Guest Column By Nathan A. Waxman

It’s hard to feel nostalgic about the days when eating out in Manhattan meant choosing from pastrami, cheeseburger, or two slices of pizza. Today we, and our friends on the mainland of the US, can partake of a veritable cornucopia of world cuisines, authentic or naturalized to New World tastes, ranging from Uzbek shashlik to a multitude of Chinese regional cuisines through Colombian – or, if you prefer, Venezuelan – arepas, all the way to the newly discovered “authentic” gourmet Sicilian cuisine.

The efflorescence of exotic cuisine choices in this country was fueled by the entrepreneurship of recent immigrants from Bogotá to Bangkok, Jaipur to Jogjakarta, who brightened up the American landscape with stores and restaurants purveying the foods and goods of their homelands. These restaurants flourished by employing the labor certification/immigrant visa process to secure the employment of qualified chefs from the old country. This mechanism assured the immigration and continuing services of innumerable “specialty chefs,” thereby allowing the expansion of restaurant cuisine offerings, even in middle-American shopping center and strip malls.

But, somehow, these days, the pad thai has lost its punch, the sopa de pescados its savor. Que pasa? Have we become jaded? Or have the quality and authenticity of our favorite foreign fares deteriorated, even as the availability of exotic ingredients and chefs has increased?

My informal and anecdotal survey of local eateries confirmed my suspicion that the immigration laws, not the American palate, are behind this sad retreat. What has changed since the early ‘90s that could contribute to this unfortunate turn of events? While employer sanctions have been in place since the late 1980s, and labor certification has for years taken at least as long as a moderately decent vintage, the big ticket item in discouraging and precluding the sponsorship of foreign chefs has been the “unlawful presence” bar of Section 212(a)(9) of the Immigration and Nationality Act, which, since its implementation in the late ‘90s, has prohibited the grant of permanent residence, with limited exception, to those who have accrued over six months of unauthorized stay in the U.S.

As a result, Ethiopian restaurants, in New York at least, have hired work-authorized Salvadoran kitchen help, who encounter difficulty distinguishing injera from tortilla. A neighborhood Burmese (Myanmar) restaurant was forced to rely on a Bangladeshi chef whose uncle had once visited Rangoon (now Yangon). We’re all for fusion – and our friends in L.A. couldn’t survive a day without a soy-chipotle burrito – but on occasion we purists savor the flavor of authentically prepared national cuisines.

And things are getting worse. … Until recently, many chefs had been able to avoid the draconian impact of the unlawful presence bar to residence by availing themselves of Section 245(i), a temporary provision to the immigration laws that was first implemented in 1994, enabling otherwise qualified immigrants who had violated status to obtain residence in the U.S. through adjustment of status.

Whether intentionally or not, Congress had exempted from the adverse impact of Section 212(a)(9) those individuals who had managed to obtain permanent residence through adjustment of status in the United States, albeit after accruing periods of status violation, by allowing them to pay a penalty fee. Unfortunately, the last extension of the mechanism by which prospective immigrants who have accrued status violations greater than 6 months could obtain residency in the U.S. sunset on April 30, 2001, thereby resulting in today’s situation. With limited exceptions, restaurants today cannot sponsor incumbent employees through the labor certification/immigrant visa process with any assurance that their employees will obtain permanent residence because of the virtually total bar represented by Section 212(a)(9).

A simple congressional fix would be a permanent extension of Section 245(i), thereby enabling restaurants and other businesses to secure permanent residence through labor certification and thereby the continuing or future employment of qualified personnel. Although Beltway insiders frequent the capitol city’s abundant Ethiopian eateries and may employ domestic help of varied degrees of employment eligibility, there appears to be considerable resistance to such an extension in the near term.

One possible alternative for restaurants seeking qualified personnel knowledgeable in their respective cuisines will be utilization of the recently implemented PERM mechanism to obtain a relatively fast labor certification, coupled with the promised implementation of premium processing for I-140 petitions. Restaurants may be able to recruit capable cooking personnel in the home country and bring them over before the next vintage is uncorked. However, restaurants specializing in fiery (Inner) Mongolian hotpots or Delhi’s tasty tandoori dishes may have to wait ‘til after the cows come home, due to retrogression in India and China immigrant visa availability.

Members of Congress should put their votes where their mouths are. They love spicy succulent cuisines as much as we do. Section 245(i) should be extended and realistic waiver mechanisms should be provided for Section 212(a)(9). Otherwise, it’s back to hamburgers and chop suey for dinner tonight.

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NATHAN A. WAXMAN specializes in business and professional immigration in New York City. He was awarded a B.A. in Philosophy from New York University, an M.A. in Philosophy from the University of Chicago, a J.D. cum laude from Loyola University of Chicago, and undertook doctoral studies in Philosophy at the University of Chicago, and in Oriental Languages at the University of Pennsylvania. He has been a member of AILA since 1985 and writes and lectures extensively on business and academic immigration topics.

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