Immigration

Immigration

Immigration reform and border security are complex, emotional debates, with passionate beliefs on all sides. Some view the issue as one of humaneness. Many see it from a perspective of fairness. And still others approach immigration on the basis of practicality. We are a nation of immigrants. My Irish and Italian forebears made their way to Nevada in search of a better life. We are also a nation of laws with the right to control our borders. While I don’t think any of those perspectives are mutually exclusive, it seems the one thing all sides can consistently agree on is that our immigration system, as presently constituted, is not working.

Questions to consider

As the House and Senate debate how best to fix our broken immigration system, I think it is important to consider the following questions:

1)      Should we legalize some, all, or none of the illegal immigrant population?  What sort of legal status should we confer?  How can we be both humane and respectful of the rule of law?

2)      What will be the impact of legalization on the federal budget?

3)      What will be the impact of legalization on American employers and workers?

4)      In 1986, Congress legalized 2.7 million illegal immigrants while at the same time implementing employer sanctions to deter future illegal immigration. Because of document fraud and a lack of enforcement, employer sanctions have not been effective. What new immigration enforcement measures should we enact? How can we ensure that they will truly prevent future illegal immigration?

5)      Should legal immigration levels stay the same, increase or decrease? How can we address current green card backlogs? What types of immigrants should be prioritized? Should any green card categories be eliminated?

6)      How can our immigration system better contribute to America’s global competitiveness?

7)      Should we establish new guest-worker programs?

8)      How can we address, in a fair and just manner, the cases of those individuals who were brought into the country illegally as children and have known no other home than the United States?

Also, I think it is important to understand the current status of immigration, both legal and illegal, in the United States before you can define what “comprehensive” and “reform” mean.

Legal avenues to enter United States

Immigrant Visas, known as “green cards,” grant legal permanent residence. Permanent residents can:

  • Reside indefinitely in the U.S. (but are subject to removal if they commit a removable criminal offense).
  • Work in the U.S.
  • Become eligible for many federal public benefits programs.
  • Sponsor certain relatives to immigrate.
  • Apply to become naturalized U.S. citizens after five  years (three years if they are married to a U.S. citizen).

To be naturalized, a permanent resident must be of good moral character and must – with certain exceptions – display an understanding of English and a knowledge and understanding of the history and of the principles and form of government of the United States.

Nonimmigrant Visas grant the ability to stay in the U.S. for limited periods of time. They vary from “A” visas all the way to “V” visas. For instance:

  • B visas are for tourists and business visitors,
  • F and M visas are for students,
  • H, L and R visas are for temporary workers, and
  • J visas are for exchange program participants.

Citizens of 37 countries admitted to the Visa Waiver Program can enter the U.S. for up to 90 days as tourists without a visa.

1,062,040 immigrants granted permanent residence in 2011 -- more than any other country

  • Nuclear family members of citizens and permanent residents (419,496)
  • Other relatives of citizens and permanent residents (268,593)
  • Skilled workers and their nuclear family members (130,337)
  • Other employment-based immigrants (8,577)
  • Lottery winners (50,103)
  • Humanitarian (171,088)
  • Legalization (12,645)
  • Other (1,201)

Skilled immigration in the U.S. compared to Australia, Canada and the U.K.

  • The U.S. selects about 12 percent of legal immigrants on the basis of their education and skills (along with their spouses and children).
  • Australia selects 67 percent of legal immigrants on the basis of education and skills.
  • Canada selects 62 percent on this basis.
  • The U.K. selects 72 percent on this basis.

Legal immigration preference system

  • Total family-sponsored immigrants: Spouses and unmarried children of U.S. citizens and the parents of adult U.S. citizens (unlimited)
  • Family-sponsored prefrence immigrants (226,000 limit)
    • 1st preference: Unmarried sons and daughters of citizens (23,400 plus visas not required for 4th preference)
    • 2nd preference: Spouses and children of Legal Permanent Residents (114,200 plus visas not required for 1st preference)
    • 3rd preference: Married sons and daughters of citizens (23,400 plus visas not required for 1st or 2nd preference)
    • 4th preference: Siblings of citizens age 21 and over (65,000 plus visas not required for 1st, 2nd, or 3rd preference)

Employment-based preference immigrants (140,000)

  • 1st preference: Priority workers -- persons of extraordinary ability in the arts, science, education, business, or athletics; outstanding professors and researchers; and certain multi-national executives and managers. (40,040 of worldwide limit plus 4th and 5th preference)
  • 2nd preference: Members of the professions holding advanced degrees or persons of exceptional abilities in the sciences, art, or business. (40,040 of worldwide limit plus unused 1st preference)
  • 3rd preference -- skilled: Skilled shortage workers with at least two years training or experience, professionals with baccalaureate degrees. (40,040 of worldwide limit plus unused 1st or 2nd preference)
  • 3rd preference -- other: Unskilled shortage workers. (5,000 to 10,000 taken from the total available for 3rd preference)
  • 4th preference: "Special immigrants" including ministers of religion, religious workers other than ministers, certain employees of the U.S. government abroad, and others. (9,940 of worldwide limit. Religous workers limited to 5,000)
  • 5th preference: Employment creation investors who invest at least $1 million -- amount may vary in rural areas or areas of high unemployment -- which will create at least 10 new jobs. (9,940 of worldwide limit. 3,000 minimum reserved for investors in rural or high unemployment areas.

Non-preference immigrants

  • Asylees: Aliens in the U.S. who have been granted asylum due to persecution and who must wait one year before petitioning for LPR status. (unlimited)
  • Cancellation of removal: Aliens in removal proceedings granted LPR status by an immigration judge because of exceptional and extremely unusual hardship. (4,000 with certain exceptions)
  • Diversity lottery: Aliens from foreign nations with low admission levels. Must have high school education or equivalent or minimum two years work experience in a profession requiring two years training or experience. (55,000)
  • Refugees: Aliens who have been granted refugee status due to persecution or a well-founded fear of persecution and who must wait one year before petitioning for LPR status. (Presidential determination for refugee status, no limits or LPR adjustments) 

Major temporary work visa programs

  • H-1B visas: For workers in "specialty occupations" that require the theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor's or higher degree in the specific specialty or its equivalent. H-1B workers are most typically systems analysts and computer programmers, college professors, accountants, electrical engineers, and doctors. Employers must pay H-1B aliens the prevailing wage for the job. H-1B visas are good for up to six years or longer if a worker has been approved for a green card). 65,000 H-1B visas are available a year, plus 20,000 for graduates of U.S. universities with advanced degrees, plus an unlimited number of visas for workers at institutions of higher education and related nonprofits or at nonprofit or governmental research organizations.
  • H-2A visas: For workers who perform agricultural labor of a temporary or seasonal nature. There is no numerical cap.
  • H-2B visas: For workers who perform non-agricultural labor of a temporary nature generally less than a year. H-2B employers include resorts and amusement parks, construction companies, home health care companies, and landscaping and seafood processing companies. There are 66,000 H-2B visas available per year.
  • L visas: For workers who have worked for an employer overseas and who come to work for that employer or an affiliate or subsidiary in the U.S. in a managerial or executive capacity or in a capacity that involves “specialized knowledge.”  Many employers can use either H-1B or L visas, however, L visas have no numerical cap or prevailing wage requirement.
  • J exchange-program visas: Are available for summer work, travel for foreign college students and are also available for au pairs and for medical residents. There is no numerical cap.

Border crossers vs. visa overstayers

  • An estimated 40 percent of the illegal immigrant population did not cross the border illegally.
  • Rather, they came legally on temporary visas such as tourist visas, often found work illegally, and simply never returned.
  • Thus, border security alone will never fully bring illegal immigration under control.
  • In 1996, Congress mandated the implementation of an entry-exit control system to enable the identification of visa overstayers. This system has never been satisfactorily implemented.

Illegal immigrant population estimates: 1986-2011

Jobs magnet and employer sanctions

It has long been widely agreed that a “jobs magnet” draws the vast majority of illegal immigrants to the United States. Therefore, Congress in 1986 made it unlawful for employers to knowingly hire or employ aliens not eligible to work and employers must check the identity and work eligibility documents of all new employees and record the results on the “I-9” form. This is called “employer sanctions.”

Employers must accept documents presented if they reasonably look to be “genuine.” The easy availability of millions of counterfeit documents has made a mockery of this process.

Why did employer sanctions fail after 1986?

Compounding the flawed design of the Immigration Reform and Control Act of 1986, first the Immigration and Naturalization Service and then DHS failed to vigorously enforce the new employer sanctions law. Each succeeding Administration put fewer resources into enforcement than the one before it. GAO reported in 2005 that:

  • “Worksite enforcement has been a relatively low priority... relative to other enforcement programs in INS, worksite enforcement received a small portion of INS’s staffing and enforcement budget... ”
  • “in 2003 ICE headquarters issued a memo requiring field offices to request approval from ICE headquarters prior to opening any worksite enforcement investigation not related to the protection of critical infrastructure sites... Field office representatives told us this was one of the few investigative areas for which offices had to request approval from ICE headquarters to open an investigation.”

The Migration Policy Institute finds that: “Because of inadequate statutory mandates... employer compliance and enforcement have been weak and largely ineffective as tools for frustrating illegal immigration.”

Recent Statistics from ICE reveal significant drops in worksite enforcement activity across the board.

  • Administrative arrests have fallen 78% from fiscal year 2008 to fiscal year 2012 (from 5,184 to 1,118).
  • Criminal arrests of employers and employees are down 53% (from 1,103 to 520) with criminal arrests of employees down 71% (from 968 to 280) and criminal arrests of employers increasing by 78% (from 135 to 240).
  • Criminal indictments have fallen 63% (from 900 to 329).
  • Criminal convictions are down 65% (from 908 to 314).

How can we best ensure that immigration laws we pass will be enforced?

E-Verify: To give employers an effective mechanism to determine whether newly hired employees are legally eligible to work, Congress made E-Verify available. Through E-Verify, employers can easily check the Social Security numbers and alien identification numbers provided by new hires against Social Security Administration and DHS records in order to weed out fraudulent numbers.

  • E-Verify has grown more and more popular – more than 430,000 employers nationwide now participate.
  • A 2001 outside evaluation found that “an overwhelming majority of employers participating found E-Verify to be an effective and reliable tool for employment verification.” In 2007, a new evaluation found that “most employers found the Web E-Verify to be an effective and reliable tool for employment verification and 96 percent did not believe that it overburdened their staffs.”
  • A 2009 report found that in less than one percent – only .5 percent - of cases do employees who are eventually determined to be work-authorized receive a tentative non-confirmation and undergo secondary verification. Thus, persons eligible to work receive immediate confirmation 99.5 percent of the time. For the native-born, 99.9 percent receive immediate confirmation; for employees born outside of the U.S., 97.4 percent receive immediate confirmation.

What were the previous Obama Administration’s enforcement priorities of immigration laws?

U.S. Immigration and Customs Enforcement’s three-tiered “priority” system states:

  • Priority 1: Non-citizens who pose a danger to national security or a risk to public safety, including those suspected of terrorism, convicted of violent crimes, and gang members. Within Priority 1, these crimes are further ranked as Level 1, 2, or 3, with Level 1 being the most serious crimes. Level 1 and 2 offenders are of the greatest priority:
    • Level 1 offenders: Aliens convicted of “aggravated felonies” or two or more crimes each punishable by more than one year’s incarceration, commonly referred to as “felonies.”
    • Level 2 offenders: Aliens convicted of any felony or three or more crimes each punishable by less than one year’s incarceration, commonly referred to as “misdemeanors.”
    • Level 3 offenders: Aliens convicted of crimes punishable by less than one year.
  • Priority 2: Non-citizens who recently crossed the border or a port of entry illegally or through the knowing abuse of a visa or the visa waiver program.
  • Priority 3: Non-citizens who are subject to a final order of removal and abscond, fail to depart or intentionally obstruct immigration controls.

Additional resources:

https://judiciary.house.gov/subcommittee/subcommittee-on-immigration-and-border-security/