H-4 spouse, however, cannot.  

 

6.      Huge backlogs in employment based green card system

 

These delays keep employees from reaching their professional potential because they have to remain in the same job with the sponsoring employer for years.   For example:

 

Jobs requiring the worker to have a BS degree:     six years, except for Indian citizens (11 years)

 

Jobs requiring Master’s degree:                                 Chinese citizens (5 years), Indian citizens (9 years)

 

Jobs requiring less than 2 years of experience:       six years, except for Chinese citizens (10 yrs) and Indian citizens (11 yrs)

 

7.      Family based case backlogs even worse

 

Siblings of US Citizens:                                  12 years for all countries, except Mexico (17 years) and  Philippines (23.5 years)

 

Married sons and daughters of USCs:        11 years for all countries, except Mexico (20 years) and Philippines (21 yrs)

 

Unmarried sons and daughters (over 21) of

legal permanent residents:                           8 years for all, except Mexico (20 yrs) and Philippines (11 yrs)

 

Spouse and under 21 children

Of legal permanent residents:                     2.5 years for all

 

Unmarried sons and daughters

Of USCs:                                                           7 years for all, except Mexico (20 yrs) and Philippines (14 years)

 

8.      The inadmissibility bars based on unlawful presence

 

In 1996 Congress enacted legislation that imposed severe sanctions against anyone who entered the US without inspection (“EWI”) and stayed too long, or who entered with a visa and overstayed for too long.   The penalties [3 years for 181 days of unlawful presence (ULP); 10 years for 366 days of ULP; permanent (because no waiver exists)for ULP of 366 days plus a later EWI] were designed to keep people out of the US.   The actual effect has been to keep people in, except when family emergencies arise.  And when they do, people leave, e.g.,  so that they can be with dying relatives.  The stories are legion of people with US citizen spouses and children, who have to leave to see family, and who then return EWI, and as a result, they are virtually barred forever from obtaining legal status.

 

These problems affect virtually every segment of our population.   The debate in Congress has been non-existent for years, but due to the historic  whipping that Romney took at the hands of the Hispanic vote, it appears that the Republicans see the wind blowing and they are responding.   The US Chamber of Commerce and several national unions have finally resolved the number of essential worker temporary visas that will be allowed each year under the new regime, and the path to citizenship also appears to be agreed upon.   It also appears that the H-1B numbers will be essentially doubled, with some conditions.

 

Very soon it will be time for the public to press each member of Congress to vote for common sense immigration reform.  The time for waiting is over, as is the time for treating immigrants (high skill or low, family member and student) as if they are invisible or are taken for granted.  When this year’s proposal is introduced, it is time to turn up the heat.

 

To be continued: 

 

·        will employers be able to file for H-1Bs all year round

·        will spouses of H-1Bs be allowed to file for work permits

·        how will the backlogs be handled

·        what kind of proof will be required for an essential worker visa

·        what will it be called

·        how long will people have to wait to apply for green cards (through the new law or through a combination of the current system and new temporary visas)

·        how should Congress deal with the 3/10/permanent bars

 

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