THE WAY WE COUNT

By Gary Endelman and Cyrus D. Mehta

"Perfect numbers like perfect men are very rare.” Rene Descartes

Now is the time to change the way America counts green card numbers.  Congress is presently debating comprehensive immigration reform and grand events are likely to reshape the legal landscape. Yet, at such a seminal moment we ought not lose sight of the value of technical modifications that can have enormous consequences.  Most Americans, including virtually all policy makers, would be surprised to learn that the majority of green cards awarded each fiscal year go not to the principal aliens themselves but to dependent family members, thus reducing even further permanent migration to the United States. In fact, as the waiting lines over the past decade have grown ever longer, this pattern has become more pronounced.  A quick overview of green card distribution during the first decade of the 21st century quickly makes this evident.  Let us take employment based migration in the employment-based first preference (EB-1) category as our data sample. In 2000, there were 5,631 new arrivals under the EB-1, 2,241 went to the principal vs. 3,390 to family members. This means that family members accounted for 58.67% of EB-1.  In 2012, there were 1,517 new arrivals under the EB-1. 516 went to the principal & 1001 to family members. This means that family members accounted for 65.98% under the EB-1. Things are getting worse.

It need not be that way. Neither the law nor logic commend or require such a result. Without creating a single new immigrant visa, Congress can eliminate quota backlogs and restore relevance to a green card system that is sorely in need of such restoration. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression will quickly become a thing of the past. Nor is this merely something for idle academic debate. Rather, it is essential if the path to legal resident status for the undocumented is ever to mean anything. Under any conceivable iteration of CIR, even if there is an expansion of immigrant visa numbers in the preference categories, the undocumented will be relegated to the back of the green card line behind those patiently waiting under the legal system. Unless a solution is found to remediate the tyranny of priority dates, the undocumented like the ancient Israelites who left Egypt, will never enter the promised land. 

Section 203(d) of the INA is the provision that deals with family members. Let us examine what INA § 203(d) says: A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent. There is nothing in INA § 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers.  Is there not sufficient ambiguity in INA § 203(d) to argue even under current law that family members should not be counted against the quotas? 

There is no regulation in 8 C.F.R. instructing what INA § 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. § 42.32 only parrots INA § 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. § 42.32 does not provide further amplification on the scope and purpose of INA § 203(d). We acknowledge that INA 203(d) derivatives are wholly within the preference system and bound by its limitations.. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits. 

INA § 203(d) took effect under IMMACT 90. It still remains a mystery as to why INA § 203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT90 quotas. No clear answer can be gleaned from the legislative history of IMMACT 90. Though family members were explicitly exempted from being counted in the House bill, such exemption was removed in conference with the Senate. Ultimately, Congress enacted INA § 201(d), which set a numerical limit of 140,000 for EB immigrants, and it appears that the intent of Congress in IMMACT 90 was to count family members in the final legislation. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could INA § 203(d) have been a vestige of the House’s intent that was never taken out - to make sure that, even though these derivatives would  be counted against enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal? 

If the Executive wanted to reinterpret INA § 203(d), there is sufficient “constructive ambiguity” here too for it do so without the need for Congress to sanction it. We have explained this in our prior article, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center! But we do not want to end on such optimism and throw all caution to the winds.. Thus, we propose a simple technical fix in Congress, which is to exclude family members from the FB and EB quotas. We do not see why this cannot be accomplished as there is already a pedigree for such a legislative fix. The proposed wording to INA 203(d) would be a simple add on to the current text, such as: “All family members, including the principal alien applicant, shall be counted as one unit for purposes of INA 201(c) and 201(d) limitations. They shall not be counted on an individual basis.” Not only did Congress try to remove family members in IMMACT90, but also attempted to do so in S. 2611, which was passed by the Senate in 2006. Section 501(b) of S. 2611 would have modified INA § 201(d)(2)(A) to exempt family from being counted in EB cases. The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again. 

  

Even an increase in the visa numbers in a reform proposal, which might seem adequate today, will again result in backlogs shortly based on the uncertainties with economic booms and busts as well as the varying size of families. An immigration system that does not count derivatives separately will have more of a chance to remain viable before Congress is again required to expand visa categories a few decades later. This will also go a long way in restoring balance and fairness to our immigration system. Sometimes even small things can cast a giant shadow.

THE STATUS OF INTERNET PROXY MARRIAGES UNDER IMMIGRATION LAW

By Cyrus D. Mehta

A recent article in the New York Times entitled You May Now Kiss the Computer Screen caught my interest.  The article highlights a rise in marriages over the internet, especially through a video chat program Skype, among immigrant communities. “The practice is so new that some immigration authorities said they were unaware it was happening and did not provide extra scrutiny to ensure these types of marriages were not being misused to secure citizenship,” the article states. 

A “Skype marriage” takes place in another country where it is legally registered while the other party participates via video in the United States. If the marriage is considered legally valid in the foreign country, it will generally be recognized in the US. On the other hand, such a marriage is considered a proxy marriage, and under §101(a)(35) of the Immigration and Nationality Act (“INA”), if the parties were not in each other’s presence at a marriage ceremony, there must be proof of consummation for such a marriage to be recognized under immigration law. This is true even in the case of a couple who were previously married and had consummated their marriage through the birth of three children, and then divorced. They remarried through a proxy marriage that was valid in Italy, but since there was no proof of consummation following that marriage, the visa petition filed on behalf of the spouse was denied. See Matter of B-, 5 I&N Dec. 698 (BIA 1954). 

Thus, internet marriages, even on the rise, will not be recognized under immigration law unless the parties establish that there was consummation. In addition, there is a requirement that every marriage, proxy or not, be bona fide and not be entered into solely to obtain a green card. Indeed, INA §204(c) imposed a lifetime bar to a new petition being approved on behalf of a beneficiary who was previously involved in marriage fraud. 

The immigration authorities do not require definitive proof of consummation, and proof of the two parties being together physically after the celebration of their proxy marriage, along with a statement affirming consummation, ought to suffice. In fact, non-proxy marriages do not require consummation to satisfy the bona fide marriage test. In Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), the fact that an elderly couple lived in separate bedrooms and had not engaged in sexual intercourse did not preclude the demonstration of a bona fide marriage. Also, a marriage would still be considered bona fide even though it is no longer viable because the couple have separated as a result of marital discord.  See Matter of McKee, 17 I&N Dec. 332 (BIA 1980).  

The advent of increasingly sophisticated internet-based technologies have changed the way we live and work, and the law has yet to catch up. For example, telecommuting employees were unheard of before the internet, and I have commented on how existing H-1B visa rules defining a worksite have not been able to cope with this trend in LCAs in the Age of Telecommuting. Internet marriages are another example of this trend, and the couple in the NYT article, Ms. Chowdhury (who is in New York) and Mr. Ahmmed (who is in Bangladesh), notwithstanding the unconventional nature of the celebration appear to have entered into a bona fide marriage. The following extract from the article is worth noting: 

But for Ms. Chowdhury, 21, and Mr. Ahmmed, 31, the giggling pair pretending to feed each other wedding dessert by holding forkfuls of cake to their computer screens that day, it felt full of the gravity of any other wedding. Ms. Chowdhury noted that her aunt had married similarly, long before the Internet age — by telephone. 

Peering from the screen of a laptop, Mr. Ahmmed agreed. “This is my lawful wife,” he said. 

At the last word, his bride squealed with joy. 

Even if one argues that a Skype marriage may have all the trappings of a marriage where the parties are physically in each other’s presence (and can also be intimate via video), it is doubtful whether Congress will be in a mood to change the law to make it easier for such marriages to be recognized for immigration purposes. There is too much of a concern for fraud, and such proxy marriages could also involve forced marriages of women and children without their consent. They could also be used by sex traffickers to bring in women who then unwittingly find themselves involved in sex work in the US. 

Interestingly, the non-recognition of a proxy marriage helped someone to successfully claim he was a US citizen and avoid deportation. In Moussa v. INS, 302 F.3d 823 (8th Cir. 2009), the government commenced removal proceedings against Moussa based on several criminal convictions. Moussa, on the other hand, claimed he became a citizen at the time of his father’s naturalization and could not be deported as a US citizen. Moussa’s claim depended on whether his father was married to his non-citizen mother or not at the time of the father’s naturalization. Under old INA §321 which has since been repealed, both parents had to be citizens if they were married in order for Moussa to have become a US citizen. However, if his father was not married to his mother, Moussa could claim derivative citizenship through his father.  The government claimed that the parents were married as a result of a proxy marriage while Moussa’s mother was in Ethiopia and so he was not a citizen. The Eight Circuit Court of Appeals agreed with Moussa that such a marriage was not recognized under INA §101(a)(35) as the parents had not consummated the marriage before his father was naturalized and he was thus a citizen.  As a result, Moussa could not be deported for his criminal convictions. 

So long as §101(a)(35) remains on the books, notwithstanding the rise of internet marriages, those wishing to seek an immigration benefit from such marriages must  first be able to demonstrate that they commenced marital relations after such a marriage. Even if such a marriage passes muster under §101(a)(35), unless the couple have started cohabiting together,  the immigration authorities are likely to look at such marriages more suspiciously in determining whether such a marriage is bona fide or not.

WANTED: GREAT STEM AND TANDOORI CHICKEN

By Gary Endelman and Cyrus D. Mehta

There is no doubt that a Startup Visa would unleash amazing entrepreneurial activity in the United States, which would result in many jobs. The latest version of the Startup Visa Act 3.0 would provide 75,000 visas to individual who are already here in F-1 and H-1B status if their companies receive an investment of $100,000 per year and employ a minimum of two workers in the first year. A three year visa would be given to those who meet this condition. If within the three years, they employ an additional worker each year, they can apply for permanent residency. 

According to a Kauffman Foundation study, the Startup Visa could conservatively lead to the creation of between 500,000 and 1.6 million jobs, which in turn could give a boost to the US economy of between $70 billion and $224 billion a year. A more optimistic estimate would result in 889,000 jobs and a boost to the economy of around $140 billion per year. Vivek Wadhwa, a big proponent of this bill, estimates an even bigger boost if half of these companies are engineering and technology companies. Many of these entrepreneurs, according to Wadhwa, will go on to build new companies based on their success, and could also develop breakthrough technologies and some of them could also be the next Google or Apple. 

So if this is a no-brainer, why is Congress not passing the Startup Visa Act 3.0? The truth is that no standalone immigration bill will pass unless it is tied to a broader Comprehensive Immigration Reform bill. Indeed, there is an interesting debate between Wadhwa and Congressman Luis V. Gutierrez on this issue. Guiterrez, although he supports a Startup Visa, has openly admitted that he will not allow it to pass unless Congress is willing to reform the entire immigration system.  Wadhwa feels this is “political gamesmanship” on the part of Guiterrez, and that the Startup Visa can be passed first in order to give the American economy a big boot and this would lead to increased public acceptance for broader immigration reform. Guiterrez, on the other hand, feels that once he allows this to happen, it will be more difficult to pass comprehensive immigration reform. 

The disagreement between Gutierrez and Wadhwa may be a false polarity. A nation needs both social justice and good economics; indeed, social justice is the best economics. A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the US with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or benefitted under any employment or investor visa category in our immigration system. His parents were able to come into the US based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today. 

Both Wadhwa and Guiterrez have a point. However powerful the stimulus flowing from the Start Up visa, enactment of Comprehensive Immigration Reform along with the Startup Visa would be infinitely more potent. Reforming a broken system, which includes legalizing the 10 million plus undocumented immigrants in the US, as well as providing quicker and more sensible pathways to legal status, could unleash even greater wealth. Immigrants of all stripes are essentially very entrepreneurial. An undocumented person who is provided legal status can also start a business and this individual need not be a STEM (Science, Technology, Engineering or Math) graduate. Even a non-technology company can create jobs such as a restaurant or grocery chain. Immigration should not be viewed as a zero sum game, and giving opportunities to foreign nationals in the US can result in more American jobs. Under our broken system, it is virtually impossible for an entrepreneur who wishes to start a North Indian cuisine restaurant to bring in a foreign national tandoori chef. A reformed immigration system should hopefully give this entrepreneur access to such a chef from India. A restaurant’s success is possible because of its chef, and when that great tandoori chef can be quickly hired from India, people will start coming to the restaurant resulting in the hiring of restaurant managers and waiters locally in the US. This restaurant’s success can then be replicated, and the entrepreneur can develop a branded chain of tandoori restaurants all over the US, resulting in many more jobs locally. 

According to another report sponsored by Cato Institute – The Economic Benefits Of Comprehensive Immigration Reform by Raul Hinjosa-Ojeda, the legalization of 11 million immigrants would be equivalent to more than $1.5 trillion added to GDP over 10 years. The study considered the economic impact under three scenarios: a legalization program that would ultimately result in a pathway to citizenship, a temporary worker program with no option for permanent resident status and the deportation of undocumented immigrants. Hinjosa-Ojeda concludes that the legalization of undocumented immigrants would provide the most economic benefits to the US. On the other hand, removing undocumented immigrants would be most expensive, costing $2.6 trillion to the GDP over a 10 year period.

The debate between Wadhwa and Gutierrez can be put in a larger perspective. If you believe, as Wadhwa does, that the purpose of immigration is to create wealth, unleash creativity and foster productivity, then the focus should be on entrepreneurs and highly skilled professionals. This explains his approach. If, however, you are mainly concerned with social justice, then you argue for a more comprehensive approach which is what Gutierrez does. It comes down to what you think is most important and what you think has true moral legitimacy. For those who use immigration to bring about social justice, it is family not employment immigration that is morally legitimate. The focus is on using immigration to help the individual immigrant, reunite families, to fight intolerance, poverty and injustice. It is not to make American employers more competitive, and there’s also an impulse to protect US workers.  Wadhwa, on the other hand, sees an ethical value and legitimacy in work itself, in work as a creative expression of individual talent. He looks for new avenues especially in STEM fields to unleash creative potential within the culture and context of a capitalist economy.

The economic boom that an enlightened immigration policy would ignite is generational in its dimensions. The immediate benefit from the entrepreneurial energy of the immigrant generation would be transformed and expanded by the diversified talents of succeeding generations. The Tandoori cook of one generation is often followed by the cutting-edge geophysicist of the next. Precisely as the American economy itself is inherently dynamic, the role that immigrants play in it also constantly evolves. For this reason, the sharp contrast provided by Gutierrez and Wadhwa that seem so vivid now will, over time, fade into a more nuanced yet no less compelling portrait.  Gutierrez realizes that an enlightened immigration policy can only exist in a compassionate society where social mobility is a lubricant of national cohesiveness. Wadhwa appreciates that immigration is an asset to be maximized not a problem to be controlled. Like all transformational moments in American history, this is pre-eminently a time to try something new. 

A month before signing the Emancipation Proclamation, Abraham Lincoln spoke to our issue in our time:

The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country. 

THE BLOCKING OF AN ENTREPRENEUR: A BROKEN IMMIGRATION SYSTEM AT WORK

By Cyrus D. Mehta

3D printing technology is about to revolutionize the way we understand manufacturing, and the country that takes the lead in this new technology will be the winner ofwhat The Economist magazine has called the third industrial revolution. A state of the art hearing aid or a high tech component for a military jet can be designed through a computer and printed on an unattended 3D printer as a solid functioning object.

Yet, the US Customs and Border Protection on the Canadian border recently refused admission to a dual national Canadian/British entrepreneur JF Brandon who is part of a startup called D Shape – which has developed a large-scale 3D printer that will revolutionize the way architectural design is planned, and building constructions are executed. By simply pressing the “enter” key on the keypad D Shape gives the architect the possibility to make buildings directly, without intermediaries who can add interpretation and realization mistakes.

Although refused entry into the United States, Mr. Brandon participated in a panel discussion on February 13, 2012 at Brooklyn Law School in New York entitled Immigration Policy and Entrepreneurship: Challenges and Pathways for Startups. Thanks to technology that has now become so routine, he could participate through Skype from overseas, and told a riveted audience that he had been refused entry under a NAFTA TN visa to work for D Shape in New York, which is limited to certain occupational categories and applies to Canadian and Mexican citizens. For an individual who wishes to work in a business related field, the only TN occupational classification is “Management Consultant,” but the CBP official did not think Mr. Brandon would fall under this category as he would be more of a “Manager,” which is not a TN classification. Although he will try again for a TN visa, the H-1B visa category is more obvious,  which allows one to work in many more professional fields, but there are no H-1B visa numbers left for this fiscal year. If he applies for one, he will have to wait until October 1, 2013 to get in, and that too if he is lucky enough to get selected in the event that the USCIS receives more than the allotted 65,000 H-1B visas during the first week April 2013 – the first month when employers can file H-1B visas for an effective start date of October 1, 2013.  Other than the H-1B visa, there are few options for enterprising foreign entrepreneurs. The O-1 visa is limited to foreign nationals who can demonstrate extraordinary ability in their fields through sustained national or international acclaim. The L-1 visa is available to intra-company executives, managers or specialized knowledge employees who have been working for an affiliated overseas company for one year in the same capacities. The E-2 visa, applies to nationals of a few countries that have as treaty with the US (and Canada is one of them), but it requires the entrepreneur to make a substantial investment.

I was honored to be on the distinguished panel last week, along with Jeremy Robbins who is Director of the Partnership for a New American Economy and Special Advisor to Mayor Bloomberg, Michael Wildes, Partner of Wildes and Weinberg PC and Owen Davis, Venture Capitalist, Director of NYC Seed.  The moderator was Professor Jonathan Askin, who is the Director of the innovative Brooklyn Law Incubator Policy Clinic, which also sponsored the program along with New York Legal Hackers. Apart from the wonderful ambience and engaging audience –and there was jazz at the beginning and end of the program - the panelists generallypainted a grim picture of the visa options available to foreign entrepreneurs who wish to develop startups in the US. Indeed, Mr. Davis said that NYC Seed would be reluctant to fund foreign national entrepreneurs due to the inherent risks and uncertainties caused by the immigration system. Mr. Wildes described the many immigration options that exist in the US immigration system, but then qualified that it would be very difficult for an entrepreneur to take advantage of them. Under the H-1B visa program, for example, the USCIS insists on the need to show that the H-1B worker’s employment will be controlled by the employer, which will be difficult in the case of startup owned by the foreign national. This obstacle is in addition to the fact that H-1B visa numbers run out even before the start of the fiscal year. Even the E-2 visa is limited to nationals of treaty countries, according to Wildes, which does not include any of the dynamic BRIC (Brazil, Russia, India and China) countries.  I pointed out that there may be new hope, even amidst the bureaucratic “culture of no” mindset, in the USCIS’s new Entrepreneurs in Residence Initiative, where immigration officers have been trained to recognize the unique nature of startups, such as operating in stealth mode or not having an established office space. Control of employment may also be shown in other ways, through the need to maintain a separate existence between the corporation and the shareholder, as well as the possibility of minority shareholders exercising control through shareholding agreements or through their latent power to seek dissolution based on egregious conduct by the majority shareholders.  Mr. Robbins highlighted the political realities, which means that a new Startup Visa will only be enacted be when Congress rolls out a Comprehensive Immigration Reform bill.  Despite the importance of foreign entrepreneurs, and the fact that America knows best how to nurture entrepreneurship, there is little chance of a Startup Visa Act in the absence of Comprehensive Immigration Reform.

The take away from this program is that we clearly need Congress to create a Startup Visa rather than entrepreneurs using existing visas that were not designed for them, but those legislative proposals will flounder unless they are included in a Comprehensive Immigration Reform (CIR) bill.  One version of a Startup Visa would require the entrepreneur to invest a minimum of $100,000 in order to get a two year green card. To keep the green card past two years, the founder would need to create five jobs and either raise at least $500,000 in additional funding or $500,000 in revenues. Even if Congress enacted a Startup Visa, these requirements could be rather burdensome for a nimble entrepreneur who could still launch a successful business without an initial $100,000 investment. Thus, a CIR proposal can also tweak some of the existing visa categories to make it easier for founders to remain in the US as nonimmigrants and provide alternative pathways, such as by relaxing the element of control in the H-1B visa and also allowing a majority shareholder to be sponsored for a green card through the labor certification program. The well-intended guidance for entrepreneurs under existing visa categories should also be part of reform legislation rather than remain as mere guidelines that run the risk of not being followed by an immigration officer.  Otherwise, we will have initiatives like Blueseed, which envisages a ship in international waters off Silicon Valley that will serve as an incubator for foreign entrepreneurs to develop their startups without needing to get a US visa. They can visit shore briefly on a B-1 business visa for meetings, and then return to the ship to work at their startup. To add to the uniqueness of the entrepreneur and immigration program in Brooklyn, the founder of Blueseed, Dario Mutabdzija, also participated through Skype. I have a feeling that Blueseed will succeed even if we have CIR as there will always be entrepreneurs who may not be able to take advantage of onerous visa options in the early stages of the startup. 

Finally, from my experience as a practitioner, I have seen that immigrants from all backgrounds can become entrepreneurs, and it is not necessary that only graduates from STEM (Science, Technology, Engineering and Math) programs will succeed with startups. A lesser educated immigrant with burning ambition, such as a cook, can one day start a restaurant chain just as a Ph.D in Engineering can develop the next generation 3D printer.  Both create more jobs – and America could also enjoy more cultural diversity through the businesses of foreign entrepreneurs.As I recently tweeted on Twitter, “We need both brilliant STEM and delectable tandoori chicken in America.” Thus, if the political reality is to include startup visa options in CIR, let’s bring it on sooner than later so that American will be able to benefit from the talents of foreign entrepreneurs of all backgrounds and stripes.

A HOUSE OF MANY ROOMS: THE DIFFERENT PATHS TO CITIZENSHIP

By Gary Endelman and Cyrus D. Mehta

It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even  the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to  legalize the 10+ million undocumented population, when in the past the tunnel vision mindset of the GOP controlled House was to find ways to either deport them or make it hard for them to remain in the US. 

The fault line of contention in the debate is whether to grant a pathway to citizenship or not for those who will be able to legalize their status. Many House GOP leaders have stated that they would rather find a middle ground between deporting the undocumented people and providing them with citizenship, which is obviously being opposed by advocates for immigration reform.  Even the Obama White House is opposed to this. For instance, Raul Labrador, a rising GOP leader from Idaho in the House has said that he would vote for providing legal status to the undocumented, but not a green card, which would provide a path to citizenship. The rationale for this is that those who have not” played by the rules” should not be rewarded with a quick path to citizenship. But the underlying motive for denying a path to citizenship is the fear that these new citizens will vote against the Republican  party. On the other hand, Jose Garcia, a Democrat from Florida believes that not providing a path to citizenship would create an underclass in the US, which is not in keeping with American values. He also cites the examples of the French and German systems where immigrants are not allowed to become French or German, and this has resulted in the kind of social unrest in those countries that we have not seen in the US. It is worth noting that the heavyweight Republican from California, Darrell Issa,  has recently backed a path to citizenship. He stated, "Ultimately, if you're allowed to remain in this country permanently, in almost all cases, there should be a path to citizenship. That is what Abraham Lincoln would have said. That's what the Republican Party stands for." 

We too advocate for a path to citizenship in an immigration proposal that will legalize the status of undocumented workers. We also believe that if the GOP provides a path to citizenship, they need not fear losing them as future voters. Many immigrants can be wooed by the GOP as they too share conservative values, and making it through their own enterprise. Elections have consequences and demography is destiny, especially when it comes to politics. Not wanting to remain a permanent minority, or even lose control of the House of Representatives in the next election cycle, even the most stalwart immigrant bashers in the House GOP leadership are suddenly finding religion and coming to terms with the truth on immigration. Any repentance,  however forced or late is coming, should be accepted. Politics is, if nothing else, that most practical of professions.

Still, even under the most liberal proposal, citizenship is not likely to come automatically or even quickly. First, there will be a probationary period of legal status, and after some years, they will be allowed to apply for green cards. After obtaining a green card, one has to wait either five years, or three years (if married to a US citizen) to be able to naturalize. It is hoped that those opposed to citizenship because they believe that people will become citizens the day after a bill is enacted are educated about the long and arduous wait even under a system that provides a direct path to citizenship. A bi-partisan group of Senators also favor a path to citizenship, but have attached conditions before those legalized can obtain green cards, which is that Congress must first be satisfied that the border is under control. This too is being opposed by immigrant advocates and the White House as those in control of this trigger will always find an excuse to say that the border is not under control. 

However much the authors of this blog want a pathway to citizenship without conditions, we also fervently hope that a once in a lifetime deal to reform the immigration system must not break down on the citizenship issue. There can be many other pathways to citizenship, and it is not true that the undocumented who get a legal status will be part of a permanent underclass.We would refute and reject any proposal that would render anyone legalized permanently ineligible for citizenship.First, let’s take a realistic view on how long folks have been waiting under the current immigration system. Many who have met all their conditions to apply for a green card have been waiting under a backlogged family or employment preference category for more than a decade. The India employment-based third preference is so backlogged that an Indian-born beneficiary of a labor certification filed today by an employer may have to wait for 70 years before he or she can apply for a green card!!  With respect to being on a path to citizenship, they have been worse off than an undocumented person who may legalize under a new immigration reform law. 

Thus, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary.The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years. 

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long. Then, there are also few avenues for obtaining a green card. If the GOP refuses to provide a direct pathway to citizenship, or a path to citizenship based on conditions, or even if a direct path to citizenship takes a long time,  let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much!Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.