vijayanagara

Employment Based visa and country-of-birth criteria. Is there is a legal recourse to strike down this criteria?

14 posts in this topic

 

If judiciary can help to strike down Muslim ban executive order and also provided reprieve to DACA kids,  can we not achieve similar affect for legal immigrants by asking to strike-down this criteria?

Country-of-birth is a key criteria used for allocation 140K Employment based visas. This leads to hardships for over-subscribed countries. Current wait-times for EB2 and EB3 are more than 25years for India. Children of such applicants will eventually age-out and will have to leave USA if they fail to procure their own immigration application. This breaks up families. Tax paying residents will have to pay more for tuition fees for their spouse and kids. They pay social security taxes and never really avail any benefits. Changing jobs will result in them starting application all over again. Promotions will have to be refused.

 An applicant from any other country does not have go through any of these hardships.

Doesn't this lead implicit denial of green card based on country-of-birth even though they are already living legally in the country for the entire wait time? An applicant has no control on how many applicants are from his own country. Is this a fair criteria to make him wait longer? 25+years is a long time where-in most applicants will end up having to abandon their green card applications.

Doesn't this amount to discrimination based on country-of-birth for an employment based visa as it impedes free job movement of applicants

Do we have to wait for congress to fix this? Since legal immigrants have no voting rights till they are citizens will congress consider us? Or do we have judicial recourse which can help to relax this criteria?

Thanks,

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There is no right to immigrate to the US.

AFAIK, the quota system has been tested in court, and challenges got denied. It has been in effect since 1965, and it worked quite well. The reason for the long delays for people from certain countries is that the H1 quota was raised for a couple of years in the late 1990s, during the dot-com boom, but Congress didn't increase the numbers for employment-preference GCs.

As for Trump's Muslim ban, courts so far have ruled that it is illegal because it is based on religion. DACA is about humanitarian issues. Completely different issues.

Congress is highly divided about immigration. There have been several attempts at a Comprehensive Immigration Reform in the last decade, all failed.

And as your post shows, lots of people stuck in the EB backlogs perpetuate myths, like the social security issue. If you actually look things up, you'd find that if you paid into the US social security system for 10 years, you can get benefits even if you are abroad (a few countries, like Syria, Iran, etc. excluded.) And lots of countries have so-called totalization agreements. Also, the implied "we are better because we are legal" stuff helped kill Comprehensive Immigration Reform, which would have helped both legal immigrants and undocumented immigrants. And btw, undocumented people also pay taxes, and don't get any benefits, like social security.

 

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Hi JoeF,

Thanks for responding,

Even if it were challenged earlier, the context has changed.  Earlier it was being applied to family based immigration. Also more importantly, potential immigrants were waiting in a line outside borders of United States in their home country. Country quota system makes sense here to control whom they allow to enter the country and hence moderated diversity. 

But would it be correct to apply the same criteria for immigrants who are already inside the country legally(i say legally because the government recognizes them and acknowledges their presence). how is diversity controlled when folks are already within borders of United States. 

I also fail to understand why is a religion a better reason to put a hold on a law than the hardships faced by a people? take the case of DACA kids, it is correct and humane to allow them to have EAD as it is not their fault. The reason being the hardships they go through. Aren't we all humans first. Will the courts not consider the hardship of legal immigrants? 

I agree legal immigrant children do not face the same hardships as DACA kids, but should that be a reason to ignore their grievances.

As far as Social Security benefits, India(one of the most backlogged country) does not have a totalization agreement with USA and hence they cannot claim benefits. Millions of legal immigrants(from 90s) have walked away leaving behind their social security contributions since they could not stay for more than 9.5 years and no totalization agreement.

Thanks,

 

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No, before 1965 there was no such thing as employment- or family-based immigration. That distinction got introduced in 1965. Before, there was just immigration.

People in employment-based immigration cases are highly paid, so even though it can take a long time for people from certain countries, that is not considered a hardship.

As far as social security benefits, even without totalization agreements, it IS possible to get social security benefits while being abroad. Totalization agreements just mean that the time paid into the US social security system is used to calculate benefits in the other country's comparable social security system.

Please read https://www.ssa.gov/pubs/EN-05-10137.pdf , section 4, page 7. That applies to India. (Linked to fromhttps://www.ssa.gov/international/payments.html).

If people "left behind their social security contributions", then only because they didn't bother to educate themselves about the rules. That is their fault only. As always, don't assume things, educate yourself. It is easy nowadays. Google is your friend...

 

Edited by JoeF

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Oh, and religion can't be used to discriminate because the US Constitution says so. First Amendment.

If you want to immigrate here, it would be appropriate to learn the law of the land, in particular since you are trying to argue legal stuff in this thread... Know what you are talking about and all that...

You can get a copy of the US Constitution in any bookstore, or as app for iOS and Android for free.

And if you want to be really thorough, you may want to read literature to understand the historical contexts of things. I happen to be interested in these things, so I can give you suggestions if you like.

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On 2017-6-2 at 10:08 PM, JoeF said:

And if you want to be really thorough, you may want to read literature to understand the historical contexts of things. I happen to be interested in these things, so I can give you suggestions if you like.

Please provide the suggestions as I also have an interest in knowing historical contexts.

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Hardship cannot be measured with only money one earns. I have listed some of the other hardships which the applicant and his family go through in the beginning post. It is not just the applicant, but entire family endures this. There are many instances where families had to uproot and relocate to another country or to their home country in the middle of a school years, even when they have resided in USA for more than 10years, because the applicant was out of job for a brief time. The whole family will be on notice as they have to quickly leave the country. Applicant is prepared for these risks in the initial few years but not after residing 10+years.

Applicant ends up being tied to the same employer while he waits for EB visa even refusing promotions. This setups implicit involuntary servitude,  Amendment XIII tries to prevent this. One could argue saying applicant can switch to another employer, but that would mean abandoning current approved immigration petition and restarting a fresh one which adds more uncertainities and risks.

Amendment XIII :
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United states, or any place subject to their jurisdiction

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You may have your opinion about hardships, but the courts disagree.

Also, there is no involuntary servitude. You are free to go somewhere else, find another job, etc. Really, read up on the things you claim. You would find that your claim about involuntary servitude or slavery is ridiculous, and, quite frankly, ends the discussion (similar to Godwin's law.)

 

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11 hours ago, Shurap1 said:

Please provide the suggestions as I also have an interest in knowing historical contexts.

De Tocqueville: On Democracy in America: https://en.wikipedia.org/wiki/Democracy_in_America is a classic.

Founding of the Democratic Republic, by Martin Diamond, is also widely read (and way shorter than de Tocqueville.)

Also, The Federalist Papers (https://en.wikipedia.org/wiki/The_Federalist_Papers), and the Anti-Federalist Papers, written by some of the Founding Fathers of the US.

 

Edited by JoeF

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21 hours ago, vijayanagara said:

Hardship cannot be measured with only money one earns. I have listed some of the other hardships which the applicant and his family go through in the beginning post. It is not just the applicant, but entire family endures this. There are many instances where families had to uproot and relocate to another country or to their home country in the middle of a school years, even when they have resided in USA for more than 10years, because the applicant was out of job for a brief time. The whole family will be on notice as they have to quickly leave the country. Applicant is prepared for these risks in the initial few years but not after residing 10+years.

Applicant ends up being tied to the same employer while he waits for EB visa even refusing promotions. This setups implicit involuntary servitude,  Amendment XIII tries to prevent this. One could argue saying applicant can switch to another employer, but that would mean abandoning current approved immigration petition and restarting a fresh one which adds more uncertainities and risks.

Amendment XIII :
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United states, or any place subject to their jurisdiction

But this is by choice and not enforced. We voluntarily chosen this route in spite of knowing all challenges and risk so not sure how it falls into slavery context.

I can understand your frustration but nothing can be done until House and Senate are on board in terms of the comprehensive immigration reform.

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Quote

 

It falls under involuntary servitude.

https://en.wikipedia.org/wiki/Involuntary_servitude

country-of-birth clause is used by many employers  to apply implicit coercion on employees to work for them in their terms(low wages, insufficient benefits etc..) for longer tenure. This tenure is supplied by long wait time.

Lot of potential immigrants who have been waiting for more than 10Years did not anticipate 10+years of wait when their immigration petition was approved.

Even if an employee endures this by his own choice, it does not rule out the illegality of it. Employer may not appear wrong here as he is following law in its current form. What is wrong here is this clause in the law that empowers employer with coercive power. Law itself setups unfair advantage to the employer over employee, and allows employer to gain involuntary servitude from an employee. Hence this clause could be challenged.

 

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10 hours ago, vijayanagara said:

It falls under involuntary servitude.

https://en.wikipedia.org/wiki/Involuntary_servitude

country-of-birth clause is used by many employers  to apply implicit coercion on employees to work for them in their terms(low wages, insufficient benefits etc..) for longer tenure. This tenure is supplied by long wait time.

Lot of potential immigrants who have been waiting for more than 10Years did not anticipate 10+years of wait when their immigration petition was approved.

Even if an employee endures this by his own choice, it does not rule out the illegality of it. Employer may not appear wrong here as he is following law in its current form. What is wrong here is this clause in the law that empowers employer with coercive power. Law itself setups unfair advantage to the employer over employee, and allows employer to gain involuntary servitude from an employee. Hence this clause could be challenged.

 

Hmm, Wikipedia is not an authoritative source. It is edited by lay people.

Never rely on Wikipedia for legal matters.

 

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On ‎6‎/‎2‎/‎2017 at 7:52 PM, JoeF said:

No, before 1965 there was no such thing as employment- or family-based immigration. That distinction got introduced in 1965. Before, there was just immigration.

People in employment-based immigration cases are highly paid, so even though it can take a long time for people from certain countries, that is not considered a hardship.

As far as social security benefits, even without totalization agreements, it IS possible to get social security benefits while being abroad. Totalization agreements just mean that the time paid into the US social security system is used to calculate benefits in the other country's comparable social security system.

Please read https://www.ssa.gov/pubs/EN-05-10137.pdf , section 4, page 7. That applies to India. (Linked to fromhttps://www.ssa.gov/international/payments.html).

If people "left behind their social security contributions", then only because they didn't bother to educate themselves about the rules. That is their fault only. As always, don't assume things, educate yourself. It is easy nowadays. Google is your friend...

 

you have to be a citizen or permanent resident to claim social security.

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11 hours ago, vijayanagara said:

you have to be a citizen or permanent resident to claim social security.

Sigh. No, that is wrong. Please read the documents I linked to.

 

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