Immigration Fallacy: Essential Workers Don’t Wait Their Turn to Immigrate

September 18th, 2008

One of the most demonizing myths about undocumented aliens is that they blatantly disregard our immigration laws and obtain an unfair advantage.   
The fact is, there is no avenue for the vast majority of undocumented aliens (those that are not documented or whose authorization to remain in the US has expired) to apply to become legal permanent residents or to even work here temporarily.  According to opinion surveys of undocumented aliens, 98 percent would prefer to live and work legally in the US if they were allowed to do so.  However, most of them are not eligible for temporary or permanent visas, and even if they were, the wait for such visas can be many years or even decades.
Nonimmigrant visas run almost the full gamut of the alphabet.  They are visas issued for a temporary period and for a specific activity.  For example, there is a B-1/B-2 visa for tourists, an E-1/E-2 visa for treaty traders and investors, an F-1 visa for students, an H-1B visa for professional workers, a J-1 visa for exchange visitors (au pairs, students, professors, etc.), an L-1 visa for intracompany transferees, a K-1 visa for fiances, an O-1 visa for extraordinary ability aliens, a P visa for athletes and entertainers, an R visa for religious workers, etc.  These nonimmigrant visas categories are very narrow and restrictive.
The H-2A and H-2B visas, the two primary nonimmigrant visas granting employment-authorization to essential workers, are inadequate for the millions of such workers in demand.  The H-2A visa applies strictly to agricultural workers for a temporary or seasonal position.  For the H-2B visa, the employer must demonstrate that the request for labor is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.  There are only 66,000 H-2B visas available each year.
Last year when comprehensive immigration reform was on the political table, bipartisan guest worker legislation was proposed.  Such legislation would have created a nonimmigrant visa for sorely needed essential workers in positions that are permanent in nature, not seasonal like the H-2s.  If the guestworker visa had succeeded, it could have greatly ameliorated the illegal immigration conundrum in our country by legalizing essential workers alien in high demand.
 
There are four primary ways for foreigners to obtain the green card, which is legal permanent residency in the US.  These are through:  (1) employment; (2) family; (3) asylee and refugee status and (4) the Diversity Visa Lottery.  For the employment-based category, there are only 5,000 immigrant visas available each year for low-skilled workers such as gardeners and construction workers.  This means that it can be many years before they can apply for legal permanent residency.  As discussed above, there is no viable nonimmigrant working visa to allow the bulk of unskilled workers to remain in the US while they wait for permanent legal status in the US.
For the family-based category, if they are not sponsored by an immediate relative US citizen spouse, parent or child (over 21) then the wait can also be many years and even decades.  Also, the family-based category is restricted to spouses, parents and children (under 21) of US citizens (immediate relatives); unmarried children and spouses of legal permanent residents; married sons and daughters of US citizens; and brothers and sisters of US citizens.
Obtaining asylee or refugee status is very difficult and only a small percentage of applications for such status are approved each year.  The applicant must show that he or she has a reasonable fear of persecution, or suffered past persecution, on account of race, religion, political opinion, nationality or ethnicity, or membership in a particular social group.  Asylee or refugee status is not available for victims of civil war, natural disasters, violent crime or extreme poverty.  There is temporary protected status (TPS) for citizens of countries in which the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that are so unsafe as to prevent the return of the foreign national.  The current countries designated for TPS are Burundi, El Salvador, Nicaragua, Honduras, Sudan, Somalia and Liberia. Almost all undocumented workers wish to become legal and permanent members of our society but are unable to do so because of the dearth of visas.  They do not gain any unfair advantages living in the shadows, but rather are some of the most disadvantaged, vulnerable and exploited members of our community.  It is time that we grant these hard-working and critically needed workers the status they covet and deserve.
The Diversity Visa Lottery is exactly what it says, a lottery.  Only 50,000 visas are available each year and 100,000 individuals are selected each year to apply for one of these visas.  Only individuals from certain countries low demand countries – can apply and citizens from India or China are not included.