Tag Archives: high versus low skill

Do I have a right to be here?

December 14, 2015 Steven Sacco 13 Comments

Every human being has an inalienable right to migrate across their planet without restriction or fear.^¹It is impossible to place a restriction upon this right that is not animated by racism and classism.^² An immigration law is an act of violence that enforces and reinforces the idea that it is morally acceptable to hate^³ someone because of where they were born. There is no migrant crisis – there is a migration-restriction crisis. These are the presumptions I begin with and proceed from.

In 1896, my great grandmother, Nicolina “Nellie” Falvo, boarded the S.S. Algeria in Naples, Italy for the United States.^⁴ She arrived in New York City on August 15, 1896 as a 15-year old domestic servant.^⁵ It was easy for Great grandma Nellie to enter the United States because the law was different then, and with some racist exceptions,^⁶ many people were permitted to cross the border and settle indefinitely without a visa or papers of any kind.^⁷

Open Borders: The Case editorial note: Check out Vipul Naik’s posts Ellis Island and keyhole solutions and How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

The law is different today. Today, my great grandmother would be barred by law from entering New York City and from remaining here indefinitely, with very few exceptions. Instead of standing in line at Ellis Island, she would be received by armed police, prison and forced relocation back to Italy. If great grandma Nellie tried to cross the border today, the law would measure her against an impossibly elaborate list of arbitrary factors to judge her deserving or not deserving of entering and remaining in the U.S. What makes these factors arbitrary is not their complexity or rationale, but their lack of equity. Equity is a wonderful legal concept – more than equality, it means fairness, or more precisely it presumes that all human beings are equal before the law, and that therefore they should be treated fairly as to one another. Black’s law dictionary defines equity this way: “Fairness; impartiality; evenhanded dealing . . . The body of principles constituting what is fair and right; natural law .”^⁸

Immigration restrictions under U.S. law are not equitable because they do not first presume that all human beings are equal. Instead, all immigration restrictions are built upon the foundational idea that non-citizens may be treated differently than citizens only because they are not citizens. This difference and this difference alone justifies their mistreatment, and this is what I mean when I described immigration laws as inequitable or arbitrary – they are morally arbitrary.Immigration laws are fundamentally unfair in their application to human beings and this becomes clearer when we imagine how a rule made for non-citizens might look if it were applied to citizens. Take, for example, the immigration law that says someone may be denied legal permanent residency if that person is designated “a public charge,” that is, using certain forms of welfare for which they were nonetheless financially eligible.^⁹ What about all of the citizens who are “public charges” – the poor, the disabled, the elderly, the Wall Street bankers^¹⁰ – why not deport them? As author and open borders advocate Teresa Hayter notes:

“. . . in general people over the age of 70 receive more from public expenditure than they contribute to it, an argument corresponding to the one on immigration would have to be that such persons are undesirable and should be expelled from the country. Doubtless the same would apply to the unemployed, the severely handicapped, perhaps to religious people and artists. . .”^¹¹

The only reason this Jonathan Swift-like argument is not rejected, Hayter points out, is that it concerns non-citizens. Thus “to take this argument seriously is to contribute to the dehumanization of the migrant.”^¹² I agree with Hayter that to take immigration laws seriously is to accept that non-citizens are less human than citizens – a fundamentally inequitable idea.

Which brings me back to great grandma Nellie and the point of this article. If Nellie could come here without legal restriction, then it seems only fair that others coming in the same manner today should be afforded the same unencumbered access to enter and remain.If persons in Nellie’s position today are not given the same leave she was, how then can I, a beneficiary of the leave granted Nellie, equitably claim more of right than they to stay and remain and live and seek work here? Why do I deserve to stay and remain at all, and why don’t others? As Hayter has said of immigration controls, they give a state “the right to choose between the deserving and the undeserving.”^¹³ Many factors are often called upon in U.S. immigration law and policy to justify whether someone like Nellie or I “deserves” to be here, some of the more common ones include; birth in the U.S; time in the U.S.; having family in the U.S.; and the fact that someone will face specific kinds of danger if they leave the U.S. I consider these justifications below, and reflect on why they are morally arbitrary and unfair, and question if and why I deserve to be here.

What you will not find below are arguments against immigration controls that are rooted in economics, utilitarianism, or negative policy outcomes.^¹⁴ Instead I question whether immigration restrictions on their face can be called fair by any person who assumes all human being are equal.^¹⁵ As author and professor of history Aviva Chomsky has observed about the very idea that it is ok to restrict the immigration of people for some of the below reasons, “with a bit of critical distance, the notion appears more and more absurd.”^¹⁶

I. Do I deserve to live here because I was born here?

Nellie was not born in the U.S., and would that she had tried to enter today, she would have been punished for that fact. Under current law persons born inside U.S. territory are U.S. citizens at birth, pursuant to the clause of the Fourteenth Amendment of the federal U.S. constitution, which says “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Such people are welcomed by the law with open arms, completely and unconditionally. By contrast persons born outside U.S. territory(with the exception of some persons who have U.S. citizen parents^¹⁷) incur the law’s disdain and suspicion as “aliens.”

Open Borders: The Case editorial note: Check out Joel Newman’s post Open Borders Allow People, Not Their Place of Birth, To Control Their Lives

That an immutable characteristic like place of birth should justify discrimination contravenes the idea of equality. Professor of immigration law Hiroshi Motomora, understating what should be more obvious than it is, has pointed out the “inherent tension in immigration law- between the basic idea of national borders, which inherently discriminate between insiders and outsiders – with a sense of justice that embraces a commitment to equality.”^¹⁸ Political scientist Jacqueline Stephens, putting a finer point on it, says the idea of birthright citizenship is as incompatible with a liberal, egalitarian society as discrimination based on race or religion because it is “the epitome of discrimination based on ancestry” and thus constitutes “global apartheid.”^¹⁹ And she’s right: I did not earn my birth here; I did not chose my ancestry or pick my passport, any more than I decided my skin color or worked toward my sex at birth. How then, could I have possibly earned access to a life and a job here more than anyone else who has earned and chosen as much as I have, but been born elsewhere? Can I claim anything other than the most naked luck and arbitrary participation in the lottery we call “nationality?” I am not a person who immigrated to the U.S, who performed, what Teresa Hayter has called “staggering feats of ingenuity, courage and endurance to assert their right to move and to flee,”^²⁰ in order to be in the U.S. Instead, I was born with an American spoon in my mouth. If birthright citizen were about anything more meritorious than immutable characteristics, then maybe people like me, who exerted no effort or initiative to be here, should be deported. But of course it seems unfair to deport people who have lived here their whole lives. Yet that is exactly what the rules of deservingness do to noncitizens in identical positions – those brought here as infants, lived here their whole lives and known no other country, but still subject to deportation.^²¹ This is the brutality of birthright citizenship.

Birthright citizenship is about privilege. One effect of privilege – whether it comes from skin color, or genitalia or locos of birth –is that it bestows enormous power but asks nothing in return. It is a free lunch in every sense of the term;a gift sent to the wrong address; an inheritance from a relative you never acknowledged; the beneficiary is a spoiled child that did not chose its family. By what right do the privileged hoard the good graces of the universe? By no right, of course, that is why it is a privilege. The same can be said of the birthright privilege to remain. As Aviva Chomsky notes, “[i]llegality is the flipside of inequality. It serves to preserve the privileged spaces for those deemed citizens and justify their privilege by creating a legal apparatus to sustain it.”^²² This is why Joseph Carens hit the nail on the head when he compared birthright citizenship to the system of nobility and peasantry during the European middle ages – where your opportunity in life is dictatedentirely by the family of your birth.^²³

Some have challenged the birth-right citizenship rule, typically to exclude, not include, and this challenge, by virtue of its effort to disenfranchise some people who were born in the U.S., ironically highlights the arbitrary nature of birthright citizenship itself. The effort to deprive citizens of birthright citizenship has been a pet project of the political right in the United States at least since 1985, when a book^²⁴ introduced the idea into the minds of people looking to justify their contempt for immigrants.^²⁵ The authors and their proponents have argued, among other things, that “subject to the jurisdiction thereof” does not apply to babies born to persons who are inside U.S. territory against its laws, because they were not “subject” to the legal jurisdiction of the U.S.^²⁶ That interpretationof the Fourteenth Amendment has never been accepted by the Supreme Court,^²⁷ nonetheless, the implications of that argument against birthright citizenship stagger the mind, since its retroactive implementation would literally disenfranchise a hundred million people^²⁸ whose parents, or grandparents, or great grandparents were not U.S. citizens when their children were born in the U.S.^²⁹ I could be one of those people, if, say, my grandfather was born when great-grandma Nellie was still a citizen of Italy and not the U.S. (I actually don’t know when she naturalized). After all, if Nellie’s youngest (my grandfather) was not a U.S. citizen when he was born to her, then neither was my father when he was born, and thus neither am I.

If the idea of taking U.S. citizenship from whole families living in the U.S. for three or four generations should seem unfair or inequitable to anyone, then it’s worth asking why. Does it seem unfair because people born here to noncitizen parents are in the same position as peopleborn here to citizens? Why, after all, should one group be treated differently for reasons they can’t possibly control?Yet the same can be said of birthright citizenship as it exists today. Birthright citizenship deprives the unluckily-born outside the U.S. of rights for immutable reasons, ones related to ancestors and parents they had no choice about. Nellie would have no right to enter the U.S. because she was unlucky enough to have had a mother who went into labor outside its borders. Birthright citizenship excludes persons born outside the U.S. just as unfairly as would a rule precluding birthright citizenship altogether –in both scenarios people are denied rights because of immutable characteristics.

Do I deserve to live here because I was born here? Equitably speaking, if I don’t then it’s difficult to say who does, and if I do, then it’s equally hard to say who doesn’t.

II. Do I deserve to live here because I grew up here?

Another justification for identifying those who deserve to be here from those who do not, is by bean-counting the number of years they can claim they’ve lived within the U.S. The theory is that the longer a person lives here, the stronger their claim to continue to live here.^³⁰ One relatively rare form of relief from deportation, for example, is called “cancellation of removal,” and it applies the bean-counting logic. Upon a showing of a number of other arbitrary factors,^³¹ cancellation of removal may be available to an undocumented non-citizen whois in the U.S. against its unjust laws for ten years. Another, even rarer form of relief will allow someone to have permeant legal residency if they’ve accomplished the difficult feat of remaining undocumented inside the U.S. continuously since January 1, 1972.^³² Length of time in the U.S. has also been identified as a “favorable” factor in any discretionary grant of permission to remain in the U.S.^³³

First, the argument that a person deserves to live in a place more than other people because they grew up there is itself an argument that is not,in practice, applied as consistently to non-citizens as it is to citizens. For example, east-coaster that I am, I have never set foot in California or Kansas or Alaska, yet the millions of non-citizens who have called these places home for years or decades have less of a right to be there than I do, because they’re paperwork is different? I, who could not tell you which way Sacramento is from Los Angeles, have, in fact, a legally absolute right to travel, live and work in LA, while someone with different paperwork who has lived in LA enough years to memorize every interstate number may have no such right.

Open Borders: The Case editorial note: Check out The Difference Between an Illegal Immigrant and Me: A Little Memoir and Some Questions It Raises by Robert Higgs

More to the point though, why should my three-plus decades in the U.S. and, say, my two years living in New York City, make me more deserving to live here than someone with fewer years? Why should the accumulation of time in any one location (unearned time vis-a-vis accidental birth, at that) by bootstrapping, create an exclusive right to accumulate more time in that same location? I am here, therefore I should be?

Even assuming time plus geography equals superiority of right to reside, the equitably arbitrary nature of that rule is exposed when one attempts to apply it: Recall that ten years of residence is what an undocumented person^³⁴ would need to get “cancellation of removal.” The law says ten, and it means ten.^³⁵ So, ten years is enough to deserve to stay here but not nine, never nine – nine would be a ridiculous assertion, as would nine and a half, or nine and three quarters.^³⁶ Five years or eight years could never do it, for some just-because reason. And what of the twelve year old child who has lived here for nine years, three quarters of her life? Shouldn’t she have more of a right than a fifty year old who’s lived here for ten years, only one fifth of their life? Ten, in this case, is a number based on little more, it seems, than the vague emotional sense that a decade is a pretty long time, and if deservingness is to sprout out of any length of time, a decade seems a safe duration to choose.

I understand that time is how we measure home – length of time builds bonding with places and the more time the greater the pain of separation. So perhaps the law is simply saying it’s less inclined to tear someone away from the U.S. the longer they’re here, for, say, humanitarian or sentimental reasons. Of course people shouldn’t be torn from places they love, but neither should they be exiled from places just because they lack nostalgia for them. Isn’t nostalgia itself an unfair standard to measure deservingness to enter and remain? Does that mean a ten year old citizen is more easily deportable than a ninety year old citizen, since the latter is clearly more closely bonded with their city or state? What about the U.S. citizens who live in a place, but don’t like it very much (say, teenagers who are tired of their boring hometown), should they be forced to go? No, of course, because citizens cannot be deported at all.^³⁷ Thinking it through reveals there is nothing equitable about bean-counting years as it treats non-citizens compared to citizens.

Nellie eventually lived in the U.S. for several decades after her arrival, but before doing so, of course, she could not have claimed deservingness on this ground. I have lived in the United States almost since I was born here, in July 16 of 1982. (I say almost, because counting all the time I’ve spent outside the U.S. leaves me with thirty one and a half years, give or take, of living inside the territory of the U.S). The rationale in immigration law implies that these three decades are a sort of fertile temporal soil out of which my deservingness has sprouted. Yet, as we’ve seen, even for the non-citizen born outside the U.S. who nonetheless lives here for the same period of time, the law says the same is not true for them. One potential retort to the magical ten year line, or for that matter to birthright citizenship, or any other arbitrary rule, is that “we have to draw the line somewhere.” But actually, the whole point of a thousand blog posts on this very site is that no, actually, you don’t have to draw the line anywhere.^³⁸ Immigration law is fundamentally unfair precisely because it presumes it can draw a line at all.

III. Do I deserve to live here because I have family here?

The manifest of the S.S. Algeria does not show Nellie arriving with any relatives, though she was only 15.^³⁹ It’s possible that she had relatives here already, but it’s also possible she had no family here to greet her. In which case Nellie’s lack of family in the U.S. would today probably keep her out of lawful status her entire life, if not out of the country itself. The law makes out a number of ways for noncitizens to remain in the U.S. if they can show some special relationship to a U.S. citizen or legal permanent resident. For example, remember “cancellation of removal”? In addition to the ten years in the U.S., the undocumented noncitizen would have to show, among other things, that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of green card-holding spouse, parent or child.^⁴⁰ Putting aside for a moment the fact that this “exceptional and extremely unusual” standard is extremely high and incredibly difficult to reach,^⁴¹ this relief shows that the immigration court is concerned, not with the life or death of the noncitizen(indeed their deportation could result in their certain death for all the immigration court cares (more on that below)) but with the “hardship” caused to the citizen or LPR. In other words the non-citizens presence in the citizen’s life must benefit them so much that their deportation would cause them this astronomically high level of “hardship.”

Open Borders: The Case editorial note: Check out Nathan Smith’s blog post The right to invite

But whether or not a person’s presence benefits or does not benefit a U.S. citizen is really just a way to measure someone’s worth or desirability based on how much use they are to others. The law of “cancellation of removal” is saying the non-citizen has no inherent worth, not by themselves anyway – their value is measured only by how much their absence does or does not negatively affect citizens, whether financially, socially or otherwise. This is an unambiguous statement about the inferiority or sub-human character of a person because they were born elsewhere. Of course plenty of citizens give no benefit to other citizens, but we don’t deport them. There are also many citizens who have no spouse or child in their lives, such that their deportation would really affect no child or spouse negatively, except themselves(for example,former Chief Justice of the Supreme Court David Souter or Oprah Winfrey) – but the law will not deport them.Reducing a person to what they’re materially “worth” is what the law does when it asks about their “family ties” and how much “hardship” they would cause the citizen if they were exiled from the country. The inquiry is just a euphemistically veiled process of treating a living human being like a broken kitchen appliance, which is to say like an object, and disposing of them with proportional inhumanity when they’re without use to a citizen. This idea that a noncitizen’s worth can be altered only by way of their relationship to a citizen is also the foundational idea for how many people acquire the infamous green card, or permanent residency in the U.S. Unless you can get a green card through an employer (itself a difficult task),^⁴² or something called the “diversity lottery” (you can’t get more arbitrary than a lottery!),^⁴³ or you’re one of the rare ones who gets some form of (very) rare humanitarian relief,^⁴⁴ acquiring a green card through a close family member is just about^⁴⁵ the only other way one can hope to acquire permanent residency in the U.S. Assuming you meet a handful of threshold criteria,^⁴⁶ you might be able to get a green card, for example, through a spouse, parent,twenty-one-year-old-or-older child, or sibling. Without one of these relationships the law will deem the noncitizen undeserving of living in the U.S., classifying such a person as an invisible non-human creature, until they are bestowed with equality and humanity through their marriage to or parenting of a citizen. Again, this rulesuggests that citizens can bestow worth upon noncitizens, but not vice versa – implicitly assigning more humanity to one than the other.

As it happens, I am not married to my partner, so if I lost my citizenship through, say, some vicious reinterpretation of the Fourteenth Amendment, my partner wouldn’t be able to help me stay here at all – our relationship, like my worth as a person, would be invisible to the law.I do have two parents and a brother in the U.S. who are U.S. citizens, and I suppose, in a scenario where I was without U.S. citizenship,I could rely on them as the measure of my value as a human being. I’m certain, however,that were I to try and make out a claim for “cancellation of removal,” I could absolutely not show “exceptional and extremely unusual hardship” to thesefamily members in any event(a standard which is, it bears repeating, unbelievably high),^⁴⁷ because they simply don’t rely on my enough to make my departure “extremely unusual,” to them. Yet, no one’s ever come knocking on my door with a one-way ticket for Naples or forced me to weigh my right not to be exiled from my life in the U.S. against how useful I am to other, more privileged people.

IV. Do I deserve to live here because I would face danger elsewhere?

To quote Teresa Hayter, “I do not accept the moral distinction between political refugees and those who cross frontiers in search of work.”^⁴⁸ This is not meant to lessen at all the moral imperative of giving sanctuary to the asylum seeker – but is instead meant toaffirm the right to immigrate as so fundamental and unconditional, that the reason for a person’s migration is irrelevant. We should not even reach the question of why the person is migrating because, as Hayter put it, “the people best able to decide whether they need to migrate, or to seek refuge, are migrants themselves.”^⁴⁹ Any implication that an asylum seeker has even a smidgen more of a right to enter and remain than someone coming for different reasons, serves to deny everyone their fundamental right to migrate.

The most common way a non-U.S. citizen might seek safety in the U.S. from danger in their home country is through asylum – but qualifying for asylum is notoriously difficult because it requires applicants to squeeze through some very narrow criteria. Like birthright citizenship, the narrow criteria of asylum eligibility highlights the arbitrariness with which the law excludes so many people, even under asylum law’s most liberal interpretation. Under asylum law, a noncitizen may remain in the U.S. if they can demonstrate that they have been persecuted or have a “well-founded fear” of future persecution in their home country. But actually, it’s much narrower than all that – because the non-citizen has to show they were or will be persecuted on account of their race, religion, nationality, their political opinion, or their “membership in a particular social group”^⁵⁰– persecution for any other reasons, or danger from any other source, won’t get you asylum.^⁵¹ But actually, it’s even narrower than that, because the non-citizen also has to show their government can’t or won’t protect them from the persecutor, and that theycan’t relocate safely within their own country, and they have never participated in the persecution of anyone else themselves, oh and that they’ve never committed a “particularly serious” crime anywhere.^⁵² If you can’t show all of these things – and I do mean all of these things – the person can be deported, even if their deportation would lead to their death, or immense suffering, or a life of grinding poverty, or anything else really.^⁵³ That means there are many more scenarios that asylum does not protect you from than the ones it does protect you from – crushing poverty, natural disasters, disease, etc. – even if the end result is the same and just as likely: your bodily harm or death.^⁵⁴

Suppose Nellie, 15 years old, were someone who faced poverty, or sickness, or death or murder if returned to Italy (I have no idea what she actually faced if she was returned to Italy, although poverty is a safe bet). The question of who, under asylum law, “deserves” to live in the U.S. (this often means who deserves to live at all) is ultimately in such tension with the idea of equality, that it does not take much effort to imagine multiple scenarios that highlight this. Let’s list some scenarios in which asylum law would not protect someone like Nellie from harm. Feel free to reflect on whether or not you feel the scenario increases or decreases Nellie’s deservingness to enter the U.S. as compared to someone eligible for asylum, which is to say the merits of Nellie’s right to live at all (I would invite you to substitute your own loved one’s name for Nellie’s):

Suppose Nellie faces lethal poverty in Italyif she is not permitted to enter and stayin theU.S., does she deserve to enter and stay as much as a traditional asylum seeker? What if Nellie is certain to return to homelessness or famine? What if a volcano went off in Italy and covered Naples in a pyroclastic flow – does she deserve to flee and enter the U.S. as much as an asylee now? Suppose Italy is engulfed by civil-war, or the government collapsed and Naples is just Mad-Max-like bedlam ruled by pale gangsters in spikey cars, does she deserve to flee and remain in the U.S.? What if Naples has the highest murder rate in the world? What if it has the highest rate of accidental traffic death in the world? What if turn-of-the-century Italy is overcome by the ebola virus? What if it’s sinking into the sea? What if the water was tainted or a chemical-plant exploded and there was just a higher risk of poisoning or food-born illness, not certain doom, but a much higher likelihood of doom, does she deserve to enter as much then?What if it’s just a higher risk of doom instead of a much higher risk? Are you willing to let your loved one risk it? Forget big macro-level causes of death, what if Nellie is being chased by a bear, and the only way to save her life is to let her cross the border? Replace the bear with a chainsaw-wielding maniac, how does her life fare against an asylee’s life now? What if Nellie needs medical attention she can’t get in Italy? What if she needs medication or care for a chronic illness she can’t get in Italy, and staying there is certain to cut her life short? What if Nellie’s crossing the border is the only way to save someone else’s life? Maybe she has blood or a kidney someone needs. How about if that someone else is a noncitizen? If they’re a citizen does your answer change? What if Nellie has a toddler and Italy has the highest infant mortality rate in the world? What if it’s your toddler? What’s if it’s you?

Open Borders: The Case editorial note: Check out John Lee’s blog post Junk the international refugee system, and open the borders

How little it would matter to any of us exactly what the cause or method of our loved one’s death or maiming is – all we would care about is the fact that they faced death or maiming at all. How unwilling we would be to weigh in our minds their merits of living or even their merits of being happy, against someone else’s “stronger” claim to life or happiness. Why then should immigration law distinguish in the same way between other people’s lives – between who deserves sanctuary from harm and who doesn’t? Why should, in each scenario above, a non-citizen be denied asylum (and they would be, in each of those scenarios above, with the possible exception of the chainsaw wielding maniac^⁵⁶), denied the right to live, or the right to be safe, because their method of death or maiming just didn’t fit one of the five protected grounds?^⁵⁷ Why would we limit at all the number of grounds for which we’re willing to protect human life or human freedom?There are few examples outside asylum that show as clearly as it just how unambiguously the law values the lives of non-citizens less than citizens.

V. Do I deserve to live here because I am a human being?

I have a right to be here because I am a person and this is my planet. I’m unwilling to gauge anyone else on any criteria beyond those. These laws raise questions about what broader principles of inequity are at work behind them, but here are some possibilities: noncitizens are worth less than citizens; humanity is tied to citizenship; non-Americans are sub-human; the value of human life is contingent on locus of birth.

When a person’s right to something is not recognized, the law must instead rely upon an arbitrary judgment of their deservingness in order to determine their fate. Toask whether someone deserves to be free or safe is to make that person’s wellbeing entirely dependent on the discretionary mercy, compassion or contempt of someone else. Author and professor of political science, Ayten Gündoğdu describes this condition of the immigrant as one of “rightlessness,” that is, having not even the right to have rights, becausethey have “lives that are dependent on the favors, privileges, or discretions of compassionate others.”^⁵⁸ Gündoğdu observes that relying on the “capricious moral sentiment” of others, instead of enjoying the protection a right would afford them, “risks unmaking the equal personhood of migrants.”^⁵⁹ A person dependent on compassion to be alive is a person without a right to be alive. Without a right to be here a person loses their status as an equal human being altogether, and they will be subjected to state violence vis-à-vis a thousand arbitrary rules animated by the moral inequity of rightlessness. Sorting through the cruel minutia of U.S. immigration law, I can find no rational justification for why I have more of a right to be here than someone else born, raised, or running from somewhere else. And I can see no reason in the idea that my great grandmother or someone like her, had or would now have less of a right to enter and remain than anyone else born or raised or related to someone here. All I can see in the immigration laws are double standards – one set of rules for this group of people and another set of rules for that group of people – all justified by the dehumanizing idea that U.S. citizenship is the arbiter of human worth.Either everyone has a right to be here, or no one does. Anything in between is a lie.

Footnotes

1 More on this right to come in future posts.

2 “Nationality itself has its origins in racial thinking and still bases itself on birth and origin in ways that echo racialism.” Aviva Chomsky, Undocumented: How Immigration Became Illegal 14 (2014).

3 I do not use the word ‘hate’ lightly. In my view, racialism and white supremacy cannot be separated from U.S. immigration law and policy (I’m not even convinced they can be separated from the very concept of nationality). See supra note 2. Like the ideas that fuel racist ideology, the ideas encouraging immigration restrictions are often sub-conscious and the person acting on them may be unaware they are doing so, or may believe themselves to be unbiased. Nonetheless, these ideas come from a place that is very much fueled by hate, inasmuch as the word ‘hate’ is semantic shorthand for those beliefs that allow us to de-humanize other human beings. That is how I’m using the word here.

4 See ship manifest on file with author.

5Under “occupation” the shipping records list my great grandmother’s occupation as “Help”. See shipmanifest on file with author.

6 The Chinese exclusion Act of 1882 prevented persons of Chinese or Japanese ancestry from migrating to the United States. [FIX!] See Erin L. Murphy, “Prelude to Imperialism”: Whiteness and Chinese Exclusion in the Reimagining of the United States, 4 J. of Historical Sociology 457-490, 476 (Dec. 2005).

7 See Hiroshi Motomura, Immigration Outside the Law 67-68 (2014).

8 Black’s Law Dictionary (9th Ed., edited by Bryan A. Garner) 619 (2009).

9 See 8 U.S.C. 1182(a)(4).

10 See, e.g.,http://money.cnn.com/news/specials/storysupplement/bankbailout/.

11 Teresa Hayter, Open Borders: The Case Against Immigration Controls (2d Ed.) 2004, at 161

12 Hayter, at 161.

13 Hayter, at xxV.

14 Many others have already made these argument far better than I can. At any rate, one does not need to reach or rely on these if one accepts that immigration restrictions are wrong in principle, regardless of their outcome.

15 Of course I’m far from the first to confront these questions – others have asked them before and in more eloquentprose than I (See, for example, the writings of Joseph Carens, Linda Bosniak, or other authors referenced here). I engage these questions again here both because (our world being what it is) they bear repeating, and because I think it is important for immigration lawyers, who may be seen as proponents of the immigration system, to be vocal about their personal opposition to immigration restrictions generally.

16 Aviva Chomsky at 20.

17 See 8 U.S.C. § 1401.

18 Motomora at 98.

19 Chomsky at 36.

20 HAYTER, at 152.

21 In one 2009 case, for example, a man who was “born in Mexico in 1972 and 1973,” was nonetheless ordered deported. See Hernandez-Aguilar v. Holder, 2009 WL 4067644 (9th Cir. 2009), 86 No. 46 Interpreter Releases 2932, at 2935 (2009).

22 Chomsky at 19.

23 23http://opinionator.blogs.nytimes.com/2014/11/25/should-immigrants-lose-their-human-rights/#more-155068

24 Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).

25 See Cristina M. Rodriguez, Symposium: The Second Founding: The Citizenship Clause, Original Meaning, and the Egalitarian Unity of the Fourteenth Amendment, 11 U. PA. J. CONST. L. 1363 (2009).

26 See Rogers Smith & Peter Schuck, Citizenship Without Consent: the Illegal Alien in the American Polity (1985).

27 See, e.g.,U.S. v. Wong Kim Ark, 169 U.S. 649, at 688 (1898)(“. . . the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well-considered opinions of the executive departments of the government, since the adoption of the fourteenth amendment of the constitution.”).

28Jessica Jerreat, The map that shows where America came from: Fascinating illustration shows the ancestry of EVERY county in the U.S., The Daily Mail (Sept. 1, 2013),

29 In theory, of course – barring any statute or like-policy that would preclude a retroactive application of such a catastrophic idea.

30 Actually, this justification is not even afforded to non-citizens in immigration law as much as you might imagine – and there are plenty of circumstances where living here for decades earns you nothing in the eyes of the law, save a prison cell and a flight back where you came from.

31 In addition to continuous presence in the u.s. for ten years, the person must have “good moral character,” not have been convicted of certain crimes, and demonstrate that their deportation would result in “exceptional and extremely unusual hardship” to their U.S. Citizen of Green card holding spouse, parent or child. See 8 USC 1229b(b)(1).

32 See 9 USC § 1259.

33 33SeeJeh Charles Johnson, “Memorandum: Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” November 20, 2014; John Morton, “Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” June 17, 2011

34 For what it’s worth, I hate this term “undocumented,” but I have not year heard of any more polite alternative to describe persons residing in U.S. territory without the permission of the U.S. government. I welcome others to volunteer alternative nomenclature because I am actively seeking out the same.

35 35See, e.g., Galvez-Martinez v. Holder, 356 Fed.Appx. 47, at 49 (9th Cir. 2009) (“Petitioners’ argument that Jose’s longer physical presence in the United States should be imputed to his daughter Alma so that she might satisfy the 10-year statutory presence requirement of 8 U.S.C. § 1229b(b)(1)(A) is foreclosed … [t]he BIA correctly found that Alma lacked the 10 years of physical presence necessary to qualify for cancellation of removal.”)

36 There is actually an exception to this rule – a temporary absence of no more than 90 consecutive days is permitted, but if the aggregate amount of time outside the U.S. is 180 days or more, then you areineligible, strict standards that open themselves up to the same criticism the strict 10 year-rule does. See8 USC § 1229b(d)(2).

37 See Lopez v. Franklin, 427 F.Supp. 345, 347 (E.D.Mich. 1977).

38 See literally any post on this website.

39 See ship manifest on file with author.

40 See 8 USC 1229b(b)(1).

41 For example, the fact that a non-citizen’s U.S. citizen child, upon the non-citizen’s deportation, would suffer from poverty and poor schools in their home country was simply not unusual enough, let alone extremely unusual, to rise to the level of the kind of hardship you’d have to show. SeeIn Re: Angel Lojano A.K.A. Manuel Pauta, 2012 WL 1705667, at *2.

42 For example, you might be able to get a green card through employment if you were an Iraqi translator for the U.S. government, you worked on the Panama Canal, you’re “an alien of extraordinary ability,” (i.e. you’re a genius in your field, and not, as it sounds, a Kryptonian) or if you can show there aren’t enough “U.S. workers able, willing, qualified and available to accept” the job you want. See, e.g., U.S. Immigration and Customs Service’s “Green Card Through A Job” at http://www.uscis.gov/green-card/green-card-through-job.

43 See 8 U.S.C. § 1153(c).

44 Only a few forms of humanitarian relief, each more difficult to acquire than the last, provide a path to a green card,including such options as asylum, relief under the Violence Against Women Act, special immigrant juvenile status, a U-visa (given to certain non-citizens who were the victim of crime in the u.s. and reported that crime to the police) or T-visa (for victims of human trafficking). If you’ve lived in the U.S. since January 1, 1972, you’re also eligible for a green card, but there aren’t many undocumented people left who’ve managed to live under radar for forty three years.

45 You can also get a green card via that cancelation of removal thing I mentioned before, or by being one of the
slippery 43+ year olds whose evaded capture since 1972.

46 You’ve entered lawfully, or in some cases you have no unlawful presence, or you have a waiver for one of these, or there’s actually not a ten year wait for someone in your category, etc., etc., etc.

47 “Extremely unusual” means the hardship must be “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here,” so even though a mother demonstrates that her deportation would cause her daughters, aged 11 and 6, to “face complete upheaval in their lives and hardship that could conceivably ruin their lives,” in Mexico, this still does not rise to the level of “extremely usual,” because any child forcibly taken away from their family and lives in the U.S. would have their lives ruined. See In re Andazola-Rivas, 23 I. & N. Dec. 319, at 322-324 (BIA 2002).

48 Hayter, at vii.

49 Hayter, at xxv.

50 (a phrase that is legally more complicated than I can possibly relate here).

51 See 8.S.C. § 1158(a).

52 See 8 U.S.C. § 1158(b).

53 One possible exception to those denied asylum is relief under the Convention Against Torture (CAT) – which doesn’t require persecution on one of those five protected grounds, but does demand you meet a much higher burden of proof – vastly reducing the number of people who can seek refuge under CAT.

54 See, e.g., Begzatowski v. I.N.S., 278 F.3d 665, 670 (7th Cir. 2002) (“. . . if war, famine, political violence or other dangerous conditions affect an entire nation, those conditions cannot establish an individual claim for asylum.”). Sichone v. Gonzales, 183 Fed.Appx. 50, 51 (2d. Cir. 2006) (finding Zambian applicant ineligiblefor asylum, even though “however regrettable” it may be, the applicant is HIV positive and will not have access to medications in Zambia.); Fakalawa v. Mukasey,279 Fed.Appx. 573 (9th Cir. 2008) (finding applicant ineligible for asylum because she “only fears a life of poverty,” if returned to Fiji).

55 Take, for example, the guy who was not eligible for asylum even though his home was destroyed by a Hurricane and he was indebted to the mob. See Cruz-Funez v. Gonzales, 406 F.3d 1187, 1190-91 (10th Cir. 2005).

56 If, say, the maniac were trying to kill Nellie because of one of those five protected grounds and Italy could not protect her from said maniac, then she might have an asylum claim – but if the maniac were just a serial killer, then she would not no claim.

57 One might qualify for relief for similar relief to asylum, such releif under the Convention Against Torture (CAT) where they don’t qualify for asylum, but each comes with their own comparably narrow, inequitable criteria. See, e.g., Cruz-Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005).

58 Ayten Gündoğdu, Rightlessness in an Age of Rights 93 (2015).

59 Gündoğduat 113.

Are restrictive guest worker programs in employers’ interests?

February 27, 2015 Vipul Naik 1 Comment

This post revisits a subject I last wrote about in December 2012. In that post, I discussed Daniel Costa’s critique of guest worker programs as they exist now, and noted how moves in the direction of more liberal guest worker programs of the sort considered on this site would be less susceptible to those problems than the status quo. Discussions of the (real or alleged) worker exploitation found in guest worker programs are often used as justification for ending the programs and moving instead to a more closed border regime.

Below are some examples of critiques of guest worker programs:

The Storefront Maids of Singapore by Kirsten Han, Roads and Kingdoms, looks at Singapore’s guest worker programs for domestic help, also known as maids (see also our blog posts tagged Singapore and Carl Shulman’s overview of Singapore’s migration policy).
The H-2A visa program for agricultural guest workers in the United States has come under attack for these sorts of reasons repeatedly. See for instance here and here. The H-2B visa program has also come under fire. You can read Daniel Costa’s post (that I also linked at the beginning of this blog post) for more example.
The condition of workers in the United Arab Emirates has been the subject of repeated criticism, with both female domestic workers and construction workers coming under scrutiny. Here are some reports: Contract Enslavement of Female Migrant
Domestic Workers in Saudi Arabia and the United Arab Emirates, “I Already Bought You” Abuse and Exploitation of Female Migrant Domestic Workers in the United Arab Emirates and an article in The Guardian.
Norm Matloff’s H1B page says that the H-1B work visa is fundamentally about cheap, de facto indentured labor.

The critiques span a range of perspectives, and need to be addressed in terms of their explicit claims, philosophical assumptions, and tacit connotations. For what it’s worth, I think many of the factual claims are correct, but some of the connotations are mistaken. In this post, I concentrate on a specific claim, usually subtextual, but occasionally explicit, namely:

Guest worker programs where workers are tied to a specific employer and cannot easily move to other employers without losing their legal status in the country:

allow employers to exploit workers in ways they wouldn’t if the workers were free to move around,

benefit employers at the expense of both migrant workers and the native workers who do similar jobs, and

exist in their current form (as opposed to a more liberal form) precisely because they allow employers to exploit workers.

(for a related discussion, and some articulation of these points, see here).

I think (1) is true but the emphasis is off, (2) is true only in certain circumstances, and (3) is probably not true. Continue reading Are restrictive guest worker programs in employers’ interests? →

High-skilled hacks: the case of Optional Practical Training

January 19, 2015 Vipul Naik 4 Comments

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

Roughly, the situation is like this: creating new visa categories requires legislative action. However, modifying the terms of existing visa categories is a matter of executive discretion. This means that various sorts of extensions can be built into existing visa categories even as people wait for “comprehensive immigration reform” to provide a long-term fix. In this post, I talk of one such stop-gap measure from which I personally benefited (and that was basically my only option): Optional Practical Training.

The system based on original intent

The visa system’s original intent is to try to be as restrictive as possible in granting visas, and to make it hard for people to smoothly transition from one status to another. So, the idea is that those who are on student visas have non-immigrant intent. Once their stay is over, they should go back home. If they want to come back for a job, they should re-apply back from their home countries, without any special advantage over all the other people who didn’t go to the US to study.

What influential high-tech people want to mimic

The students themselves, the universities that they go to, and the companies that wish to hire them, would like another ideal: despite the fact that they are on non-immigrant visas, the students should basically be able to apply for and get jobs, and start working just like US natives. This goal is very clearly at odds with the stated purpose of the student visa, which is intended to encourage study, not a transition to long-term settlement.

With that said, the idea that the US should allow high-skilled students to easily transition to Green Cards has a lot of sympathy within the legislative and executive branches of the US government. Thus, for instance, there have been talks, on and off, of a “staple act” that would allow permanent residency to any U.S. university student who graduates with a Ph.D. in science, technology, engineering or mathematics. But for various gridlock-related reasons cited by Alex, that I discussed in the introductory post, and the fact that this is fundamentally at odds with the purpose of the student visa, this proposal hasn’t really made progress. Incidentally, as Chiappari and Paparelli note, the SKIL bill, an earlier proposal quite similar to the staple act, aimed to do this for student visas. Chiappari and Paparelli:

The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

One direction that high-tech people have made progress in is introducing new skill-based migration schemes, many of which are somewhat niche (this was accomplished with the EB visas, part of the Immigration Act of 1990, and will be the subject of another post). Another direction is to use existing visa statuses, such as the student status (F) and exchange visitor status (J) and tag on more and more at the end of those. These extensions are typically justified based on arguments of “national competitiveness” such as those made in the American Competitiveness in the 21st Century Act (2000). This post discusses one such extension of the F status: (post-completion) Optional Practical Training. There are a number of related programs, including Curricular Practical Training (CPT), pre-completion Optional Practical Training, and Academic Training (this one is for the J status), but for simplicity, this post will focus only on post-completion OPT.

The annual cycle of the H-1B

In principle, you can apply for the capped H-1B (the H-1B category used by all organizations except non-profit research institutes) any time of the year. In practice, however, the quota for a given fiscal year (starting October) is closed within a few days. And applications can be submitted at most six months in advance of the start date. So if you want a shot at the H-1B, you have to apply on April 1 (or rather, the first weekday of April) to start the H-1B October 1.

This poses a problem for people who want to start a job immediately after finishing their studies. Let’s say you intend to graduate on June 15. If you want the H-1B, you need to have found your employer before April 1, and have him or her agree to put in your paperwork by April 1. And then when your studies are over, you have about two months to wrap up and leave. That means you need to leave the US by August 15. And then, since you are now no longer physically present in the United States, and your status has changed from student to worker, you need to apply for a new US visa. Hopefully, you’ve received the H-1B petition approval by then (even though the H-1B itself starts on October 1) so that you can get the new visa. Then, you can start the job on October 1. And graduating in June is the lucky case. If you’re graduating in December, you basically need to spend the next couple months finding a job (potentially violating the terms of your student visa) that you can only hope to start in October, then leave the US by February 15, while your employer files the H-1B petition on your behalf by around April 1. Then, you wait in your home country till around July or August, by which time you have received the petition approval. You then apply for the visa and then enter the US.

So basically, the annual cycle means that students in the US have less of an advantage over the masses of people outside of the US in terms of getting jobs. They still have a huge advantage — they can interview in person for jobs and shop between multiple jobs. But basically, they need to find employers who are willing to agree to file petitions on their behalf seven or more months before they can actually join the job. And unless they graduate in August, they basically need to go back home and get a new visa, with all the uncertainty that engenders.

Enter Optional Practical Training

Source University of Alaska Anchorage

In practice, post-completion Optional Practical Training is a hack around this problem for those on “F” student status. One can apply for 12 months of Optional Practical Training that can start any time within 60 days after the completion of one’s academic program. The terms of the OPT are quite flexible: you don’t need to have a job offer when you apply, and the status is not tied to a particular job. You do need to work during the OPT: a maximum of 90 days of unemployment is allowed. But the work can include contract work (a minimum of 20 hours per week) giving you some flexibility to shop around for jobs.

The most typical use case of OPT is that it serves as a stop-gap for the months between completion of the academic degree and the beginning of the H-1B program. For instance, if you are graduating in June, then you can start your job in July on OPT while your H-1B petition isn’t yet active. This still requires that you secure your job by February so that your employer can file the H-1B petition on your behalf by April, but at least you can start the job right after graduation, and you don’t need to travel back home and re-apply for the visa.

Another use case of the OPT is for somebody who is genuinely unsure about what to do after graduation. The person wants to experiment with different kinds of work. The OPT offers a little breathing room to do that without losing physical presence in the United States.

Related to the program of study

Another bureaucratic requirement of the OPT is that all jobs you do under the OPT must be related to the program of study. That’s because the OPT is tied to your program of study, and is allegedly for the purpose of giving you additional “practical training” in the domains you studied in your degree program (even though in practice it’s just transitional to a H-1B or other longer-term employment status for most people).

However, after some informal investigation, I discovered that relation to program of study was interpreted more loosely than one might naively think. It’s okay for somebody like me, who has studied group theory, to take up my current job that involves machine learning, data science, and programming, as long as I can clearly explain how the skills I learned in graduate school are relevant to my job. Moreover, unlike the H-1B, the job choice doesn’t need to be pre-approved by the USCIS. Rather, what they can do is retroactively ask you to justify how the job (or jobs) you did to meet your OPT requirements were related to your program of study. Having letters from your supervisors at each job, that clearly explained the relation, would generally be sufficient. In most cases, the USCIS didn’t bother. But I heard anecdotally of a chemistry Ph.D. who went into a finance job and was asked by the USCIS to justify it. He was successful in convincing them of the relationship. Basically, unless you are going into a completely unrelated domain (such as a math Ph.D. becoming a barista or an economics Ph.D. becoming a performing artist) you should be fine. (The fact that the relationship to program of study is interpreted loosely is tacit knowledge that you won’t find explicitly mentioned online in any authoritative source. Most university websites that provide detailed information on OPT will not put this information in writing. Oh well. Non-transparent rules and regimes create huge information asymmetries between those in the know and the general masses.)

The cap gap and the STEM extension

Optional Practical Training H1B cap gap explained diagramatically. Source: University of Chicago

The OPT has gradually grown to accommodate more and more cases. In the example above, what if you get your job offer only in May? With the original 12-month OPT, you can start your OPT in July (after finishing your academic program in June) but since you can only apply for the H-1B next cycle, you’re still in trouble: your OPT will end by next July. Your employer can file a petition for you next year, but that job can start only on October 1, so basically you are forced to take two or three months off from work, plus you need to travel home to get the new visa. An ingenuous workaround called the “cap gap” has been incorporated into the OPT: if, at the time of the completion of your OPT, you already have a H-1B petition pending with the same employer as you are working with on OPT, you can continue working on OPT with that employer until either your application is denied or your H-1B period begins.

Finally, consider a case like mine. I finished my degree program in December 2013. I didn’t have a job immediately out of graduate school, and was planning on working on a mentoring service with a friend at the time. I did contract work for some employers, including MIRI, using my Optional Practical Training. I finally transitioned to my full-time job in August 2014. It was too late for me to apply for the 2014 cycle. And my OPT would end in January 2015, too early for me to have my H-1B petition for 2015. So what could I do?

Enter yet another ingenuous workaround to the OPT: the STEM extension. This allows a 17-month extension to the OPT for people who have degrees in STEM subjects. The STEM extension comes with heavier restrictions than the usual OPT (in particular, employers need to be enrolled in e-verify). But still, that extra 17 months gives me a chance to apply for a H-1B in 2015. In fact, the STEM extension can be combined with the cap gap, so even if I am rejected in 2015, I can still apply in 2016.

Interestingly, the STEM extension can be attributed to the efforts of one man: Bill Gates. Here’s what he said in testimony to Congress:

First, we need to encourage the best students from abroad to enroll in our colleges and universities and, if they wish, to remain in the United States when their studies are completed. One interim step that could be taken would be to extend so-called Optional Practical Training (OPT), the period of employment that foreign students are permitted in connection with their degree program. Students are currently allowed a maximum of 12 months in OPT before they must change their immigration status to continue working in the United States. Extending OPT from 12 to 29 months would help to alleviate the crisis employers are facing due to the current H-1B visa shortage. This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

Congressional Testimony from Bill Gates, March 12, 2008, that seems to have directly led to the OPT STEM extension

Both the cap gap and the STEM extension, and the contribution of Gates to the passage of the latter, were noted in an article by Ted Chiappari and Angelo A. Paparelli. They write (pp. 2-3, footnotes removed to improve readability):

One of the expansions allows those foreign students lucky enough to win a number in the H-1B lottery to
have their OPT automatically extended until October 1, 2008, when their H-1B status will begin. This makes permanent an accommodation that was first introduced in 1999, but that has lain fallow since 2004. In 2005, Immigration and Customs Enforcement (ICE), the sub-agency of DHS that took over responsibility for administering the F-1 student registration program known as the Student Exchange Visit Information System or SEVIS, refused to implement this provision any more because of its concerns about its ability to track foreign students if they were granted a blanket authorization to stay here beyond their period of OPT. These security concerns are addressed in the new rule, which now requires employers to notify the school’s Designated Student Officer (DSO) of the departure or termination of the student within 48 hours.

The second expansion is an increase in OPT by 17 months to a total of 29 months for students with degrees in science, technology, engineering and mathematics (so-called STEM degrees). This appears to have been inspired directly by the March 12, 2008, testimony of Microsoft Chairman Bill Gates before the Committee on Science and Technology of the House of Representatives. In his testimony, Mr. Gates suggested: “Extending OPT from 12 to 29 months would help alleviate the crisis employers are facing due to the current H-1B visa shortage.” He also correctly observed that “This only requires action by the Executive Branch,” and he pleaded that “Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.” (The regulatory change may also have been inspired, indirectly or in part, by some ideas floated in legislative proposals introduced in 2006 and again in 2007 to meet U.S. employers’ need for skilled workers with STEM degrees. The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from intending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

DHS did in fact take action quickly, but it added a requirement that was not part of Mr. Gates’s testimony: mandatory participation by F-1 students’ employers in E-Verify in order to qualify for the additional 17-month extension. Moreover, DHS limited the 17-month extension to those in practical training in connection with one of the identified STEM degrees. The STEM degrees include a variety of disciplines in computer science, engineering, engineering technologies, biological and medical sciences, physical sciences, mathematics and statistics and science technologies, as well as in actuarial science, military technologies and health professions and related clinical sciences. DHS has designated STEM programs using the list of Classification of Instructional Programs (CIP) codes published by the National Center for Education Statistics (NCES).

The DHS action, which appears to have been announced formally by Homeland Security Secretary Michael Chertoff on April 2, 2008 (you can see the full memo here) was ignored by most, but did get noted and critiqued by some people concerned about the wages and employment opportunities of high-skilled workers (see for instance here and here).

Continued repercussions for visa renewal and travel

The hackish way in which OPT has been conceived — an extension of a non-immigrant student status that’s in practice treated as an interim to a dual-intent temporary worker visa — leads to some interesting contradictions. In particular, if somebody wants to travel outside the US for OPT, the person faces complications at two stages:

If the person’s student visa is still valid, he or she does not need to renew it. If, however, the student visa has expired, the person needs to re-apply for a student visa. However, a student visa can only be granted if non-immigrant intent is explicitly demonstrated. OPT applicants generally fail to meet this requirement, and might have trouble getting visas.
Re-entry at the port of entry is also complicated. For those within their usual student status (who have not yet begun OPT) a valid visa and travel signature on their I-20 suffice — few are subject to additional questioning. However, people on OPT have additional burdens of proof: they need a valid visa, a recent travel signature (within the last six months rather than within the last year), they need their Employment Authorization Document (EAD) card, and they also need proof of continued employment. Those who have applied for OPT and not yet received their EAD card are strongly advised to not travel. The travel signature requirement arises from the fact that the OPT is still part of student status, even though the student may be working in a different part of the country and has little relationship with the university otherwise.

The Georgia Tech Office of International Education offers a particularly candid description:

Students who decide to travel while the OPT application is pending are highly discouraged from leaving the U.S until the application has been received by USCIS and the I-797 receipt notice has been issued. Students should bring the receipt notice with them as proof that an application has been submitted. Although the receipt notice is a good substitution, admission into the U.S. is up to the discretion of the CBP officer, and there have been reports of students without their EAD work permit having problems at the port of entry.

[…]

OPT is a benefit of the F-1 status. Therefore, students traveling while on OPT and have an expired F-1 visa are required to apply for a new F-1 visa. Although the U.S. consulates/embassies are permitted to grant visa renewals to students participating in OPT, these students may be subject to additional scrutiny. The F-1 visa is a non-immigrant intent visa. Therefore, applicants are required to provide proof of “binding ties” to their home country. This may be more challenging for some students on OPT.

Procedures and requirements for visas can vary between countries and are often subject to change. As such, reviewing the visa requirements on the website for the appropriate U.S. Embassy/Consulate is the best way to prepare you for the visa application process. Visit www.travel.state.gov to determine the procedures for applying for a visa at the U.S. Embassy/Consulate in the country in which you’ll be traveling.

Proposed changes to OPT

While US President Barack Obama’s November 2014 immigration executive action announcement was primarily about deferred action for unlawfully present migrants, the memo from Secretary Johnson also contained some guidelines for changes to the Optional Practical Training program. The main changes being mooted are:

Increase the base length of the OPT.
Increase the length of the STEM extension.
Expand the set of degree programs eligible for the STEM extension.
Allow people to be eligible for the STEM extension based on their undergraduate degree program, even if that was outside the US. For instance, somebody who gets an engineering degree from India and then gets a MBA in the US would be eligible for the STEM extension under the proposed scheme.

Here’s a summary from the National Law Review:

Most foreign students on F-1 student visas are eligible for a year of post-graduate optional practical training (OPT) as long as the work experience that they gain is in a field that relates to their degree program. But 12 months of authorized OPT frequently is not enough time to bridge the time between the foreign student’s authorization to work on OPT and the granting of a temporary work visa status. The H-1B quota opens every year on April 1st, and the H-1B visas do not become effective until the following October 1st, at the beginning of the government’s new fiscal year. The quota has been exhausted immediately in the last several years, leaving no H-1B visas available until the next government fiscal year – resulting in a 17-month period with no H-1B visa availability.

This problem is less severe for F-1 foreign students who major in STEM (Science, Technology, Engineering or Math) fields. These students are eligible to apply to extend their OPT work authorization for an additional 17 months, as long as they are employed by US employers participating in the government’s E-Verify program. (E-Verify is a program that any employer can participate in, if it is willing to check its employees’ documents through a government database to ensure the employees are legally authorized to work in the United States. Some employers don’t have a choice: if they have certain federal government contracts, or operate in certain states, they must sign up for E-Verify.) Qualified foreign students who graduate with US STEM degrees are able to continue to work legally through multiple government fiscal years, increasing their chances of “winning” an H-1B visa before their OPT period expires.

The list of STEM “majors” that qualify a foreign student for a STEM OPT extension is limited, however, and the focus until now has been on the US degree program that the foreign student has just completed. It would be much more useful if the government would expand the program to allow for STEM-based OPT extensions for F-1 students who either graduate with a US STEM degree OR complete a STEM degree prior to studying in the United States. For example, many of our MBA students come to the United States with a STEM undergraduate degree. Furthermore, the list of STEM “degrees” should be expanded to be much more robust.

Accordingly, Secretary Johnson directed USCIS and ICE to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates.” The business community would like to see a significant expansion of STEM eligibility in the new rules. But the business community may not appreciate some OPT restrictions that the Secretary has suggested might be paired with expanded STEM eligibility. Currently there is great flexibility associated with OPT. F-1 graduates on OPT can be self-employed or work as independent contractors, and if they work as employees on a W-2, there is no prevailing wage requirement associated with their employment. The flexibility associated with OPT has proven extremely helpful to foreign entrepreneurs and inventors who use the post-graduation period to refine their inventions, products and business ideas, form companies, and find investors.

A later article from the National Law Review made some further suggestions:

But the STEM fields are narrowly defined. If the STEM fields are expanded, the STEM extension would benefit a larger number of foreign students and employers. In his memo, Secretary Johnson calls for USCIS and ICE to develop regulations to “expand the degree programs eligible for OPT” and to “extend the time period and use of OPT” for foreign Science, Technology, Engineering, and Math (STEM) graduates.

We hope that the expansion of degree programs will include degree concentrations in business administration, finance, economics, etc. so that a larger percentage of foreign students can take advantage of the STEM OPT extension option. In light of the H-1B visa crisis, employers across the US are clamoring for options to hire and retain foreign talent, and expanding eligibility for a post-graduation OPT extension responds to this need. Expanding the degree programs list would also bring value to the US by keeping talented graduates in the US Secretary Johnson also ordered USCIS and ICE to take steps to ensure that OPT employment “is consistent with labor market protections to safeguard the interests of US workers in related fields.” We hope that the end result of this directive does not decrease the flexibility that the OPT program currently offers foreign students. Students and graduates on OPT can be self-employed and work as independent contractors, a flexibility that is not afforded by other widely-available temporary work visa statuses. F-1 students and graduates are not subject to prevailing wage requirements during their employment on OPT which is particularly helpful to new entrepreneurs who sometimes volunteer their time to their own start-ups.

The current flexibility of the OPT program means students can take internships and employment that offer value and further their education. During this limited period, they now have a range of choices and options, including working on their own start-ups. Undue restrictions on the F-1 OPT program would be counterproductive to the goal of improving and enhancing the program to provide the US with talented, energetic and motivated foreign students and graduates.

Lawsuit

I also recently came across a report of a lawsuit challenging the Optional Practical Training program. The lawsuit predictably attacks the half-truths and hackish workarounds used to justify the program. Although approval for the lawsuit came after the memo suggesting possible changes to OPT, the lawsuit had been filed a while earlier and challenged the OPT as it had existed in the past. The article says:

The WashTech lawsuit, which is being heard in federal court in the District of Columbia, challenges the OPT program. If the judge ultimately sides with the plaintiffs, the case could be bad news for the OPT program generally, as well as Obama’s plans to further expand it.

Students still in school or recent graduates can use their student F-1 visas to take jobs through the OPT program. Employers don’t have to pay them a prevailing wage, or Medicare and Social Security taxes. These tax breaks make OPT workers “inherently cheaper” to employ than U.S. workers, the lawsuit argues.

The last para is somewhat inaccurate. It’s true that students on F status, whether currently enrolled or on OPT, are exempted from paying Social Security and Medicare taxes during their first five calendar years (see the Substantial Presence Test for more). On the other hand, those who have been in the US for more than five calendar years do generally need to pay Social Security and Medicare taxes while on OPT. It is also true that the prevailing wage requirement does not apply to OPT, but a large fraction of OPT employment is meant as a stop-gap prior to a H-1B petition, and the latter is subject to prevailing wage rules.

The article continues:

The 17-month extension may have acted as a catalyst in generating interest in the OPT program. There were 123,000 approved OPT students last year, compared to 28,500 in 2008 when the added time was approved.

John Miano, an attorney involved in the case and founder of the Programmers Guild, said the DHS “knew when they promulgated the OPT expansion that it was illegal.”

The justification for the 17-month expansion of OPT for STEM workers “was a ‘critical shortage’ of STEM workers,” said Miano, adding that the DHS had “no objective evidence to support the claim of a worker shortage.”

Miano said the only justification of a worker shortage is from one government study that made no such conclusion, the Rising Above the Gathering Storm report from 2007.

Now, the government will have to explain “where in the cited reported does it say there is a critical shortage of STEM regulations?” said Miano. And with that, “the regulations fall apart.”

There had also been an earlier lawsuit from the Immigration Reform Law Institute, back on May 29, 2008, challenging the STEM extension shortly after its announcement. However, the lawsuit was thrown out by a New Jersey district court judge (you can see the full proceedings here).

Conclusion

I’m personally quite grateful for this series of hacks. Without them, I wouldn’t have been able to stay in the United States. Or I might have been able to stay but would have been much more constrained in my choices. Without the STEM extension, I could not in good faith have accepted my current job. Just a few weeks ago, I was a little worried, because my case status for the STEM extension wasn’t showing up on the USCIS website. If my case had been lost, this would have been terrible for me and my employer. However, after a long phone conversation with USCIS representatives, I learned that the reason my case status wasn’t displaying online was that Obama’s deferred action announcement had required some system upgrades so they weren’t up-to-date. I finally got information that my case was proceeding normally, and my application was approved last week.

But, while these hacks have served me quite well, I also believe that the system as a whole doesn’t make sense. I wish that the same effective freedom that I enjoy were available to people around the world, high-skilled and low-skilled. People will always be constrained by their personal limitations and the limitations of the world around them. But I believe that many of the limitations imposed by migration law are an unnecessary additional set that should be dispensed with.

PS: For simplicity, I have omitted discussion of many aspects of the OPT, including something called pre-completion OPT. For a more comprehensive overview, see the Wikipedia page [FULL DISCLOSURE: I significantly expanded and restructured the page in a series of edits in September 2013, while researching it in preparation for applying for it. I made another series of relatively minor edits shortly after the publication of this blog post, adding some material I discovered in the course of research for the blog post.]

PS2: This didn’t fit well in the main post, but might be of interest anyway: employers have historically been reluctant to hire people on OPT if the annual cycle for those people means they can’t have a H-1B petition in by then. A National Law Review article notes that it has been ruled legal (i.e., not afoul of anti-discrimination law) for employers to choose to forgo hiring workers on OPT for this reason:

In a Technical Assistance Letter (TAL), the Office of Special Counsel has stated that an employer can disqualify an applicant because of future OPT expiration without running afoul of the Immigration and Nationality Act. The INA’s anti-discrimination provisions apply only to U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. “Accordingly, F-1 visa holders are not protected from citizenship status discrimination,” the Office of Special Counsel states. Therefore, an employer who inquires as to whether the candidate requires sponsorship now or in the future is not participating in discriminatory practices.

This makes conditional sense: the private “discrimination” here isn’t discrimination as much as a government-forced constraint on hiring. My co-blogger Nathan has argued that private discrimination should be permitted even as governments get out of the way, but in this case (and many other cases) the private discrimination is a rational response necessitated by government policy.

High-skilled hacks: why the US immigration system needs serious refactoring

January 13, 2015 Vipul Naik 3 Comments

This post is the introduction to the series of “high-skilled hacks” posts, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled immigrantworkers and their employers have discovered and engineered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just.

Recently, I posted the following puzzle to the Open Borders Action Group:

In a comment on an OBAG post, Alex says of liberalizing high-skilled immigration to the United States: “Most folks in the policy debate want those reforms or something similar to them. They haven’t happened because high tech reform is intentionally bundled with the rest of the less popular elements of the comprehensive immigration reform package to “sweeten” the whole deal. If high-skilled reform becomes law separately, the rest of the portions of immigration reform become less likely to pass. Those who want the less popular items hold enough power to block individual pieces of the reform from becoming law on their own.

That’s the dominant theory that has failed to produce immigration reform just about every year since 2002.”

Does this accord with your impressions? Do you think people calculated correctly? As an open borders advocate, would you try to reduce the chances of a standalone high-skilled immigration passing in the hope that it could later be added to other, more comprehensive, bills, to sweeten the deal and increase the probability of their passage?

The comments were generally supportive of Alex’s view. I’ll have more to say this later (but check out the comments in the meantime) but in this post I want to consider an auxiliary puzzle: why haven’t high-skilled workers (in the technology sector, academia, and elsewhere), a generally influential population segment where even the natives who “compete” with the migrants tend to be more favorable to migration of their competitors than the general population, been more successful at getting their way? The answer is that they have been able to get their way, but in hackish fashion. They’ve basically taken an immigration system that isn’t designed to be helpful to them at all and made a bunch of changes to it here and there that somewhat approximate a migration regime that is, in practice, a lot more liberal than it looks on paper. Indeed, even a lot of criticism of existing skilled migration regimes generally accepts the broad premises of the status quo and only argues for special treatment of their favored groups. An example of this sort is Paul Graham’s recent article, that I recently critiqued. Yet another example may be high-skilled migration proponent Vivek Wadhwa, whose somewhat confused position at the Intelligence Squared Debate was critiqued by my co-blogger John. Relatedly, the advocacy efforts of FWD.us appear to have been at least partly responsible for the inclusion of H-1B liberalization suggestions in Obama’s November 2014 immigration executive action announcement.

The clever workarounds come at a price. The price is simplicity and fairness. Despite that, the system, with all its hacks, is probably vastly better for the high-skilled workers, the United States, and the world at large (through greater economic growth and more innovation), than the system as originally intended and designed.

Why have high-skilled immigrant workers and the groups that lobby for them been able to engineer so many hacks, and yet not fundamentally changed the system? To understand this, we need to understand the division of labor between different branches of government with respect to immigration law. Some types of changes to immigration law (the creation of new visa categories or the expansion or elimination of quotas for some capped visa categories) require legislative action by the US Congress. Any changes that need explicit legislative action are subject to legislative gridlock for the reasons Alex highlighted. On the other hand, there are other changes, including changes to the scope and time limits of existing visas, as well as enforcement details and the types of evidence that need to be provided, that are a matter of executive discretion. Some of these are decided at the very top, by the US President, but others can be decided at lower levels, by the DHS branches (USCIS, CBP, and ICE) working in conjunction. It is changes of the latter sort where interest groups are best able to move fast. For instance, as I’ll describe in my forthcoming post on Optional Practical Training, Bill Gates’ Congressional testimony suggesting that the length of the Optional Practical Training period be extended led directly to the creation of the OPT STEM extension through direct action at the executive level without the need for new legislation. As Gates himself observed:

This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

In a similar vein, co-blogger Michelangelo has proposed that Obama work to expand the scope of NAFTA’s labor provisions (the TN visa):

Expansion of the TN status should be an attractive route and it is surprising that both successive Presidents and open border advocates have ignored it. The TN status is already part of the US code (Title 8 Section 214.6) and no further enabling legislation from Congress would be necessary. The President’s administration would not be creating a new status using executive order, it would merely be easing the administration process of a well established aspect of US immigration law.

Guest blogger Fabio Rojas has noted that there are many “publics” on any given issue, and on the issue of immigration, immigration lawyers and government agents form a public that is easier to influence at the margin than the general public. Fabio was focused on courts, but the same point applies to enforcement agencies:

This is why open borders advocates should directly target the legal public because of its special position in society. Courts are responsible for enforcing and interpreting the law. Contrary to popular opinion, judges do not apply the law in the same way that a baseball umpire calls “balls and strikes.” Instead, judges are influenced by what they learned in law school, in their time as practicing attorneys, and by political and social trends. That is why the open borders movement should target the legal public. If we can introduce a legal theory that supports open borders, then it will be easier for courts to uphold open borders policy and side with immigrants.

The “hacks” to expand the scope of immigration law are not limited to high-skilled workers. Similar hacks can be found in family immigration law, humanitarian statuses, low-skilled temporary work, and the regularization of people who entered unlawfully. But this series will focus on high-skilled hacks, which have the most “above-board” legal status, partly because of the greater political influence of high-skilled workers and partly because high-skilled immigration meets with less nativist opposition.

On this blog, we’ve been somewhat critical of the “high-skill only” focus of some immigration reform efforts (see for instance Nathan’s post). We’ve also been critical of high-skill-focused groups such as FWD.us. I think our criticism is generally valid. But I recently had a chance to look at the FWD.us video section, and I was somewhat favorably impressed at their use of high-skilled immigration as a way to open a conversation on migration policy. They don’t go as far as I’d like, but they offer important information and provoke interesting thoughts. In this series, I hope to go further and deeper, helping people both understand the current status of immigration law and the direction in which it should be changed.

PS: For those curious about the terminology in the title, code refactoring is a common practice in software engineering. A piece of software originally designed for a particular context, that gets successively rewritten to handle a number of special cases, can get very messy over time. Occasional refactoring to clean up the code can be helpful. The FWD.us homepage had a quote to a similar effect. As John Lee pointed out in a comment on the OBAG post, the “outdated” message has been used for quite a while, at least since the time of Harry Truman. My focus here, though, is not so much the “outdated” message as the “messy” message. There’s a lot of copy-and-paste code and clever workarounds in immigration law. Let’s think of a simpler way of accomplishing morally and practically appropriate goals: radically freeing migration.

Paul Graham on US immigration policy and high-tech programmers

December 28, 2014 Vipul Naik 6 Comments

I’m a great fan of Paul Graham, essayist, entrepreneur, and co-founder of startup accelerator Y Combinator (along with his wife Jessica Livingston, whom I also admire greatly). Through Y Combinator, Graham has changed the startup and tech company landscape and profoundly affected the world. (Some Y Combinator-funded companies you’ve probably heard of are Reddit, Airbnb, Dropbox, Scribd, Disqus, and Stripe). Graham also started Hacker News, a Reddit-of-sorts for the programmer/startup crowd. In the world of letters, Graham is better known for his long-form essays that include incisive social commentary. If you haven’t yet read his pieces, I encourage you to check them all out (I particularly like this one, that might be somewhat relevant here). He’s done more for the world than most people, including me, could dream of. And he knows a lot more about how the world works than I do.

Recently, while investigating the reasons for a surge of traffic to the site from Hacker News, I came across Paul Graham’s essay Let the Other 95% of Great Programmers In. Though I was in broad agreement with Graham’s premises and conclusions (which broadly agree with the innovation case for open borders), I found some of the argumentation weak. In many ways, I thought that Graham both overstated and understated his case. He conceded too much to citizenism and to flawed framings of the issue, even if he didn’t directly endorse them.

A warning at the outset: it is quite possible that I am mistaken. In fact, given Graham’s substantially greater knowledge of the issues, your Bayesian prior, as you start reading this, should be that I am mistaken and Graham is right. But also consider another possibility. As Graham himself said, there are some things he can’t say. Graham is a contributor to high-tech immigration advocacy group FWD.us (see Nathan’s post on them). In that capacity as well as in his capacity as Y Combinator partner, he is keen to see high-tech immigration reform actually achieved. Even if he is broadly sympathetic to freer migration for all, coming out in favor of that might be a risk he’s not willing to take if it jeopardizes high-tech reform (relatedly, see my post on the dearth of moderates’ critiques of open borders). Thus, it could well be that my criticisms of Graham are epistemically correct but that his apparent results are a reflection of political savvy rather than intellectual sloppiness.

Paul Graham, Congressman Mike Honda, and founders of some leading Y Combinator-funded companies at a FWD.us event on high-skilled immigration to the United States. Source: FWD.us

Here’s my “list of N things” of criticisms, followed by elaboration of each:

The 95% statistic is a gross exaggeration: Graham’s framing, and his choice of title, radically overstate his case. His actual text, if read carefully, is less misleading.
Graham overstates the need for reform specifically targeted at exceptional workers: He overstates the case for letting them in, and the difficulties they face.
Graham understates and undermines the importance of letting in the merely competent: The merely competent include many who may go on to become exceptional. They support the exceptional through division of labor and comparative advantage. And their children may go on to become exceptional.
Graham concedes too much to the flawed jobs-and-wages-focused economic framework: He tacitly endorses the view that it’s somehow bad for companies to let in workers for the purpose of cutting costs. But cutting costs (holding the quality of service constant) is critical to economic and social efficiency.
Graham couches things too much in the language of American competitiveness: He is right that there is a chance that the global hub could move out of Silicon Valley due to poor policy choices (including immigration policy and local land use policy). But the sad thing about this cost isn’t so much that America loses out, it’s the huge social and global costs of the transition.

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Open Borders: The Case