U.S. immigration law is complex and it touches every aspect of U.S. life, family, business, and national security. This summary will only discuss the two broad areas perceived to be most urgently in need of reform – “Family Immigration” and “Business & Employment Immigration.” This summary will not discuss the topic of border security and enforcement.
Current U.S. immigration laws and policies are causing widespread human suffering of U.S. Citizens and Lawful Permanent Residents because of unintended consequences that infringe on fundamental rights.
BUSINESS & EMPLOYMENT BASED IMMIGRATION:
Current U.S. immigration laws and policies are restricting business growth and industrial expansion and placing at risk the economic and national security of the U.S.
What is immigration law and how is U.S. immigration law enforced?
U.S. immigration policy, laws, and regulations are civil in nature and are adjudicated under the Federal Rules of Civil Procedure. All federal civil law in the U.S. is based in federal statute that is passed by Congress and signed by the President. To be enforceable a civil law must be reasonable. When a federal civil law infringes on a fundamental right of U.S. citizens, the law must be tested and it must pass the highest level of scrutiny or the law is struck down by the federal courts as unconstitutional. If not timely challenged, an unreasonable law or regulation ultimately will result in unnecessary human suffering or it will invite flagrant violation.
Why is a comprehensive overhaul necessary?
There has been much debate about how to fix the current U.S. immigration system. Some advocate for targeted legislation to reform specific areas of concern. Others feel the system is in need of significant alteration requiring a more comprehensive approach. U.S. Immigration law is extraordinarily complex and in many areas it is incoherent, or at best, it imposes harsh, unreasonable penalties and unintended consequences on U.S. Citizens and Lawful Permanent Residents, as well as U.S. business and industry.
The basis of our current policy is the Immigration & Nationality Act (INA) passed by Congress in 1952. The INA has suffered many reforms through the intervening decades. Because many of the past reform efforts have passed Congress during times of extraordinary emotional and political strife with little consideration the true effect of the acts, our resulting current law is fraught with problems and unintended consequences.
The two most egregious and draconian areas needing reform are so fundamental to the national interest that they must be the center piece of any reform effort. These two broad areas of current U.S. immigration law and policy, if remedied, effectively will promote significant economic expansion and most importantly will relieve wide spread human suffering of U.S. Citizen and Lawful Permanent Resident families.
Family Unity for U.S. Citizens &
Lawful Permanent Residents
Protect Fundamental Rights of U.S. Citizens and Permanent Residents:
Human passion is a critically sensitive and essential factor of human existence. Instinctive love for family members and in particular for one’s spouse and children will compel any reasonable person to take extraordinary measures to overcome hurdles or government imposed obstacles if their safety and companionship are threatened. Therefore, any law or regulation that arbitrarily attempts to regulate human relationships by imposing extensive arbitrary separation will invite flagrant violation and will result in unnecessary human suffering.
This is exactly what happened in 1996 when the United States Congress passed and then-President Bill Clinton signed a sweeping immigration reform act commonly known as IIRIRA (Illegal Immigration Reform & Immigrant Responsibility Act. H.R. 3610; Pub.L. 104-208; 110 Stat. 3009-546). IIRIRA was passed with little or no regard for unintended consequences. The primary focus of the legislation was on “undocumented” (or what were termed “illegal”) foreign nationals.
There was little concern and no provision given to U.S. Citizens and Lawful Permanent Residents affected by the 1996 law. Fundamental questions were apparently never addressed – such as: Why do we want to “punish” a spouse or child of a U.S. Citizen? What will be the effect on a U.S. Citizen, whose only offense was to fall in love with their high school sweetheart who happened to be a foreign national?
Commonly unknown and often misunderstood is the fact that the 1996 bill arbitrarily imposed a 10-year bar on reentry to the United States of any person who departed the U.S. after having been “unlawfully” present in the U.S. for more than 1 year. When evaluated historically in light of political and social concerns of the mid 1990s, the 1996 law may have been reasonable if accommodation was made for relatives of U.S. Citizens and Permanent Residents.
However, there are no exceptions - not even for children brought to the U.S., educated in the U.S., who may have married their U.S. Citizen high school sweetheart, and now have children of their own. Congress has considered various proposals to remedy this problem many times but to no avail. Missing in nearly all debates associated with immigration reform in recent years has been consideration for the plight of U.S. Citizen and Lawful Permanent Resident relatives of the targeted foreign nationals.
Fundamental Right to Marry is Not Supported Under Current Law?
It is not and should never be the responsibility of the U.S. government to regulate the nationality of any U.S. citizen’s chosen spouse. To do so, and any attempt to do so, will lead to human suffering and disrespect for the law. This is precisely what the U.S. government is dealing with today and why the U.S. government has been frustrated in every attempt to enforce current U.S. immigration law and policy. Again, current U.S. law and policy imposes draconian penalties on violators – including immediate relatives of U.S. Citizens. Because of the vital familiar relationships involved, human passion is the actual and perhaps unintended target of current enforcement efforts.
To remedy the current human suffering being imposed on U.S. Citizens and Lawful Permanent Residents, the government must exempt the following groups from the draconian 3, 5, & 10 year inadmissibility bar:
1. Immediate Relatives of U.S. Citizens,
2. Lawful Permanent Residents
3. Other responsible persons brought to the U.S. as children
Protection of the Family Unit Is Essential:
There is no law, policy, or regulation that will be effective in keeping families apart. Family members will find a way to reunite. No fence is high enough, and no penalty serious enough to keep lovers apart and children separated from their parents. Nor should the government attempt to do so without vital national security interests being threatened. What is the national interest in imposing an arbitrary 10-year separation of a U.S. citizen from his or her spouse?
The 1996 IIRIRA legislation was not the first time the U.S. or state governments have attempted to regulate whom a person was allowed to marry. Many states at one time enforced laws banning marriage between Caucasians and people of color. Finally, in 1967 the U.S. Supreme Court unanimously reversed a criminal conviction in a case titled Loving v. Virginia. The Court settled the question once and for all of whether a U.S. citizen has a “Fundamental Right to Marry.” The court struck down all laws barring interracial couples from marrying. Chief Justice Earl Warren wrote in his decision that:
“There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies [Virginia's prohibition of interracial marriage]. . . . Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. . . . The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
It is not a stretch to see that current U.S. immigration law and policy imposes serious infringement on many marriages involving U.S. Citizens.
Business Needs &
Employment Based Immigration
Free U.S. Business and Industry to Prosper and Expand:
It is essential to the U.S. national interest and to the U.S. economy that U.S. businesses be released to hire the human talent they need and that company management determines are essential to advancing their company’s best interest and objectives. The U.S. government has long restricted U.S. business hiring of highly-skilled foreign nationals by capping non-immigrant and immigrant visas at unrealistically low numbers. The U.S. policy of employing tight restrictions on all foreign labor has forced many U.S. employers to establish operations abroad. If not corrected soon, the U.S. will eventually lose its competitive edge as highly talented and advanced degree individuals compete with the U.S. from abroad. As hiring enforcement initiatives are executed against U.S. employers, particularly in the agriculture sector, growers and other operations will be forced to Mexico or other places where labor is available without heavy-handed government restrictions. U.S. national security could be seriously compromised by forcing more food and other essential products to be imported from outside the U.S.
Business Immigration Discussion:
If the U.S. immigration system functioned properly, unscrupulous employers would be less able to exploit unauthorized workers or foster unfair competition for U.S. workers and authorized foreign workers. With a better-functioning immigration system, U.S. employers could hire the workers they need, and those workers would exercise the same rights on the job as native-born workers. The following data is taken from a report published by the Center for American Progress and the American Immigration Council, January 2010.
• An overhaul of the immigration system that includes legalization of the undocumented would boost the economy with a cumulative $1.5 trillion in added U.S. Gross Domestic Product (GDP) over 10 years. The benefits of additional GDP growth would be spread broadly throughout the U.S. economy, but especially large increases would occur in immigrant-heavy sectors such as textiles, electronic equipment, and construction.
• The wages of native-born U.S. workers would also increase once unauthorized workers are legalized because the “wage floor” rises for all workers, particularly in industries where large numbers of easily exploited, low-wage unauthorized immigrants currently work. U.S. workers would experience total income gains of over $30 billion per year.
• The higher earning power of newly-legalized workers would generate increased tax revenues of about $5 billion over 3 years. Higher personal income would also generate increased consumer spending—enough to support 750,000–900,000 jobs in the United States.
Source: The Economic Benefits of Comprehensive Immigration Reform, Center for American Progress and the American Immigration Council, January 2010.
The U.S. Economy Needs “STEM” & Entrepreneur & Startup Visas
Foreign students represent half of all U.S. graduate school enrollments in engineering, math, and computer science. It is imperative that U.S. businesses have access to foreign professionals who have graduated from U.S. Master’s and Ph.D. programs. These are the highly educated individuals who may have the “Next Great Idea” or other promising business plan. Unfortunately, rather than giving employers access to these bright young people, or providing some other way for them to remain in the United States, our current immigration system all too often forces them to leave. U.S. policies regarding employment-based visas should provide ways for U.S. companies to retain high-potential foreign individuals who are graduates of U.S. universities.
We also need changes in U.S. visa policy that will enable immigrant entrepreneurs to stay in the U.S. to create jobs and strengthen the economy. AOL Co-founder Steve Case said it this way:
“If we want to get the economy going and jobs going, we need to get more attention on entrepreneurship. If every part of America worked liked Silicon Valley, we would have a booming economy.”
Source: Immigrant Entrepreneurs, U.S. Chamber of Commerce and the American Immigration Council, January 2012.
Current U.S. immigration policy has a cap of 140,000 employment-based (EB) immigrant visas, which are divided into five preference categories. The categories include:
- Priority Workers,
- Professionals Holding Advanced Degrees or Persons of Exceptional Ability,
- Skilled Workers,
- Special Immigrants, and
- Employment Creation Investors.
* Spouses and children accompanying the workers count toward the cap.
Just as in the family immigration system, significant backlogs exist in the employment-based green card system. U.S. businesses face a variety of skill needs and find a shortage of American workers to fill those needs. Talented immigrants have made crucial contributions to the development of next generation technologies and have founded some of the most innovative businesses in the United States. As global economic integration deepens, sustainable growth will depend in part on our continued ability to attract the best and brightest innovators.
A nonimmigrant is a foreign national legally in the United States for a specific purpose such as tourism, business, studies, seasonal work, or specialty work. A nonimmigrant may stay for a set, temporary period of time.
The H-2B visa is used for Temporary Non-Agricultural Seasonal workers. The H-2B visa is vital to America’s small businesses and thus to America’s economic recovery. H-2Bs are capped at 66,000 visas per year and are equally split between winter and summer seasons. This is the same arbitrary number that was set by Congress 23 years ago, in 1990. The H-2B is the only way for small business owners to legally hire workers for temporary and seasonal positions when they cannot find an American worker to fill.
Small and seasonal businesses have every incentive to hire any qualified U.S. citizen or lawful permanent resident who applies for a position. However, even in the current weak economy, many positions remain unfilled, leaving these businesses desperately in need of workers. This is not surprising since these jobs typically involve low-skilled and semi-skilled labor, involve work at remote locations, and are only short-term in duration.
One way to reform the H-2B program would be to reauthorize a provision that allows workers returning to an employer from the previous season to not be counted against the annual 66,000 visa cap.
The H-1B visa enables U.S. employers to hire, on a temporary basis, well educated foreign professionals for “specialty occupations”—jobs that require at least a bachelor’s degree or the equivalent in the field of specialty. U.S. businesses turn to an H-1B worker to alleviate temporary shortages of U.S. professionals in specific occupations, and/or to acquire special expertise in overseas economic trends and issues, thereby making U.S. businesses competitive in global markets.
Prior to the global economic downturn starting roughly around 2007, U.S. businesses would apply for all of the yearly allocation of H-1B visas within hours or days of the visas application opening date. However, in 2012 the H1B visa cap was reached in July. It is no surprise that U.S. business demand for skilled workers has lower in recent years than it was during times of prosperity.
Exempt U.S.-Educated Workers with Advanced Degrees & Reallocate Unused Visas
If congress believes that the U.S. must have a cap on the number of professional working in the U.S., one solution for the H-1B visa category would be to exempt U.S.-educated workers with advanced degrees from the H-1B visa cap. Another solution would be to amend current law to allow unused H-1B visas from previous fiscal years to be reallocated in future years. Current law allocates a fixed number of H-1B visas each year, but visas that are not used, due to administrative processing delays, are lost and cannot be used in future years. Finally, the H-1B category could be improved by permitting work authorization for spouses of H-1B visa holders who are forbidden under current law to work while in the United States even though their spouse has an H-1B visa.
Win Eaton, Esq.
Certified Specialist in Immigration & Nationality Law
** Portions of this immigration summary were first printed in AILA InfoNet Doc. No. 12031530 (posted 03/15/2012)