The Ins and Outs of Immigration Reform

The Immigration Dilemma- Week 6

Over the past five weeks, I've attempted to give you all a sense of the immigration dilemma as it currently stands in the United States. Opinions are frequently polarized into pro- vs. anti- immigrant positions without taking into account the complexities of immigration law and history, the legal immigration system, and the push/pull cause and effects of undocumented migration. Without an understanding of these complexities, immigration concerns arise that have no factual basis.

The result?

A stalemate in Congress and a worsening status quo.

If this series has shown you nothing else, I hope you are now able to see how broken our current immigration system is. There are decades-long backlogs in the family immigration system. There is virtually no legal way for low-skilled workers to migrate to the United States. And while I did not get into delve into this aspect much in this series, immigrants are frequently denied due process protection and basic human rights as they are apprehended and detained.

In a society which is built upon the values of justice, opportunity, and equality, we need real solutions to the immigration dilemma that uphold these values and help us move forward together. We need comprehensive immigration reform.

Now, people always ask me "What would this look like?" or "How would you make real solutions?" So this final post I have dedicated to laying out the 8 elements that we at FCNL see as vital to creating an orderly, equitable, and efficient legal immigration system.


One. Realistic Legal Avenues for Future Migration
Recognizing the importance of immigrant labor in the U.S. economy, we believe there needs to be an expansion of legal avenues for workers (including low-skilled workers) to migrate to the United States in a safe and legal manner. These new legal avenues must protect immigrant workers’ rights, including the ability to bring their families with them, to change their place of employment, and to apply for lawful permanent status and eventual citizenship. Such avenues must be designed to meet the legitimate needs of the economy without undercutting workers already in the United States.

Two. Family Unity
Recognizing the critical role of family in the development of healthy individuals and communities, we think that immigration policies need to make family reunification a top priority, equally respecting the rights of opposite-sex and same-sex couples. Reform of the family immigration system should revise family preference categories and per-country caps, expedite the processing of visa applications caught up in lengthy visa backlogs, and remove bars to reentry and adjustment of status for those seeking to reunite with family. Family visas should not be placed in competition with employment visas.

Three. Protection for Refugees, Asylum Seekers, and Other Displaced Persons
Immigration policies should support openness to refugees and those seeking asylum. We live in an increasingly interconnected and globalized world, and our planet is undergoing potentially dramatic climate changes that threaten to displace millions of people. Refugee and asylum policy should support those displaced by conflict, oppression, environmental change, natural disaster, and economic destitution.

Four. An Equitable Path to Legal Status and Eventual Citizenship
Immigration reform must create a reasonable and inclusive path for undocumented immigrants, multi-status families, refugees, and asylees to regularize their status and earn eventual citizenship. Such a program must be workable and not hindered by overly punitive criteria.

Five. Protection for All Workers
Immigration policies must ensure that all people can work with dignity. Laws governing wages, hours, health, and safety should be strictly enforced, the ability to organize protected, and remedies to redress workplace grievances made available to all workers, regardless of immigration status. Abiding by strict labor and employment laws would remove the economic incentive for employers to import undocumented and temporary labor, practices which can be used to undercut wages, job security, and working conditions for those already in the United States. Immigration policies should augment the Department of Labor’s ability to enforce labor laws, not hinder it by creating a climate of fear that employers can use to exploit immigrant workers.

Six. Immigrant Integration
Immigration policies should support communities with high concentrations of immigrants and facilitate immigrant integration. The U.S. immigration system should ensure that communities are able to welcome immigrants by providing federal support to state and local governments and organizations to provide multi-lingual and civics education, outreach, and naturalization assistance. The immigration system should also ensure that all immigrants, regardless of status, have access to social services such as health care, and that immigrants can trust local police by revoking 287(g) agreements.

Seven. Due Process Protection and Reformed Detention Policies
All persons, regardless of immigration status, should be afforded due process protection; detention policies should be reformed to uphold human and civil rights. Due process protection for immigrants includes—but is not limited to—the end of mandatory detention and expedited removal, access to legal counsel and law libraries, independent judicial review of individual circumstances before removal, and the ability to challenge detention before an independent judicial body in a timely manner. Binding detention standards should also be developed to ensure access to basic rights, such as adequate access to health care, protection from unnecessary restraints and arbitrary transfer, and access to telephones.

Eight. Enforcement Aligned with Humanitarian Values
Immigration enforcement must be realigned with humanitarian values. Over the last twenty years, immigration enforcement has been built on the concepts of fear, isolationism, and misplaced blame. This has led to the construction of a border wall between the U.S. and Mexico, indiscriminate home and workplace raids, and Border Patrol activity as far as 100 miles within the U.S. border. None of these measures have effectively stemmed undocumented migration, yet such policies have desecrated sacred religious sites, violated numerous environmental laws, and induced human and civil rights abuses. Such policies should not be a part of a reformed immigration system.

OTHER POSTS IN THIS SERIES

An Immigration Dilemma: An Introduction
A Nation of Immigrants: A History (Abridged)
Crossing the Legal Way: An Overview of the Legal Immigration System Today
Who Are "Illegals" and What Is Undocumented Migration?
Immigration Concerns: From Birthright to Welfare

Immigration Concerns: From Birthright to Welfare

The Immigration Dilemma- Week 5

So far in this series, I've spent a lot of time trying to nuance the immigration debate and all of its complexities. We've gone over immigration history, challenged the notion of what is "legal" vs "illegal," talked about how the legal immigration system actually works, and how we have the undocumented population that we do today.

But there are still a lot of concerns about immigration. So this part of the series is my A-Z listing of some common immigration concerns and how I would respond. I'm hoping you'll find that after having read the past posts in the series, you'll already be able to dispel these myths on your own.

"ANCHOR BABIES" AND THE FEAR OF BIRTHRIGHT CITIZENSHIP
The concern: Many people think that undocumented immigrants cross the border and have children--who by birthright are U.S. citizens--in order gain legal status for themselves and the rest of their family. People call these children "anchor babies." They therefore say that we should either repeal the 14th amendment where birthright citizenship is enshrined or at least re-interpret it to exclude children of undocumented immigrants.

My answer: This concern is pretty far-fetched when put in the context of the facts. Let's think back to the post on legal immigration. A U.S. citizen-child can only petition for their parents to come to the United States after they turn 21 years old. That means that someone would have to migrate to the United States and have a child only with the hope of gaining lawful status 21 years later. Not very likely.

Moreover, under current immigration law, even if a child did petition for their parent once they turned 21, the parent would have to return to their home country to be eligible for the visa through their child. However, by having spent the prior 21 years in the United States without authorization, they would be subject to a ten-year bar to re-entry without eligibility for a waiver. And even at that point, they would have to prove hardship in order to re-enter the United States through their child's petition. So once again, this does not seem like a very likely motive for migration.

Going even further I would ask, what would the cost be of repealing birthright citizenship?

Birthright citizenship was enshrined in the 14th amendment of the Constitution in 1868 saying: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." If you didn't catch it from the date (right at the end of the U.S. Civil War), this amendment was written to grant full equality and rights to ALL people in the United States and to prevent a future generation of "second class citizens." If we repealed this right, we would have a population of children who are stateless-- who do not have status in the United States (where they were born) or elsewhere because they were born and grew up here. They would be denied rights, unable to return to the country of their parents because they do not have citizenship there, yet unauthorized to stay here. They would be made more vulnerable to exploitation and abuse and perhaps even subject to a lifetime of detention for having only committed the crime of being born. Is that really the ideal that we strive for?

"CHAIN MIGRATION"
The concern: Because we have a family-based immigration system, immigrants will come to the United States and gain legal status (either through entering "the legal way" or through an "anchor baby") and then petition for all of their family members to come to the United States, who will then petition for all of their family members, and so on and so forth until entire villages have re-located to the United States.

My answer: Once again, this concern is a bit ridiculous once we understand how the family immigration system actually works. Say I move to the United States from Mexico and gain lawful permanent status at 38. It would take an average of 6 years for me to bring my spouse or minor child to the United States, making me 44. Now say I had one of my children at 20, so that s/he was an adult (tho still unmarried when I came here); it would take a average of 16 years for my child to come join me from Mexico, making me 54. Now, on my fastest track to citizenship, I would be a citizen around the time my minor children and spouse joined me (44 years old), so at that point I could begin petitioning for my married sons and daughters and siblings to join me. I would be around 59 before my married children could lawfully come to the United States and 66 before my siblings could come. Then before any of these family members could petition they would have to naturalize, etc.

I think you get the picture. Given how the U.S. legal immigration system works, it is impossible for "chain migration" to occur.


CRIMINALS
The concern: All immigrants are criminals.

My answer: I think this concern developed out of the belief that someone is a "criminal" for crossing the border undocumented. But as I pointed out in the last post, it is only a civil offense to cross the border unauthorized, which means undocumented immigrants are not criminals merely for being undocumented.

Now, there is also a widely held belief that immigrants bring crime to communities or that they are part of gangs. However, all reputable research says that this is not true. In fact, immigrants are much LESS likely to commit a crime than a U.S. citizen; immigrant neighborhoods are far less likely to have high crime rates; and immigrants are even half as likely as U.S. citizens to be charged with a crime.


CULTURAL IDENTITY
The concern: They don't speak English. They are "polluting our culture." They do not have American values.

My answer: Our society was founded upon creating communities out of diversity. Welcoming immigrants is an American value. Diversity is an American value.


NATIONAL SECURITY
The concern: By letting immigrants into the United States, we are creating a threat to national security.

My answer: First off, the vast majority of immigrants coming to the United States are hardworking individuals without any sort of criminal record. Second, I will say that it is important and perfectly legitimate to check who is entering the United States to ensure they are not violent criminals or people who engage in acts of terrorism.

However, increased enforcement is not the answer. By not having legal paths of entry and by increasing enforcement, the United States has actually pushed more people to enter the United States without inspection. If we had expanded legal avenues of entry, we would be able to more thoroughly check who was coming into the United States and protect national security.

WELFARE
The concern: Immigrants come into this country undocumented in order to use our social services without paying taxes.

My answer: First of all, no one can live in this country and not pay property, sales, and use taxes. Many immigrants also have federal and state income taxes withheld from paychecks, although they cannot claim refunds unless they have legal documentation of their right to work. In 2005, the IRS estimated that immigrant workers (including undocumented workers) paid more than $165 billion in federal taxes and more than $85 billion in state and local taxes.

Second, most immigrants, documented or not, are NOT eligible for most federal programs despite paying taxes that fund them. In fact, a 2008 report by the Social Security Administration indicated that undocumented immigrants alone have contributed eight years of viability to the Social Security system, from which they will never receive benefits.

DISCUSSION QUESTIONS

1. What were some of your main immigration concerns before reading this series?
2. Which of these concerns do you hear expressed most often in your community?
3. Why do you think people feel these ways?
4. How could you work to address these concerns in your community?
   

OTHER POSTS IN THIS SERIES

An Immigration Dilemma: An Introduction
A Nation of Immigrants: A History (Abridged)
Crossing the Legal Way: An Overview of the Legal Immigration System Today
Who Are "Illegals" and What Is Undocumented Migration?
The Ins and Outs of Immigration Reform

Who Are "Illegals" and What Is Undocumented Migration?

The Immigration Dilemma- Week 4

Last week's discussion of the legal immigration system concluded that there is virtually no legal way for low-skilled, low-wage workers to enter the United States. Migrating, even if you have immediate family in the United States or attain an employment visa, is not easy. It can take years or even decades to receive the proper visa, and the process usually costs several thousand dollars.

Therefore, given that there is no legal way for low-skilled workers to migrate, we can dispel the myth that some immigrants are "too lazy" to stand in line and migrate the legal way. There is no line for them to stand in.

But, as people often asks me, "If they know there is no legal way for them to migrate, why do they come? They're breaking the law. They're illegal."

Now, it is important to remember that most foreign-born individuals residing in the United States actually have documented status. Of the estimated 37 million foreign-born people living in the United States, around 35% are naturalized US citizens, 33% are lawful permanent residents, 8% are refugees or asylees, and 5% are legal nonimmigrants. Only 19% (or well less than a quarter) of foreign-born individuals are undocumented and less than 10% of immigrants in the United States have crossed the border without inspection, i.e. "crossed illegally."

But that said, in this post, I'll try to answer the question: Who are "illegals" and why do they come?

WHO ARE "ILLEGALS"?
Let's start with the first part of that question: Who are "illegals?" Some people refer to undocumented immigrants as "illegals" because they have entered (or stayed in) the country undocumented, i.e. without passing through legal channels of entry and inspection into the United States or by not having the proper legal documentation to reside and work in the US.

These people often reason that because it is against the law to "enter without inspection" or to overstay your visa expiration date, undocumented immigrants are "illegal." However, this term is a misnomer.

Entry without inspection and overstaying temporary visas are civil infractions, much like getting a speeding ticket. And I believe I can accurately say that most of us reading this post have sped at one point in our life (even if we didn't get caught, it's still breaking the law) or gotten a parking ticket. I doubt that I can accurately say that we would all be willing to let our identities be defined by this experience, i.e. that we are all "illegals" because we once sped our car or violated any other civil law.

But the comparison is valid. A person who resides in the United States without documentation should not be defined by that experience. Therefore, I use the term "undocumented" which describes the immigration category someone falls into much like "legal nonimmigrant," "lawful permanent resident," or "US citizen." Undocumented does not describe someone's identity, country of origin, color of skin, native language, or anything else besides their immigration status category.

Now, how do you get undocumented immigration status?

Just as we discussed the four paths to legal permanent status in the previous post, there are three common ways in which people get undocumented immigration status: overstaying a temporary visa, overstaying border crossing cards, or entry without inspection.

Visa Overstays: Of the twelve million undocumented immigrants estimated to reside in the United States today, about half (40-50%) of these people entered the country through a port of legal entry on a legal nonimmigrant temporary visa, undergoing background checks and inspection by immigration officials. These immigrants' immigration status shifted to undocumented when they remained in the country (or overstayed) after the date on which their visas expired or ignored their order of removal (a case almost exclusive to asylum seekers).

Border Crossing Card Overstays: An estimated 148 million people a year cross back and forth across the US border from Mexico and Canada using a "Border Crossing Card" to make daily commutes to work, go to the grocery store, or visit family on the other side of the border. The borders have vibrant bicultural communities and economies which depend on this flow of people, goods, and labor. It is estimated that a miniscule portion of Border Crossing Card holders overstay their permitted continued presence in the United States, contributing an estimated 250,000-500,000 people who have shifted into unauthorized or undocumented status.

Entry without inspection: It is believed that the remainder of the undocumented population has entered the country "without inspection." That is to say that an estimated 6 million immigrants have entered the United States without passing through official ports of entry. Some entered by hiding in vehicles or cargo trucks (rare these days, given increased inspection of vehicles traveling both directions across the border), others walked through the Arizonan or New Mexican deserts where almost no official ports of entry exist, and others swam or waded across the Rio Grande.


WHY DO THEY COME?
So now that we've defined how people get undocumented status, it's important to look at why people choose to come the United States without authorized status or why they choose to overstay their visas.

Crossing the border without inspection is extremely dangerous, even though it is only a civil infraction in statute. Since 1998, over 5,000 people have died while crossing the border. Most of these deaths have occured due to dehydration, injuries, or severe burns. Many others crossing the border have suffered extreme abuse at the hands of Border Patrol agents who apprehend them in the crossing process or by coyotes who choose to take advantage of the people who have paid them to lead them across the desert.

So why do people take these risks and choose to reside with unauthorized immigration status in the United States?

There is a growing understanding among researchers that immigrants do not come to the United States merely because it is a "land of plenty" or to "fulfill the American dream." Most migrants would actually prefer to stay in their home countries where they have family, speak the language, and are already culturally integrated. However, this is not always an option. Most undocumented immigrants come to the United States or overstay their visas for four overarching reasons: fleeing persecution, family reunification, economics, or some combination of the prior factors.

War, Civil Unrest, and Oppression: Many undocumented migrants come to the United States in an effort to escape civil war or persecution in their country of origin. A fact that is not well known is that it is not even legal to claim asylum status until you are already inside the United States' borders. This means that many asylum seekers cross the border without inspection or overstay temporary visas in an attempt to seek refuge inside the United States.

Family reunification: As noted in the last post, it can take years or even decades to legally reunite with family members through the US family immigration system. Many people therefore cross undocumented or overstay temporary visas in order to keep their families together. Imagine if you had to wait 5 to 22 years to see your child (perhaps an infant when you left), your spouse, your parent or sibling. Would you wait? Or if you were not eligible for authorized immigration status to begin with, would you risk being separated from your family for decades or undergoing the risk of crossing back and forth without inspection when your family depends on you for economic survival? Some may why you wouldn't just remain in your home country; however, given the economic factors of migration, this is not always an option. It may be necessary for one member of the family to migrate for the survival of the entire family.

Economics: Economics is the leading cause for migration to the United States. The economics of migration, however, is not a one-way street. That is to say, it is not just because people are fleeing poverty that they come to the United States. They come because there is an economic demand in the United States for low-skilled and low-wage labor. In addition, free-trade economic agreements (like NAFTA) between other countries and the United States have made it necessary to move labor across borders.

For example, while I believe that it is only the tip of the iceberg in terms of the United States' relations with Latin America that create push/pull factors of migration, NAFTA's service-sector rules allowed large firms like Wal-Mart to enter the Mexican market. In turn, this put more than 28,000 locally-based small manufacturing firms out of business. Similarly, the introduction of corn subsidies into the US agricultural market in 2000 dropped the prices of US corn so low that Mexico began importing US-produced corn; this forced some 2 million Mexicans farmworkers out of agriculture. Many of these people were from rural areas where there were no other low-skilled job options. Thus they had the choice to either starve or migrate.

While the economics of migration is a subject of its own (and if you're interested in my covering this subject more thoroughly, please let me know by commenting below), I'll point out briefly that low-skilled jobs have been plentiful in the United States since the 1940s. As we talked about in the historical post, the Bracero program brought Mexican workers to the United States for nearly 20 years to meet the needs of the agricultural community. Similar programs programs followed after Bracero was shut down and there has been a need for migrant labor ever since. The economic boom of the 1990s only increased this need, creating one of the largest pulls for migrant labor in the history of the United States. However, the economic pulls of migration have not been met with shifting immigration laws permitting workers to enter with documented status.

Thus, people cross undocumented to meet these labor needs. We are left with the result of 12 million people without documented immigration status living and working in the United States. And while the current economic recession has significantly slowed migration to the United States (only further proving that undocumented migration is primarily driven by economic factors), there is still a need for migrant labor in the United States. As one Congressional staffer once said to me, "Just because I lose my job in DC doesn't mean I'll go take the job of agricultural worker in Arizona." Unemployment and job availability do not always form a simple equation. And in the sectors where migration does create job competition, the labor movement has spoken out claiming that regularizing the status of undocumented workers is the best approach to ensuring that US workers receive available jobs, and all workers receive fair wages and working conditions.

Now, there are many concerns floating around out there about undocumented immigrants draining our welfare system, posing as a security threat, threatening our cultural identity, having "anchor babies," or sparking "chain migration." I'll address these in my next post "Immigration Concerns: From Birthright to Welfare."

DISCUSSION QUESTIONS

1. What does this post reveal about undocumented migration that you did not know before?
2. Placing this discussion in the context of our prior posts on the history of immigration and the legal immigration system, what have you learned?
   
3. How do the causes of undocumented migration stand in contradiction with US laws and moral consciousness?
   
4. After reading this post, how do you think the US should address undocumented migration? What responsibility should the US take for its roll in driving economic migration to the United States?
   

OTHER POSTS IN THIS SERIES

An Immigration Dilemma: An Introduction
A Nation of Immigrants: A History (Abridged)
Crossing the Legal Way: An Overview of the Legal Immigration System Today
Immigration Concerns: From Birthright to Welfare
The Ins and Outs of Immigration Reform

Crossing the Legal Way: An Overview of the Legal Immigration System Today

The Immigration Dilemma- Week 3

So now that we've covered how immigration laws and policies have changed throughout history--and made it clear that immigrating the "legal way" before 1965 is a fuzzy concept at best--it's time to talk about how people can immigrate "the legal way" today.

At my job, I hear from many people who don't want to see a path to legal status for undocumented workers currently living in the United States. It's not because they don't like immigrants or are xenophobic and racist per se; rather, they don't believe we should be providing "amnesty" to "criminals."

These same people often believe that immigrants choose to migrate without papers (and to stay undocumented) so as to avoid taxes and social security costs, or because they are too lazy to go stand in line and apply the legal way. From this perspective, it makes perfect sense that they believe honest, hardworking taxpayers should not have to pay for immigrants' education, emergency healthcare, and other services that they believe immigrant use (such concerns as these will be addressed in the April 29 post).

But, as I'll discuss in this post, there is virtually no legal way for unskilled and low-wage workers (who make up the majority of the undocumented population) to enter the United States.

Now immigration law is ridiculously complex. So while I've tried to simplify it to the best of my ability, I've also included this cartoon developed by the Reason Foundation to help you follow along (you can make the image larger by clicking on it), as well as anchor anchor the various sections of the post to make it easier to navigate.

POST OUTLINE

I. Introduction
II. Defining the Terms of Legal Immigration
a. Legal Nonimmigrant
b. Lawful Permanent Resident
c. US Citizen
d. Undocumented
III. Crossing the Legal Way
b. Family-based Immigration
a. Employment-based Immigration
c. Diversity Immigration
d. Refugees and Asylees
IV. Conclusion
V. Discussion Questions
VI. Other Posts in this Series
VII. Additional Resources

DEFINING THE TERMS OF LEGAL IMMIGRATION

To begin a discussion of how to immigrate legally, we all need to be using the same terms. In today's immigration system, there are three dominant categories of status: legal nonimmigrant, lawful permanent resident (LPR) or green card holder, or US citizen. If someone does not fall into one of these three categories, they are probably undocumented (one exception being refugees and asylees, who--since they are eligible for permanent status after one year of living in the US--could be classified as an interim category of LPR status).

Legal Nonimmigrant: A legal nonimmigrant is a foreigner who is granted a visa on a temporary basis, such as a tourist, business traveler, student, or temporary worker. Depending on their specific visa category, they may or may not be authorized to work while in the US, but such visas are almost always accompanied by an expiration date. These visas do not lead to legal status.

It is quite difficult to receive nonimmigrant visas because legal nonimmigrants are seen as "high risk." For this reason, people who have certain diseases, have committed certain crimes, may become a "public charge," do not have enough money, or who are seen as likely to overstay their visa will be barred from receiving nonimmigrant visas. This means it is nearly impossible for unskilled and low income people to enter this way.

Lawful permanent resident: A lawful permanent resident (LPR) is a non-citizen who has been given permission to make their permanent home in the United States. Such people are considered "green card" holders. LPRs have the right to live and work in the US and never have to leave. They also have the option to apply for US citizenship after 5 years of lawfully holding a green card (if they meet all all other requirements for naturalization).

While lawful permanent resident status is quite difficult to attain (we will discuss this momentarily), once immigrants have LPR status they gain a number of rights, such as the ability to petition for certain family members to join them the United States and to travel freely across US borders.

US Citizen: US citizens are people who are born in the United States, have naturalized as US citizens (by living 5 years as an LPR, passing a civics test, learning English, and demonstrating good moral character), or are the children (under the age of 18) of parents who have naturalized.

US citizens have a great number of rights that even LPRs do not have, such as the right to vote, to carry a US passport, to work for the federal government and run for public office, and petition for additional family members to come to the United States.

Undocumented: Anyone who does not fit into the above categories is likely undocumented. People with undocumented status do not have the legal right to work in the United Stages or the freedom to travel back and forth across the border. We will discuss more about who the undocumented population is in the next post on Wednesday, April 22.

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CROSSING THE LEGAL WAY

Given that legal nonimmigrant visa recipients are heavily screened to ensure that they only temporarily remain in the United States and that citizens have the automatic right to live and work in the United States, the category we really want to focus on is lawful permanent residency.

How does someone get lawful permanent residency, i.e. how does someone get a green card?

In general, there are four ways: family petitions, employment, a diversity lottery, and being officially designated as a persecuted person or population.

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Family-based immigration: US citizens and lawful permanent residents can petition to bring certain family members to the United States and receive permanent status. This is the most common way to permanently immigrate to the United States.

The law provides for a minimum of 226,000 family-petitioned permanent status visas to be granted each year; however, the availability of these visas is determined by a complicated family-preference system. And although a family member may be eligible for a family-based visa, due to extensive backlogs, it takes somewhere between 6 and 22 years to actually be granted the visa if the family member falls into the limited family visa category.

Family-based immigration visas fall into two overall categories: unlimited family visas and limited family visas. The latter category is then broken down into four preference tiers.

Unlimited family visas- Unlimited family visas are granted to the immediate relatives of US citizens. For US citizens, immediate relatives are defined as:

• A spouse
• An unmarried child under the age of 21
• An orphan adopted abroad
• A foreign-born orphan adopted in the United States
• The parents of a US citizen, provided that the US citizen is at least 21 years old

Limited family visas- Limited family visas are granted to more specific, and more distant, relatives of US citizens, as well as to specific categories of relatives of lawful permanent relatives, based on a four-tier preference system. There are numerical limitations placed on these preference categories each fiscal year, which are determined in part by country of origin.

1. First preference- Unmarried sons and daughters of US citizens and their children (if any). Limited to 23,400 visas per year. The wait time for these visas is currently 6-14 years.
2. Second preference- Spouses, minor children, and unmarried sons or daughters of lawful permanent residents. Limited to 114,200 visas per year. Seventy percent of these visas must go to the spouses or minor children; the wait time for these visas is 5-7 years. The remainder is allocated to unmarried sons or daughters; the wait time for these visas is 9-14 years.
3. Third preference- Married sons and daughters of US citizens, and their spouses and children. Limited to 23, 400 visas per year. The wait time for these visas is 7-15 years.
4. Fourth preference- Brothers and sisters of US citizens, and their spouses and children, provided that the US citizen is at least 21 years old. Limited to 65,000 visas per year. The current wait time for these visas is 11-22 years.

The wait times listed above are only the amount of time family members must wait before coming to the United States. These wait times do not include the time it took for a LPR to become a citizen (i.e. before becoming eligible to petition for certain family members to come to the United States), nor does it include the time a family member must wait after coming to the United States to receive citizenship (an additional minimum of 5 years).

Given the wait times and numerical restrictions noted above, it becomes obvious that it is not easy to immigrate to the United States even if you have family members that have lawful permanent resident or citizen status--which, due to historical circumstances and the availability of other visas we will discuss shortly, is not common for low-income people.

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Employment-based immigration: Employment-based visas are visas which are granted to meet the needs of US economy. The Immigration and Nationality Act provides for a minimum of 140,000 employment-based visas per year. While technically there are five preference categories for entry under employment-based immigration which designate specific criteria, qualifications, and numerical caps for varying sectors of the economy, we can umbrella these preferences under two larger categories: employer-sponsored and investor.

Employer-sponsored: Employers may sponsor workers to come to the United States to fill positions in their companies. To do so, they must:

• Get the US Department of Labor to certify that hiring a foreign worker will not adversely affect wages and labor conditions for citizen workers
• Have a "labor certification" from the US government which allows them to hire a foreign worker who is otherwise admissible to the United States
  
• Be willing to pay around $10,000 in legal fees per applicant to file the necessary paperwork
  

Preference for these positions is given to immigrants with "extraordinary" or "exceptional" ability in their field, and immigrants cannot apply for these visas on their own. They must be hired by a company first, and then the company must apply for the visa on their behalf.

However, due to backlogs in previous years, the current wait-time for such visas ranges between 6 and 10 years.

Investor: Investors can also receive employment-based visas if they are willing and able to invest a minimum of $1 million dollars in the United States, and create "at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family."

While this is one of the quickest ways to get a green card, it is, quite obviously, not an option available to many people.

The employment-based immigration system offers virtually no visas to low-wage, low-educated workers as very few low-wage employers would be willing and/or able to expend the necessary funds to apply for employment-based visas.

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Diversity Immigration: In the 1990s, Congress created the Diversity Immigrant Visa Program which makes 50,000 permanent visas available to persons who meet strict requirements and come from countries which have low immigration numbers.

Given that most immigration to the United States is family-based, countries which have a lot of immigrants permanently residing in the United States will be the countries to send the most new-immigrants each year. To correct this imbalance, the diversity visa program allows a random selection (chosen through a lottery) of immigrants from low-volume countries to come to the United States each year. An immigrant from these countries can apply free of charge, but must have completed high school or have at least two years of work experience in a skilled profession.

Since countries like Mexico, India, China, Haiti, El Salvador, and many others all have high numbers of immigrants in the United States (both documented and undocumented), people from these countries are ineligible to apply for diversity visas.

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Refugees and Asylees: The final way to legally immigrate to the United States on a permanent basis is to enter as a refugee or to claim and be granted asylum status.

To be eligible for either of these categories, an immigrant must prove a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion."

Notably, economic hardship does not provide grounds for refugee or asylum status; therefore, people fleeing poverty and seeking low-wage work in the United States cannot seek lawful status in this manner. Similarly, people fleeing environmental or natural disasters cannot apply for permanent status in this category.

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CONCLUSION

As stated when we began this discussion, these four immigration paths--employment-based, family-petitioned, diversity lottery, and persecution--are the primary ways to get lawful permanent status in the United States. But as can be seen through our examination of these paths, they virtually exclude all unskilled and low-wage workers from legally entering the United States.

So while it may make sense to say that undocumented immigrants should get in line and migrate "the legal way," there is no legal way for them to do so. So who are they and why do they come?

That's the question I'll be answering next week on The Immigration Dilemma.

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DISCUSSION QUESTIONS

1. Before reading this post, what were some common misconceptions about the US immigration system that you have either heard or even held yourself?
2. As I talked about at the beginning of the post, many people feel undocumented immigrants should "get in line" to immigrate the legal way. What light does this discussion of the legal immigration system shed on that perspective?
3. What role do you think the economy plays in immigration? How does the US legal immigration system respond to that role?
4. Do you think people escaping poverty or environmental and natural disaster should be eligible for refugee status?

OTHER POSTS IN THIS SERIES
An Immigration Dilemma: An Introduction
A Nation of Immigrants: A History (Abridged)
Who Are "Illegals" and What Is Undocumented Migration?
Immigration Concerns: From Birthright to Welfare
The Ins and Outs of Immigration Reform


ADDITIONAL RESOURCES

Bureau of Consular Affairs, U.S. Department of State.
Visa Types for Immigrants
Family Immigration
Employment-based Visas
Diversity Immigrant Visa Program
Visa Types for Temporary Visitors

U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security
Eligibility: Who May Apply to Resettle in the United States as a Refugee?
Laws, Regulations, and Guides

A Nation of Immigrants: A History (Abridged)

The Immigration Dilemma- Week 2

When discussing immigration, people from many different perspectives agree that United States is "a nation of immigrants." Proponents of immigration tend to highlight that welcoming immigrants is an "American tradition." People who fear or dislike undocumented migration will similarly point out that we are all immigrants and that immigration has shaped the face of the United States, but that the difference is that their ancestors immigrated "the legal way" and were not criminals crossing the border.

But historically, what was the legal way?

This is a lot of information to cover, so the post will be long. Therefore, I've anchored the various sections for you to make it easier to navigate.

Unrestricted Migration: The Ice Age to 1874
Exclusion, Control, and Quotas: 1875-1964
The End of Exclusion and the Limitation of Rights: 1965-2000
Linking Immigration to National Security: 2001-Present
Discussion Questions
Other Posts in the Series
Additional Resources

UNRESTRICTED MIGRATION: THE ICE AGE TO 1874
Without a doubt, we are all immigrants--even the indigenous peoples of the Americas were once newcomers to their land somewhere between 12,000 and 30,000 years ago. Let us all rest assured, however, that they did not go to their local consulate to receive papers to cross into North American territory. They merely migrated--whether to follow their food source, to escape political oppression, or to partake in adventure. And by the time Christopher Columbus landed in the Caribbean in 1492, there were somewhere between 2 and 10 million native peoples living in the United States.

The first European settlement was then established in Florida in 1565 (once again, not seeking permission or legal documentation from the Native peoples living there), followed by other Spanish settlements along the now Southern border in 1598. The first English colony was established in 1607 in Jamestown, VA, followed by the Puritan colony of Plymouth in 1620. The Dutch settled New Amsterdam (now New York) in 1624 and the French settled in Louisiana in 1699. Other European colonists then began coming by the millions to settle the new colonies.

However, this was not a period of "blissful" migration. As the population of what many people consider their "legal ancestors" grew, the Native population was decimated by warfare, enslavement and European disease. Jamestown was the first settlement to import slave labor in 1619, beginning a long history of forced migration. Tensions existed between settlers from varying European countries; Benjamin Franklin once even said of the Germans:

Why should [immigrants] establish their Language and Manners to the exclusion of ours? Why should Pennsylvania, founded by the English, become a Colony of Aliens who will shortly be so numerous as to [change] us instead of our Anglifying them, and will never adopt our Language or Customs, any more than they can acquire our complexion?

Early immigration to the United States was not "legal" per say, as people arriving in the United States were not filling out papers or undergoing inspection. The European colonies' borders were merely open. But even while Europeans came freely to the land, Native peoples and slaves were moved by force and against their will.

The first major piece of immigration legislation did not come about until the passage of the Immigrant Naturalization Act of 1790, which limited access to citizenship to "free white people" with "good moral character." This law, nor the Alien and Seditions Act of 1798 which permitted dangerous criminals to be deported from the United States, did not affect who was able to enter the country, merely who had citizen-rights in the country. The borders themselves remained open and unrestricted.


EXCLUSION, CONTROL, AND QUOTAS: 1875- 1964
It was not until 1875 that a law passed limiting who could enter the United States. This law forbade "undesirable" people from the U.S., in particular criminals, prostitutes, and Chinese workers. The Chinese Exclusion Act of 1882 then went even further by forbidding all Chinese immigrants and not allowing Chinese people in the U.S. to naturalize as citizens.

In 1891, the Immigration Act centralized the exclusion and control of immigration under one comprehensive immigration act administered by a single government agency: the Bureau of Immigration and Naturalization. Immigration laws for the next thirty years then focused on excluding the entrance of "undesirables" like anarchists and "feeble-minded" individuals.

The Quota Law of 1921 became the first law to place numerical limits on the number of people who could migrate to the United States, capping immigration based on nationality. The particulars of the caps themselves changed multiple times leading up to 1964, responding to varying political and economic trends. It was not until 1929 that the "consular control system" was developed, requiring immigrants to obtain visas before arrival in the United States.

The development of numerical restrictions and a consular control system are both critical to understanding "legal" immigration. On the one hand, it explicitly limited the number of people coming to the United States and placed a class/educational bar on who had access to consular visas; notably, immigrants from Western Europe were not yet subject to numerical caps either. On the other, it did not address the increasing need for labor in the United States, particularly in the agricultural industry.

The agricultural industry's need for labor led to the creation of the Bracero program (1942-1964), which was an early version of temporary migrant visas and guestworker programs created out of an agreement with Mexico. The Bracero program brought Mexican workers to the United States to work with the intention that they would only stay for a limited period without access to permanent status. This program thus by-passed other numerical restrictions, but denied other immigrant rights to these individuals. The program eventually ended due to systemic exploitation.

THE END OF EXCLUSION AND THE LIMITATION OF RIGHTS: 1964- 2000
With the rise of the civil rights movement, the blatantly racist nature of the quota and exclusion system came under increasing critique and, in 1965, Congress passed the Immigration Act of 1965 which comprehensively overhauled the system, abolishing discriminatory quota systems. The Act maintained numerical quotas for varying regions, however, and--for the first time--placed restrictions on migration from Western Europe. The 1965 Act also created the seven-tier family preference system which is still in place today.

While the Immigration Act of 1965 was supposed to be fair, flexible, and comprehensive allowing the US to--in JFK's words--"turn to the world, and to our own past, with clean hands and a clear conscious," the bill did not sufficiently address the future flow labor needs of the time. By 1986, undocumented migration had soared to new levels to fill jobs in the U.S. economy.

The Immigration Reform and Control Act of 1986 (IRCA) tried to address undocumented immigration in two ways: it legalized those who were already here and imposed higher sanctions for undocumented persons and employers who hired them. It did not, however, raise the numerical limits placed on immigration, meaning that it did not expand the immigration system to meet the needs of the economy.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) developed even more punitive measures for undocumented immigrants, expanding grounds for inadmissibility, deportation, and bars of entry. That same year, the Personal Responsibility and Work Opportunity Reconcilliation Act barred even legal permanent residents from participation in social programs for a period of 5-10 years after receiving their green card.

LINKING IMMIGRATION TO NATIONAL SECURITY: 2001-PRESENT
Since September 11, 2001 immigration has increasingly been linked to national security and the Global War on Terror.

Despite attempts to comprehensively reform the immigration system in both 2005 and 2007, the immigration system of today continues functioning under laws formed in 1965, 1986, and 1996 which do not address the current needs of the U.S. economy. Today, there are an estimated 12 million undocumented migrants working in the United States filling jobs that are needed DESPITE the current economic recession. These immigrants had no legal way to come to the United States.

What I hope this rather long post--but quite abridged version of the history of immigration in the United States--teaches us is that for many years there was no "legal way" to migrate. Moreover, if your or my family came to the U.S. before 1986, it is likely they did not come "legally" but instead were legalized--through the entitlement of colonization, the privilege of whiteness, the end of slavery, the rise of civil rights, and an amnesty for workers.

Discussion questions:

1. What does the history of immigration reveal about the current immigration debate?
2. Is it encouraging or discouraging to read this abridged history of the US immigration system? Why?
3. How could a reformed immigration system benefit the US economy?
4. Who needs to sit at the table when immigration reform is discussed?

Other posts in this series:
An Immigration Dilemma: An Introduction
Crossing the Legal Way: An overview of the legal immigration system today
Who Are "Illegals" and What Is Undocumented Migration?
Immigration Concerns: From Birthright to Welfare
The Ins and Outs of Immigration Reform

Additional Resources:

"Opportunity and Exclusion: A Brief History of US Immigration Policy," Immigration Policy Center, 25 November 2008.

Welcoming the Stranger: Justice, Compassion, and Truth in the Immigration Debate. By Jenny Hwang and Matthew Sorrens, IVP Books, 2009.

Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882. By Roger Daniels, New York, Hill and Wang, 2004.

The Immigration Dilemma: A Six Week Series

Welcome to "The Immigration Dilemma," a six week blog series designed to help you understand the immigration dilemma in the United States.

Almost everyone I've met over the past five years of working on immigration issues seems to recognize that there is a problem with immigration in the United States. However, most people can't seem to agree on what exactly this problem is.

On the one hand, I hear people telling me that immigrants are breaking our laws, that they are criminals, or even that they are invading the United States with the plan to annex portions of the Southwest into Mexico. This is then followed by telling me that immigrants become a drain on our social services once they are here even though they don't pay taxes or that immigrants steal jobs away from documented workers and undercut wages.

On the other, people see immigration as a problem for very different reasons. They see parents being separated from their citizen children when they are deported. They see people being racially profiled along the border and held in detention centers with substandard and inhumane conditions. They see people escaping deadly conflict and economic disparity, and they also see an economy which is dependent on foreign labor.

Especially in Congress--which is where I spend most of my time talking about the issue these days--each side tends to make the issue very simplified, pitting one perspective against the other. "This bill provides amnesty to criminals" vs "Opposing this bill is racist and nativist."

Neither of these perspectives, however, captures the complexity of the issue and moves towards a solution. Rather, this pitted debate has caused a stalemate in government. Immigration reform has failed in the last two Congresses, leaving us with a worsening status-quo and a contentious issue that can be used to derail any other major policy issue.

I believe, however, that we can find a solution. But we need to come to the issue with an understanding of its complexities and nuances. Therefore, I have written this series which will be published each Wednesday at 3 pm.

My hope is that this series will help us all take a step back from the pro-/anti- rhetoric of immigration in the United States and help us take a look at how the U.S. immigration system actually works.

Each post will provide an overview of the subject covered, questions for discussion and discernment, and a list of additional resources. I hope this will help us all navigate the immigration dilemma a little better.

Forthcoming posts in this series:

A Nation of Immigrants: A History (Abridged)
Crossing the Legal Way: An overview of the legal immigration system today
Who Are "Illegals" and What Is Undocumented Migration?
Immigration Concerns: From Birthright to Welfare
The Ins and Outs of Immigration Reform

The Immigration Dilemma: A Six Week Series

The Immigration Dilemma is a six week series blog series designed to help you understand the immigration dilemma in the United States. The series is written by Alexandra Douglas, FCNL's legislative program assistant on immigration. She welcomes both your comments and feedback on the series. Enjoy!

"Week One- An Introduction" introduces you to the debate as it is most frequently described in Congress and in the media.

"Week Two- A Nation of Immigrants: A History (Abridged)" provides you with a brief history of immigration in the United States to help you understand how we got to where we are today in the immigration dilemma.

"Week Three- Crossing the Legal Way: An Overview of the Legal Immigration System Today" guides you through today's legal immigration system to help you understand what it means to "get in line" and immigrate "the legal way."

"Week Four - Who Are "Illegals" and What Is Undocumented Migration?" breaks away from common misnomers about who the undocumented population is and defines how someone gets undocumented immigration status and what the most common factors pushing someone to migrate without status are.

"Week Five- Immigration Concerns: From Birthright to Welfare" takes a look at some of the most common fears and concerns about immigration in the United States and responds to them from a perspective of contextualized history and an examination of values.

"Week Six- The Ins and Outs of Immigration Reform" steps back from our comprehensive overview of 'the immigration dilemma' and looks at what would be needed to create a workable solution to the broken immigration system that upholds our values and helps us move forward together.