Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: What are Essential Workers?

Answer: “Essential Workers” are the unskilled and semi-skilled workers employed in all sectors of our economy. Essential workers include restaurant workers, retail clerks, construction trades people, manufacturing line workers, hotel service workers, food production workers, landscape workers, and health care aids. It includes a multitude of other types of professions. These individuals often work in the jobs that many Americans do not choose, but which are “essential” to keep our economy and our country growing.

Question: Are there not enough U.S. workers for these jobs?

Answer: The demographics say no. By 2010, total civilian employment is projected to be 167.8 million, but the total civilian labor force is expected to be 158 million, more than nine million more jobs than people.

New jobs will increase dramatically by 2010, boosting the demand for Essential Workers. Bureau of Labor Statistics (BLS) projections indicate that the U.S. will create 22 million new jobs by 2010. During this period, the service-producing sector alone is expected to create over 12 million new positions. Along with this growth, 57% of all job openings will be for “Essential Worker positions” and will only require moderate or short term on the job training.

Unskilled and semi-skilled occupations have the highest projected growth rate. The Department of Labor ranked the top 30 occupations with the largest projected job growth from 2001-2010. Of the occupations listed, 16 require unskilled or semi skilled laborers.

The U.S. is not producing enough new workers. More than 60 million current employees will likely retire over the next 30 years. After 2011, the year in which the first of the Baby Boomers turns 65, their retirement rates will reach proportions so huge that, barring unforeseen increases in immigration and/or participation rates among the elderly, there will be a reduction in the total size of the nation’s workforce.

Employers are doing the “right” things. Essential Worker employers have led the way in welfare-to-work, school-to-work and other initiatives that have been successful in reducing welfare rolls and getting graduates jobs, but these efforts still are insufficient. Employers are raising wages, offering improved benefits, signing bonuses and relocation pay.

Question: Isn’t there already a visa category for essential workers that these employers can use?

Answer: Yes and No. The H-2B temporary visa program is useful only for employers who can establish that their need for foreign workers is temporary (seasonal, a one-time occurrence, or a peak load or intermittent need). If the employer’s need is year-round or does not fall into one of the definitions used by the Department of Labor or Immigration Service, the employer cannot use the H-2B classification to fill labor needs. A nonimmigrant visa category does not exist for employers who need workers for more than one year or for employers who have permanent or long-term jobs, for example in the health care, retail, hospitality and other industries. Even for employers with truly temporary needs, the H-2B category backlogged and fraught with bureaucratic red tape that makes it extremely time-consuming and difficult to use. The permanent immigrant category for non-professionals in occupations that require less than two years’ experience is virtually useless; only 5,000 visas are available annually, and the backlog of waiting cases is over ten years long. As a result, employers often are forced to send their work overseas, cut back, or close their doors.

Question: With concerns about national security, is now the time to look at a temporary worker program?

Answer: Yes. A temporary worker program would help control immigration by legalizing the flow of people seeking to enter and leave this country. It would help satisfy the U.S. demand for workers and provide a legal and safe mechanism for workers to enter and leave the U.S.

Question: What needs to be done to be able to increase the number of immigration workers for these types of petitions?

Answer: U.S.-Mexico should resume immigration talks. Just prior to the September 11th attacks, President Fox and President Bush had just begun discussing a migration plan for comprehensive immigration reform between the U.S. and Mexico. Now, a year later, it is time for “los dos amigos” to renew their commitments to one another and resume their discussions on immigration initiatives that will benefit both our countries such as: an earned legalization program; an expanded permanent visa program; an enhanced temporary visa program; border control cooperation and economic development in Mexican immigrant sending regions.

The immigration reform proposal mirrors the recommendations by a bi-national working group from the Carnegie Endowment for International Peace and the Autonomous Technological Institute of Mexico (ITAM) that call for both countries to reach a “grand bargain” that included various legalization measures for undocumented Mexicans in the United States, expanding the legal work visas available to migrants, equalizing the treatment of Mexican citizens under NAFTA immigration provisions, cracking down on immigrant smugglers and preventing dangerous border crossings.

Congress needs to update our immigration laws and policies to reflect the needs of our economy. The United States needs a regulated, workable immigration system that allows foreign nationals to work here when there is evidence of a shortage of available U.S. workers, and that allows those individuals already here and working to obtain legal status. Our laws also should allow those individuals to obtain green cards immediately when there is a permanent job.

Essential Worker Immigration Coalition (EWIC). A coalition of employer associations from sectors of the economy that rely heavily on essential workers, including hospitality, retail, restaurants, construction, recreation, transportation and others (including AILA), has been formed in Washington to work toward a broad solution to the essential worker issue. The agenda of this coalition includes reforming the current temporary visa category (H-2B), creating a new and longer-term nonimmigrant visa for essential workers (similar to H-1B), increasing the available green cards for essential workers and providing for earned adjustment for essential workers already in the U.S.

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Question: I have heard that the Homeland Security Bill has passed the House and the Senate. I am confused on know this will effect several people whom I know are in the immigration process. Could you give me some background on what exactly this bill does?

 Answer: First, and foremost, this bill referred to as the “The Homeland Security Act of 2002” creates a new department within the United States Government. The main purpose of this department is to prevent terrorism and to make the United States safer. The bill is enormous. It is over 400 pages and deals with a huge variety of issues. Of course, my response will mainly focus on the immigration issues.

The Immigration and Naturalization Service will cease to exist in its present capacity. If fact, the Homeland Security Bill abolishes the INS. There are two major functions currently in the INS. One is the enforcement division which is concerned with deportation/removal and enforcement of the immigration laws. This part of INS is going to be transferred to what is known as Bureau of Border Security under the Department of Homeland Security. The duties of issuing visas will now be transferred to the Under Secretary for Border and Transportation Security in tandem with the Secretary of State. The issuance of Visas will be headed by the Secretary of Homeland Security.

Question: Are there any other new departments? Specifically, who will rule on applications sent to INS?

 Answer: Section 451 of the Bill creates the establishment of Bureau of Citizenship and Immigration Services. This sub-department will perform the following functions: 1) Adjudications of immigrant visa petitions; 2) Adjudications of naturalization petitions; 3) Adjudications of asylum and refugee applications; 4) Adjudications performed at service centers; and 5) All other adjudications performed by the Immigration and Naturalization Service.

Question: When do all these provisions go into effect?

 Answer: Again, the INS would look at this as fraud. In fact, if you get married within less than 60 days after entry to the U.S. on the Visitor Visa, you are presumed to have committed fraud. Not only will the application for Lawful Permanent Residency be denied, you could very well get deported because of the fraud.

Question: What are the consequences of doing the change of status right after entering the U.S.?

 Answer: First, they could deny your change of status application and you could go out of status. Next, the INS may very well assume that you committed fraud. That is, when you got the Visitor Visa and entered the U.S. that you did not really intend to visit, but rather, intended to go to school or to work in the United States. If that happens, you could be deported because you committed misrepresentation and fraud. The fraud will stay with you forever and never goes away. If you ever want to reenter the U.S., you will need to get a Fraud Waiver. Those are not easy waivers to obtain.

Question: What is the best way to avoid these drastic consequences?

Answer: First, the way that people come into the U.S. is probably going to change. You must decide whether you want to go to school or work since these are the options you might be considering. If you are intending on going to school, then you should get the I-20 and apply for the Student Visa from your home country. Then, when you enter the U.S., you will be entering as a Student, not a Visitor. Alternatively, if you want to work in the U.S., you should have your sponsor file the petition prior to you getting to the U.S. Therefore, you will not have any allegations by INS that you committed fraud. You need to be very careful if you come to the U.S. with a Visitor Visa and then change your status right away. Obviously, since you only will be getting 30 days in the U.S., you must strongly consider not getting a change of status in the U.S.

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