When I last wrote, I wanted to offer the suggestion that the USCIS (aka Immigration), should make it a statutory policy to continue allowing adjustment of status for anyone here legally. This policy should be extended to include those here in family-based categories as well as those in employment-based categories.
This way, everyone who would eventually be eligible for a green card can formally begin the process. Even though the process would still take years, it would at least allow people to obtain work authorization for themselves and their dependents, be fingerprinted, start the process of security/background checks, and, if eligible, be able to travel outside of the United States under a document called 'advance parole’.
This, of course, is fantasy, but it does make sense.
Consider, are we more secure as a nation by having people here who are not documented the way they should be? Does it make sense to hold people in limbo for years simply because of a Visa Bulletin that doesn't list them as 'current'? Why force people to come up ways to maintain a status just for the ridiculous reason that, years later, when their number does come up, they can adjust?
Why not put them in the process sooner as opposed to later? How does it hurt us?
I’m not talking about ‘illegals’, just folks that are lawfully waiting in line-usually under some contrived “non-immigrant status. Why not start the process of adjustment in anticipation? The system is broken anyway--a fact that is no longer controversial—therefore it makes no sense to use this broken system to determine when a person can begin to be documented.
The same argument applies to those who are married to American citizens, have children born here, but who entered the country illegally and for that reason alone, aren't eligible for adjustment of status.
Previously, there was a law to address that very situation: INA 245(i) allowed those technical violators who would otherwise be eligible to adjust as “immediate relatives”, to pay a penalty fee of $1000 to forgive their illegal entry concurrent with their application to adjust status.
This is much more logical than the irrational distinction Congress makes between those who are here illegally by virtue of overstaying their visas (usually from Europe or Asia), and those who are here illegally by virtue of entering illegally. Under INA 245(A), the former is eligible to adjust to legal status following a marriage to a US Citizen, while the latter, even following a marriage to a US citizen and raising children, are ineligible to adjust because they crossed the border illegally. There is no meaningful difference, and it’s irrational to punish one group and not the other.
This is not to say that everyone should be given amnesty. The real issue should be to identify those that can be put into the system now, even if they aren't immediately eligible for permanent residence, and those that have no basis at all for being here, or even being here in the future.
To end this rant, does it make sense that one can fall in love with a permanent resident alien (green card holder), and yet the system requires that they have to wait up to 3-5 years for 'status', any kind of status?
One must remember, we are talking about husbands and wives not being able to live together, even though a visa petition has been filed and approved. There is no 'status' that allow them to do so under the present system.
The same holds true for beneficiaries of approved PERM/labor certification applications filed by an employer on behalf of an employee they wish to hire. These individuals too, cannot work for the prospective employer until they obtain work authorization through adjustment of status (above); however, most are not eligible to immediately adjust because they must often wait years to do so (under the current system).
If they do not hold H-1b status with the sponsoring employer, they are out of luck.
Of course, I could go on and on, and will in upcoming blogs, but for now I would like to hear your comments (and maybe suggestions).
Alternatively, you can just email me: heller@hilglaw.com
More tomorrow, or early next week; thank you.
Best,
Paul.
_______________________________
Paul M. Heller, Esq. (Founder/Principal)
Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303
A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.
Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099
Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)
Heller Blog: blog.hilglaw.com
YM: paulhilg
2 comments:
Not sure about all the current laws and I guess I understand some of the problems. Why are we hiring people that are not citizens in the first place? Why would any legal company here in the USA need to hire employees from outside this country? Stop all USA companies from hiring anyone not a citizen and the problem goes away. For the current created mess there is no solution in my opinion. We have allowed sloppy enforcement at all levels of government.
Hi Obewan,
Unfortunately, the United States now ranks towards the bottom in education (I believe, 26th); therfore, companies, especially those seeking engineers and scientists, must often look at foreign-born nationals to fill open positions.
Hopefully, in the future, this will change and we'll have many equally or better qualified U.S. citizens for companies to choose from.
However, I would caution against a governmental policy that might intrude on a private company's right to choose anyone they feel is the best and most qualified for a private sector job opening, regardless of nationality.
It should be noted that I do believe it is in our country's interest to maintain it's wage scale, so I would require any company hiring a foreign national to pay a true "prevailing wage".
Bear in mind, this country's future is in the hands of innovation, not trying to hold on to a desperate past.
In truth, we should want talented individuals of all stripes to work here (and help us not only innovate, but lead the world).
Anyway, maybe this is a point of view you haven't heard before, but if we shut off our immigration (especially on the employment-based side), and 'close down' for a generation or two while we do a better job of educating "our own", we might wake up and find out we can't get back into the game!
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