Every four years, the U.S. presidential candidates promise to “fix immigration.” And yet, they have all failed miserably despite their political affiliation. Why? To start, U.S. immigration law is a political nightmare. The current law, which hasn’t been changed since 1997, doesn’t accurately address the realities of U.S. labour needs of 2020. Despite this, no politician wants to campaign and promote the hiring of additional foreign workers when the U.S. has a population of over 300 million and a double-digit unemployment rate.
So, what is the solution? How does that country address U.S. labour needs, attract the best and brightest minds in the world, but still give priority to U.S. workers? The answer is complex but here is a simple blueprint.
Congress needs to change U.S. immigration law instead of the president issuing another executive order.
Current U.S. immigration law is governed by the Immigration and Nationality Act (INA), which was enacted in 1952. Despite the many executive orders that have surfaced over the years, the INA has not formally changed since 1997. Think about that for a minute. It’s been over 23 years since Congress has addressed the U.S. immigration law.
Executive orders make “bad law.” We have seen both U.S. political parties use executive orders to change the immigration rules. This is a dangerous manoeuvre. The executive branch of the U.S. government is not charged with making laws. Rather, that power is specifically reserved for the legislative branch, which is Congress.
We’ve seen some very controversial executive orders over the last 12 years. In 2012, President Obama created the Deferred Action for Child Arrivals (DACA) executive order to protect children who were brought to the U.S. illegally as minors. Obama clearly stated that DACA was really Congress’s job to fix but the executive order was a stop-gap measure. Fast forward 12 years later and we still have DACA by executive order and no real legislative fix.
President Trump has been a huge fan of immigration executive orders. From the beginning of his administration, Trump has consistently released executive orders on every facet of U.S. immigration including travel bans, the suspension of green cards, and the suspension of the entry of certain non- immigrant classes.
If the U.S. wants meaningful and lawful changes to the its immigration law, Congress needs to be pressured to act, as the U.S. Constitution demands.
Current U.S. immigration laws do not adequately reflect labour needs.
A large country like the U.S. is a global leader in many industries including the tech and medical sectors. Currently, there are significant labour shortages in both areas. However, the law that allows tech and medical workers to be employed in the U.S. is outdated. For example, the United States-Mexico-Canada Agreement (USMCA, formerly NAFTA) was designed to strengthen business and trade relations between the U.S., Canada, and Mexico. The treaty lists roughly 60 occupations, most of which focus on traditional jobs such as accountants, lawyers, and professors. The USMCA list of occupations has not been updated since 1994 — over 25 years ago!
In addition, the highly controversial H-1B category, which is designated for workers who hold a bachelor’s degree or higher, is rigid and expensive. Every year, U.S. labour groups complain that 85,000 H-1B work permits are issued to foreign nationals and allege that it is a source of cheap labour. This is patently false. The H-1B regulations require each applicant to be paid a “prevailing wage” which is designed to protect them against discriminatory wages. U.S. employers would be happy to hire U.S. workers if they were available. The H-1B process is costly in terms of legal and filing fees and more U.S. employers would avoid it if they could.
The U.S. needs a realistic guest worker program now.
There are an estimated 8-10 million illegal workers in the U.S. Many of these workers fill much needed positions in the manufacturing and agricultural sectors. They are forced to work illegally because the current “guest worker” program is complex and flawed. Once again, it hasn’t been changed since 1997 and does not satisfy today’s U.S. labour needs. Congress needs to act and create a fair and flexible guest worker program that would allow blue-collar workers to come to the U.S., work legally, and return home. This would be a win-win: it would eliminate the dangerous path of illegal immigration while filling many of America’s most important jobs.
U.S. immigration law is a landmine of problems for politicians, so it’s not surprising it’s a cornerstone issue during every presidential campaign. But the time has come for Congress to stop pointing fingers at one another and fix U.S. immigration once and for all.
By Rosanna Berardi. This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.
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