The U.S. immigration system is at an impasse. While most immigrants in the U.S. are authorized to work, undocumented immigrants have spent years filling important roles in society with no means of legalizing their status. Those who wish to do so face immediate hurdles of overcoming their unlawful presence and finding an employer willing to go through the long, often expensive process of obtaining a work permit.
Beyond these difficulties, the current work permit categories have stringent requirements and restrictions regarding who can qualify in the first place, leaving many of the undocumented with no feasible pathway to permanent residency. Exploring and examining these categories could serve as a guide for creating an improved process.
The H2-A (agricultural) and H2-B (non-agricultural) work permits, for example, are widely used in the industries in which the undocumented often work. But the application process is incredibly involved, often deterring even the most optimistic petitioner.
In brief, employers must prove that there is a lack of available U.S. workers by obtaining Department of Labor certification, applying for a prevailing wage determination, filing a job order with the state workforce agency, and submitting a petition with forms and supporting documentation. The employer must also contact all U.S.-citizen employees who used to work for the company, notify existing workers and go through a recruitment process that is far more involved than usual (including purchasing newspaper advertisements). The employer must stop the process entirely if certain minimally qualified U.S. applicants are found.
If these steps are successful, employers must file their petitions with USCIS before the worker can obtain the visa – but only, of course, if the annual cap hasn’t been met. If the cap has been met, the petition must be selected in the lottery. Unless an employer has a dedicated lawyer or a team of people to deal with each case, this can be daunting, to say the least. Consequently, if the H2-A and -B programs are not drastically improved, many employers will likely hesitate to engage in the cumbersome process.
The Trade USMCA work permit is another with potential for the undocumented. It enables qualifying individuals to work in the U.S. in one of the designated professional categories, which include traditional roles such as accountant, lawyer, architect and engineer, among 60 others. Yet the categories are somewhat limiting, even for quickly growing industries such as technology. It would be prudent to expand them to include more options — particularly technical (electrician, computer support specialist and medical assistive personnel) and non-professional (restaurant manager or server, landscaper, construction worker and plumber).
Canada offers the useful model of its free trade agreement work permits, which are similar to the USMCA work permit, but they are available for citizens of more countries and include more job categories. The Canada-Peru Free Trade Agreement work permit, for instance, is open to any professional whose role is not on a list of specifically excluded jobs. There is also a section for technicians that includes precisely some of the roles that are missing from the USMCA work permit, such as plumbers and electricians.
Allowing for more free trade agreement-generated work permits in the U.S. would not be entirely unprecedented. The existing E-1 (for those engaging in cross-border trade) and E-2 (for investors) are available to citizens of a variety of countries that have treaties of commerce and navigation with the U.S. Keeping the USMCA work permit structure and application process while including more eligible citizenships and professions could be an attractive change for legislators — minimal enough, while still offering far more avenues for more workers than the current structure.
The O-1 (extraordinary ability) work permit is for individuals who meet at least three criteria from a specified list in a relatively broad scope of fields. This work permit is exclusive and extremely difficult to obtain, reserved for those at the very top of their fields. But its concept is interesting because it allows for a certain level of creativity in fitting an applicant’s accomplishments into the criteria, some of which can be more flexible than others, particularly with actors, singers, artists and other roles in the arts. This work permit could be expanded to include desirable criteria focused on compelling and compassionate factors (such as volunteer experience, a proven record of aiding others, mentorship of other employees, or recognition for outstanding contributions to a company). It would recognize that extraordinary workers can stand out in many ways.
Further reform could contemplate the undocumented population in the long term, whether they qualify under one of the proposed expanded work permit categories or not. Canada allows those who are ineligible for any of the existing permanent residence classes to request humanitarian and compassionate consideration based on factors such as establishment, the best interest of children, health, and consequences of separation from a relative. A similar concept would be a welcome addition to the limited permanent residency options available in the United States. It would leave the undocumented less vulnerable, with a way to apply for permanent residency status without leaving the country.
No single route will be easy. Some require congressional action, which can be difficult to achieve. Others require small modifications to the regulatory framework, which is well within executive powers, but also easy to challenge.
Any path, however, must recognize that beyond the vulnerabilities, there is value. The undocumented are often hardworking members of society, wanted and needed by employers who depend on them. A more inclusive system that recognizes this will provide protection while boosting the overall economy. Embracing these deeply intertwined values will bring benefits all around.
Catherine Glazer is a contributing scholar for Rice University’s Baker Institute for Public Policy.