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Immigration in the Post-9-11 Era

Sunday, September 11, 2011

Prior to 9-11, immigration foes were chiefly concerned with “illegal” immigrants, typically undocumented, unskilled workers performing low-wage labor and skirting payroll and other taxes. Foreign students, investors, visiting scholars, professionals and business people were rarely seen as threats.

Post-9-11, all of that has changed; it seems that ALL immigrants, temporary residents and visitors are considered terrorism suspects. In the last decade, wait times for visas have lengthened, and denials, often for unjustified reasons, have become more common, as have deportations and detainments. This change has affected everyone from foreign healthcare workers, to touring musicians, to employees of multinationals. The default position for border agents and other immigration officials has become “deny,” a form of guilty until proven innocent.

An institutional cue to this change in attitudes (and practices) occurred in 2003 when the Immigration and Naturalization Service, which had been under the Department of Justice, was rechristened Citizenship and Immigration Services (CIS) and folded into the newly created Department of Homeland Security. That same year, the Department of Homeland Security’s “investigative arm,” Immigration and Customs Enforcement, (ICE) was born. The long and the short of it is that obtaining immigrant and nonimmigrant visas became more expensive, time consuming, uncertain and difficult than it had been previously.

Is there a silver lining anywhere here? Perhaps a light gray one, and that is that, despite the changes in U.S. immigration laws and regulations, immigrant visas are still being issued and not just to family members of those already in the United States. Each year, CIS issues 140,000 employment-based immigrant visas.

Priority workers, “the first preference” of the employment based category, receive 28.6 percent of the yearly worldwide limit of employment-based immigrant visas (roughly 40,000 visas). The first preference category includes: a) Persons with extraordinary ability in the sciences, arts, education, business, or athletics; b) Outstanding professors and researchers; and c) Multinational managers or executives. In addition to “first preference” visas, the “second preference” employment category, which includes “professionals holding advanced degrees” and “persons of exceptional ability,” is also allotted approximately 40,000 visas. This “second preference” category typically requires a job offer and the filing of a labor certification or national interest waiver. Put these groups together, and that is about 80,000 employment-based immigrant visas, not to mention the “third preference” category, which includes another 40,000 visas, and the smaller “special immigrant” and “immigrant investor” categories.

There is still opportunity for foreigners in the U.S. Despite a less than welcoming immigration system, and the downturn in the American economy, many U.S. universities, hospitals, corporations and other entities are still looking for talented foreigners. Not only are they looking, but people are coming, and they are obtaining immigrant (and nonimmigrant) visas. How long the process takes, and what hurdles need to be cleared, depends on many factors, including the individual’s area of expertise and qualifications, the timing of the application and his or her country of origin. Still, employment-based visas have not disappeared, nor are they likely to in the foreseeable future.

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