America’s Wall: Immigration Policy in the US

By: Claire Gross, Pitzer ’18

An estimated 5,595 immigrants have died in their attempts to cross the US-Mexico borders since 1998, and deaths along the US-Mexican border has increased 27% in 2012. Additionally, the Border Patrol reported arresting 6,424 unaccompanied immigrant children and families in August 2014, compared to 9,790 this year, statistics that just begin to reflect the magnitude of the immigration issue in the U.S.

The U.S. government has poured resources into increasing border control through personnel and weaponry, assuming that is the most effective solution. But the rise of undocumented immigrant arrests and increased deaths show these efforts have not yet resulted in tangible success. Many representatives in the U.S. government aim to increase “border security” when in fact that may not be where the issue lies.

Trying to become a citizen of the United States as an immigrant is a complicated process involving exclusions, numerical limits and back logs. This article will look into three ways in which one can become a legal permanent resident (LPR) in the United States and the ways in which the government cannot and does not perform the functions needed to properly address immigration.

 

Family Based Citizenship

The first and comparatively least challenging way to achieve legal permanent residency is through Family Based Citizenship. A person can get this kind of citizenship in one of two ways. First, citizenship is given to immediate relatives of U.S. citizens, including spouses, unmarried children under 21 years of age and parents, all of whom must be related to a U.S. citizen 21 years or older.

The second way to the get a visa through familial ties is through the Family Preference System. Priority goes to adult children and siblings of U.S. citizens, who must be over 21 to petition as siblings. Second priority goes to spouses and unmarried children of LPRs who are not U.S. citizens until they apply for citizenship after being in the country for 5 years. The cap for the family preference system is 480,000 immigrants. However, every year Congress decreases the amount of visas given to immediate family members of U.S. citizens by subtracting the number of visas given to immediate family members in the previous year. This cap is the number of family preference visas that the U.S. government is permitted to administer, and that number cannot fall below 226,000 visas.

Although Family Based Citizenship is supposed to have an unlimited cap, a 2013 Congressional Policy Report reported a backlog of 4.2 million visas, causing the wait time for a family based visa to be between two and 23 years. According the Migration Institute, the United States Citizenship Immigration Services (USCIS) processed visas from 1998 14 years later, in March 2012, showing the delay in the system.

Immigrants from one country cannot legally represent more than 7% of the visas approved in the US according the USCIS. Thus, there will be a consistent cap on immigration for countries such as Mexico, Guatemala, and Honduras, from which a majority of U.S. immigrants originate. Other countries with fewer emigrants traveling to the U.S.  are not affected by this 7% rule because their immigrant populations are unlikely to match those of Latin American countries. The 7% percent regulation increases the backlog of visas from countries with large numbers of applicants. It also encourages illegal immigration because the legal way of attaining citizenship becomes a forbidden option.

Budget allocation for the USCIS, which processes the visas, is also an obstacle for immigrants seeking visas. The system of budget allocation, which promotes mostly larger border patrol and small technological advancements in visa processing, do little to make legal immigration more accessible. In 2015 The Department of Homeland Security’s budget included salaries for 21,370 Border Patrol agents with an additional 2,000 from 2014 and for 2,000 more agents to be added in 2015. Immigration and Customs Enforcement (ICE) was given $2.6 billion to “identify apprehend, and remove illegal aliens from the United States,” according to the Department of Homeland Security 2015 Budget.

In 2015, funding was offered to support a transition to a computer-based system, allowing visa applicants to check their status of their visa online. This budget allocation, although seemingly beneficial for the efficiency of the visa processing system, only affects potential legal immigrants by allowing them to view their wait time online — the massive backlog remains unchanged.

“The more serious problem—often confused with the administrative problem—is the much longer backlog that has developed because the number of visas available by law each year is less than the number of prospective immigrants getting in line to wait for a visa,” wrote the National Immigration Forum.Creating a faster, more effective and more egalitarian way of achieving citizenship would lessen the need for the militarization of the U.S. border.

In response to said backlog, the U.S. Senate was able to passed a comprehensive immigration reform in 2013 in hopes of resolving the visa backlogs by 2021. The bill according to the American Immigration Council, proposed to distribute unused visas from past years to people currently wait for visas and facilitate immediate reunification for spouses and minor children of Lawful Permanent Residents.

In addition to visa redistribution, the Bill would offer a new track to citizenship through a merit-based system. The first of two tracks offers points to applicants based on their  “education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality.” For example, a primary care provider would be given 10 points, and 15 points would be = allotted to an applicant with a doctoral degree.

There are two proposed “tiers” for this type of visa: tier one being for highly skilled workers and tier two being for lesser skilled workers. Each would receive 50% of the merit-based visas. The applicants with the most merit points would be given first priority in each tier. The cap for these visas combined would fluctuate between 120,000 and 250,000 visas, depending on demand.

The second proposed merit track would give visas to people who have been waiting for a visa for more than five years. Both tracks try to address and alleviate the backlogs for family and employment based visas.

However, the bill includes a preamble that makes it necessary for increased border control before any of the policies stated above can be enacted. The border requirements included an increased personnel of 38,405 border patrol agents and adding 700 miles of fencing.

Unfortunately, this bill was defeated in the House of Representative and was never able to become policy. However, as as previously stated, the Border Patrol still receives additions to their personnel and weaponry whereas the rest of the immigration system still remains backlogged without effective policy changes. Meanwhile, undocumented immigrants continue to risk crossing the U.S. border.

 

Employment Based Citizenship

Employment Based Citizenship has two categories: temporary employment and permanent employment citizenship. There are 20 types of temporary visas ranging from intercompany visas, athlete visas to religious worker visas and diplomatic visas. Of the 20 temporary visas, only two apply to jobs with little or no formal training. For example, H2A is a temporary visa for agricultural workers. According to USCIS, to be approved for their visa employers have to show “that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work, [and] that the employment of H2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.” Additionally, applicants must have their employer file another form on the worker’s behalf.

H2B is for nonagricultural workers requiring the same criteria. The temporary worker can bring with them a family under H4 non-immigrant classification, but that person is not allowed to hold a job in the US for the entirety of their stay.

An employer must pay a fee of $329 per petition filed for an H2A worker. For an H2B worker an employer must also pay $329 per petition filed as well as $150 for “fraud detection and prevention fee” in addition to a training fee of $750-$1,500, depending on the size of the employer.  Thus, not only must an employer be willing to file and fill out petitions to have their employees come work for them in the U.S., but they also have to pay for each worker they hire. “Agricultural employers have notoriously shunned the H2A program, citing its high cost and burdensome red tape,” according to a Brookings Research Report. However, if employers hire an unauthorized worker illegally,  they do not have to file any petition or pay any fees. Many illegal employers hiring undocumented immigrants exploit and intimidate their workers by threatening deportation.

One of the most common jobs that attract unauthorized immigrants in the US is agricultural labor. According to a Brookings research report, 55% of farm workers are working without legal status. Legal working visas are less accessible and thus used less often for jobs involving heavy labor. The inability of obtaining legal status through employment based citizenship is thus perhaps the larger issue at hand rather than the the lack of border security.

The Permanent Employment Based Citizenship works on a preference system and is capped at only 140,000 visas per year. Priority is given to people of extraordinary ability and is capped at 40,000, in addition to any unused visas from the fourth and fifth  level of preference visas. The second priority is given to those with professional degrees, which is capped at 40,000 visas and includes any surplus first priority visas.

The third preference is skilled workers with two or more years of training, immigrants with college degrees or unskilled workers not working in temporary labor. This category is also capped at 40,000, but increases its cap depending on the number of unused visas from the first and second category of preference visas.

The fourth priority is “special immigrants” which include religious workers as well as other classes of “alien workers,” which is given 10,000 visas. The last priority of Employment Based Citizenship is for people who will invest $500,000 to $1million in creating a US business that will employ at least 10 American employees.

This U.S. preference system does not cater to the interests and needs of less educated and unskilled workers, which effectively increases illegal migration to the U.S. According to Migration Policy Institute, only 16% of immigrants are given legal permanent residency in the U.S. through preferred employment based citizenship. In 2008 it was reported that 61.5% of Mexicans over the age of 25 who immigrated to the U.S. had less than a high school degree. The small rate of approval for employment based visas in addition to a policy that gives priority and more visas to immigrants with college degrees and skilled labor that includes formal training makes it unsurprising that 58% of unauthorized immigrants in 2013 were from Mexico. The avenue for one of the largest populations of immigrants to become legal permanent residents is narrow and limited therefore causing substantial amount of border crossing and rising populations of undocumented workers. The policy of higher border security does not address the systemic reasons for border crossing and illegal residency in the U.S.

Not only is the U.S. depleting countries of their most skilled and talented emigrant workers, but it is also lacking in opportunities for unskilled workers or workers with less than the equivalent of high school diploma. By allowing only the most skilled workers a more streamlined immigration application process, the U.S. essentially discriminates against less educated immigrants.

 

Asylum Refugees

Asylum refugees are admitted to the United States based upon an inability to return to their home countries because of a “well-founded fear of persecution” due to their race, membership in a social group, political opinion, religion or national origin, according to the USCIS. Even though asylum seekers who face violence in their home countries should be a priority for the US, they have the second lowest amount of visas approved, according the Brookers Research Report. Asylum visas are capped at 5,000  for Latin America even though Mexicans are the second largest population requesting asylum. Approval of asylums visas fell to 9% in 2013, according to the Journal on Migration and Human Security.

It is harder for refugees to seek asylum in countries with political and economic ties to the U.S. because the U.S. is not willing to admit to being compliant to human rights violations and political persecutions in an allied country. According to the Journal on Migration and Human Security, low visa approval rates are tied to “the political, military, and economic ties between the United States and Mexico” and what they view as “bias against Mexican asylum seekers reflected in political discourse, public opinion, and media reports.” For example in the 1980’s only 3% of asylum visas were approved for immigrants from El Salvador and Guatemala because the US refused to acknowledge the human rights violations committed in those countries (Migration Policy Institute). One possible reason for why the U.S. denied many asylum visas from war-torn Latin American countries is because accepting them would mean acknowledging U.S. complicity in the countries’ violence by “providing the Salvadoran government with financial and non-personnel military resources only fueled further violence between military and guerrilla forces,” (Human Rights in Latin America). On the other hand, approvals for asylum visas in this same period was 60% for Iranians and 40% for Afghans escaping Soviet invasion. This is in the context of shaky U.S.-Soviet and U.S.-Iranian relations in the 1980s, showing the contradiction of denying Latin American asylum visas.

When seeking asylum, if an applicant applies without having been apprehended by Border Control, they then interview for asylum without opposition. However, if an asylum seeker is arrested by Border Control, they must interview defensively and have a hearing in front of an immigration judge – that is, if the asylum officer approves the advancement of the refugee’s case. If an asylum seeker is apprehended at the border without any documents, they can also have a credible fear interview. In this interview the officer decides whether or not the interviewee is in danger for their life and if so they can be released and if not they are detained. The standards of release are “unreviewable and under discretion” which means if the officers decides the asylum seeker is a ”flight risk” they can detain that person. This detainment is final and cannot be appealed. Defensive cases, which keep people detained until their hearing, can be backlogged up to 500 days, according to the Journal of Migration and Human Security. This shows the difficulty of obtaining asylum in the U.S. even if the fear of persecution is legitimate.

 

Conclusion

Immigration has become one the most contested and hot button issues of current U.S. politics, particularly during this election season. As voters, U.S. citizens should look to support a candidate who will not increase the militarization of the border, which has proven to be an ineffective, short term solution to illegal immigration. Proposed policies should include an increase to caps for visas, increased personnel in the USCIS to process visa requests, more avenues for workers with less than a high school education to become legal permanent residents, and different approaches to asylum seekers so as not to criminalize victims of violence in their home countries as soon as their reach U.S. border. The people risking their lives to flee home countries are human beings, not statistics, and should be treated as such. This includes, most importantly, providing a legal avenue for immigrants to obtain citizenship in the United States.

 

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