Joe, a Filipino national was the caregiver for “Mr. Smith.” He cared for Mr. Smith like his own father. One day, he noticed that Mr. Smith was having difficulty breathing. Joe immediately called 911. The paramedics arrived and tried to revive the patient until one of the paramedics discovered that there was a living will with a “Do not resuscitate” clause. All further effort to revive the patient was aborted.
Witnessing how Mr. Smith was let go by the paramedics was a painful experience for Joe. He knows that if Mr. Smith were his father, all efforts would have been taken to revive him; unfortunately, this is the reality of his job. Mr. Smith passed away at the age of 93. Joe continues to work as a caregiver for another senior citizen. Joe is an undocumented.
Joe represents thousands of dedicated Filipino caregivers working in private homes, board and care homes and in health care facilities. These workers care for their wards with dedication and treat them like their own family members. While many caregivers are documented immigrants, a significant number are not.
The U.S. Department of Labor sets minimum standards to protect the rights of the workers. However, the lack of immigration status provides an avenue for employer abuses regarding the wages and working conditions of the caregivers.
There are U.S. employers who hire caregivers without legal status due to the shortage of available U.S. workers. Aida, an owner of two health care facilities in Arizona, has been advertising caregiver job positions for many years, but she has not been successful. She now wishes to petition her nieces to work for her as caregivers. When Aida inquired about petitioning the nieces, she was told that the process takes many years before caregivers are able to get their immigrant visas. It is the reality of the current U.S. immigration system that even jobs in demand require years of wait.
Caregivers are classified as “other” workers and they fall under the third preference employment-based category. This means that to work as a caregiver one does not have to possess a bachelor’s degree but needs only at least a high school diploma and a few months of working experience. At the moment, Filipino nationals who are being petitioned under this category wait approximately 6-7 years before their visas are available. For the month of May 2016, only petitions filed on or before August 1, 2008 are being accepted for visa issuance.
The petition delays for the caregivers result in varying scenarios for those who are already in the United States. Will they accept a job offer from a U.S. employer even if they have no lawful status? Or should they just return to the Philippines and wait years before their visas are issued? The legality is that the latter is the only option. The reality, however, is that the former is the more convenient choice not only for the caregivers, but also for many U.S. employers desperate to fill a need.
Until a new policy is adopted to change how caregivers are classified and unless they are given a special category, the convenient route for U.S. employers experiencing the shortage will only lead to the tolerated presence of many more undocumented workers.
(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)
