We Need Immigration Reform but the Devil’s in the Details

January 29th, 2013

Years ago, I practiced immigration law.  Because I worked for a large law firm, most of my practice consisted of seeking visas for employees or managers of multi-national corporations.  Occasionally, however, I’d represent an entrepreneur seeking to open up shop in the United States or a U.S. citizen wanting legal permanent residency for an immigrant spouse.

In very rare instances, people would come to me and ask how they could get a beloved nanny or housekeeper legal status.  These cases were particularly troubling because I’d invariably need to share with them an unfortunate fact of life.  No visas exist for these types of employees in practice.  There was a process called labor certification, but it involved providing the Department of Labor conclusive proof that there was no American qualified for the offered position and that the wage being paid was the government approved prevailing wage. Given this, we’d always tell prospective clients that trying to get a nanny, housekeeper, or gardener legal status doing these jobs was costly and had a very low probability of success.

The lack of availability of these types of visas through any sort of guest worker program contributed to the influx of millions of undocumented workers doing these jobs.  The most effective way to halt this illegal immigration would probably have involved imposing harsh fines and penalties, perhaps even prison time, to the employers of these individuals.  Clearly, there wasn’t a lot of political will for dragging a young mother out of her home in handcuffs because she’d hired an illegal nanny.

As an aside, this brings me to another interesting challenge as we go forward in the immigration debate.  I’ve heard several commentators suggest that the term “illegal alien” is offensive and discriminatory.  When I first heard it as an attorney, I was a little taken aback myself.  The fact is the term “illegal alien” is a legal term of art. It actually originates historically from the Bible where “aliens” were simply strangers in the land.  Thanks to Hollywood since the 1950s, we’ve come to culturally think of aliens as creatures from outer space often visiting our planet for some nefarious purpose.  Given this confusion, perhaps a legal name change in this defined term is in order.

I learned several interesting things practicing immigration law that I think are noteworthy as we move forward in the immigration debate.

First, back in the 1990s when I worked in this field, one of the big complaints from corporate America was that there weren’t enough H1B visas available on an annual basis.  These are visas for individuals with specialized knowledge.  Oftentimes, people seeking these visas were individuals who studied in the sciences or a technical field and by law could change their status from student to H1B, thus allowing them to stay in the U.S. longer and put to use what they’d learned here.  I was always told that the unions were fighting the increase in the numbers of these visas.  Many union leaders argued that the existence of people in the workforce holding these visas suppressed the wages of Americans in these jobs.  Human Resources directors at these companies told me that this wasn’t true (and they had to provide evidence of a prevailing wage with their application which seemed to bear this out).  These corporations argued that they sincerely couldn’t find Americans qualified for these positions.  The feeling was that American universities were producing too few American mathematics and science majors and too many liberal arts majors (as a Political Science major, I won’t comment one way or the other).  What I did know is that these companies were incurring legal and moving expenses for these individuals.  It seemed a huge expenditure on their part if the real goal was saving money by paying low wages.

Also, I can speak from experience that the immigration officials are no pushovers. People who follow the law to get legal status in this country are generally put through the ringer to get it.  Every visa application I ever produced was scrutinized thoroughly.  Immigration attorneys know that they must be prepared to fight vigilantly for their client because the presumption always seems to be against the alien making the application.

This is particularly true in marriage cases.  I always told my clients, “You may have the most sincere romance since Romeo & Juliet, but if the immigration service thinks this relationship is a fake, you’re not getting the visa.”

I saw this in practice most clearly a few years ago when a friend of mine from Japan sought naturalization for citizenship.  She’d married an American when she was quite young and had a baby.  The marriage didn’t work out and when the two divorced, she decided that as someone with limited English skills and job prospects, her son was better off in her ex-husband’s custody.  Twenty-five years later, she sought citizenship.  Fortunately for her, she remained on good terms with her ex, and he wrote a lovely letter in support of her application.  This didn’t deter the immigration caseworker in charge of her file from grilling her.

“Something doesn’t seem right,” she told her, “What kind of mother gives up her own child?”

It took several weeks to persuade this official to let it go, but I often wonder if things would have worked out if my friend’s ex-husband wasn’t so cooperative.

In my view, here’s the bottom line.  Our immigration system is clearly broken and must be fixed.  The challenge going forward is going to be how we resolve a huge contradiction between what has always been a system where individuals who followed the laws have been scrutinized every imaginable way before entry and a system where we’re prepared to forgive those who didn’t follow the law either because they willfully ignored it or because there really was not a legitimate way to obtain a visa for the job they were seeking in the first place.

To me, this is going to be one of our greatest challenges as a nation, but it clearly can’t wait any longer.