Vox
By Dara Lind
January 6, 2015
People
who don't believe that unauthorized immigrants in the US should be
given legal status tend to emphasize that it would be unfair to
immigrants who are in the US legally — because they
deserve a reward for settling in the US "the right way."
But what if the legal immigration process is itself unfair?
A
new study by researchers at MIT and Brown University suggest that might
be what's going on — unintentionally. They looked at applications for
employment-based green cards among immigrants
who were already in the US. What they found was that, in the standard
approval process, Latin American immigrants were much less likely than
average to get approved — and Asian immigrants were more likely. But
when the government went through a slower but
more complete approval process, the disparities disappeared.
From engineers to restaurant cooks, Latin Americans are at a disadvantage
For
this study, the researchers (Emilio J. Castilla of MIT, and Ben A.
Rissing of Brown) evaluated the phase in an application for an
employment-based green card where the US Department of
Labor has to approve or deny the immigrant's "labor certification" for a
particular job. These applications get filed when a company decides to
take an immigrant who's (almost always) already in the country on a
temporary visa — like a work visa or student
visa — and sponsor him or her for a green card, which would let him or
her stay in the US permanently and eventually apply for citizenship. So
this is the phase in the process where temporary immigrants can get
approved to become permanent ones.
Technically,
this is supposed to be evaluating the immigrant's would-be employer,
not the immigrant him- or herself. In order to get the immigrant "labor
certified" for a green card — or any
work visa — the would-be employer has to prove that they tried to find a
US citizen to fill the job, but failed.
One
thing that isn't supposed to be a factor in the application is the
immigrant's country of origin. But even when the researchers controlled
for as many variables as they could — from the
temporary visa that an immigrant held in the US when he filed the
green-card application, to the skill level of the job — they found that
approval rates varied widely from one nationality to the next. 90.5
percent of Asian immigrants were approved for labor
certification. But only 66.8 percent of Latin American immigrants were.
The
regional disparity even showed up in immigrants applying for the same
type of job. "Immigrants from Asia seeking employment as restaurant
cooks are 41.6 percent more likely to be approved
than immigrants from Latin America, all else being equal," the
researchers write. It's a problem for high-skilled workers, too: Asian
immigrants weren't any more likely than Canadians (for example) to get
approved to work as computer software engineers, but
Latin American immigrants were over 25 percent less likely.
Is this just because Latin American applicants are less educated?
The
biggest problem with the study: the government agents looking over
immigrants' applications could see each immigrant's educational
background, but the researchers couldn't. That could
be a huge factor explaining the variation: maybe Latin American
immigrants are simply less educationally qualified for the positions
they're applying for.
But
the study indicates that can't be the whole story. For example, the
researchers looked at immigrants who were already on H1-B high-skilled visas (99 percent of whom have a bachelor's degree
or higher) but were applying to upgrade to green cards. Among that
group, Asian immigrants were still 11 percent more likely than Canadians
to get approved for green cards — and H1B-holding Latin American
immigrants were 20 percent less likely.
There's
also previous research showing that government officials profile
immigrants based on their countries of origin. In one study, in which
officials were asked to look over fictional visa
applications, the author said that region of origin was being used
strongly as a "criterion of a visa applicant's desirability."
Could more complete application evaluation solve the problem?
Most
of the time, the DOL makes decisions based on basic information about
the immigrant, the job, and the employer, as well as evidence of the
employer's failed attempt to recruit US citizens.
90 percent of those cases get approved, and they're typically approved
or denied in under 4 months. But in a few cases — thanks to a process
that is partly random, and partly not — applications are "audited," and
agents take a more in-depth look at an immigrant's
background, and the requirements for the position. In those cases, only
57 percent of applications are approved — and it takes about 2 years to
come to a decision.
According
to the new study, audited applications had one big advantage over
non-audited ones: the disparities in approval rates between immigrants
from different regions disappeared. That
might indicate that whatever is happening to favor Asian immigrants and
disfavor Latin American ones in the quicker process is unintentional,
since government officials don't appear to think there's good reason to
be more suspicious of Latin American applicants.
The
study's authors suggest an easy fix: making it impossible for an
official to see an applicant's country of origin, just like officials
aren't allowed to see applicants' ages or sexes.
If this really is a significant problem, however, it's not something
that changing the process in the future will be able to fix.
If
the government is really making it harder for Latin American immigrants
currently in the US legally to get green cards through their employers,
they're unfairly forcing Latin American immigrants
to make the difficult choice between leaving the country they've been
living in for years, and staying in the US after their visas expire. In
other words, the government's approval-rate problem might be driving
more legal Latin American immigrants to become
illegal.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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