John Ryskamp currently serves as the Immigration Manager for Los Gatos Community Hospital, SACC, Inc., Allcare, Inc., and other health care facilities and computer consulting companies.

For those familiar with the debate over illegal immigration, but unfamiliar with immigration procedures, here is a summary of them.  As usual, the devil is in the details.  Among other things, these procedures show where and why the Administration is having such a difficult time getting a handle on this issue, even though President Bush has stated an apparently simple goal for immigration law: connecting a willing worker with a willing employer.  It also shows a way out of the problem, which does not involve any new legislation.

Although the debate seems to revolve around the concept of labor shortages, actually there is never a shortage of US citizens to perform any job; the word "shortage" is a term of art.  However, under current conditions some jobs in this country pay so little money for the work involved, that US citizens will not perform them.  We have to assume that illegal workers are going to continue to work in this country, and then see where the law stands in the way of their gaining legal status. 

The Seemingly Insoluble Problem

A US company must sponsor the foreign national who seeks a Green Card, in a process called Labor Certification.  Note that no US company is ever required to sponsor a foreign national for a Green Card--it is entirely voluntary on the part of the company.  The company can simply employ the foreign national on a temporary basis as long as the United States will permit it, and when the permissible period has ended, the foreign national must go home.  For example, in case of H1B workers, they are granted six years, then they must return for a year, then they can come back for six years.

If the company does decide to go ahead and sponsor a foreign national for a Green Card, the first step it must take is to convince the US Department of Labor that there is a shortage of US workers for the position.  If the company can do that, the Department will certify that there is a shortage of US workers for the position (hence the term Labor Certification).   The company makes the application on ETA Form 750.  (The form, and the details of labor certification, can be found at www.dol.gov.)  The application involves the company submitting evidence that it has advertised for the position, considered applicants, and found that not even ONE US worker meets the minimum requirements for the position (that’s the standard for approving or denying a Labor Certification application).  It’s an onerous, expensive process in which there is no guarantee of a successful result.

The process is utterly inapplicable to the situation of illegal workers, and it is this disconnect that is causing all the problems.  The fact is that illegal aliens are performing work in this country, have always done so and will always do so.  Historically, in order to keep their illegal workers performing the work, US companies AVOID any process that might reveal the availability of US workers.  As it is, most US employers, even of legal workers, refuse to go to the expense of the Labor Certification process (and many of those who did so, have stopped, as a cost saving measure during the recession).  There is no evidence to suggest that they would do so for the workers currently illegally employed by them, even if those workers were granted legal status through a temporary work visa.  Also, many illegal workers do not remain with a company long enough for the Labor Certification process (and the subsequent immigrant visa process) to come to an end.  It takes at least 3 years in California today, and the moment the worker stops working for the sponsoring employer, the employer can withdraw the application. 

Similar considerations doom the temporary work visa plan itself.  First, it’s easy not to participate in the plan: sanctions for non-compliance are hardly ever enforced even for the temporary work visa programs we have today and the Administration is not considering significant enhancement of enforcement.  Second, filing does cost money, and the reason these companies hire illegal workers in the first place is to save money.  Certainly, companies that do not file for the temporary visa are not going to file for Labor Certification.

From the perspective of the Administration, it does not want to request new immigrant visas even if the temporary work visa and Labor Certification hurdles are overcome, because that looks like an amnesty, which is anathema to the conservative wing of the Republican Party.  From the perspective of the illegal aliens and their employers, they do not want to risk putting names and addresses into any database which might be used to deport illegal workers.  Ironically, although the plan is touted as beneficial to illegal workers, it will be the workers themselves who will pressure the US companies NOT to apply for the temporary work visa.  Result?  US companies will continue to employ workers illegally, and illegal aliens will continue to take those jobs.  Nothing will have changed.

What about the highly unlikely situation in which, the US company applies for Labor Certification and is granted it?  The company then attaches the approved Form ETA750 to the Immigrant Petition for Alien Worker and files both with the Bureau of Citizenship and Immigration Services (formerly the INS).  The petition is Form I-140 (this form can be found at www.uscis.gov).  In Part 2 of the Form I-140, you will see that the Government asks the US company what sort of worker is being sponsored.  President Bush, in his proposal, is talking about two of the kinds of workers listed on this form:

1.  A professional (at a minimum, possessing a bachelor’s degree or a foreign degree equivalent to a US bachelor’s degree) or a skilled worker (requiring at least two years of specialized training or experience)

Or

2.  Any other worker (requiring less than two years of training or experience).

In the past, the worker had to wait until this petition was approved before taking the absolutely crucial step: filing the Form I-485 application to adjust status to permanent resident, the Form I-765 (which is renewable yearly and grants the worker permission to work for any US employer while waiting for approval of adjustment), and the Form I-131 (also renewable yearly and granting the worker permission to travel abroad while waiting for approval of adjustment).  These forms can also be viewed at www.uscis.gov.  If you can get to the stage of filing the Adjustment application, then, barring evidence of some very serious illegal conduct, which would bar you from permanent residency, you are guaranteed a Green Card.  So filing that little form is actually the heart of this big debate.

Today, all four documents can be filed together, and then, once a permanent resident visa becomes available, the worker is called down to the local B.C.I.S. to have the Green Card stamp put in the passport.  This indicates that the worker is a permanent resident of the US.  It is what every illegal alien wants. 

Note the following: illegal aliens will not participate in any government immigration scheme which does not guarantee that, sooner or later, they will get the Green Card.  This is non-negotiable, and it is where the new immigration proposal either succeeds or founders.

The Foolproof Solution

1.  Get US companies out of the process

US companies will love to hear this, and they will jump on the bandwagon if there is any proposal to relieve them of the Labor Certification burden.  In the final analysis, permanent residency is about what kind of people the United States Government wants here.  Obviously, it wants illegal workers here--that is, workers whose jobs require little or no training or experience.  Either there is nothing the Government can do about them and so has conceded their permanent residence here, or the Government realizes that, apart from being here illegally, they obey all laws, pay taxes and spend money and so deserve to stay. 

And it wants other foreign nationals here as well.  Who are they?  They are people with sufficient training and experience to insure that they will always have a job, that they will not become public charges, and that they will obey all laws and pay their taxes (and spend money).

How do we know the Government wants both types of people to stay?  Well, it specifies them on Form I-140 e. and g.  What you read above is a direct quote from the Form.

In these two categories, the issue is really between the Department of Homeland Security (B.C.I.S. is a part of this Department) and the foreign national.  The US company is not the issue; the foreign national is the issue.  Thus, a foreign national currently in the US--whether legally or illegally--should be able to present his or her case directly to B.C.I.S. at once, TODAY.  As a matter of fact, the Form I--140 can already be submitted directly by a foreign national who feels qualified under one of the other categories (for example, a Nobel Prize winner wanting a Green Card doesn't have to be sponsored, or petitioned for, by anyone).  There is a Part B to Form ETA750, on which the foreign national lists his or her education and work experience in order to demonstrate that he or she qualifies for a Green Card under either category.  It should be required that that form be submitted along with the Form I-140, the I-485, the I-765 and the I-131.

2.  Temporarily suspend Labor Certification for categories e and g

And what about Labor Certification?  Given the institutional loyalty to the notion that US workers should be preferred for US jobs, Congress is not going to abolish Labor Certification.  However, it is also not interested in creating scofflaws by enacting a new scheme which is ignored by both US companies and illegal aliens, and the Administration is willing to experiment with temporary changes.  The solution is to temporarily suspend the Labor Certification requirement for those foreign nationals in the United States who qualify under categories e and g.  Since the current proposal for the temporary work visa for illegal aliens is six years, it makes sense to suspend the requirement for six years.  Let’s see how it works out (it will work out just fine).

3.  No current increase in immigrant visas--and no new laws

As everyone knows, MANY foreign nationals would like to become permanent residents of the US.  There must be a limit to the number of immigrant visas granted each year.  Furthermore, amnesty is a third rail issue.  Anything that looks like amnesty will doom the legislation.   

However, the immigration system is very familiar with a system in which there are not sufficient immigrant visas for all who qualify.  It deals with this issue in a very successful way.  A foreign national in the US who qualifies under one of the categories, can simply file an Adjustment of Status application along with the Form I-140 immigrant petition and then wait for a visa to become available.  Anyone who is permitted to file an Adjustment of Status application is automatically in legal status until a visa becomes available and the application is approved. 

These changes eliminate the need for the new work visa in order to confer legal status on illegal aliens (no new bureaucracy, please!).  In addition, as stated above, a foreign national can, along with filing the Adjustment application, get work and travel authorization, which will be valid until an immigrant visa becomes available.  This in turn eliminates the need to confer work authorization on illegal aliens by creating a new work visa category for them (again, no need for new kinds of paperwork).  Once a visa becomes available, the foreign national simply goes down to the local B.C.I.S. office and gets a passport stamp indicating permanent residence, which confers permanent work and travel authorization.  The individual is, finally, out of the system--and that's what EVERYONE wants.  You can see that the Administration's proposal--start with a temporary work visa conferring legal status and end with adjustment of status--gets it exactly backwards and will create new scofflaws.

Congress periodically increases the number of immigrant visas and clears out the backlog of adjustment applications.  A gradual increase will defuse the amnesty issue, which would be raised by the proposal for a huge number of new immigrant visas.  The plan will convert the firestorm over "rewarding" illegal aliens, to an orderly and non-controversial incorporation of them in the legal system, which is where we want them to be.  Result?  Workers formerly here in illegal status will simply become permanent residents in the order in which their applications were received.  That's exactly the way it is done now. 

The plan provides the guarantee illegal aliens need in order to induce them to participate in the system and obey the law: 1) they can remain legally, work and travel abroad; 2) at some point, they WILL be granted permanent residency.  US companies can directly—and immediately—exit the entire process. 

How to make it work?  President Bush faces a dilemma: he wants aliens to be brought within the legal system, but he does not want to grant them amnesty and they do not want to participate in any system which does not provide for permanent residency.  And yet a middle way is open to him: the Executive order, which requires no legislation and could be issued pursuant to the pardon power.  It would be far less than a pardon.  He can order aliens present in the US, and qualifying under e or g, to file the immigration petition and adjustment application; he can further grant temporary legal status to those who do so.  They will have that status pending approval of the petition and application.  Finally, he can suspend labor certification in these two categories for six years in order to allow them to proceed with these filings.  Such an order would withstand judicial scrutiny, assuming anyone had standing to litigate it.  It would also change the legal status of more people in this country than any Executive order since the Emancipation Proclamation.