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Immigration Deja Voodoo By: Bill West
FrontPageMagazine.com | Monday, April 17, 2006

While America wrestles with its increasingly complex and confrontational immigration control problems, and our political leaders seemingly unable to reach meaningful consensus on how to solve those problems, two key issues associated with immigration control may be worth further review - the alleged need for a “guest worker” program and the concept of providing a mechanism to legalize illegal aliens with established long-term ties to America.

Both the Bush Administration and key Congressional members claim any fix to the immigration crisis must have some form of a “guest worker” program.  The proposals so far have ranged from plans that would somehow allow current illegal alien workers to temporarily legalize their status to remain in the US and work for a few years and then be required to leave (although exactly how that “requirement” would be enforced is hardly detailed), to plans that would provide some process for such newly legalized workers to ultimately seek permanent resident status and even US citizenship. 

In all these guest worker plans, the devil really is in the details.  And, as noted in an article published here last October, history is not on the side of the Government working out the details when it comes to immigration reform and control.
What we do historically have, and have had for many years, is...a guest worker program.  That is the “H” Temporary Worker visa.  Seldom in the current clamor over illegal alien workers and legalization and “guest workers” is the existing “H” visa program even mentioned.  It should be.  In fact, the “H” visa program should be in the forefront of this debate since the “H” visa system itself, over the years, has been the subject of considerable controversy.
“H” visas traditionally have been used by many high-tech employers, especially in recent years employers like computer engineering firms, to bring in well educated foreign technicians, engineers and scientists who, while on paper are paid the equivalent of their US counterparts, in reality are paid less.  This brand of white-collar corporate fraud has not been aggressively investigated by INS in the past and ICE (Immigration and Customs Enforcement) currently, thanks primarily due to lack of manpower and other investigative priorities set by management.  Congress has essentially ignored this issue.  Therefore, this “H” visa abuse became widespread and mostly ignored.
That does not mean the “H” visa system could not be made to work.  Like any system, given the proper resources, fine-tuning and oversight, it could be significantly improved.  And, it should be noted, the “H” visa program is not solely for high-technology employers and well-educated employees, something that is often mis-portrayed the few times the “H” program actually does come into the guest worker debate.
A review of the “H” visa system reveals that it is actually quite broad.  The H-1B category, the most common one encountered, covers “specialty occupation” workers.  H-1C is for nurses.  H-2A is for temporary agricultural workers.  H-2B is for other temporary workers, both skilled and unskilled. 
Quite arguably, existing immigration law provides for a temporary worker visa mechanism that covers virtually every employment situation that might arise.  Why then aren’t all those US employers who hire all those illegal aliens simply using the existing legal visa system to bring in the temporary foreign workers they, and their politician and advocacy organization supporters, so vociferously claim are needed to make the US economy work?
Perhaps the simple answer to that question lies in the fact the “H” visa process requires forms to be filled out and adjudicated, time to pass, fees to be paid and, probably most importantly, a legitimate employer to pay standard US wages and provide standard US benefits to those “H” visa employee beneficiaries.  The system is somewhat cumbersome to make it work.  But, there is a process already in place and could be utilized by employers who chose to do things legally.  So many choose otherwise.  If the “H” visa system was streamlined and made more efficient and user-friendly, would that change things for the better?  Perhaps, but remember that employers would still have to pay the standard (better) wages and provide those standard (better) benefits.
And that leads us back to some of those devilish details of the proposed “guest worker” programs.  All such programs will involve forms to be filled out and adjudicated, time to pass and fees to be paid.  Will they also require the US employers to provide standard and acceptable US wages and benefits?  If so, is there really incentive for US employers to participate absent strong enforcement sanctions (refer to that October 2005 article mentioned above) and what’s the difference between these programs and the existing “H” visa program other than the possibility of leading to permanent residence and US citizenship?  Is that the real purpose of the “guest worker” program, to provide an avenue to permanent residence and citizenship?  If so, it really is amnesty. 
Another driving issue in the immigration debate seems to be the highly-charged matter of potentially deporting illegal aliens who have lived in the US for many years, established themselves and have family and jobs here.  Supporters clamor about how uprooting such people would be inhumane and how strong immigration enforcement proposals threaten such people with imminent deportation.  That is pure nonsense.
For decades US immigration and nationality law has had provisions allowing for relief from deportation for illegal aliens who have resided in the US for many years, are not criminals and who can establish they are otherwise persons of good moral character, are established members of the community and whose removal would pose a severe hardship to close family members.  The latest version of such a legal provision is called “Cancellation of Removal” and was revised under the 1996 version of the Immigration and Nationality Act and is found at Title 8 US Code,  Section 1229b.       
While the 1996 revision did make obtaining such relief a bit more difficult than it was under the earlier statute, the law is still notably generous.  Essentially, an illegal alien who has been in the US for ten years or longer, who meets the qualifications noted above, will be eligible for cancellation of removal and would be allowed to remain permanently in the US and eventually be allowed to apply for naturalized US citizenship.  One of the key elements to obtaining cancellation of removal, however, is the alien must be in removal (deportation) proceedings before an Immigration Court.  This means the alien, if not caught by immigration authorities, must surrender himself to those authorities to be placed in such proceedings so they can apply for the relief.   
Could it be that is why this already existing, and very long-existing, form of legalization for illegal aliens has not surfaced in the ongoing immigration control debate?  If, among those many millions of illegal aliens “out there,” a large percentage really includes those who have been here many years (ten or more) and who are well established within their communities then there is already a legal mechanism for those very people who some (including a lot of politicians) claim are in imminent danger of summary removal to permanently remain in the US.  All they need to do is surrender themselves to immigration authorities and file for the relief before the court.
Of course, if within a short period of time hundreds of thousands, or maybe millions of such illegal aliens turned themselves into authorities, what only partly passes for a working system now would very quickly collapse.  It is nowhere certain and clearly not detailed in any current proposal how any new legalization system would be efficiently administered, either.  The point, however, is that for those long-term illegal aliens who are most commonly depicted in this debate as the ones who would be most grievously and unfairly harmed by strict immigration law enforcement, a legal mechanism is already in place to grant them relief from deportation and residency in the US.  Those devilish details again.
On these two critical and highly-charged issues, the truth needs to be known.  America already has a temporary guest worker program for foreign nationals that can be made to work better with far fewer resources and conflict than any of the “new” proposals under consideration.  And existing US immigration law already provides for legalization to a class of illegal aliens deemed “most deserving.”  We should debate the immigration problems we have and bring order to the chaos.  But those involved need to inject honesty and full understanding into that process.
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Bill West is a retired INS/ICE Supervisory Special Agent who ran organized crime and national security investigations. He is now a counter-terrorism consultant and freelance writer.

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