http://www.post-gazette.com/pg/06157/695926-28.stm

Private Sector: 'Legal immigration' doesn't work
Our laws are convoluted and dysfunctional and need to be changed
Tuesday, June 06, 2006

By Robert S. Whitehill and A. Robert Degen


Many of our political leaders and pundits feel justified in stating that if immigrants want to come to the United States, they should do so the old fashioned way -- legally. But how and why are so many illegal immigrants in the United States if there is a legal path? There are a host of economic and law enforcement explanations, but the real culprit is our convoluted, dysfunctional system of immigration legislation.

The law needs to be changed so that the rule of law is rational and fair and meets our national needs. Currently, the law is not fair to millions of employees or their potential or actual employers for whom neither legal immigrants nor immigrant visas are available. Our current immigration law promotes an illegal guest worker program that is the back door to opportunity in the United States.

Let's take a stereotypical example. Jose is a native and citizen of Mexico. He's single, 21, and a high school graduate. He lives at home with his parents and siblings in a rural community. He has no gainful employment. Joseph's Landscaping is a local gardening firm that tends lawns in Texas. Mr. Joseph frequently complains: "The labor shortage is killing us. I can't find anyone who wants to work. Even the college kids don't want to do this work. What can I do?"

Jose wants a job and would be delighted to work as a landscaper for Joseph. Joseph has gainful work and would be happy to hire Jose. Where is the disconnect? Why are up to 25 percent of the gardeners in this country illegal aliens?

There are basically two different visa tracks for those seeking to work in the United States legally: immigrant -- for those seeking to live here permanently -- and non-immigrant -- for those coming to work only temporarily. There are four types of immigrant visas, but the only one that applies is "employment based."

For Jose, employment-based immigration is a possibility, but will not happen anytime soon. In fact, he is stuck. He would need to receive a permanent employment offer from Joseph. Not employment forever, but for an indefinite time into the future.

Joseph would need to secure an alien labor certification. This process is through the Department of Labor, and its purpose is protection of U.S. workers, not admission of immigrants to take U.S. jobs. Joseph would need to advertise on two Sundays in the local newspaper. Those who respond would have to be considered for the position that Joseph described. If a candidate who is a U.S. worker applied and had all the minimum requirements for the job, the labor certification would fail. A U.S. worker would have been ready, willing and able to take the job, so Jose couldn't be certified. Assuming that no one applies, that's only step one.

Step two is for Joseph to file the labor certification with the U.S. Citizenship and Immigration Services along with evidence that Jose has the minimum requirements, if any, and that Joseph can pay the prevailing wage for the position. Once Joseph's petition is approved, it is then forwarded to the national visa center, which acts as liaison between the immigration service and the U.S. Consul, in cases for people outside the United States, like Jose.

Step one may take six months; step two may take another six months.

Then there's step three, and that's the rub.

There is a limited number of employment-based immigrant visas. The demand far outstrips the supply, and people have to wait their turn to get a visa and apply for a green card.

In this case, Jose has an unskilled position. Less than two years of training, education or experience is required to perform the duties. This places him in the employment-based third preference, "other workers" category. Unfortunately for both Jose and Joseph's Landscaping, Jose's category has no visas available. So, until there is an immigrant visa available, which could be years from now, the process stops dead. Jose is in Mexico wanting to work for Joseph, and Joseph is in the United States wanting Jose to work for him. It is a lose-lose situation.

There must be a way around this, and there is. Sort of.

Employment-based non-immigrant visas require a petition by an employer for a qualified worker. There is only one way for a willing unskilled non-agricultural laborer to work for a willing U.S. employer -- the H-2 B.

The H-2 B is hardly a panacea. There are only 66,000 of these visas annually; 33,000 each half year. The H-2 B is for a seasonal worker. Maybe Jose's work as a landscaper would qualify for the season, but not longer. Joseph would have to secure a temporary labor certification from the Department of Labor, after proving that he is paying the prevailing wage and that no U.S. workers responded to his recruitment. The limited number of H-2 visa is hardly a drop in the bucket of needed workers.

Twenty years ago, we had an immigration debate that sounded very much like today's. There was amnesty given to about 3 million "undocumented" aliens. Now, two decades later, there are maybe 12 million "undocumented" aliens. Twenty years ago, President Reagan signed the amnesty into law. His then Attorney General Edwin Meese III recently was quoted in the New York Times as saying: "America welcomes more immigrants than any other country. But in keeping open that door of opportunity, we also must uphold the rule of law and enhance a fair immigration process . . ."

He's right.


--------------------------------------------------------------------------------
(Robert S. Whitehill in Pittsburgh and A. Robert Degen in Philadelphia are immigration attorneys and partners with Fox Rothschild, a law firm with offices in five states. )