LE­GAL PATH TO IM­MI­GRA­TION ISN’T AS EASY AS IT SOUNDS

Austin American-Statesman - - FRONT PAGE - DANIEL M. KOWAL­SKI Kowal­ski is editor-in-chief of Bender’s Im­mi­gra­tion Bul­letin and has been prac­tic­ing im­mi­gra­tion law since 1985.

“Why don’t they come in here le­gally?” It’s the com­plaint we hear all the time about the na­tion’s es­ti­mated 11.1 mil­lion peo­ple liv­ing in the coun­try il­le­gally. Usu­ally the ques­tion is fol­lowed by a vari­a­tion of these words: “like my grand­par­ents did.”

Ac­tu­ally, most of the na­tion’s undocumented peo­ple would love to “get in line” to come into the coun­try le­gally. If only they could.

But they can’t be­cause they don’t fit into any visa pref­er­ence cat­e­gory or be­cause the wait for the visa can take decades. With­out a rel­a­tive to pe­ti­tion for them un­der a fam­ily-based pref­er­ence or a job that fits into an em­ploy­ment-based cat­e­gory, there sim­ply is no line to en­ter.

Mil­lions of low-wage ser­vice, in­dus­trial, man­u­fac­tur­ing and con­struc­tion jobs are filled by unau­tho­rized work­ers who don’t qual­ify for visas be­cause the La­bor De­part­ment won’t cer­tify a short­age of “U.S. work­ers” in those oc­cu­pa­tions — be they cit­i­zens, green card hold­ers, refugees and oth­ers with work au­tho­riza­tion.

The de­part­ment claims there are plenty of U.S. work­ers avail­able, but talk to the owner of a land­scap­ing com­pany who spends thou­sands of dol­lars an­nu­ally on ad­ver­tis­ing and le­gal fees to se­cure tem­po­rary H2B visas for peo­ple from Mex­ico to push lawn­mow­ers, and she’ll tell you that she can’t get Amer­i­can work­ers to ap­ply for the jobs or stick with them. One could ar­gue that the pre­vail­ing wage for land­scap­ers — roughly $12 per hour now in Cen­tral Texas — is the rea­son.

In some visa cat­e­gories, the wait can be 10 or 20 years or more. If the line is too long, would-be im­mi­grants might break the law by, for ex­am­ple, sneak­ing over bor­ders or over­stay­ing stu­dent visas. Peo­ple can’t be ex­pected to wait decades for per­mis­sion to work or live near their loved ones.

The fed­eral gov­ern­ment is­sues more than 1 mil­lion green cards per year on av­er­age. But there are sev­eral lines for these cards. Which one an im­mi­grant ends up in de­pends on whether they have a job or fam­ily in the United States.

There are four fam­ily-based cat­e­gories for many rel­a­tives called “pref­er­ences” and five based on em­ploy­ment. The num­ber of green cards is­sued through each is lim­ited by coun­try of ori­gin, but there is no cap for “im­me­di­ate rel­a­tives” — spouses of U.S. cit­i­zens, U.S. cit­i­zens’ un­mar­ried chil­dren un­der age 21 and par­ents of adult U.S. cit­i­zens over 21.

Im­mi­grants and their lawyers track their “place in line” in the State De­part­ment’s monthly Visa Bul­letin, which lists cut­off dates for each pref­er­ence and coun­try.

The Visa Bul­letin pro­vides a rough pre­dic­tion of how long the wait will be in any given line. How­ever, the fixed num­ber of visas for each pref­er­ence, plus in­creas­ing de­mand, en­sure that the lines only get longer.

For ex­am­ple, one fam­ily-based pref­er­ence — for broth­ers and sis­ters of adult U.S. cit­i­zens — for im­mi­grants from the Philip­pines is stuck at Aug. 1, 1993. That means that a Filipino U.S. cit­i­zen try­ing to get le­gal sta­tus for her sis­ter would have had to file her pe­ti­tion on or be­fore Aug. 1, 1993 for the pe­ti­tion to be ad­ju­di­cated to­day. Based on monthly cal­cu­la­tions of sup­ply and de­mand, the visa of­fice moves this cut­off date for­ward only a few days per month. The wait­ing pe­riod could be 30 years or more for these Filipino sib­lings.

If the line is rel­a­tively short and an im­mi­grant has not lived long in the United States, that might be fair. But if — as politi­cians from both par­ties have pointed out — an im­mi­grant was brought here il­le­gally as a child and faces a decades­long wait and knows no other coun­try, what’s fair about go­ing “home” to a na­tion he or she doesn’t re­mem­ber to wait for per­mis­sion to re­turn?

Our im­mi­gra­tion pol­icy runs counter to our na­tional ethos of civil and hu­man rights. Over the past cen­tury, we have come to be­lieve that dis­crim­i­na­tion on the ba­sis of race, gen­der, faith and sex­ual ori­en­ta­tion — things that can­not be changed or that we can­not de­mand be changed — is morally wrong. Yet the Im­mi­gra­tion and Na­tion­al­ity Act, by set­ting quo­tas on how many peo­ple can come from cer­tain coun­tries, is another form of dis­crim­i­na­tion.

For more than 100 years, our coun­try had no nu­mer­i­cal visa quo­tas. Ev­ery limit we have put on the num­ber of green cards has been ar­bi­trary — and driven by fear more than facts. In 1882, for ex­am­ple, Congress passed the Chi­nese Ex­clu­sion Act, which barred al­most all Chi­nese from im­mi­gra­tion or nat­u­ral­iza­tion. This shame­ful, race-based law was not re­pealed un­til 1943.

For com­pre­hen­sive im­mi­gra­tion re­form to work, Congress will have to sub­stan­tially in­crease the num­ber of green cards avail­able each year in ev­ery visa pref­er­ence. This may mean, for ex­am­ple, al­low­ing a one-time surge of visas to wipe out the back­log, then dou­bling or tripling some quo­tas.

If we keep our sys­tem as it is, we will be spend­ing more on fences, walls, drones, bor­der guards, im­mi­gra­tion courts and de­por­ta­tion of­fi­cers. How will we pay for the cost of en­force­ment — and will it be worth it?

JOHN MOORE / GETTY IM­AGES

Gu­atemalans look at a map of their coun­try af­ter ar­riv­ing in Gu­atemala City aboard a char­ter air­plane car­ry­ing 135 de­por­tees from Texas in Fe­bru­ary.

Kowal­ski

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