Archive for January 2010

Common Misconceptions about Immigrants and Immigration

A law professor in Kansas City, Missouri has recently renewed his efforts to deny non-citizen, undocumented children access to in-state tuition in Nebraska. Kris Kobach, whose previous attempt in Iowa failed, now represents three families whose U.S. citizen children are charged higher tuition rates because they do not qualify for in-state tuition. He argues that non-citizens should not be permitted to pay less than citizens. I am simply unable to understand why anyone believes innocent children should be punished, and with such harsh punishment at that; it is in this nation’s best interest to encourage and permit children to attend college. It is in the States’ best interest to retain autonomy and determine financial benefits afforded to residents.

Aside from those issues, however, it is clear that at the heart of this and similar debates are three major misconceptions about immigrants and immigration: the concept of “citizen” versus “resident,” the demography of Taxpayers, and the civil nature of Immigration Law.


Only recently did I learn that U.S. law provides for citizenship by birth on U.S. soil because of slavery. Lawmakers did not know how to treat slaves; slaves were not considered citizens, and Congress was not willing to grant them citizenship. The solution was citizenship to anyone born in the U.S.

As someone lucky enough to have been born in the U.S., I can say that until studying law, I did not fully recognize the advantages my U.S. Citizenship confers. It was nothing I had ever needed to consider. In learning law generally and immigration law specifically, however, I learned that in many cases, citizenship confers no legal advantage. Often, no distinction is made between citizenship and non-citizenship. At the state level, most laws and regulations focus on residency, rather than U.S. citizenship. In addition to college tuition, non-citizens may get divorced in state court, for example, but only where the court has jurisdiction; jurisdiction is determined in large part on residency in that state, county, or district. Citizenship is irrelevant. Likewise, non-citizens can sue in federal courts. In fact, the U.S. Constitution limits its reach to non-citizens in only a few instances, namely the right to vote and hold public office. The U.S. Constitution generally applies to all residents of the U.S., although the laws have been limited in many instances. Prison inmates, for example, have been deemed to have fewer rights. Notably, this applies to U.S. citizen prisoners and non-citizen prisoners alike. The Bill of Rights, however, does generally apply to all persons residing in the U.S.

So what does citizenship mean? A U.S. passport. The right to enter and exit the borders of the U.S. freely. The right to vote. The right to run for public office. But what else? Is a U.S. citizen more likely to know the history of this country? To be politically aware and engaged? Does it mean citizens actually exercise the right to vote? Are citizens more likely to open a business? Support local businesses? Have access to health care? Be nice to neighbors? Donate to charities? Volunteer in the community? Not necessarily. Citizenship is irrelevant.

I know a lot of immigrants – visitors, temporary residents, undocumented persons, persons out of status, permanent residents, and naturalized citizens. All of them, without exception, love this country. They take pride in it, which they often wear on their sleeves. They explore the beautiful lands that make up the U.S., delve into their communities, eagerly help their neighbors, and even educate themselves politically – despite not having the right to vote in many cases. This is not to say all immigrants are more patriotic or engaged than U.S. citizens; certainly that is not the case. However, it begs the question: why do so many U.S. citizens harbor such resentment towards non-citizen immigrants?

Perhaps it relates to taxes…


The second greatest misconception is that immigrants do not pay taxes. The Federal Tax Code is not based on citizenship. Here again, residency is the determining factor. Generally, anyone who lives and works in the U.S. for any amount of time must pay taxes. This applies to all immigrants. This is why a Tax Identification Number (TIN) is made available – so that non-citizens, or anyone who does not have a Social Security Number, can still pay taxes.

In my experience, I have not met any immigrants, documented or undocumented, who do not pay taxes. Of course I am not saying that everyone pays taxes, but the point is that it is a huge misconception that just because someone is an immigrant, documented or undocumented, they do not pay taxes. There is a disconcerting leap in logic in that notion, and is one that simply does not hold water. Further, many surveys of all immigrants indicate that they use fewer social services than any other portion of society, despite being a population that overall pays a high percentage of taxes nationwide. Thus, the allegation that they simply feed off society by not paying into the very pool of money they drain, is a weak and ignorant one.

It is true that many immigrants work without legal authorization to do so. This is a large-scale problem, admittedly. The Department of Homeland Security has increased its efforts to enforce laws that are meant to prevent unlawful hiring practices. This cuts both ways, though. Mass deportation of employees of the Posteville, Iowa factory has devastated that town and left it in financial ruin. Many employers, farmers in particular, hire undocumented persons because they cannot afford to pay minimum wage, or because they cannot fill an unsavory position (think slaughterhouse cleaning crew) otherwise. Yet, minimum wage is in place to protect workers. The issue is far-reaching in our society, and the blame should not be squarely placed on the shoulders of immigrants.


The term “illegal” in the context of immigration is largely a misnomer. Immigration laws are Federal Civil laws completely separate from Federal Criminal laws. To enter this country without the proper paperwork or to overstay a visa – these are not crimes. They are simply violations of civil law. No one can be sentenced to jail for doing that. In fact, the most severe penalty for violating an immigration law is a misdemeanor punishable up to six months in jail for crossing the border without inspection – roughly the equivalent of the punishment for driving under the influence. (Detention while proceedings are pending is also not criminal in nature, but rather a measure to ensure the detainee leaves the U.S. The conditions of detention, however, blur this line and must be reformed. I previously wrote about this topic.)

Anyone who continues to harbor such ill-will towards immigrants after a better understanding of the basics must know something I don’t, or be coming from a very different place than I am. I would be very interested to know what or where that is…

Posted in Bills & Laws, Citizenship, Immigration, security, and fear, Recent Posts, Reform, The undocumented | Leave a comment

H-1b visas during the great recession

In the last few years, those who filed for H-1B visas exceeded the number of available visas by a ratio of about 3:1. The H-1B limit, or cap, of 58,000 was reached almost immediately. In 2009, however, the cap was not reached until December, eight months after the window for applications opened on April 1st.

The fact that the number of applications was severely down last year dispels the notion that the H-1B visa provides a cheap-labor substitute for U.S. workers. If H-1Bs were being used by companies simply to employ cheap foreign workers, then one would expect the number of H-1B applications to increase during a depressed economy. However, this has not been the case, and therefore, the fact that U.S. employers did not rush to utilize the H-1B option last year weighs in favor of a conclusion that it is a legitimate visa avenue for U.S. companies when they need foreign employees of a specialized or highly technical nature. Such workers can provide valuable services and perspectives that keep the U.S. economy competitive in the global market.

As the economy rebounds and as U.S. companies need to retool in order to compete in the global economy, Congress should allow them to seek more H-1B employees by raising the cap from 58,000 pursuant to the economic need at the time. This is what we have learned from the current experience of this year.

Posted in Recent Posts, Reform | Leave a comment