A way forward for immigration reform


The alternative—to deport these millions— is not feasible because first it is physically impossible to do this, and secondly, even if it were possible, it would be extremely costly and disruptive to our society.  The state of California and the city of New York and many other metropolitan areas would suffer greatly if all the illegal immigrants who work in such local industries as restaurants, hotels, construction and homecare and childcare were taken out of the workforce. The new legislation should also include temporary visa programs based on justifiable employer needs for workers of any kind—including unskilled workers.

Contrary to popular opinion, among the millions of the undocumented, there are many skilled, entrepreneurial, highly successful people. Consider the case of James Kaye. James came to the United States in 1995 from Europe for a short vacation. A car mechanic by trade, he was impressed by the car culture in the United States and immediately saw business opportunities that were not available to him at home. He returned to the US the following year with a definite business plan: he would set up a business importing and servicing European automobiles.

James did not immediately apply for an investment visa and although he was soon successful in his business, try as he might, he could not navigate the immigration maze. At the time he was advised that his chances of being granted an investment visa were slim because the amount of capital he was bringing to the venture would be considered too little. However, what he lacked in capital he made up for through ambition and determination.  Within two years, the business was thriving with several employees and a growing customer base.

There is a catch-22 here: in order to get the appropriate business investment visa James had to first establish the business.  But by then he was already an illegal alien having overstayed his visitor visa.  When he came to my office in 2009, James had a flourishing business with 17 employees, and two American children, but he and his wife were illegal aliens. The law does not provide any solution for them.

Even people who do everything by the book encounter numerous obstacles and often end up defeated by the system.  For example, the process by which one qualifies for lawful permanent residence of the US is burdensome and out of sync with the very aims that it was designed to further— family reunification and the US labor market.

Recently, John Smith, a UK citizen, was granted lawful permanent residence of the US based on his transfer from the UK to the US parent company of his employer. (He had been recruited for his expertise in European banking systems.) Six months later, he married his wife Joan, also a UK citizen, in London. Under current US immigration law, it will be July 2014 at the earliest (and more likely well into 2015) before Joan is granted permission to reside lawfully in the US with her husband. This is because spouses of lawful residents are subject to an annual quota, which is constantly backlogged by several years.

An alternative is to wait five years until John qualifies for US citizenship, when he can petition for Joan to join him in the US as the spouse of a US citizen. (There is no annual quota for spouses of US citizens to obtain permanent residence.)  Therefore, couples like John and Joan can be separated for many years.  When I explained this to John and Joan at an office consultation while Joan was in the US on a 90-day tourist stay immediately following their marriage, they were incredulous. But there is even worse news. In all likelihood, Joan will not even be allowed to come to the US as a tourist during her long wait for US residence because US Immigration law requires that a person entering the US as a tourist cannot have the intent to reside permanently in the US at any time.  This did not make sense to them and I perfectly understand their reaction.

Their choices are limited: either John gives up the job he was recruited for and his US permanent residence (which was granted at the request and for the benefit of his US employer) and returns to live with his wife in the UK , or Joan remains in the US as an illegal alien until her permanent residence is granted. The other also not very satisfactory option is that they live apart (he in the US and she in the UK) until she qualifies for permanent residence based on the current law. So much for family values.

If John had married his UK fiancée before his permanent residence was granted (even one day before), she would have obtained permanent residence simultaneously with him and none of this headache would have ensued. However, marrying after his permanent residence was granted (even one day after) subjects them to this ridiculous situation. The immigration overhaul has to include family reunification legislation that treats spouses and children of permanents residents the same as those of American citizens.