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
