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Immigration reform aims to decide who can stay and who must
go...maybe.
“Our nation’s
immigration and border security system is badly broken. It
leaves our borders unprotected, threatens our national security,
and makes a mockery of the rule of law. The system has suffered
from years of neglect, and in a post-9/11 world, we cannot
tolerate this situation any longer. National security demands a
comprehensive solution to our immigration system — and that
means both stronger enforcement and reasonable reform of our
immigration laws. We must solve this problem — and solve it
now.”
-John Cornyn, U.S. Senator from Texas
“In times of shrinking expectations...everyone feels like a
victim and pushes away outsiders to defend his own corner.”
-Oscar Handlin, American historian and educator
Build a fence.
Since 2000 the U.S. has been adding about 1 million legal
citizens per year through immigration and naturalization—1.2
million last year. Estimates of the number of illegal aliens
living in this country run from 12 to 20 million.
Y’all come.
Except for Native Americans, every U.S. citizen or their
forebears got their start here as immigrants, legal or
otherwise.
Somewhere between
the sentiments surrounding these two realities America is trying
to come up with a new way to handle its immigration policy.
“At its core,
illegal immigration is a problem born of the success of our
nation. The American Dream is a worldwide attraction, and many
are willing to risk their lives to gather even a glimpse of it,”
says Mel Martinez, a U.S. senator who is himself an immigrant.
“We have a booming economy and a huge demand for all levels of
labor. These realities plus our failed immigration policies and
porous border have resulted in a 20-year flow of illegal
immigration amounting to an estimated 12 million people. As
lawmakers, it is not only our duty but our responsibility to
address this problem. As a sovereign nation, we must arrive at a
solution that satisfies the security of our borders.”
As of the first of June, bipartisan lawmakers were wrangling—and
doing plenty of horse trading—over a potential solution to do
just that with the Comprehensive Immigration Reform Act (CIRA)—Senate
Bill 1348.
The White House
emphasizes the reform as a way to strengthen border security
first, then provide a means for current illegal aliens to gain
permanent residency, while also providing employers help in
verifying those they hire are legal.
Opponents are less
enamored, many claiming it is the same misguided amnesty program
adopted in 1986, but dressed in different clothes. Through
creation of a new visa category—the Z visa—illegal aliens could
remain in the country, though they would have to pay a $5,000
penalty and return to their home country within two years then
apply for legal admittance. Or something like that; it gets deep
and complex with a pile of amendments.
The more cynical
observers can’t be chastised for questioning why undocumented
workers would want to pay a stiff fine and agree to a forced
return to their own countries to become documented.
“As Congress debates overhauling our broken immigration system,
the bottom line should be this: Will the new system be
enforceable and restore respect for our laws? Or will it be
unenforceable and lead to even more illegality in the future?”
wonders John Cornyn, a U.S. senator from Texas. “In 1986, we
approved an amnesty for an estimated 3 million people here
illegally but promised that we would enforce the law in the
future. That promise was never honored. Unsurprisingly, we now
have at least 12 million here illegally, and more watching how
we handle this situation.”
Proponents of the Immigration reform act argue that it puts
national security first.
“This legislation
mandates that before we can move forward with a program to
address the undocumented workers currently in the U.S. or future
workers wishing to enter, we must meet certain enforcement and
security benchmarks that will let everyone know that we are
enforcing our laws and that we are not going to repeat the 1986
amnesty,” explains John McCain, U.S. Senator from Arizona. “The
most effective border protection tool we have is establishing a
legal channel for workers to enter the United States after they
have passed background checks and have secured employment. We
need to establish a temporary worker program that permits
workers from other countries B to the extent they are needed B
to fill jobs that would otherwise go unfilled on a truly
temporary basis.”
Closer to home, the
National Cattlemen’s Beef Association (NCBA) and many state
cattle organizations support immigration reform legislation that
both strengthens border security and creates a temporary worker
program that does not extend preferential treatment with regard
to qualification for Legal Permanent Resident status. NCBA also
supports efforts to permanently eliminate the “catch and
release” system that allows apprehended illegal immigrants from
countries other than Mexico to go free with a notice to appear
at a future deportation hearing.
The Problem isn’t going away any time soon. Passage of the
reform act was looking slimmer than an anorexic amoeba when this
article was written.
In the meantime,
U.S. employers, including agricultural and livestock producers
are caught between hiring the folks they need and trying to do
so legally, without a lot of help from current resources and
immigration policies see (Employers left Hanging).
Origins of U.S.
Immigration Policy
Since the first restrictions put on immigration in 1882,
Chinese, Japanese, Koreans and other nationalities have been
prohibited at times, or at least discouraged from coming to
America, through outright bans or harsh quotas and eligibility
requirements.
On the other hand,
government policies like the “Bracero” program of the 1940s,
actively sought out foreign nationals to come and work in
America’s fields and farms. During World War II, the federal
government ran organized migratory work camps to deal with labor
shortages.
Labor disputes
involving the work camps reportedly led to the Bracero treaty
between the Mexican government and the United States that
facilitated mass legal migration of impoverished Mexican farm
workers on a large scale – somewhere around 4 million people
between 1942 and 1964.
It wasn’t the first episode of Mexican labor moving north to
meet demand. Mexican workers played an important role in the
glory days of the great cattle ranching era, of course. But they
also replaced Chinese workers in California’s fields, helped
build the railroads and provided labor for mining and other
industries.
While the Bracero
program won praise from the farmers and ranchers who got the
qualified help that they needed, it was also condemned by others
for mistreatment and abuse of workers in some instances. After
22 years of the program, illegal immigrants became a competitive
force in the labor market, which combined with improvements in
equipment and changing political winds helped put an end to
Bracero program.
Where Today’s
Laws Came From
The foundation of modern immigration law was formed 40-50 years
ago with two key pieces of legislation.
One was the 1952
Immigration and Nationality Act (McCarran-Walter Act). It
retained a national origins quota system from 1921, abolished
the exclusion of Asians – but strictly limited their visas – and
established a preference system for people with education,
skills and relatives that we still live with today.
Next was the 1965
Amendments to Immigration and Nationality Act (Hart-Cellar Act).
According to a paper from the Center for Immigration Studies
(CIS)—a group that disfavors immigration—when President Lyndon
Johnson signed the bill, it was intended as a symbolic extension
of civil rights. It phased out the national origins quota system
and presumably put people of all nations on equal footing. At
that point, 70% of available visas were for three countries: the
United Kingdom, Ireland and Germany.
Most of those visas
went unused, while people from eastern and southern Europe faced
long waiting lists. The Hart-Cellar Act raised the ceiling on
total immigration and changed the allocation of visas among the
countries.
The CIS paper cites
numerous lawmakers of the time who believed changes stemming
from the Hart-Cellar Act would cause neither an increase in
immigration nor a significant change in the source of
immigrants. Some even suggested that the world had seen the end
of mass migration. Instead, it opened the gates to a new era of
mass migration.
Others point
fingers at the amnesty program of 1986 as a contributing factor
to the swelling numbers of illegal aliens that have crossed the
border. This program—the Immigration and Reform Control Act—gave
more than 2 million illegal aliens the much-coveted green card
and the right to stay and work permanently. Those who decry this
program say many illegal aliens at the time simply brought in
more of their family figuring that another amnesty program would
cover them in the future.
A subgroup of those
whose amnesty applications were initially turned down in the
‘80s and ‘90s got yet another chance at becoming legal through
the Legal Immigration and Family Equity Act of 2000, as a result
of class-action lawsuits.
Though the debate
over immigration—legal or not—rages on, more folks seem
understand that border control and immigration reform go
hand-in-hand even though they may disagree on how to do it.
Employers Left Hanging - by Sharla Ishmael
When Dallas
immigration lawyer Elise Healy gets calls from farmers and
ranchers who have an employee they think might not be legal, and
they want to know what they can do about it … they don’t like
the answer.
“I always have to
tell them there really is next to nothing under our current law
for people on the lower skilled end of the scale,” Healy
explains. “If it’s a company trying to hire somebody, we do have
a process that is primarily concentrated on highly skilled
people. People at the low end of the skills level have very
limited numbers of visas.
“Right now, we’re
seeing an oversubscription of the quotas even for the extremely
skilled, including outstanding researchers and professors in the
very highest visa categories, if they were born in certain
countries.”
Hiring a foreign national
Board-certified in immigration and nationality law, Healy
frequently lectures on immigration issues and also conducts
training sessions for companies on legal developments in
immigration.
She represents companies and organizations that want to employ a
foreign national and want the correct temporary visa. In many
cases, they then want to proceed and get their permanent visa or
green card, she says. She also represents individual investors.
American
immigration laws allow investors to immigrate to the United
States provided they make a minimum investment of $1 million and
their business will create at least 10 full-time jobs for U.S.
workers (or a $500,000 investment if it’s done in a rural area
or one with high unemployment compared to the national average).
Again, it’s the
poor and less skilled that are squeezed out of legal channels.
“In general, if a
company wants to hire a foreign national in a permanent position
… for most visa categories they have to go through a process
with the Department of Labor known as labor certification before
they can file a petition with the Immigration Service,” she
says.
“As of March 2005,
the Department of Labor moved to an automated labor
certification system in which the employer first conducts a test
of the labor market to see if there are available U.S. workers
who are willing, qualified and able to perform the job. The type
of recruitment activities that have to be undertaken are
prescribed by regulation by the Department of Labor.” These
include:
Opening a 30-day job order at the Texas Workforce Commission.
Posting the job
opening at the place of employment for 10 business days.
Running two print
ads at least a week apart in the Sunday newspaper, general
circulation.
Getting a prevailing wage determination from the TWC.
Healy says if the
job is a professional position, requiring at least a bachelor’s
degree, there is a set of 10 additional recruitment activities
and the employer has to engage in three of them – such as
positing it on a web site, trade association recruitment, etc.
Employers have to
do all this recruitment activity in the 30 to 180 day period
before they file a labor certification and then they have to
document everything from how many resumes they received to who
they screened out and why. Only then can they file an
application with the Department of Labor.
“The employer is
simply attesting (under penalty of perjury) to what they have
done to recruit a qualified, able and willing U.S. worker, and
they have to keep the documentation and results for five years
since they are subject to audit,” says Healy.”
The decision to
grant the labor certification is made by a machine, possibly
reviewed by a human, and she says it takes anywhere from 45 up
to 180 days to get the decision, though it could take longer if
there is an audit or request for documentation.
“If the labor
certification is granted, then the second step is for the
employer to file an immigrant visa petition with what’s now
called the U.S. Citizenship and Immigration Services – formerly
known as the INS,” Healy says.
“In the petition,
the company requests that the beneficiary (foreign national) be
found eligible for an immigrant visa in one of the five
employment-based visa categories. And it proves it has the
financial capacity to pay the offered wage, which must be at
least the prevailing wage. The petition must also prove that the
foreign national met each and every job requirement that was set
forth in the labor certification application at the time it was
filed,” she explains.
Along with the
documentation, the employer has to pay a $200 filing fee and
then wait for about 30 to 90 days receive the Immigration
Service’s decision to approve the visa request or not. However,
it has taken up to 10 months in some cases. But that’s not all….
“If the petition is
approved and the visa is immediately available under the quota
for that particular visa classification and the country of birth
of the foreign national, then the foreign national can file an
application for permanent residence, known as adjustment of
status for himself, and if he has them, a spouse and minor
children under 21,” says Healy.
“Adjustment of
status requires the foreign national to prove legal admission
and that he has maintained valid immigration status since entry
without unauthorized employment, and that he is otherwise
admissible as an immigrant.”
That decision can
take about 12 more months, though backlogs have resulted in a
delay of 2 to 3 years in the past, depending on the visa
category.
Whew.
In terms of the H2-A temporary visa classification for seasonal
agricultural workers, which she says is about the only thing a
rancher or feedlot has going for them, the process is similar
though more accelerated.
“It still involves
the state employment commission plus an inspection of housing
and transportation, advertising in the newspaper, opening a job
order, etc.,” Healy explains. “The Department of Labor advises
ranchers and others who use these workers to file their
temporary labor certification 90 to 120 days in advance of when
they anticipate the need.”
The vast majority
of U.S. immigrants in recent years have come based on family
relationships. There are only 140,000 permanent visas (green
cards) available for employment-based immigrants each year, and
all 140,000 employment visas are never used. As Healy says,
“That’s not a lot in a $14 trillion economy.”
In addition to
employment-based immigration visas and temporary employment
visas, there is another part of the immigration system that
deals with family-based visas.
Under the family
immigration system, U.S. citizens and permanent residents (or
green card holders) can petition for their spouses and minor
children, plus and U.S. citizens can also petition for their
adult sons and daughters, their married sons and daughters and
their brothers or sisters. There are no labor market controls on
family-based immigration, says Healy.
There are no
numeric limits for spouses and minor children of U.S. citizens.
However, a brother or adult child, for example, might have to
wait for many years to get a visa under limited quotas. The
waits may also be years under the employment-based immigration
system.
Healy explains,
“One of the issues that arose in 2005 was oversubscription. For
the big sending countries – China, India, Mexico and the
Philippines – there are far more foreign nationals who have
approved labor certifications and visa petitions than there are
visas available in the annual allocation for each of these
countries.
“The total number
of visas is limited and no country, regardless of its size, can
have more than 7 percent of the total,” she says. “So China,
India and Mexico are treated the same as smaller countries,
which makes little sense.”
Having practiced
immigration law since 1991, Healy has a few opinions about how
she’d like to see the immigration system changed. “I think we
need to enforce the law, but we need an enforceable law. We
don’t have that today as far as I can tell. Although we do need
to increase our surveillance, I don’t see that alone being able
to stem the tide.
“My own opinion is
that they might think in terms of getting rid of the
family-based classification for siblings of U.S. citizens. We
live with our brothers and sisters growing up, but we don’t
generally have that kind of extended family in this culture,”
she says. “I think there should be a labor market test when
citizens petition for adult or married sons or daughters. These
folks are, after all, coming to the United States to work.
“I also think we
should get rid of the visa lottery,” says Healy. “It’s
ridiculous. We have plenty of diversity in our immigrant
population. Yes, protect our borders. But then have a workable
system that businesses can use if they cannot find employees
locally. It’s not like (immigration reform) is an easy question,
but we need a better answer than what we have today. And we need
a safer system, too.” |
