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Immigration Proposal Could Affect South Asians

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February 2004
Immigration Proposal Could Affect South Asians

President Bush on January 7 proposed granting temporary legal status to millions of undocumented workers. Though sweeping in its vision, the proposal left many details to be decided at a later date in negotiations with Congress and other concerned parties.

"As a nation that values immigration and depends on immigration, we should have immigration laws that make us proud," Bush said. "Reform must begin by confronting a basic fact of life and economics. Some of the jobs being generated in America's growing economy are jobs American citizens are not filling."

Under the temporary work program outlined in the proposal, illegal immigrants can obtain work visas for three years if they can show that they have jobs and if their employers can show that there are no Americans that can fill those jobs.

"The program actually appears to create a guest worker program (W visa) and two new non-immigrant worker visa categories (H-4A and H-4B visas)," said Shanon Stevenson of Thompson, Rollins, Schwartz & Borowski, LLC.

All participants in the program will be issued a "temporary worker card" and will be allowed to travel between their home country and the United States without fears of being deported or not being allowed re-entry.

After the three years, the worker may renew his or her status, but it is not clear for how long. That detail was left to be debated in Congress and worked out in negotiations.

The program, however, will "have an end," according to the president's speech. "The program expects temporary workers to return permanently to their home countries after their period of work in the United States has expired," Bush said.

Bush also clarified that the proposal was not granting a general amnesty.

Participants in the program who want to pursue citizenship will have to do so using the normal channels and will not be given an advantage. Bush, however, said he would support the numbers of people who can obtain permanent residency, adding that the increase should not be reserved for those in the program.

"The citizenship line, however, is too long, and our current limits on legal immigration are too low. My administration will work with the Congress to increase the annual number of green cards that can lead to citizenship," he said.

Stevenson explained, "The proposal allows for employers to petition for immigrant visas for H-4A workers. Alternatively, aliens may self-petition after maintaining H-4A status for three years. It appears that the illegal immigrant in the U.S. must change his or her status to the H-4A category from the H-4B category in order to apply for permanent residence. The guest worker program also allows for legal permanent residence status via consular processing if the alien has worked in the program for three continuous years. But, in reality, there are too many unknown factors that would probably result in [illegal workers] not wanting to register. I believe backlogs in permanent residence processing will only increase."

The proposal would also allow workers in the program to benefit from payments to Social Security and other individual retirement programs which they may have set up in the United States.

"Most of the undocumented workers in the U.S. are having taxes withheld by their employers (and are entitled to refunds if they have overpaid), and are paying into the Social Security system, only to never see that money or those benefits. The proposal would give them access to these retirement benefits even if they return home. So it is an additional incentive for them to return home at some point," said Romy Kapoor of Kapoor and Associates, a Metro Atlanta law firm.

Nisha Karnani of Cohen and Associates said the proposal, if passed, could impact the South Asian Community. "There are many South Asian nationals in the U.S. who are out of status and some who have been placed in removal proceedings after reporting for special registration," Karnani said. "Also, there are South Asians that have fallen out of status, including those who initially entered the U.S. as visitors or students and many South Asians who were here in the U.S. in H-1B status who have lost their jobs, causing them to fall out of status. If they were unable to maintain or change their status and did not leave the U.S., they might benefit from such a proposal."

Karnani, however, counseled caution and stressed the importance of the lack of detail in the proposal, with most specifics still in need of being worked out in Congress.

"It is important to keep in mind that the proposal is not law and it is difficult to predict how long it will take for Congress to pass it. The proposal must go through Congress, where various changes may be made. Therefore, it is also difficult to predict, if the law is passed, what the final version would look like; who would be eligible to apply; and how it would benefit those eligible to apply," she said.

"Comprehensive immigration reform is needed to grant permanent legal status for undocumented immigrants already here, to establish a new worker visa program for future migrants, and to decrease the current backlog, but the jury is still out on whether this proposal will work," Stevenson said.

She added, "After all, the evidence of the proposal's failure will not come to light until the election is over."

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[Manav Tanneeru serves as the Director of Public Relations for Raksha, an Atlanta-based non-profit organization that works to benefit the South Asian community. For more information, visit www.raksha.org]


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