Marcela F. González
The growth of temporary visas for highly skilled immigrants in the United States has occurred in the context of a complexification of migration channels and visa policies for highly skilled immigrants since the 1990s. One of the consequences of the proliferation of a variety of visas is that highly skilled immigrants follow a multi-step path to legal permanent residency; that is, immigrants navigate different temporary legal statuses or no legal status at all before becoming permanent residents.
I conducted a qualitative study with thirty highly skilled immigrants from a variety of nationalities and industries (González 2017). Immigrants interviewed covered a range of different temporary visas, or a combination of temporary visas, before each acquired legal permanent residency for both the family based-category and employment-based category. Based on the narratives highly skilled immigrants gave on their legal trajectories to legal permanent residency, immigrants followed three pathways to legalization, depending on the contingencies they face in their legal and work trajectories. These three paths are not fixed or pre-established by immigration laws; instead, highly skilled immigrants trace their own pathways to legalization by navigating the various conditional and contingent factors they face.
The first path to legalization, followed by 36 percent of interviewees, is a path in which immigrants do not face any legal or work contingency. Thus, the path is smooth, linear, and without interruptions. The second path, which 43 percent of participants followed, is a path in which immigrants face fluctuations in their legal path because of contingencies they face, such as job loss, and immigrants acquire legal permanent residency through either family-based or employment-based sponsorship. The third path, which represents 16 percent of interviewees, is a path in which immigrants also face contingencies, such as problems getting sponsorship for their visas, but unlike the second one, immigrants in this path self-sponsored their legal permanent residency.
I coined two terms to explain immigrants’ agency in building their legal trajectories. These terms are entrepreneurial ethos and privatization of risk. Given that highly skilled immigrants follow a multi-step legal path toward acquiring legal permanent residency, immigrants navigate their legal path in a context of an uncertain and unstable legality. The number of years highly skilled immigrants spend with temporary legal statuses is not pre-established or fixed—that is why immigrant time becomes devalued (Cohen 2015). A legal path with work and legal fluctuations demands that immigrants embrace an entrepreneurial ethos, that is, to become an entrepreneurial self, whose proactive agency is the only resource available to repair or even save their legal status.
With the retrenchment of the state and employers, immigrants become the makers of their legal path to permanent residency. Yet, when immigrants become the makers of their legal path, this is an enterprise that does not occur without embracing risk. Entrepreneurialism and risk are two sides of the same coin. Risk in this sense is privatized, because costs and risk are borne by highly skilled immigrants themselves, and not by the government, employers, or the economy. Privatization of risk thus individualizes risk instead of making risk a collective or public project.
The system of permanent and temporary visas imposes constraints on highly skilled immigrants’ global mobility. It impacts the rights, scope, and composition of highly skilled immigration. Thus, the multi-step legal path to legal permanent residency has entailed also a transformation of highly skilled immigrants’ rights, membership, and inclusion into democratic societies. An analysis of rights granted to permanent and temporary highly skilled immigrants is imperative to understand how issues of time, membership, inclusion, and legality have been transformed in the last two decades in the United States (Smith and Favell 2006).
Vertovec (2007) coined the concept of superdiversity to describe the significant change in the patterns of global migration over the last ten years in a selection of OECD countries. Not only has there been a diversification of immigrants’ origins but also a diversification of migration channels, which has had a huge impact on the social, economic, and political lives of migrants. In the United States specifically, the fragmentation of legal statuses for highly skilled immigrants entailed a differentiation of rights and controls for immigrants, as well as changes to the scope and duration of immigration, depending on which immigration track highly skilled immigrants follow.
The diversification of migration channels has engendered a system of rights and legal statuses that differentiates not only by national origin and region of the world but also within groups from the same national and ethnic origin. In the permanent immigration system, either family-based or employment-based, some countries experience long waiting lists and visa backlogs. This has different effects for different countries and regions of the world. In the temporary labor program, some countries (e.g. India, China, Mexico, and the Philippines) and regions are more adversely affected than others. However, the system of permanent and temporary migration channels also affects highly skilled immigrants differently, even those from the same national or ethnic origin. Because even among specific nationalities, the legal path and rights vary depending on whether a highly skilled immigrant applies for a visa for the first time or adjusts their status, or on the availability of visas in different occupations or industries, or on their field of study.
Given the way in which temporary employment programs are organized in the United States, immigrants’ economic, social, residence, and political rights are restricted (Ruhs 2013). Just as entrepreneurial ethos and privatization of risk describes immigrants’ agency in building their legal trajectories to legal permanent residency, their agency does not circumscribe to building their legal status. Uncertain and unstable legality permeates immigrants’ work and family life. From a normative standpoint, it is more beneficial for the destination country and for highly skilled immigrants themselves to have permanent residency status instead of temporary status (Carens 2013); this fact emerges when one analyzes the rights that each legal path grants to highly skilled immigrants.
I refer to membership in democratic nation-states under permanent migration status as belonging with inclusion. This is a membership that values a legality based on certainty, autonomy, and rights. For the most part there is no significant differentiation when citizens and permanent residents are compared, with some exceptions, such as political rights, availability of civil service jobs, or the possibility of deportation. The growth of temporary immigration in the last twenty years has challenged this trend in democratic societies, because immigrants’ membership has been put into question.
Highly skilled immigrants under temporary labor programs work, raise children, buy homes, pay taxes, and get credentials; but they do so under conditions and a type of membership that restrict their rights, and with a legal status that values uncertainty and vulnerability. Furthermore, time spent in the United States on a temporary visa neither counts toward nor qualifies immigrants for permanent residency, or even naturalization. I define temporary immigration in terms of membership to democratic societies, as belonging with partial inclusion. Temporary immigrants belong to their society in many ways, but belonging does not imply the achievement of substantive rights, benefits, and an inclusive path to full membership.
Many scholars of immigration, who have studied immigration policies and highly skilled immigrants in depth, believe that temporary work visas should be regulated in such a way that immigrants do not spend more than two years—or three years the most—under temporary legal status. And green cards should be subject to labor market needs. If an employer hires an immigrant, the immigrant should have the possibility of acquiring legal permanent residency.
The U.S. immigration system is currently far from a system like the one the scholars think should be implemented. On one hand, the U.S. still gives preference in the allocation of visas to family ties, with a very weak employment-based immigration system. On the other hand, the U.S. does not have a merit-visa, which would allocate residency based on immigrants’ skills in education, age, work experience, or occupation. In a highly competitive, flexible, and dynamic labor market, highly skilled immigrants in academic and non-academic labor markets are constrained at the earlier stages of their careers; these are the years when immigrants are most affected by an unstable legality that grants immigrants only a partial inclusion into the U.S. society, and puts limits on their rights.
Carens, Joseph. The Ethics of Immigration (Oxford University Press 2013).
Cohen, Elizabeth F. “The Political Economy of Immigrant Time: Rights, Citizenship, and Temporariness in Post-1965 Era,” Polity Volume 47, Number 3, July 2015.
González, Marcela F. Highly Skilled Immigration in the United States in an Age of Globalization: an Institutional and Agency Approach. Ph.D. Dissertation, Department of Sociology, Graduate Center of the City University of New York (2017).
Ruhs, Martin. The Price of Rights (Princeton University Press 2013).
Smith, Peter and Adrian Favell (eds.) The Human Face of Global Mobility: International Highly Skilled Migration in Europe, North America, and the Asia-Pacific (Transaction Publishers 2006).
Vertovec, Steven. “Super-diversity and its implications,” Ethnic and Racial Studies Volume 30, 2007 – Issue 6.
Marcela F. González is Ph.D. candidate in sociology at the Graduate Center of the City University of New York. She will defend her dissertation entitled, “Highly Skilled Immigration in the United States in an Age of Globalization: An Institutional and Agency Approach,” in the Fall 2017. The article reflects upon findings from her dissertation research.