reform by stariya


                                                  by Gerard M. Chapman*

                    OVERVIEW                                           cated U.S. public, it appears that true reform of some
   Immigration reform: what different concepts                         sort stands a decent chance of becoming a reality in
those two words inspire. To a discrete minority, the                   2005. Whether that prediction holds true will have to
words reflect the hope of reducing or even eliminat-                   wait, but the winds of change are blowing more
ing legal immigration to this country. To the majori-                  strongly now than at perhaps any other time.4
ty of the U.S. public and the vast majority of immi-                   U.S. Immigration Status for Essential
gration practitioners, however, they generate the                      Workers—A Study in Inconsistency
idea of a system that provides sufficient numbers,
and sufficient categories, to accommodate the needs                       The term “essential worker” is commonly used to
of U.S. employers in all industries, opportunities for                 describe foreign nationals who perform manual la-
undocumented workers to obtain either temporary                        bor in jobs that are filled on a year-round basis, as
and/or permanent status, college opportunities for                     contrasted with seasonal jobs that can support H-2B
undocumented children, and reasonable waiting pe-                      visa applications. Since 1964, the United States has
riods for family members whose U.S. relatives have                     not had a temporary visa category for essential
petitioned for them to come to the United States.                      workers, despite the massive need for such key
                                                                       workers in the U.S. economy.5
   The scope of this article will be limited to what is
commonly referred to as “Essential Worker” re-                         From the Chinese Exclusion Act
form1, the Dream Act2 (also known as the Student                       to the Mexican Exclusion Act
Adjustment Act), and H-2B reform.3 Due to a num-                           The history of immigration and manual labor
ber of fortuitous events and a sensible, better edu-                   started long before 1964.6 It began in the early- to
                                                                       mid-1870s with the country’s westward expansion
*                                                                      and the concurrent need for workers to build railroads
  Gerard M. Chapman, of Greensboro, NC, is a Board Cer-
tified Immigration Specialist. He graduated from UNC-CH
                                                                       and houses, to work in mines, logging, and factories,
in 1973 with a B.A. in International Studies, and in 1978, he          and any number of other industries. In the late-1870s
received his J.D., cum laude, from the University of Georgia           and 1880s, economic depression led to severe anti-
School of Law. He is a trustee of AILF, and served as chair            Chinese sentiment, and, eventually, the Chinese Ex-
of the Carolinas Chapter of AILA and as a member of                    clusion Act of 1882.7 That Act, like current immigra-
AILA’s Board of Governors from 1998–2000. He is a found-               tion law, did not conform to economic reality, so
ing member and board member of the North Carolina Legal
                                                                       Chinese laborers were replaced by Japanese, and lat-
Immigration Coalition (NCLIC), a group that gives educa-
tional presentations on immigration developments to busi-              er, by Koreans and Asian Indians. That influx was
nesses and other groups.                                               stemmed by the 1917 Barred Zone Act that excluded
   The author wishes to thank Nicola A. L. Prall, an associ-
ate with Chapman Law Firm, for her extensive help in draft-
ing this article, as well as general editing assistance. Ms.             In view of other developments in the areas of asylum, re-
Prall received her undergraduate degree from Case Western              moval, BIA staffing changes, etc., the move toward broad
University and her J.D. from University of Kentucky, and               reform is all the more remarkable.
has been practicing with Chapman Law Firm since August                 5
                                                                         That year marked the end of what was known as the “Brac-
2005.                                                                  ero Program,” through which Mexican men and women
   Immigration Reform Act of 2004, S. 2010, 108th Cong.                came to the United States and filled jobs beginning in 1942
(Jan. 21, 2004), posted on AILA InfoNet at Doc. No.                    that U.S. men no longer filled due to World War II.
04012444 (Jan. 24, 2004).                                              6
                                                                         The following summary is taken from an excellent article
  Development, Relief, and Education for Alien Minors Act              by Alicia J. Campi, Ph.D., Policy Brief, “Closed Borders and
(DREAM Act), S. 1291, 107th Cong. (2001).                              Mass Deportations: The Lessons of the Barred Zone Act,”
  This article will not address other reform efforts such as the       (AILF Immigration Policy Center 2005) (hereinafter Campi
bill commonly referred to as “AgJobs,” and with reference to           Article).
H-2B reform, the commentary will be relatively brief.                    Chinese Exclusion Act, 47th Cong. (1882).

2                                                                 2005–06 IMMIGRATION & NATIONALITY LAW HANDBOOK

all Asian country nationals (except Japanese and Fili-           have begun to stay for longer and longer periods of
pinos) from immigrating to the United States.                    time. Although IIRAIRA seems to have had little
    During and after the Depression, Mexican work-               effect on illegal entries into the United States, it has
ers took the place of the earlier Asian workers, but             had the effect of keeping undocumented workers
they entered illegally until 1942 when the United                here for years and years, which in turn has caused
States instituted the so-called Bracero Program. In              their family members to enter so that they can be
that year, Congress saw the need for a supplement to             with them.
the native-born work force that had been depleted by                The amnesty laws of the early 1980s were the
World War II. The Bracero Program had its faults                 Reagan Administration’s effort to acknowledge and
and weaknesses, but it lasted until 1964. Appendix 1             address the presence of millions of undocumented
reflects the number of illegal entrants from Mexico              workers who continued to enter the United States
who were arrested during the period from 1943 until              and fill essential jobs after the Bracero Program
1978.8 As with all government programs, the Brac-                ended. Laudable though they were, those amnesty
ero Program took several years to be fully imple-                laws failed to recognize and deal with the core of the
mented by the government, and understood by U.S.                 problem: the lack of a temporary visa category for
employers and foreign workers. Once it matured, the              workers who fill year round jobs that do not require
program was widely used and, as reflected by Ap-                 a college degree, and a realistic number of green
pendix 1, it reflected the common desire of employ-              cards for those whose services are needed for longer
ers and employees to follow the law. Once the pro-               than, e.g., two or three years. Without an available
gram was disbanded, the number of illegal entries                temporary visa classification, U.S. employers have
and arrests rose quickly to the same level that had              had no legal way to bring in needed manual workers
existed before the program was put in place. As Dr.              for year round jobs, and those workers have had no
Campi so aptly states:                                           legal way to enter the United States to fill them.12
    ‘Barring’ certain peoples from entering the coun-            Legal Victimization: Hoffman
    try did not lessen the economy’s demand for labor.           Plastic Compounds, Inc. v. NLRB13
    It only led to the victimization of certain nationali-
    ties and the successive exploitation of new ones.9               Among all of the other examples of institutional-
                                                                 ized and judicially sanctioned mistreatment of essen-
   More recently, through the Illegal Immigration                tial workers, perhaps there is none so blatant than the
Reform and Immigrant Responsibility Act of 1996                  Supreme Court’s decision in Hoffman. In this case,
(IIRAIRA),10 Congress passed legislation that has                the company laid off four workers for engaging in
been called the “Mexican Exclusion Act.”11                       union activities. One of them, Jose Castro, was hired
IIRAIRA’s provisions, in conjunction with the de-                on the basis of false I-9 documents. The company did
mand for skilled and unskilled labor and the three-              not know that the documents were false until the
and ten-year bars for those who remain in the United             NLRB proceedings for backpay were underway.
States (as overstays or as entry without inspection—
EWIs), has caused just the opposite of what                         Once it learned of the falsity of those documents,
IIRAIRA’s sponsors intended. Millions of workers                 Hoffman used that fact as a defense to the payment
who previously had moved back and forth across the               of some $66,000 in backpay, plus some three and a
border to work in the United States and then, after a            half years of interest on the judgment that it other-
period of months or years, returned to Mexico, now
                                                                    U.S. law for some time has allowed employers to petition
                                                                 for essential workers in the employment-based Third Prefer-
8                                                                ence Category (previously classified under the Sixth Prefer-
  The chart, Figure 15.1, is contained at page 471 in the 1981
                                                                 ence category until IMMACT90), but that category is cur-
Staff Report of the Select Commission on Immigration and
                                                                 rently backlogged for approximately four years, and has been
Refugee Policy.
                                                                 subject to similar backlogs for years. No employer can wait
  Campi Article, supra note 6, at 3.                             for that long to employ a worker for the kinds of jobs that
   Illegal Immigration Reform and Immigrant Responsibility       these workers fill; employers of H-1B employees may have
Act of 1996, Division C of the Omnibus Appropriations Act        to wait that long to process the full green card case, but in
of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009         the meantime, the beneficiary can work and travel under his
(IIRAIRA)                                                        or her H-1B visa.
11                                                               13
   Erika Lee, Chinese Immigration During the Exclusion Era,         Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137
1882 – 1943 247 (UNC Press 2003) (hereinafter Lee).              (2002).

wise would have had to pay Castro. The NLRB re-                      [T]he immigration laws ‘as presently written’
jected the defense, and the Court of Appeals for the                 expressed only a “‘peripheral concern’” with the
District of Columbia denied review and enforced the                  employment of illegal aliens. . . . ‘For whatever
Board’s order.                                                       reason,’ Congress had not ‘made it a separate
    In an opinion written by Justice Rehnquist, a di-                criminal offense’: for employers to hire an illegal
vided Court reversed. The majority of the Court rea-                 alien, or for an illegal alien ‘to accept employ-
soned that, although the NLRB has broad discretion                   ment after entering the country illegally.’21
in fashioning appropriate remedies for NLRA viola-                 Despite the near identical fact situations in Sure-
tions, that discretion is limited.14 The Court went on          Tan and Hoffman, the majority found congressional
to say that:                                                    passage of IIRAIRA after Sure-Tan to be control-
     Since the Board’s inception, we have consistently          ling. It decided that to uphold the award of backpay,
     set aside awards of reinstatement or backpay to            the Court would be allowing the Board to fashion a
     employees found guilty of serious illegal conduct          remedy that directly interfered in an area that Con-
     in connection with their employment.15                     gress now had allocated to (legacy) INS.22 It further
                                                                warned that to award backpay in the case before it
    The majority of the Court reached its ultimate              would condone and encourage future violations of
conclusion on several grounds, one of which was the             the immigration laws contained in IIRAIRA.23
fact that Congress had enacted IIRAIRA, calling it “a
comprehensive scheme prohibiting the employment                     For a number of reasons, the dissent, written by
of illegal aliens in the United States.”16 With that un-        Justice Breyer, found the majority’s reasoning not
derpinning, the majority rejected the Board’s position          only deficient, but also directly contrary to the stated
that the backpay order was proper under Sure-Tan,               rationale that it claimed to follow. In addition to
Inc. v. NLRB.17 In Sure-Tan, two companies unlaw-               more technical grounds, the dissent pointed out the
fully reported undocumented workers to the Immigra-             very practical reason that the majority should have
tion and Naturalization Services (INS) in retaliation           upheld the backpay award: by denying the Board the
for union activity, and the workers fled the United             power to enforce backpay awards, it lowers the cost
States. The Board found that the companies had vio-             to the employer of an initial labor law violation, and
lated the NLRA and ordered re-instatement and                   increases the incentive of the employer to employ
backpay. The Supreme Court affirmed.18 The majori-              undocumented workers.24
ty in Hoffman explained that the Sure-Tan decision                  It is hard to imagine a more unjust and punitive
was proper in the legislative context at that time, be-         decision than Hoffman, at least as far as Mr. Castro
cause there was no specific provision in the Immigra-           was concerned. But others have paid an even higher
tion and Naturalization Act19 forbidding the employ-            price: the loss of their lives in trying to enter the
ment of undocumented workers.20 It quoted the Sure-             United States to find work.
Tan Court’s reasoning:
                                                                Death Is Not Too High a Price to Pay
                                                                   The desire to cross this country’s borders is in-
                                                                tense and, in some cases, fatal. From 1998 to 2001,
   Id. at 142–43.                                               over 1100 people died crossing into the United
   Id. The Court also distinguished prior decisions in which    States from the south.25 In one of the more gruesome
the Board had awarded backpay, on the basis of its 1942
decision in Southern S. S. Co. v. NLRB, 316 U.S. 31. In that    21
                                                                   Id. at 144 (quoting Sure-Tan, 467 U.S. at 892–93).
case, the Court set aside an award of backpay on the basis      22
that the employees in question engaged in a strike on a ship,      Id. at 147–48.
which amounted to a mutiny in violation of federal law. Id.        Id. at 150. The majority went to some pains to point out
at 47.                                                          the “other significant sanctions” Board already had imposed
16                                                              against Hoffman: posting a notice to employees setting forth
   Hoffman at 142.
17                                                              their rights under NLRA and spelling out the company’s
   Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).
                                                                prior unfair practices. Id. at 152.
   Id. at 892.                                                  24
                                                                   Id. at 152 (Breyer, J., dissenting).
    Immigration and Nationality Act of 1952, Pub. L. No.        25
                                                                   Lee, supra note 11, at 250; see also Catholic Legal Immi-
82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101
                                                                gration Network, Chaos on the U.S. – Mexican Border:
et seq.) (INA).
                                                                A Report on Migrant Crossing Deaths, Immigrant Families
   Hoffman at 144–45.                                           and Subsistence – Level Laborers, 13 (2001) (citing an offi-
4                                                                2005–06 IMMIGRATION & NATIONALITY LAW HANDBOOK

examples of border crossing deaths, in May of 2003,             of their respective representatives, the events of Sep-
19 people suffocated to death in the back of a locked           tember 11, 2001, intervened and caused the entire
tractor-trailer in Victoria, Texas. The trailer had             immigration reform discussion to be abandoned, at
been abandoned at a truck stop with nearly 100 peo-             least temporarily. However, during late 2002 and
ple inside, who had come from Mexico, El Salvador,              through 2003, the United States and Mexico contin-
Guatemala, and Honduras.                                        ued to discuss the outline and many details of com-
   The trafficking in labor now has become more or-             prehensive immigration reform. Security issues
ganized; recent reports confirm that numbers like the           made it more difficult to achieve rapid progress in
Victoria tragedy indicate that immigrants are turning           those discussions, but representatives of both coun-
to professionals who have become better organized               tries continued to meet on a regular basis.
and who in some cases use their own fleets of vehi-                 In late 2003, Tom Ridge, then-Secretary of the
cles and networks of “safe houses” to keep their cargo          Department of Homeland Security (DHS), at a fo-
until it appears that further travel is safe.26                 rum in Miami, publicly endorsed a legalization pro-
                                                                gram for the millions of undocumented workers in
Recent U.S. Attitudes—The Bush Years                            the United States.29 He was quoted as saying:
    While serving as Governor of Texas, George W.                    The bottom line is, as a country we have to come
Bush attended the 17th Conference of Border Gov-                     to grips with the presence of 8 to 12 million ille-
ernors, a cross-border conference for U.S. and Mex-                  gals, afford them some kind of legal status some
ican governors. In September of 1999, Governor                       way, but also as a country decide what our immi-
Bush of Texas, Governor Jane Dee Hull of Arizona,                    gration policy is and then enforce it.
and Governor Gary E. Johnson of New Mexico
wrote to Jim Kolbe, one of Arizona’s representatives            The 2004 Bush Proposal
in the U.S. House of Representatives. In that letter                Barely a month later, in January of 2004, Presi-
they focused on possible improvements to the H-2B               dent Bush announced a proposal entitled “Fair and
system, but their comments echoed the call for                  Secure Immigration Reform,” which would have
broader, comprehensive reform, as well as the con-              matched “willing foreign workers with willing U.S.
nection between immigration and global market                   employers when no Americans can be found to fill
forces.27 Among other things, they said:                        the jobs.”30 The proposal said that the program
    It is our firm belief that the H-2 system should be         would be open to new foreign workers, as well as to
    reformed in a way that [it] will efficiently respond        the undocumented workers currently in the United
    to the growing demand for labor in the agriculture          States.31 It also called for incentives to persuade the
    and service industries. . . . One of the main reasons       foreign workers to return to their home countries
    we support an expansion and simplification of               after their authorized stay had expired; it suggested a
    [the] H-2 . . . program is to enable the United             three-year initial stay with an unspecified number of
    States to compete in a global marketplace.28                renewals, and the possibility that the worker could
   During the first two years of his initial term,              process for a green card “through the existing pro-
President Bush provided consistent support for im-              cess.”32 In something of a precursor to the Presi-
migration reform and had regular dialogue on the
subject with his Mexican counterpart, President                     See Tanya Weinberg & Christy McKerney, “Homeland
Vincente Fox. Unfortunately, despite the best efforts           Security Chief Endorses Legalizing Undocumented Immi-
                                                                grants, “South Florida Sun-Sentinel, Dec. 10, 2003, at B3.
                                                                   January 7, 2004, Presidential Announcement, at 1.
cial death count of 1186 for the same period, issued by the     31
legacy INS Office of Public Affairs).                              Id.
26                                                              32
   See “Border Patrol Reports Increase in Arrests for Smug-         Id. The proposal made no mention of the fact that only
gling People,” Associated Press, May 20, 2003 (on file with     10,000 permanent visas a year are available to nondegreed
author).                                                        workers, and that this subsection of the Third Preference
27                                                              category has been backlogged for years. It did say, however,
    Letter from Jane Dee Hull, Governor of Arizona, Gary E.
                                                                that undocumented workers should not be permitted “to gain
Johnson, Governor of New Mexico, and George W. Bush,
                                                                an advantage over those who have followed the rules.” Id.
Governor of Texas to Congressman Kolbe, United States
                                                                Nor did it address the fact that the proposal was necessary
Representative (Sept. 10, 1999) (on file with author); a copy
                                                                because, since 1964, there have been no rules for essential
is attached as Appendix 2.
                                                                workers and their U.S. employers to follow. To be fair, the
    Id.                                                         proposal also called for a “reasonable increase in the annual

dent’s current call for privatizing Social Security,              proposal. He repeated the economic themes underly-
the January proposal also promised that:                          ing the proposal,35 and explained that:
   The U.S. will work with other countries to allow                    This is not an amnesty program . . . . Rather, the
   citizens working in the U.S. to receive credit in                   President proposes a one-time regulated oppor-
   their nations’ retirement systems and will support                  tunity for undocumented workers, already here
   the creation of tax-preferred savings accounts                      as of the date of the President’s announcement,
   they can collect when they return to their native                   to legitimize their presence and participate more
   countries.33                                                        fully in our economy, for a finite period, before
    And in recognition of the value of family unity,                   returning home. And, it creates ongoing oppor-
the President proposed that, consistent with the                       tunity for individuals abroad to apply to come
rights of other temporary workers to have their fami-                  temporarily to the United States and legally fill
lies live with them while they are working in the                      jobs that American workers will not fill, thereby
United States, these newly documented workers                          presenting long-term, viable alternatives to the
would be allowed to bring their family members                         risks associated with illegal immigration.36
with them. In a twist that is present in no other part               Unfortunately, despite the promising nature of
of our temporary or permanent employment-based                    the President’s proposal, and the positive reinforce-
visa categories, the proposal at the same time re-                ment of Mr. Aguirre’s testimony, the Administration
quired “[t]he principal worker [to] prove that he or              did little else during 2004. It was not until Novem-
she can support family members during their stay in               ber 10, 2004, barely one week after Mr. Bush was
the U.S.”                                                         reelected, that soon to be outgoing Secretary of State
    Reaction to the proposal varied, as one would                 Colin Powell broke the administration’s silence on
expect, but a Wall Street Journal commentary lent                 the subject. In an article dated November 10, 2004,
its support to the proposal and gave the President                the Los Angeles Times quoted Powell as saying that:
credit for taking a stand on a potentially divisive and              [P]rospects for an overhaul of immigration rules
controversial issue in an election year:                             had ‘improved significantly’ and that President
   President Bush’s announcement is a historic be-                   Bush would soon work with congress on his pro-
   ginning, truly not unlike Richard Nixon’s trip to                 posal to give temporary work permits to millions
   China. The White House initiative doesn’t get                     of immigrants. . . .
   everything right, and there is much work still to                   The president is committed to making this a high
   be done by both the administration and Congress.                    priority in his second term.37
   But the president has taken a critical first step
   and he deserves credit—both for taking on the                  Aftermath of the Bush Proposal:
   broken status quo and for articulating a conserva-             Chaos on the Border
   tive case for change. What, after all, could be                    Reports now confirm what most people expected:
   more conservative than encouraging the Ameri-                  once news of the Bush proposal hit the media, a mad
   can Dream, rewarding work, restoring the rule of               rush to the border followed. In an extensive article
   law and enhancing our security?34                              published in the fall of 2004, Time Magazine docu-
   In March of 2003, Eduardo Aguirre, Jr., Director               mented an increased flow of workers and others en-
of USCIS, testified before the U.S. Senate Foreign                tering from our southern border. The article estimat-
Relations Committee, with respect to the President’s
                                                                     Just as Federal Reserve Chairman Alan Greenspan has
                                                                  repeatedly argued: the U.S. economy is highly dependent on,
                                                                  and helped by, foreign labor. See “Making a Difference in
                                                                  America; Immigrants Continue to Benefit our Nation,” Im-
limit of legal immigrants [to] benefit those who follow the       migration Policy Center, Immigration Policy Focus 2
lawful path to citizenship.” It did not specify if the increase   (Spring 2002). See also Rupert Murdoch, “Give Thanks for
would apply to employment-based lawful permanent resident         Immigrants, and for a President Who Understands their Im-
(LPR) numbers, to family-based LPR numbers, or both.              portance to America,” Wall Street Journal, Nov. 24, 2004.
33                                                                36
   Id. at 2.                                                         Testimony of Eduardo Aguirre, Jr., Director of USCIS, at
   Tamar Jacoby, “America as a Beacon . . . American Con-         2, Mar. 23, 2004 (emphasis added).
servatism,” Wall Street Journal, Jan. 12, 2004 (emphasis             Richard Boudreauxm, “Immigration a Bush Priority, Pow-
added).                                                           ell Says,” Los Angeles Times, Nov. 10, 2004.
6                                                             2005–06 IMMIGRATION & NATIONALITY LAW HANDBOOK

ed that every day, some 4000 people enter the Unit-          in a way to make it consistent with the economic law
ed States along the 375 mile border between Mexico           of supply and demand.43
and Arizona.38 The authors of the report cite two
reasons for the upsurge in unlawful entries over the         Congressional Activity in 2004
last two years: a still feeble Mexican economy, and              To their credit in the 2004 election year, several
President Bush’s proposal.39 According to the report,        members of Congress, on both sides of the aisle and
the promise of legal status was interpreted to mean          in both Houses, drafted and/or introduced three ver-
that once Mexican citizens made it across the border         sions of comprehensive immigration reform. Those
(regardless of when the entry occurred), they would          bills, their dates of introduction, and sponsors were:
be allowed to remain and gain LPR status.40 Appar-            January 21, 2004: The Immigration Reform Act
ently the press in Mexico did not mention or empha-            of 200444
size that, under the Bush proposal, the entry had to
occur before the date of his announcement; or more                Sponsors: Chuck Hagel (R-NE) and Tom
likely, those who heard about the proposal were op-               Daschle (S-SD)
timistic that such a requirement would be relaxed or          May 4, 2004: SOLVE Act45
waived.                                                           House Sponsor: Luis Gutierrez (D-Ill)
    The Time article is just one report, but subse-               Senate Sponsors: Edward Kennedy (D-Mass), Di-
quent events demonstrate that the perception, if not              anne Feingold (D-CA), Hillary Clinton (D-NY)
the reality, of many on this side of the border is that
                                                                Each of these bills was close to 100 pages in
we lack true border security; we have no coherent
                                                             length, and covered a significant number of issues.
plan; and we still lack the ability to put any plan into
                                                             In addition, in late 2003, Chris Cannon (D-UT) in-
force, even if we had one. On the weekend of April
                                                             troduced H.R. 1684, more commonly known as the
2, 2005, an estimated 450 “volunteers” gathered
                                                             DREAM Act.46 Appendix 3 to this article provides a
near Tombstone, Arizona, to serve as a month-long
                                                             very rough outline of what these bills would have
civilian patrol aimed at detecting and reporting
                                                             accomplished if they had been passed into law.
smugglers and unlawful entrants. Naming itself the
“Minuteman Project,” its organizers planned to have          Economic Underpinnings of Reform
the group—some of whom were armed—cover
23 miles of border and report any unlawful activity          General Economic Benefits
to federal agents.41                                            Essential workers come to the United States to do
    Regardless of the outcome of the Minuteman Pro-          jobs that U.S. workers will not do, or that they can-
ject, the fact that an armed group of U.S. citizens          not do because of geographic, career, and other con-
finds it necessary to patrol even a small section of our     siderations. Opponents of reform cite the fact that
southern border should serve as a wake-up call in this       some 10 million U.S. workers are unemployed, and
era where security dominates almost every discussion         some 10 million undocumented workers are in the
about immigration law and policy. Harking back to            United States; from these two facts they conclude
the 1981 Staff Report of the Select Commission on            that each undocumented worker has taken away a
Immigration and Refugee Policy,42 we have ample
precedent for the fact that both U.S. employers and
essential workers are more than willing to follow the            Essential workers find themselves as the only group in the
law. The only real question is whether the Congress          U.S. economy for whom there is no temporary visa category
and President Bush will reform U.S. immigration law          (other than the H-2B category for seasonal jobs). Due to con-
                                                             gressional inaction and a lack of sufficient public interest,
                                                             since the termination of the Bracero Program, U.S. immigra-
                                                             tion law has been in direct and total conflict with the law of
                                                             supply and demand in only one area: essential workers.
38                                                               Immigration Reform Act of 2004, S. 2010, 108th Cong.
   “Who Left the Door Open?,” Time, Sept. 20, 2004, at 51.
                                                             (Jan. 21, 2004), posted on AILA InfoNet at Doc. No.
   Id. at 52.                                                04012444 (Jan. 24, 2004).
   Id.                                                       45
                                                                The Safe, Orderly, Legal Visas and Enforcement Act of
   “Volunteers to Patrol Arizona – Mexico Border,” Associ-   2004 (S.O.L.V.E. Act of 2004), H.R. 4262, 108th Cong.
ated Press, Apr. 2, 2005.                                    (2004).
42                                                           46
   See supra, note 8, and Appendix 1.                           Supra note 2.

job from a U.S. worker. But the reality is not so                      jobs all across the employment spectrum. While
simple. What the restrictionists would have is a So-                   the arrival of new Americans presents America
viet-style economy, in which U.S. workers are                          with challenges, the benefits of immigration have
moved by the state from one location to fill a job,                    far outweighed its costs.49
notwithstanding the fact that the worker has a family
to consider, the worker was earning much higher                   Social Security Contributions
wages when he or she lost his or her job than he or                   In the current debate over Social Security reform,
she would earn at the new job, and the worker may                 it also is worth noting that official Social Security
prefer to engage in retraining at a community col-                Administration data shows the clear benefits of im-
lege to acquire the skills necessary to fill other jobs           migrants to that system. In a February 2005, report
in the local economy.47                                           requested by Senator Chuck Hagel, the author makes
    Moreover, the economic evidence shows that                    the following sober point:
immigrant workers typically provide an additional                    [L]egal immigrants and their descendants make
source of labor that in turn allows for additional                   important positive contributions to America’s
growth, which in turn offers current workers en-                     Social Security system. Higher levels of legal
hanced job opportunities.48 In 2004, the Bryan                       immigration would benefit Social Security.
School of Business at the University of North Caro-                  However, higher taxes, benefits cutbacks, or
lina at Greensboro published a well-researched study                 some combination of the two would be necessary
on the economic impact of immigrants in Guilford                     to prevent the worsening in the solvency of the
County. The study concluded with these points:                       Social Security trust fund caused by reductions in
     We conclude that contrary to the more negative                  legal immigration. . . . Policy makers considering
     views of immigration and immigrants, their pres-                changes to either Social Security or America’s
     ence in the American and Guilford County econ-                  legal immigration system should be award of the
     omies is a boon, whether foreign- or native-born.               significant position impact that legal immigrants
     Immigrants have established businesses, created                 have on Social Security.50
     new markets for businesses to serve, and filled                 Other areas of the economy are enhanced by the
                                                                  immigrant community. For instance, banks and other
   The cities of Greensboro, High Point, and Winston-Salem        financial institutions regularly assist immigrants in
constitute a region known as the Triad area of North Caroli-      the transfer of billions of dollars each year in remit-
na. In the Triad, Dell Computers has just announced a new         tances to their families back in their home countries.
facility that will employ some 1500 workers in the Triad.         According to the Inter-American Development Bank
Recently, Unilin, NC, LLC, the U.S. subsidiary of an inter-       (IDB), “remittances sent to countries in Latin Amer-
national floor-manufacturing conglomerate, announced that         ican in 2003 totaled more than the combined amount
it is expanding its Triad operations. However, both compa-
nies are finding that it is difficult to find qualified, highly
                                                                  of foreign direct investment in and official develop-
skilled workers in the local workforce, despite the best ef-      ment assistance to Latin America.”51
forts of the local community colleges to train those workers
as fast as they can. “‘Skills Gap’ Slows Unilin’s Hiring”
Greensboro News and Record, Apr. 3, 2005, at B-3.                    Id. at 15. These findings are reflective of the positive im-
    Brod and Lux, An Economic Profile of Immigrants in            pact of undocumented workers in the broader U.S. economy.
Guilford County, June 2004, sponsored by the Office of            See R. Paral, Immigration Policy Brief, “Essential Workers:
Business and Economic Research, Bryan School of Business          Immigrants are a Needed Supplement to the Native-Born
and Economics, University of North Carolina at Greensboro,        Labor Force” (AILF Immigration Policy Institute, Apr.
at 12 (hereinafter Brod). The authors conclude that in 2003,      2005).
approximately six percent of the total workforce in Guilford         Stuart Anderson, The Contribution of Legal Immigration
County, North Carolina, owed their jobs to the economic           to the Social Security System 3 (2005). The study estimates
activity of the immigrant community, and that unemploy-           that over the next 75 years, new legal immigrants entering
ment in Guilford County could have been double its actual         the United States will provide a net benefit of $611 billion in
level, absent the economic participation of immigrants. Id. at    present value to the system. Id. at 1. The addition of undoc-
15. In an area that has suffered some of the worst job losses     umented workers to our tax roles would only increase that
in the country due to the problems of big tobacco, the out-       contribution. See also Porter, “Illegal Immigrants Are Bol-
sourcing of textile manufacturing to Mexico and many              stering Social Security,” New York Times, Apr. 5, 2005.
Southeast Asian countries, and similar trends in the furniture    51
                                                                      Kasey Maggard, “Banks and the Growing Remittance
industry, the economic contributions of the immigrant com-        Market,” 6 EconSouth, No. 3, at 1 (2004), Atlanta Office of
munity are substantial, to say the least.                         the Federal Reserve. The benefits to the banks are signifi-
8                                                                      2005–06 IMMIGRATION & NATIONALITY LAW HANDBOOK

The Glass Ceiling Effect and Organized Crime                          Sixty-one percent of those polled responded that
    The push for immigration reform is not limited to                 undocumented immigrants should be able to keep
economic reasons. When undocumented students                          their jobs and apply for legal status, compared to 36
realize that their educational opportunities and ca-                  percent who thought they should be deported.53
reer choices are limited, they will begin to look at                      In addition, as of this writing, bipartisan legisla-
unconventional means to make their way. Much of                       tion is being drafted again by members of the Senate
the gang violence in major cities and in small com-                   and the House, involving both Democrats and Re-
munities around the United States is Latino-based.                    publicans, with a target date of April 2005, for in-
Likewise, a growing number of drug busts involve                      troduction in both houses of Congress. Finally, 2005
Hispanic youths and adults who have severely lim-                     is not an election year. If anything can make mem-
ited options for economic advancement. For the                        bers of Congress nervous about voting on immigra-
United States to simply dispose of a generation of                    tion reform, it is an upcoming election. That is most
young, bright students is not only unfair to them, it                 likely the biggest reason that none of the above bills
is unfair to the rest of the country. They represent a                ever came to a vote in 2004. Since 2005 is a none-
growing percentage of potential business, profes-                     lection year, fear of voter backlash should not be an
sional, and political leaders. We lose them at our                    impediment to realistic reform.
                                                                      A Word on H-2B Reform
2005: Change is in the Air                                               To this point, all of the above commentary has
   Regardless of what else is said about President                    focused on the creation of a new temporary visa, and
Bush, one thing is certain: once he makes up his                      a permanent visa, for workers in year-round jobs. In
mind about the right thing to do, he does not give                    January of 2005, USCIS announced that, with re-
up. In addition to his comments in late 2004 and in                   spect to the H-2B program, all 66,000 visa numbers
his 2005 State of the Union speech about the need                     were gone, and that any petitions filed after January
for immigration reform, there are other positive                      3, 2005, would be returned. This was the second
signs. For one, Senator John Cornyn (T-TX) has                        year in a row that seasonal employers in the United
been named as Chair of the Senate Immigration                         States were left stranded by a system that was de-
Subcommittee to the Judiciary Committee.                              signed to help them find the workers on which their
   The mood of the country seems more attuned to                      businesses depend.
immigration reform, and certainly more in line with                       In response, in February of 2005, identical legis-
reform than the restrictionists would have us believe.                lation was introduced in the House54 and in the Sen-
   An ABC News-Washington Post nationwide poll                        ate55 to create a one-time fix for this part of the sys-
conducted on January 12–16, 2005, indicated that                      tem. Notably, it removes from the cap any workers
support for a guest worker program and legalization                   who have held H-2B status anytime in the last three
among Americans exists, by nearly a 2-1 margin.                       years. Many employers use “repeat H-2B” workers,
                                                                      so this is a logical solution to the current crisis. This
                                                                      legislation was signed into law on May 11, 2005.56
cant, but the relationships also benefit immigrants. As the
author notes, Hispanics who open bank accounts are less
                                                                         The bills introduced in 2004 also addressed the
likely to be victims of crimes, they earn interest on the mon-        H-2B system; the proposed changes would have
ey they deposit in banks, and they gain a financial foothold          made the system more streamlined and efficient. It is
that can lead to the purchase of homes, opening of new busi-
nesses, etc. Id. at 2.
52                                                                    53
   It is true that some states allow the undocumented to enroll in       Summary of poll as reported on, available at
their community colleges and universities. In late 2004, the
University of North Carolina system adopted a new policy that         54
                                                                         Save our Small and Seasonal Businesses Act, H.R. 793,
provides for the admission and enrollment of undocumented
                                                                      109th Cong. (2005).
aliens “based on their individual qualifications,” but with certain   55
limitations: most notably, such students cannot receive state or         Save our Small and Seasonal Businesses Act S. 352, 109th
federal financial aid in the form of a grant or a loan, and they      Cong. (2005).
must pay out of state tuition. For a student admitted to UNC at          Save our Small and Seasonal Businesses Act, Division B,
Chapel Hill, the total annual costs for an out-of-state student can   Section IV, Emergency Supplemental Appropriations Act for
exceed $25,000; in-state rates are considerably lower. See            Defense, the Global War on Terror, and Tsunami Relief, (last visited Apr. 7, 2005).                2005, Pub. L. No. 109-13 (May 11, 2005).

expected that the legislation now being drafted by
the bipartisan group will include much needed
changes to the H-1B system as well as the creation
of new visas for our essential workers.

    For more than 40 years the United States has not
had a workable guest worker program for the mil-
lions of essential workers who keep our economy
healthy and expanding. For too long we have acted
as if it is perfectly acceptable to create and support a
“future underclass.”57 It is high time we devoted the
time, energy and attention to fix a problem that has
festered for too long, that has hurt too many com-
munities, and has left too many people in the desert
to die. Our heritage compels us to be fair to those
who have given so much to us, and have asked only
for the simple dignity of having legal status and the
legal right to work in this country. May we and our
elected representatives in Congress have the courage
to do the right thing by them and by us.

   See Douglas Massey, “Closed Door Policy,” The American
Prospect Online, Jun. 30, 2003
page.ww?section=root&name=ViewPrint&articleId=6824 (last
visited Apr. 6, 2005).


                                             APPENDIX 2

12                                                          2005–06 IMMIGRATION & NATIONALITY LAW HANDBOOK

                                                   APPENDIX 3

     1. Essential Worker Temporary Visa
        a. Test of labor market
        b. Job duties
        c. Minimum qualifications—worker has them
        d. Prevailing wage
        e. Normal working conditions
        f. Right to change employers if USCIS approves
        g. Limited number of visas?
        h. 3-/10-year bars, and “permanent” bar, made inapplicable
     2. Earned Adjustment (Green Cards)
        a. Worker entered United States more than five years ago
        b. Worker has been physically present in the United States for five years
        c. Worker has not left United States for more than 90 consecutive days on a single trip, and for not
           more than 180 days total (possible exceptions for extraordinary circumstances)
        d. Worker has worked in the United States at least two or three years during the five years before law
           is passed
        e. Payment (or written agreement to pay) all back state and federal taxes
        f. Basic ability to speak English, or studying through approved course
        g. Basic knowledge of U.S. history or studying through approved course
        h. Security clearance
        i. Medical exam
        j. Mandatory registration for military service if worker is between 18 and 26
        k. Spouse and minor children eligible if worker is eligible
        l. Employer not subject to criminal penalties if it assists worker, although must pay any unpaid tax
        m. Severe penalties for false statements in applications
        n. Limited number of visas?
        o. Right to advance parole
        p. 3-/10-year bars, and “permanent” bar, made inapplicable
     3. DREAM Act
        a. Child here at least five years
        b. Apply before age 21
        c. Currently in school
        d. Good moral character
        e. Limited number of visas?
        f. 3-/10-year bars, and “permanent” bar, made inapplicable

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