The following interview was conducted with an immigrant from the Philippines and her fiance. Their names are not revealed because their situation has not been resolved. The interview reveals some of the difficulties experienced by those seeking to legally immigrate to the United States.
You were living in America and owned a home. Yet, you were forced to leave the country. Could you tell us why?
She: The decision to leave the country came about when my work informed me that they will not proceed with their sponsorship of my permanent residency. I was on 5th of 6 years of my work visa, which is only good for 6 yrs at a time, after which I would have to leave the country for a full year so another fresh 6 yrs (3 yrs renewable for another 3 yrs) will be granted to me IF there is another employer willing to sponsor the visa. Given that I had only 1 year left on my visa, I did not think any new employer would be willing to sponsor (based on recruiters belief during my job hunt) thus I thought I should leave to be more productive.
Where were you working?
She: I worked in an accounting firm (will not mention the name).
What happened to the house that you owned?
She: I sold it. I was hoping to keep it while figuring ways of being able to pay it off including working outside the country (like Canada where income could be somewhat the same as US). However, my HOA Board members denied me twice for my request to lease the house hoping it would help me cover my mortgage. That was another frustrating situation I learned about HOA. Their denial was because the cap for leased units have been met and they would not even consider my request due to hardship. The HOA by-law provided that the Board could make an exception to the cap for hardship requests. Being in the situation with an impending income to lose and even if I make money outside the US, I do not think it was rightfully correct to pay for a house that I cannot live in and cannot even make money out of because things happened beyond my control. It cost me $2,000/month including the HOA fees. Despite my frustration, I did not want to walk away from the house so my next option was to enter into a short sale and it went through after a couple of months with the help of a great realtor.
Why did your employer decide to not sponsor your permanent residency? Was it too expensive or too much of a hassle for them?
She: The company did start the sponsorship but two years through the process, the office changed management. The new partners said they would not continue with it. When I asked for the reason, I was referred to HR who said that Dept of Labor (DOL) was involved in the processing and part of the requirement to complete the process is for them to prove that there are no locals who can fulfill their personnel requirement. It was still recession and so there were many locals in the market, who may have different sets of skills as mine but DOL just made the process very difficult by adding requirements and auditing applications which prolonged the process. It completely made sense to give priority to locals but what I did not hope was for it to become a detriment to foreign workers who are able to do the job well.
He: Outside of her specific experience, throughout my career in IT I have employed and worked with a large number of immigrant workers. The H1B (work visa) process requires that job descriptions be filed for each position you may hire an immigrant for, and that immigrant workers can only be considered if US Nationals are not available to fill that role. The guidelines are open to a lot of interpretation, and more or less stringent focus is applied depending on political headwinds. With the focus turning to jobs and the economy, there was a stricter interpretation of loosely defined guidelines. I saw that repeatedly in my line of work.
Let me make sure I understand. You were working and doing a good job. The company planned to keep you on, but the government changed the rules and the company essentially had to fire you. Is that basically the situation?
She: Yes, I believe so.
He: Both. The new partners at the company decided that they would no longer sponsor visas (it costs money to do so). When she asked why they told her to ask the government (via HR)…essentially they hid behind the ever-changing interpretation of immigration laws, rather than be forthright that they didn’t want to pay for her visa.
What was the process for being allowed to return to America?
She: Since we decided to get married, we went through the fiance (K1) visa option after considering the timeline and costs involved vs other immigrant-type visas. he filed a petition for a fiance visa for me which was approved and I then had to appear at the US Consulate in Manila for interviews after which a fiance visa was granted to me.
He: This was a 7 month process, which cost us roughly $2000 in documentation and filing fees. We did all documentation and follow-up with the government ourselves to avoid legal fees that would double or triple that cost. During the 7 months, there were several waiting periods with no feedback, and phone/email follow-ups went unanswered 95% of the time. The K1 visa allows for a one-time entry in the USA, after which the fiancée has 90 days to get married or leave the country.
There are various approval forms the government sends out, as you approved at each stage, some of which are needed to move to the next stage. One of those was lost in the mail. When I called to get another sent, I was invited to file a form (along with a $408 fee) to request another copy to be mailed to me. I was told that five times, until the sixth person I talked to said they would file a “Service Request” on my behalf and have another copy sent. No charge.
Since you chose the K1 option, I assume that other options are slower, more expensive, or both. Could you describe them?
She: One is spouse visa. That means we should be married before I can come back to the US. It is more expensive because the processing will be mostly done outside of the country and the process is longer. Since it would be longer, that means he would have to come back sooner and who knows when I could follow him. The good thing about the spouse visa is I would have been a green card holder upon arrival in the US, thus would be able to work when a job is available. We did not pursue this because we wanted to wait to get married in the US and not rush to get the benefits of the green card. We’d also rather be waiting together here in the US than miles away from each other for who knows how long.
He: This is called the K3 visa process. And I believe the timeline is around 11-18 months.
She: The other is work visa, which is the same one I had. This however is based upon having an employer willing to sponsor the visa. Due to the continued recession, there is an apparent absence of such employer. The process has become more difficult and expensive.
He: This is the H1B visa process.
I understand that, upon returning to America, you had some restrictions on your employment. What were those restrictions?
She: Under the K1 visa, I am entitled to apply for an Employment Authorization Document (EAD). This EAD is necessary for me to legally able to work. The EAD process takes an average of 60 days to approve. In addition, this EAD is only good for 90 days from my entry, so within this period, we are required (by visa requirement) to get married. After which I have to adjust my status as fiance to a permanent resident and concurrently apply for a new EAD. Whichever comes first of the permanent resident card or EAD will allow me to work wherever I choose. It should be noted that for every filing, the immigration office charges us hundreds or thousands of dollars, including to prove that I will not be a burden to USA – which is ironic… to ask me for money when I could have just saved it and start earning and paying them taxes.
He: A significant part of receiving both the K1 visa pre-entry, and the Conditional Permanent Residency (Green Card) is proving that she “will not become a ward of the state”. As proof of my ability to support her, I had to submit documentation of current income, assets, tax returns, and sign a form authorizing the government to sue me if she ever claims food stamps or other forms of welfare. We find it ironic that they are so concerned about her becoming a ward of the state, but they put so many restrictions on her ability to earn money (and pay tax revenue). The various documentation required to prove support, gain work authorization, and adjust status to Permanent Resident will cost us an additional $1200. Again, we have done this work ourselves to avoid legal fees. Large industries exist to help complete and file that documentation for you.
I’d say that the process is costing you a lot more than $1200. You are also losing her income during this period. Realistically, how long will it be before she can work?
She: Based on government timeline of processing documents, the latest date to get an approval is December 29, 2011 (90 days from their acceptance of my application). If not, they want me to follow them up to check if they messed up and find out why they failed to meet their target. It can be sooner, depending on how fast the government employees work.
He: That’s a good point.
What are the conditions attached to the Green Card?
She: The first two years is conditioned to my being married to him to make sure that we are not fraudulently marrying for immigration purposes. Within 90 days before the two year anniversary of the green card, I should apply for removal of the condition. If I fail to do so, they will cancel the green card and proceed with deportation proceedings.
Will there be any conditions for staying in the country after that?
She: I am not sure. I haven’t made my research on other restrictions/condition.
He: We hope not.
Were you ever tempted to stay in the country illegally? Why or why not?
She: Not tempted at all. The five years was great work and life experience for me and I would not trade it for anything. America is a great country but I have far more confidence in myself than in the country where I chose to “try it out.” I have made great friends and I love living in convenience but if it were not for him, I would have no strong tie/s to make me stay in the US. I was confident that I will do great wherever country I end up at that time. Going back to the Philippines was not scary because with my skills and ability I knew I would end with a good job back home. The way of living is nothing compared to the US but I knew better how to live life well. That being said, I don’t think it was worth doing anything against the law no matter how much I think it is too much red tape.
He: I would add how conscientious she was about doing things by the law. After her employment in the US ended (July 2010), but up until the time she left the US (October), she met with an attorney and filed documentation to adjust her status from being in the US for work (H1B visa), to being in the US for tourist (B2 visa) purposes. This was done with the intention of following the law, and also to not have any potential trouble spots should she want to return to the USA in the future. The government accepted her fees, but did not complete the adjustment of status until after she had already left the country.
The process for someone to come to the US legally is long and expensive. What recommendations would you make for reforming that system?
She: I do not blame the government for making it difficult to migrate to the US. The policies have evolved because of people who have and will continue to misuse and abuse or get around the process to migrate. I think they intentionally lengthen the process to discourage those who are impatient.
Re the system,
- I think there are duplicate processes that can be eliminated including background checks.
- Dept of Homeland Security should add MORE competent employees. I do not understand how processing can be slow with the aid of technology between government agencies
He: There is clearly no communication between departments…some of which is intentional, i think they want to see if you provide the same answers/information consistently.
At her consulate interview in Manila, where we most feared a government bureaucrat looking at a checklist unable and unempowered to make a logical decision, we were wrong. The consulate looked at all the evidence and the entire situation and holistically determined that she belonged in the U.S. So it worked out.
It’s fine to make the immigration process thorough and complete….it just could be done so much more efficiently and intelligently. And it’s clear that they are making money just because they can. At the end of day though I think most of the people who really want to come to the US, and are willing to make the effort, can make it through the process.
The US is still a place that draws the best and brightest from around the world, and the immigration process, though archaic, is not keeping those folks from coming here…fortunately for me. There are other areas, such as the quality of our education and the competitiveness of our workforce, more worthy of focus to keep our country strong and to remain attractive to the brave people around the world who are willing to leave their countries and families behind for a chance at a better life.
While it appears that this story will have a happy ending, for nearly a year, the future of these two individuals was under the control of government bureaucrats. They endured needless stress and expense in their efforts to secure government permission to immigrate.
There are four parties involved in this story: the immigrant, her employer, her fiance, and the government. The immigrant had no choice in her place of birth. Neither her employer nor her fiance cared where she was born. Her employer cared only about her competence in performing her job; her fiance cared only about his love for her. It was the government that made an issue of her place of birth. It was the government that used that fact to force the employer to act contrary to his own judgment. It was government that forced the immigrant and her fiance to overcome arbitrary obstacles so that they could act as they judged best for their lives. Why? Why does government care about the place of birth of a particular individual?
As she mentions in the interview, the government wants American businesses to hire Americans first. Only when qualified Americans cannot be found is the business permitted to hire an immigrant. And what constitutes a qualified American is largely in the discretion of government bureaucrats, not the business. Underlying this policy is the premise that Americans have a “right” to a job, but immigrants do not.
The fact is, nobody has a right to a job. Rights are not a claim to an object, but the freedom to take the actions necessary to create or earn that object. There is only the right of a business to offer a job to the individual of its choosing and the right of that individual to accept or reject the offer. To claim that Americans have a “right” to a job means that if a business hires Jim, it violates Bob’s “right” to a job.
Fundamentally, rights pertain to freedom of choice–the freedom to choose one’s values and the means for attaining them. Government regulations, including those regarding immigration, prevent individuals from acting on their choices. In this situation, the employer, the immigrant, and the fiance were forced to act contrary to their own judgment. The rights of all three were violated by the government’s immigration policies.
Every individual–including those born in other countries–has a moral right to live as and where he chooses, as long as he respects the mutual rights of others. Rights are not magic endowments bestowed upon those fortunate enough to be born in America. As philosopher Harry Binswanger writes, “One has rights not by virtue of being an American, but by virtue of being human.”
The only moral and proper purpose of government is the protection of individual rights. Limitations on immigration violate the rights of immigrants and those who wish to associate with them–in this case, both her employer and her finance.
The woman in this interview had violated nobody’s rights. She had not committed theft or murder; she was not guilty of kidnapping or fraud. Her only “crime” was being born in another country. The only facts that changed were the government’s policies, which changed to satisfy public sentiment. Government policy prohibited both the employer and the employee from contracting with one another on terms that each found acceptable. Government policy prevented both the employer and the employee from acting as they judged best. Government policy forced the immigrant and her fiance to seek government permission to pursue their personal happiness. The fact that this couple was able to navigate the bureaucracy and pay the appropriate fees does not diminish the immoral nature of America’s immigration laws.
Open immigration does not mean that anyone wishing to move to America should be free to do so. Those who pose an objective threat to Americans–such as criminals, would-be terrorists, and those with communicable diseases–should be rightly barred. But those who simply want to make a better life for themselves and their family should be welcomed with open arms and open borders.