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The Golden Door

News and views on immigration law

Posts Tagged ‘employment-based immigration’

Australia is successfully competing for skilled immigrants

Tuesday, March 22nd, 2016

Check out this Quartz article about how skilled immigrants are finding a friendlier welcome in countries like Australia and Canada, in part because of artificially low quotas for skilled workers (the H-1B category in particular) in the USA, and in part due to the hostility expressed to immigrants in general by our presidential candidates.


Rumblings of immigration reform…

Friday, February 1st, 2013

I just read through the “Bipartisan Framework for Comprehensive Immigration Reform,” put together by a group of eight U.S. Senators, and the White House’s four-point platform on immigration reform, both statements which are (deliberately, no doubt) fairly similar in substance.

My first impression:

Good things:  both statements agree that (1) there should be a route for non-criminal unauthorized immigrants to obtain lawful status, including making amends for their unlawful actions such as paying back taxes and paying a fine; (2) our immigration system should permit individuals who have received advanced educational degrees in the United States to stay here without first getting an employer to sponsor them, thus freeing them to start businesses rather than rely upon an employer-sponsor for their status; (3) children brought to the United States without knowingly violating our immigration laws – commonly referred to nowadays as DREAMers – will face a less onerous route to obtain their permanent resident status than their parents; and (4) immigrant agricultural workers who have been paid “subsistence wages” should be granted permanent resident status, as there simply are not enough American workers for these agricultural jobs, and granting these workers permanent resident status would make them less vulnerable to exploitation by employers.

There seems to be a recognition running through the Senators’ framework that unauthorized immigrant workers are easily exploited by unscrupulous employers and thus granting these workers lawful status will, among other things, help build up stronger labor protections for workers in general.  (Of course, that brings us to a separate debate on business competitiveness when industries have to compete with overseas workers with weaker labor protection movements.)

Bad things:  The Senators’ framework makes permanent resident status for unauthorized immigrants contingent on “securing our borders and combating visa overstays.”  This statement raises the question of when will our borders be considered secure “enough”?  Another point made in the Senators’ statement restricts this class of “lawful probationary immigrants” from accessing federal public benefits, which means that while this class of immigrants would be required to pay taxes and thus fund these benefit programs they will not be able to access them when in critical need of social services.  This will create a new class of persons, with less rights than citizens or legal permanent residents.  Sounds complicated, and ripe for adverse unintended consequences.

Some of the points stated in these platforms sound great on paper but the real question is how they will be executed, such as:  Prohibit racial profiling; create an effective entry-exit tracking system so that we will know when someone who entered on a valid visa fails to depart on schedule; and provide “businesses with the ability to hire lower-skilled workers in a timely manner.”  I would love to see the “timely” part of that statement turn into reality.  Will timely mean a month?  Six months?  A year?  Two years?

The issue that faces one of the biggest implementation hurdles is creating an effective employment verification system.  As an immigration lawyer, it is difficult for me to sometimes identify the immigration status of the person in my office who has brought me all their immigration documents, and sometimes immigration officers themselves have a hard time, even with government databases at their fingertips.  The E-Verify system currently in place to verify employment authorization does not stop incorrect verifications through identity theft.  The Senators’ platform calls for an identity-theft-proof system.  A tall order.

Overall, a good start to the debate over what should be changed in our immigration system.  We’ll see where it goes from here.

Immigration Reform – hopeful and wary

Saturday, January 26th, 2013

In immigration circles there’s a feeling in the air that we may actually get comprehensive reform this year.  President Obama has clearly put his support behind it, and a small group of Democratic and Republican senators are working on hammering out a core set of principles that both sides can agree on prior to drafting any proposed legislation.

Immigration reform can mean a lot of different things, depending on what you think is wrong with the current system.  Some people think it is too harsh, penalizing infractions of law in ways that are disproportionate to the violation and tearing apart families, and in doing so often hurting U.S. citizens.  Others think it is too lenient, not holding people adequately accountable for violations or deterring future violations.  When we talk about immigration laws, we have to think about authorized immigration – the foreign nationals who come (or want to come) to the United States on visas, whether to visit, work, go to school, or who permanently immigrate here based on family ties or work skills; and unauthorized immigration – the foreign nationals who enter without inspection or enter using a visa and then overstay, becoming unlawfully present.

There is plenty of room for improvement in our existing scheme of distributing visas, especially if one thinks, as I do, that we should increase the number of authorized immigrants we permit to join our ranks.  One of the most frustrating issues in immigration is the visa quota system, which creates huge backlogs in several categories of both family and employment-based immigration.  Backlogs of two to 24 years exist in the family-based quota-limited visa categories.  Backlogs of five to ten years exist in the most popular employment-based visa categories.  (See Visa Bulletin.)  These backlogs undermine the policy considerations that created these categories of visas in the first place:  promoting family reunification and helping U.S. businesses employ qualified workers when such cannot be found in the existing pool of local U.S. workers.  The promise of family reunification or employing qualified workers from abroad becomes effectively meaningless when one has to wait an average of 12 years to bring a sister and her family to the United States, or a business has to wait six years to hire the worker it needs.

While these considerations are particularly frustrating to those of us who deal with immigration on a daily basis, the more attention-grabbing aspect of immigration is the unauthorized immigrant population.  There are an estimated 11.5 million unauthorized immigrants in the United States, according to the U.S. Department of Homeland Security.  Declarations that this population should be deported or should  “self-deport” are unrealistic to say the least.  These are people who have built their lives here, and whose children, whether born in the United States or not, have grown up here and know America as their home.  Most people left their native countries, which was no small step – leaving family, friends, everything that is familiar and dependable – because they could not see any hope in the future for themselves and their children there.  Yes, they violated our immigration laws to come here.  Yes, we should impose a consequence for that violation.  But it is unrealistic to try to identify and then lawfully deport all 11.5 million or more unauthorized immigrants.  Making life so unpleasant for unauthorized immigrants that they will leave of their own accord – well, what level of unpleasantness is enough to convince someone to return to a place where they had no hopes for their future?  And what level of unpleasantness are we willing to stomach to achieve this goal?  I think the answer is that we, as a nation, believe in human rights, and to get a person to the point where he or she is willing to self-deport would require suspending our respect for human rights.  I have to believe we are not ready to do this.

Whatever your view on the appropriate penalty to be levied for unauthorized immigration before the immigrant can get his or her green card, one unfortunate reality for this population is that its members can be uniquely vulnerable to scammers.  Many unauthorized immigrants, even those who have lived in the United States for many years, do not speak English.  (I’ve already expressed my views, as an immigration attorney, on long-term immigrants who still do not speak English in this blog.)  Those who do speak some English may still rely on media sources in their native language for news.  Already, I am hearing rumors of ethnic language newspapers reporting that a route now exists to lawful status for unauthorized immigrants.  For someone without their legal papers, including work authorization or a driver’s license and social security number, getting lawful immigration status can mean being able to bank instead of always using cash, being able to drive legally instead of relying on others or driving in fear of being stopped by the police, and being able to go to the police for help without fear of being reported to immigration authorities, among many other things.  For people in this situation, the hope of getting a green card can be used against them.  Unscrupulous ethnic “services brokers” promise that they can get the immigrant their papers if they pay a (usually exorbitant) fee.  Filing a petition for a green card when you are not eligible can result in being placed in deportation proceedings.  So the prospect of comprehensive immigration reform, including a path to lawful status for non-criminal unauthorized immigrants, while a reason for cautious optimism, also creates opportunities for hucksters to ply their trade.  For those of you who know unauthorized immigrants (which of us does not?), please tell them to be careful of promises of a “guaranteed green card” if they just pay the fee.  No such thing exists.


Asian exceed Latinos in immigration to the United States

Monday, September 3rd, 2012

You may have noticed it yourself — the number of documented Asian immigrants to the United States has exceeded that of Latino immigrants.  A recent Pew study has documented the numbers.  The study finds that the current crop of Asian immigrants tends to be both better educated than other immigrant groups and better educated than their peers in their home countries.  Asian immigrants also will be more likely to enter the United States through employment-based immigrant petitions than other immigrant groups.

Although my family entered the United States on a family immigrant petition, my mother, who was a computer programmer knowledgeable in Pascal, COBOL, and ADABAS-Natural – computer languages highly sought after in the United States in the late eighties and early nineties – was also a potential candidate for an employment-based immigrant petition.  In other ways my family fits the trend documented by the Pew Study.  My father has a medical degree, my mother a law degree.  My brother and I were too young to have accumulated advanced degrees at the time we came to the United States, but I eventually got my bachelor’s and law degree, and my brother has a bachelor’s and a master’s and is working on a second master’s.  My parents and I were recently mentioned, among others, in a Philadelphia Inquirer article about the changing trend in immigration.

However, trends can sometimes obscure individual realities, and serve as a convenient excuse to ignore vulnerable, needy populations.  While currently arriving immigrants from Asian countries may include a high proportion of highly skilled and educated individuals, this does not mean that all Asian immigrants are so well off that they do not need help and outreach.  Asian immigration over the history of America has included waves of laborers and refugees as well as educated professionals.  Refugee populations in particular can be particularly vulnerable when learning how to live in a new country.  Refugees generally do not arrive in an orderly, planned fashion, bringing with them money and resources and perhaps English language ability already.  Refugees can arrive in a new country with a few meager belongings, few or no relatives with them or already in place to support them, few work skills, limited education, and not knowing how to speak the language of their new home.  Asian refugees often come from Vietnam, Cambodia, Laos, Burma, Indonesia, Pakistan, Afghanistan, and East Timor.

Refugees are displaced people.  People who can no longer live in their home countries for fear of losing their lives or those of family members.  They often need intensive support services from government, private non-profit agencies, and informal community networks to adapt well to their new homes.  Sometimes support services are available, and sometimes they are not, and refugees have to make do.  It may not be too surprising then, that some Asian immigrants, especially those from refugee backgrounds, still struggle to get by and still need support services.

While I am glad to think that more and more of the incoming Asian immigrants today are highly skilled and educated, and will probably become valued and sought-after employees and dynamic entrepreneurs, I know from personal experience that this is just one facet of Asian immigration.  Like most things in life, while labels and categories are convenient to help organize our thinking, they should be a guide only, and not become rigid walls that stop us from recognizing the real factors that affect people’s lives.