Several senators have introduced bills this month to prevent the elimination of President Obama’s Deferred Action for Childhood Arrivals (DACA) program. DACA has granted work permits and lawful presence to more than 800,0000 young immigrants—known as Dreamers—who were brought to the U.S. as children. It would be an unquestionably positive thing for the United States if one of these bills becomes law, but DACA had a flaw that Congress can correct: it included only those young immigrants who are here illegally, excluding children of immigrants who came to the United States legally.
It may seem that these immigrants do not need help since they have a legal status, but unfortunately, under America’s dysfunctional immigration system, many thousands of young legal immigrants are forced to leave, even though they followed the rules. Because these new bills continue DACA as is, they fail to address this major problem.
Here is how many young legal immigrants end up in this situation. Immigrants often initially enter the United States on work visas, such as the H‑1B visa. H‑1B visas allow skilled foreign workers to work in the United States for up to six years. Their spouses and minor children can also enter with them on H‑4 visas. If an employer sponsors them for a green card—or permanent residency—the H‑1B worker with their spouse and minor children can remain in the United States beyond the six-year limit until a green card is available. Then, the worker, their spouse, and minor children can adjust to permanent residency.
This system would work fine in theory. But for various reasons—1) because far more H‑1Bs and H‑4s are issued than green cards, 2) because the U.S. discriminates against immigrants from populous countries under the “per-country limits,” and 3) because spouses and minor children are not counted against the H‑1B limit, but are counted (erroneously) against the green card limit—long backlogs develop for immigrants from certain countries. As I’ve written before, no one even knows how long these legal immigrants will have to wait.
The children of H‑1B workers suffer the most under this flawed system. Even though they are in a legal status, they are prohibited from working legally in the country that is their home. Worse still, even though they grew up in the United States, they become ineligible for their status once they reach the age of 21 as they are no longer a “minor” child of an H‑1B. Simultaneously, they lose their eligibility for a green card under their parents’ green card category, even if they had been waiting in line for years
These two problems are known as “aging out.” Although no one is counting, they affect tens of thousands of legal immigrant children every year. Essentially, these legal immigrants are subject to deportation solely because they grew up, and America is losing talented, already assimilated workers.
DACA could have helped these young people because it provided work permits and lawful presence to immigrants under age 31 who came to the United States before age 16. Unfortunately, the Obama administration included a requirement that an immigrant is eligible under DACA only if they had no “lawful status on June 15, 2012” when the Obama administration created the program. In other words, unauthorized immigrants whose parents violated the law benefited, while those immigrants whose parents followed the law did not.
Here are five ways to address this problem.
- Grant status and work authorization to legal immigrant Dreamers who otherwise meet the criteria for DACA in any bill extending DACA (which is essentially what the 2013 Senate-passed reform bill did).
- Authorize spouses and children of H‑1Bs for work authorization. Banning legal immigrants from working is counter to America’s economic interests.
- Prevent aging out of green card petitions (which the Senate bill also did).
- Allow children of H‑1Bs who have extended beyond the six-year limit to extend their status along with their parents.
- Fix the three problems with the immigration system that lead to the green card backlog in the first place—too few green cards, limits on individual countries, and counting spouses and children against the green card limits.
DACA recipients are benefiting the United States, but the Obama administration’s decision to close it off from legal immigrants serves no purpose, and Congress has no reason to perpetuate its mistake.
