We need not declare U.S. immigration law broken. We need not feel dismayed or angry about the provisions of the existing Immigration and Nationality Act. Instead, four narrow and relatively inexpensive updates exist to make the current law workable.
The first would be to update a provision of the Act utilized five times in U.S. history — 1921, 1928, 1940, 1948 and 1972.
Called “registry,” the noted provision allows long-present, though undocumented, people to register their presence and continue with their personal lives, schooling, employment and business endeavors in the U.S. Background checks are done to assess any deportability based on criminal activity.
This “registry” is the method under U.S. law to correct an administrative system that may always have flaws. Flaws may always exist because the U.S. has two neighboring countries with long borders, extensive sea coasts, and a multitude of international connections that make border control imperfect. Form I‑485 on the website of the U.S. Citizenship and Immigration Services at www.uscis.gov includes the 1972 registry procedure.
Updating registry would involve moving the date from which someone would need to prove their undocumented presence from 1972 to, as a proposal, 2005. One date in the statute would need to be changed.
It was after a 1986 amendment which legalized about 3.5 million people that many of today’s undocumented people came to the U.S. — primarily to do year-round work for which a shortage of U.S. workers developed that Congress had not anticipated.
The second recommendation, then, would be to reinstate the wording of 1986 legalization legislation and allow those who arrived from, say, 2005 to 2012 to legalize their status upon payment of a reasonable fine. Only the dates in the statute would need to be changed.
These two comprehensible and even simple changes would ease much pain — of lawmakers, employers, family members, police, immigration enforcement agencies, immigration courts and the foreign individuals involved.
Lawmakers could take heart and have confidence in the updates because lawmakers before them had reached the same conclusions about the combined economic and humanitarian need for registry and legalization.
Congress could recognize that the workforce shortages that came to exist in the 1990s and 2000s were not addressed by a workable administrative visa system.
The third recommendation would be to change the H-2B “temporary worker” visa category already in the law to make it useful to employers and workers for jobs that are year-round, rather than just seasonal, but do not require a college degree. Employers seeking such H‑2B workers always have had to demonstrate a shortage of U.S. workers through advance U.S. recruitment.
The year-round jobs undocumented lesser-skilled workers typically do are in the following industries: hospitality, elder care, construction, food processing, dairy, janitorial and housekeeping work. The H-2B visa criteria and quota does not currently comport with those industries’ year-round needs. A change of five words in the statute would make that provision useful to employers seeking workers for year-round shortage positions for a period of, say, two to three years.
The fourth recommendation would be to increase the annual quota available to employers for pursuing foreign H-1B “professional” personnel by re-enacting an annual quota of 195,000. That was the quota in the Act in 2003, when it was reduced to 65,000 by an automatic “sunset,” anticipating a Congressional reconsideration.
In a U.S. workforce of over 150 million people, enabling U.S. employers to seek out professional foreign talent at the rate of 195,000 per year would seem acceptable to lawmakers, given the judgment of an earlier Congress.
The U.S. Immigration and Nationality Act could be much-improved with four small comprehensible updates to its existing words.
Carol Hildebrand has practiced immigration law at Sherman & Howard L.L.C. in Denver since 1982.
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