This coming Wednesday, the House subcommittee on Immigration and Citizenship, will hold a hearing oddly entitled “Why Don’t They Just Get in Line? Barriers to Legal Immigration.” You may think this is a waste of time and certainly I forgive the sentiment. However, there is always opportunity to learn even in the darkest of times. On paper, Democrats holding a committee hearing to rebut a strawman rhetorical question they asked themselves is an excellent microcosm of how Democratic leadership has functioned in the majority this year, but it does provide some space for an actual discussion about how many legal ways aliens can enter the United States.
If you follow immigration policy debates closely there is a familiar tune you will hear. Not only is any immigration an unqualified benefit to society, but what we really need is a lot more of it because our system is overly restrictive. Many politicians and business leaders will gently explain to you that our current system is too complicated and costly to make sense for corporate America. Besides, someone has to mow the lawns, pick the fruit, and….*checks notes* take all the high-skill, high-wage tech jobs that Americans simply refuse to do.
And here is some truth that the Judiciary Committee is going to try desperately to mask, downplay, and deny on Wednesday: the current U.S. immigration system is overwhelmingly functioning under the premise that immigration is an unalloyed benefit to society. We have a multitude of policy programs, some statutory while others are created by executive action, that are designed to allow aliens to come freely and live and work in the United States.
The Judiciary Committee will tell tall tales of complex Kafkaesque bureaucracies designed to extract high costs when they work at all. This is not entirely untrue. A select few work visa categories like H-1B and H-2B are capped and have far higher demand from companies than there is supply. But the vast majority of work opportunities in the United States are uncapped, lack labor protections, and do not require an American employer to even attempt to recruit an American worker first. As for complexity, during the Trump Administration it was a mini-scandal in the press and the immigration attorneys bar that the denial rate of H-1B (considered one of the technically complex worker visa categories) petitions rose above 20 percent. In FY15 the denial rate for H-1B was just 6 percent. If an approval rate of around 80 percent is evidence of complexity, then something is majorly wrong.
Sensing the skepticism, let us go to the facts. From FY12-FY18 DHS approved 8,565,061 employment authorization documents for applicants to work in the United States without any statute from Congress explicitly authorizing the work. That means, in addition to the many statutory visa categories for foreign labor, an average of approximately 1.2 million employment authorization requests were approved each fiscal year by the government during that time. Some examples of the type of discretionary programs aliens can use to apply for employment authorization: applicants for adjustment of status (257,376 applications were approved in FY18); Deferred Action for Childhood Arrivals (DACA) (326,058 applications were approved in FY18); H-4 Spouses of H-1B (53,891 applications approved FY18). In addition to those, aliens that are generally granted temporary parole or deferred action can apply for employment authorization, along with a litany of other categories.
These roughly 8.5 million work authorization approvals are largely “open market.” That means there are no restrictions on what type of job the alien can take nor any labor protections regarding wage level or requirement of recruitment of Americans. Essentially, these aliens have the same right to work as a green card holder or citizen with minimal vetting and zero statutory basis for the period of employment authorization.
Hearing faintly the familiar tune, let us press on. What if you just miss out on those 8.5 million work authorization approvals? Are you finished? Not so fast--because if you come to the United States as a tourist (the B Visa) you can work even though the statute specifically bars skilled and unskilled labor. The State Department’s Foreign Affairs Manual (FAM) includes a laundry list of potential work that can be done by a holder of a B visa that explicitly bars work. This includes yacht crewmen, nannies and domestic servants. The B Visa is uncapped, meaning there is no limit to the number of people who can be approved.
Okay, so maybe you don’t want to use the B Visa to come to the United States to work. How about coming as a student? DHS created out of thin air Optional Practical Training (OPT) just for you (unlike many of the open market authorizations OPT is supposed to be restricted to employment related to your field of study). You can come to the United States as a student under the F visa, apply for OPT, and enter the job market. The F visa is uncapped and limitless as well. For alien students there is even the added bonus that they do not pay payroll taxes to fund Social Security and Medicare. That exemption also makes alien OPT workers far cheaper to employers than American students in the same field. Many aliens in high-skill majors can take good jobs as students, then change status to H-1B with that employer, and then eventually the employer can sponsor their adjustment to become a green card holder and/or a citizen.
Is that not appealing enough? How about the uncapped J Visa? Or if your company has a location in America you can use the uncapped L Visa. If you want to work in agriculture, the H-2A Visa is uncapped. Perhaps the H-2B Visa is appropriate. If you are kind of a big deal in your home country the uncapped O and P Visas may be of use. Of course the infamous H-1B Visa is also available and the Obama Administration created a work authorization for spouses of H-1B workers (another program President Trump sadly failed to end).
If you are from Canada or Mexico you can apply for a “TN” Visa created by NAFTA (and saved by President Trump in his USMCA). This is an uncapped category for Canadians and Mexicans that allows work authorization in a broad set of job categories. Additionally, there are R Visas for religious workers, the I Visa for journalists, and even the E Visa allows some work within the category.
In sum, there are a multitude of ways to enter the United States and work. Let’s look at FY 2018 for an example of this permissive work system in practice. In FY18 there were 1,091,611 aliens who obtained legal permanent resident (LPR) status, also known as getting your green card, and 761,901 were naturalized as citizens. Each of these individuals can work freely in the United States. 22,045 refugees arrived that year with the ability to work in the United States. In addition to refugees, 37,567 aliens were granted asylum. 3,919,567 workers and their families were admitted to the United States on a temporary basis in FY18. 1,253,288 aliens were granted open market employment authorization under the various discretionary work programs discussed above.
So what does that string of numbers mean? In FY18 alone, that adds up to 7,088,979 potential workers. Now, some of these are family members accompanying an applicant (who may or may not be allowed to work depending on their status), and some of the number is no doubt explained by multiple admissions by the same alien within the year (for example, an alien who goes home for a vacation and then returns the the US is counted as an admission, even though he is not entering for the first time). But, even after you adjust for duplicates and dependents this constitutes millions of aliens getting permission to work in the United States legally every year under the current system.
At this juncture, we return to the rhetorical strawman question of the Democrats on the House Judiciary Committee. Why don’t they just get in line? As with most things, to counter an argument it is often required to go to the basic underlying assumption from which the question was raised. Democrats are assuming that every alien comes to the United States to become a citizen and vote. The facts are far different. Many aliens want to come to the United States for the prospects of employment, not to become citizens. It is true that the path of citizenship is long. Why would it not be? Citizenship is the most valuable benefit provided by the government. It should be hard. But for most aliens, there are a multitude of ways to enter the United States legally and work freely. So actually, yeah, why don’t they just get in line?
JARED CULVER is a Legal Analyst for NumbersUSA
Updated: Tue, May 11th 2021 @ 8:55am EDT