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Article Excerpt
I. INTRODUCTION
II. THE PROCEDURE A. Temporary Residency: The Nonimmigrant Visa 1. "Too Hot, Too Cold, Too Big, Too Small" or "The Goldilocks Problem": Why Most Household Workers Are Unable to Secure Nonimmigrant Visa Status Through Their Employers 2. B-1 Business Visitor 3. J-1 Exchange Visitor 4. H-2B Unskilled Worker B. Permanent Residency: The Immigrant Visa 1. Introduction 2. Step One: Alien Labor Certification 3. Step Two: Immigrant Visa Petition 4. Step Three: Adjustment of Status or Visa Processing III. PROPOSED SOLUTIONS A. Solution Number One: Permanently Restore Section 245(i) of the INA 1. Background 2. The Problem: The Catch-22 Legal Nightmare Faced by Undocumented Immigrants Who Are Unable to Secure Lawful Status in the United States 3. Of Critics & Systemic Cracks: Why Immigration Reforms Are Bad (or Good!) 4. The Terrorist Spin: How 9/11 Recharged the Undocumented Immigration Debate 5. "Female Troubles": How Gender Plays Out in the Debate 6. Conclusion: Immigration Laws Should Be Equitably Reformed to Give More Workers a Bite of the Apple B. Solution Number Two: Increase the Number of Immigrant Visas Available for Unskilled Workers 1. WANTED: Gender-Sensitive Legislation! How the Effect of IMMACT Has Been Devastating to Women's Interests--Domestic and Foreign Alike 2. Conclusion: Increasing the Number of Immigrant Visas Available for Unskilled Workers Would Dramatically Improve Women's Roles in the Home and in the Workplace C. Solution Number Three: Reclassify Certain Household Workers as Skilled 1. Background 2. "Women's Work": The Department of Labor, Through Their Blanket Classification of All Household Workers as Unskilled, Perpetuates the Legacy of Gender-Based Discrimination in the Labor Market 3. Conclusion: Household Workers, and Most Notably Nannies, Need to be Reclassified as Skilled Workers by the Department of Labor--For the Good of Women Everywhere D. Solution Number Four: Toss out the Business Necessity Requirement for Live-In Household Workers 1. Background 2. Problems 3. The Cases: BALCA Cases That Showcase the Business Necessity Requirement for the Live-In Household Worker 4. Conclusion: The Business Necessity Standard is Misplaced in the Context of Live-In Household Workers IV. CONCLUSION
I. INTRODUCTION
Throughout the history of the United States, the political debate over immigration policy has been exceedingly fraught with drama and controversy. And never has this been as true as it is today, in the aftermath of the tragedies of September 11th. The terrorist attacks of September 11th, 2001 "radically changed the political debate over immigration issues." (1) On the eve of the terrorist attacks, Congress and the President were poised to enact liberalizing immigration reform measures. (2) But this day changed the world, and such liberalizing legislation was immediately derailed as the United States turned its attention to the more pressing issue of national security. (3)
A conflux of swirling emotions now directs the post-September 11th debate. The direction U.S. immigration policy should take has become increasingly contested among those with irreconcilable views, such as those in favor of liberalizing current immigration laws, including legalizing certain undocumented immigrants; (4) those in favor of restricting current immigration laws, including closely tracking the immigrant community pursuant to domestic antiterrorism measures; (5) and everyone in between. With each side claiming some ground in this debate, it is little wonder that current U.S. immigration law looks a little schizophrenic.
It is against this colorful backdrop that the following analysis unfolds. By way of introduction, this Comment is concerned with the plight of foreign household workers pursuing lawful permanent residency through employment-based immigration. In the following analysis, I will flesh out some of the immigration obstacles faced by these workers--who are by and large female--and will detail why such immigration obstacles often prove to be insurmountable for them. I will also consider the consequences of this reality for those foreigners working in the United States as household workers, such as their increased exploitation and overall vulnerability. This analysis will, in turn, naturally lead to an exploration of the gendered dimension of current U.S. immigration policy.
To provide legal context, I will provide a detailed summary of the current procedures in place for pursuing lawful temporary and permanent residency through employment-based immigration. In the course of my analysis, I will highlight key problems that plague this area of immigration law. In connection with this, I will grapple with possible solutions to assuage some of the tensions endemic to this area of law, most notably, permanently restoring Section 245(i) of the Immigration and Naturalization Act (INA). (6) Restoration of Section 245(i) of the INA is an issue that has been recharged in the post-September 11th political debate. I will also propose other procedural solutions, including recasting the job classification for certain household workers, such as nannies, as skilled. Finally, I will suggest that the ominous "business necessity" standard demanded by the Department of Labor for live-in household workers be removed or procedurally eviscerated in order to make greater strides toward reconciling that which became disconnected somewhere in the evolution of U.S. immigration policy: the market demands for the services of foreign household workers and the legal hurdles associated with securing the same.
II. THE PROCEDURE
A. Temporary Residency: The Nonimmigrant Visa
Any discussion about lawfully securing permanent residency must start at the beginning. In employment-based immigration law, the beginning is almost always the nonimmigrant visa. The nonimmigrant visa gives foreign nationals the opportunity to be admitted temporarily into the United States, (7) and, as such, it is a very important part of the overall procedure. In many cases, once in the United States, the foreign national begins to think of seeking permanent residency. (8) Essentially, this foreign national will use his nonimmigrant visa status as a springboard for pursuing permanent residency through his employer. (9)
Typically, this process plays out in employment-based immigration as follows: the foreign national enters the United States with the proper nonimmigrant visa status to work for a specified employer. (10) That employer may, in turn, extend an offer of permanent employment to the foreign worker in light of skills. In this situation, the employer will that individual's job " (11) be the foreign national's immigration sponsor over a period of several years until such time as the foreign national becomes a permanent resident. (12) Although the process involved in securing lawful permanent residency through employment-based immigration is long and arduous (13) (not to mention costly), the conclusion is usually happy.
1. "Too Hot, Too Cold, Too Big, Too Small" or "The Goldilocks Problem": Why Most Household Workers Are Unable to Secure Nonimmigrant Visa Status Through Their Employers
The household workers' version of this story, however, has no such "happy ending." Like Goldilocks frantically searching for the porridge and bed that were "just right," so too search the foreign household workers for a nonimmigrant visa classification that will fit their immigration needs. However, unlike Goldilocks, none of the three nonimmigrant visa categories that are normally pursued by household workers prove satisfactory for either the foreign national or for the employer.
2. B-1 Business Visitor
The B-1 visa (14) classification is often very difficult to get, and once secured, does not provide U.S. work authorization. (15) Accordingly, after admission into the United States in B-1 status, the household must obtain an Employment Authorization Document (EAD) before beginning employment. (16) This application takes several months; must be renewed frequently; is not issued retroactively, (17) meaning that there will likely be gaps in the household worker's employment authorization because of lengthy and often erratic processing times; and is costly. (18) Adding to this cumbersome procedure is the fact that B-1 visa status is normally only given for a period of six months to a year, so this, too, must be extended frequently, which is also costly. (19)
3. J-1 Exchange Visitor
The second visa classification possibility is the J-1, (20) which is used for exchange visitors, such as Au Pairs. (21) Foreign nationals coming to the United States under the Au Pair Program in J-1 status must meet several requirements: being between the ages of eighteen and twenty-six; having a high school-level education, or its equivalent; being proficient in English; being in good health, as evidenced by a physical; passing a thorough background check; and passing a personality test. (22) In addition, the participating J-1 visa holders are required to return to their home country for a period of two years at the conclusion of the Au Pair Program. (23) Finally, the Au Pair Program is usually just for a one-year period. (24) So, although the Au Pair Program undoubtedly facilitates the needs of some employers in hiring foreign household workers, by and large, most foreign household workers will not be able to access the J-1 classification because they do not meet the Au Pair requirements as detailed.
Notwithstanding this, even for Au Pairs, the J-1 visa classification is not usually a proper stepping stone toward securing permanent residency because it triggers a two-year foreign residency requirement. (25) In most cases, this means that the Au Pair will be ineligible to pursue permanent residency unless he or she returns abroad for two years after departing the United States or secures a waiver. (26)
4. H-2B Unskilled Worker
At first blush, the third visa classification appears to be "just right"; upon closer inspection, however, it also proves unworkable. The H-2B visa (27) classification was designed for unskilled workers and requires certification from the Department of Labor (DOL) before the employer can hire the foreign national. (28) Certification is granted on two conditions: That unemployed, qualified U.S. workers are not available for this position in the region of the foreign national's proposed employment; and that the employment of the foreign national will not adversely affect the wages or working conditions of U.S. workers similarly employed. (29) In addition, the employer's need for someone with the foreign national's skills must be temporary. (30)
If the requirement of DOL certification were not onerous enough, the requirement that the position be temporary usually ends any hope household workers may have had regarding finding immigration refuge in the H-2B visa classification. (31) Because there are no assurances that their employment will be temporary and, in fact, there is a presumption to the contrary, both the DOL and the U.S. Citizenship & Immigration Service (CIS) have hesitated to certify household jobs as temporary or to approve H-2B petitions for foreign household workers. (32)
In conclusion, in most cases, the household worker is left without a suitable nonimmigrant visa classification to use as a springboard for her permanent residency application. This means the household worker is often unable to secure, let alone maintain, legal status in the United States. (33) This, in turn, means that her opportunities for lawfully pursuing permanent residency are greatly eclipsed, if not completely extinguished, by the totality of her circumstances. The reality is that these circumstances weigh heavily on household workers. Because of their precarious legal status in the United States, these workers--largely female--are made vulnerable and ripe for exploitation. (34)
Having hashed out the key problems faced by household workers in the nonimmigrant visa arena, we turn now to the permanent residency application. It will quickly be made apparent that this procedure is, by far, the more challenging of the immigration processes from the household worker's perspective under current immigration law.
B. Permanent Residency: The Immigrant Visa
The process involved in securing temporary residency in the United States has been described above. If a foreign national wishes to pursue lawful permanent residency, however, a separate, more dynamic and politically-charged process must be engaged. The following subsections detail the process involved in pursuing lawful permanent residency based on U.S. employment. Keep in mind that lawful permanent residency may also be sought based on family relationships or through the diversity...
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