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Why Don’t They Just Come Legally? Myths – Part II

As Congress and several states take up proposals to repeal the 14th Amendment citizenship provisions because of fears of an “alien invasion”, anti-immigrant activists continue to incorrectly charge that individuals from abroad want to invade our country by breaking the law. Myth: Most of the people here illegally just don’t want to follow the law. The frequent refrain, or more likely, a quip, is “why don’t they just come legally or get in line?” Reality: Most people would come legally if they could. In my many years of immigration practice I have rarely, if ever, met people who wanted to come to the U.S. illegally. Almost all would have applied for visas had there been a proper category or a number. Others did apply for visas and were rejected.

There are several reasons people don’t just come legally or wait their turn in line: there are no lines to get into because there are no visa categories for the situation; the line is too long because of insufficient numbers of available visas; consular and border officers deny visas or entry without possibility of review; lack of options/desperate situations (e.g. fleeing persecution, war, calamity); deceptive and abusive situations (e.g., smuggling); and our laws or foreign policies sometimes fail to acknowledge the human condition to want to protect and be with family members, and to earn a living to feed one’s family.

1. Lack of Appropriate Categories: Many individuals here without authorization are in low-skilled or semi-skilled occupations. Yet, we don’t have any appropriate visa categories for dish washers, gardeners, home care workers, maids, or construction workers, to name a few. We no longer have visas for many nursing occupations despite a shortage of nurses. We do have an H-1A agricultural worker program that is extremely difficult for employers to use. Farm workers must reapply every time they move from one crop/employer to another. There is no permanent work visa for farm workers. The various government agencies involved do not always approve visas on time for harvests or packing seasons which can change due to unpredictable weather conditions. Although we have a H-2B visa category that could accommodate low or semi-skilled workers, it has an annual cap in the number of visas available, and every job must be short-term temporary work such as seasonal, peak load, or temporary substitution. There is no temporary visa category for long-term work in the low-skill occupations mentioned above.

In the family based area, there are no categories for grandparents to sponsor grandchildren or for aunts and uncles, cousins and the like to sponsor each other. Also, there are no categories for U.S. citizens or green card holders to sponsor their gay partners. I mentioned in my earlier post, Anchor Babies and the 14th Amendment – Immigration Myths Part I, that it is a complete myth that anchor babies (born in the U.S.) can sponsor their parents and siblings. This is not true at least until the children turn 21. The line gets even longer when you add sibling quota backlogs and other delays due to immigration law issues for people here without authorization.

2. Lack of appropriate numbers.

Just like H-2B visas are capped annually, the permanent category for unskilled workers is limited to just 5000 visas a year, but demand is extraordinarily high. Our employment categories and numbers are over 20 years old. They have not kept pace with the economy nor other pressures on migration. Where demand exceeds supply, there is a backlog or quota. For January 2011, the category for unskilled or “other workers” is backlogged to 2003, meaning there is an almost eight-year wait. There is no temporary visa for the applicant to allow that person to stay in the U.S. for eight years (nine if you’re from India). Most employers will not hold a job open for eight years to wait for someone in this category. A semi-skilled worker with two years of prior experience in the field, or even a bachelors degree, has to wait for six to nine years depending upon where the person is from. A spouse or minor child of a green card holder has to wait three to five years. An adult kid from Mexico has to wait 18 or 19 years to immigrate through a green card holding or US citizen parent. A US citizen’s sibling from the Philippines has to wait 23 years! These quotas can be tracked monthly in the State Department’s Visa Bulletin. The quotas are set by Congress and have not changed in many years. Quota wait times are just the minimum wait. There could be even more time involved depending upon some other immigration law issues. Meanwhile, Mexicans and Canadians and people from high immigration countries cannot participate in the annual visa lottery.

Essentially, there are no lines or very long lines to stand in. Even if people should get in a long, essentially useless line, the fundamental human desire to unite with family and feed them explains why many people jump the line. (See part 6 below.) Over the years, the lure of jobs by employers looking for cheap exploitable labor, and lax employer sanctions and border enforcement contributed to illegal immigration in occupations where there are no visas or long lines.

3. Border and consular decisions are not reviewable and are often capricious.
A person applying for a visa at a U.S. consulate abroad to come to the U.S. is subject to the whims of a consular officer. There is no right to counsel and no right to appeal. Every year at every consular post, thousands of people who try to follow the law and apply for a visa are denied for a myriad of reasons. Of course, many are rightfully denied. But many others are wrongfully denied. With only a few minutes to make a decision about a complete stranger, consular officers often reject applicants if they have any doubts. No one wants to be the officer who issued a visa to the next terrorist, but that means many innocent people are not let in.

Similarly at the border, many people are denied entry as intending immigrants or for other reasons, proper and not. Like consular officers, border officers have all the power and their decisions are not reviewable through a formal appeals process. Many people with legitimate claims for proper entry are arbitrarily or improperly denied. Training of officers is very inconsistent. In other words, millions of people try to follow the law and are rejected anyway.

4. Some people have no choice.
Many people come from countries where they have been abused or harmed or have suffered environmental calamity or war. They often have no way or no time to get proper documents or they would be denied anyway at a consulate. They come from desperate situations and are often just trying to survive. The standard for asylum or refugee status is very high. Our government decided years ago to incarcerate legitimate asylum seekers for the duration of their case if they legitimately ask for asylum at the border and pass a credibility interview. Rather than be incarcerated for months or years upon arrival, many asylum seekers enter illegally or overstay visas because they have no other choice.

5. Many people are taken advantage of by smugglers.
Promises are made of a better life where the streets are paved in gold. In some parts of the world this is all people know. They don’t know or understand complicated immigration laws or processes. People are bought and sold thinking they will have a better life only to discover they were deceived and will spend their lives here, if they make it at all, in servitude of one sort or another, living illegally or in the underground.

6. Failure to recognize the human condition.
Most people recognize we should have an immigration policy that allows people to come temporarily or permanently in an orderly lawful fashion that supports our economic needs, promotes family unification, insures our borders are secure, and accommodates legitimate refugees. However, in crafting such a policy, we need to recognize the human condition: many people abroad are primarily motivated to care for their families, put food on the table and insure a roof overhead. In desperately poor or unstable countries, people will do whatever they need to do to survive and protect their families. Therefore, our immigration policies need to acknowledge our foreign policies abroad – what causes migration patterns and how does our country impact those patterns, whether through political, environmental, economic or human rights policies? How can we help people stay in their own countries in less desperate situations?

For example, when we look at the violence going on in Mexico, and the reactions in Arizona and the southern states through their immigration policies, we don’t hear a thing about our own policies on drugs and guns, how Americans’ appetite for drugs fuels the cartels and violence, or how our proliferation of guns in America find their way to Mexico. To appear “tough on border enforcement” under the guise of the violence there, our government catches Mexicans without status who are neither involved in drugs nor guns or violence, but just want to earn a living to feed their families. Other examples are our economic and political policies toward Haiti and its problems with perpetual poverty and environmental calamity, and our covert and political policies in Central America in the 1980s. Each has experienced an outflow of migrants to America as a result of these policies who ended up being in the U.S. illegally. People had to do what they had to do to protect themselves and their families despite breaking the law. There were no legal lines to get into.

Why don’t they just come legally? Because our current system is broken and needs reforming. It needs a level of compassion, a realistic method of meeting economic demands, family unification, checks and balances, and a recognition of how our polices at home and abroad impact migration patterns.