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Commentary: Why don’t they come here legally? Answer might surprise you


“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 August 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 August 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?

Kowalski is editor-in-chief of Bender’s Immigration Bulletin and has been practicing immigration law since 1985.



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