Toward Rationality and Equity
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T. Alexander Aleinikoff is a Professor at the Georgetown University Law Center and a Senior Associate at the Carnegie Endowment for International Peace.
Each year I begin my immigration law class by asking students to devise the outlines of a just immigration policy. I give them no background information on the current confusing list of categories of immigrants, non-immigrants, and refugees, inadmissibility grounds or numerical limitations. The student responses are interesting because of the deep humanitarianism they usually display and because their proposals look so little like our current system. Some — sometimes many — students simply opt for an open-borders policy, arguing that most Americans find themselves citizens of the United States as an accident of birth and that that fact is an arbitrary ground for denying entry and residence to anyone else who wants to join us. Most would limit overall admissions numbers, but would allocate visas based primarily on the need of the would-be immigrant. Thus, refugees would receive the highest preference, persons in dire economic conditions would receive the next, with family members after that. (Workers who would benefit the U.S. economy follow far behind.)
These proposals, of course, are a far cry from our present system, which devotes the vast majority of visas to family members of citizens and permanent resident aliens; authorizes labor-based visas largely for employers who seek particular aliens already known to them; and admits large numbers of persons in refugee status who do not meet the international definition of "refugee." By the end of the term, students have some familiarity with the rationales for our current immigration categories. But few conclude that the rules form a coherent, or just, whole.
I want to propose two schemes for the reform of the U.S. immigration system. Plan A, perhaps inspired by my students, adopts a long-term perspective. Plan B will yield to political realities, making more modest proposals for the here and now. Plan B could be enacted immediately, with — I would argue — significant gains in rationality. But we should not lose sight of the possibility and ultimate wisdom of Plan A. At the least, we ought to ask ourselves, as we propose changes in our current system, whether it is taking us closer or farther from a grander goal — even as we recognize that policy formulation must answer to on-the-ground realities that theorists sometimes ignore.
Plan A: Toward a Regional Immigration System
There are deep historical and commercial ties with our northern and southern neighbors. Most Americans are aware that vast portions of the south and west of the United States once belonged to Mexico. Perhaps fewer Americans recall that our original constitution — the Articles of Confederation — provided that Canada could join the new confederation and be "entitled to all the advantages of this union." Canada and Mexico are our two largest trading partners, and NAFTA has irreversibly linked our economies. It is time to think seriously about a future when travel within North America is largely unrestricted.
For some, such a plan appears unthinkable. Removing the border patrol from our southwest border, they will say, will flood the United States with unskilled workers, overburden the infrastructure of localities, and wreak havoc on our welfare system. But in years ahead what is now viewed as a threat will be viewed as a benefit: because the U.S. population is aging and the ratio of workers to retired persons is decreasing, new immigrant workers will likely be the key to the economic growth necessary to sustain social security systems and our standard of living.
Admittedly, full implementation of a borderless North America must await further economic development in Mexico and the establishment of stronger Mexican social protections to ensure that flows from Mexico not be greater than the U.S. can productively absorb. But on neither of these fronts should Mexico have to reach parity with the United States before freer travel is instituted. A fuller welfare state in Canada has not caused Americans to move north. Moreover, the fears of a mass flow northward from Greece, Portugal and Spain after their entry into the European Union proved unfounded. As sociologists and anthropologists have long told us, economic advantage alone is usually not a sufficient reason for people to move away from familial, cultural and historical homelands.
The vision here is not the establishment of some supra-national North American state. A borderless North America could retain the distinct (and frequently strongly nationalistic) states of Mexico, the United States and Canada. But these countries will inevitably conclude that the free flow of workers, tourists, and family is in the continent’s best interests. The result will be a set of common immigration policies and enforcement strategies vis-à-vis the rest of the world.
A future regional plan should also include coordinated refugee policies. The North American states could establish and maintain safe havens in the region that would provide assistance during times of large refugee flows from the Caribbean. So, too, asylum policies and procedures could be harmonized — so long as such a process is not used as an excuse to weaken protections.
Plan B: A More Rational and More Just Immigration System
The present system is in dire need of reform. Here are some fixes that could and should be made in our legal immigration policies.
Family Unification. If the purpose of our family admissions policy is to unite persons with close, on-going relationships, the categories we have adopted are dramatically under- and over-inclusive.
The law is under-inclusive because the narrow and rigid categories do not reflect modern notions of U.S. families and are often inconsistent with how families are organized in other cultures. No route for entry is provided for the uncle or aunt who lives with and helps support the family; nor may permanent resident aliens sponsor in parents who might serve as primary caretakers of grandchildren. The law ought to be amended to ensure that families — however constituted — may come to the U.S. as a unit. Such a policy would not only be more family-friendly; it would also assist immigrants in entering the workforce and adapting to their new community.
The usual argument against proposals such as this is that it they would provide incentives for fraud: unattached persons could pretend to be close family members. (Our current categories generally define relationships that can be proven with official documents, such as a birth certificate or record of marriage). This is a legitimate concern, but it could be accommodated by imposing a rigorous standard of proof on the sponsoring family to show that other family members have been full and functioning members of the household unit.
U.S. policy should also be changed to permit persons in established same-sex relationships to qualify for benefits accorded to "spouses." We have come to recognize that same-sex relationships may be as deep, as committed, and as long-standing as opposite-sex marriages. Three years ago the United Kingdom adopted a policy permitting the entry of partners where the sponsor and partner had been living together for four years in a relationship akin to marriage and they intended to live together permanently. Congress ought to amend U.S. law in a similar fashion.
Current categories are as over-inclusive as they are under-inclusive. The fourth family preference grants visas to brothers and sisters of U.S. citizens, no matter how close or distant the siblings might be. Given the more than 10-year waiting time for such visas for immigrants from most countries (and more than 20 years for siblings from the Philippines), the relationship between sponsor and beneficiary might be quite attenuated. A better system would authorize admission of siblings (and other close relatives) if they can show that they are a member of a fully integrated household unit — either living with the family, dependent on the family or providing important financial support to the family. (Family relationships could also be a factor in the point system described below for labor-based admissions.)
The current law inflicts unjustifiable discrimination against permanent resident aliens (LPRs) in the United States, who — unlike U.S. citizens — face long waiting periods in order to sponsor spouses and minor children. Furthermore, there is no preference at all for the parents of LPRs, no matter how close a relationship they have had with their children (and grandchildren) in the United States. The law ought to be changed to give LPRs the same rights that U.S. citizens have by broadening the definition of immediate relative to include parents and by eliminating the numerical limitations on their admission. It will be argued that the numbers here are too large and that parents of LPRs will impose significant costs on U.S. benefits programs (particularly medical care). The first concern could be alleviated by eliminating the brothers and sisters category or limiting it to unmarried siblings and allocating those numbers to LPR immediate relatives. The second could be met by sponsorship rules that place primary support obligations on family members (provided that the rules apply in a similar manner to parents of U.S. citizens and resident aliens).
A final problem confronting family admissions is the substantial delays in INS processing. Over the past several years perhaps as many as 500,000 persons entitled to receive visas did not do so because of adjudications backlogs. This bureaucratic shortfall constitutes, in effect, a backdoor reduction in overall immigration to the United States (and by failing to get visas to eligible immigrants, it also lengthens their road to citizenship and full integration and may encourage illegal entry and residence). Congress must appropriate adequate funds to ensure that such backlogs do not exist, and that all visas that can be distributed each year in fact are distributed.
So what about overall numbers? There is simply no evidence that current admission numbers are contrary to the national interest. The United States has witnessed its longest economic boom at the same time that record numbers of immigrants have come to our shores. Stated another way, the United States has become and remains the world’s only superpower during an era of unrivalled levels of immigration. I am not asserting that immigration has produced U.S. dominance; but it surely has not prevented it or weakened national pride. Some op-ed writers may assert that immigration is "disuniting" America, that "patriotic assimilation" — to use Mark Krikorian’s phrase — is declining. But where is the evidence? English acquisition is nearly universal for second and third generations. Applications for naturalization are at record levels. Accordingly, there is no reason to cut current immigration levels. Indeed, in order to accommodate parents of LPRs, some increase might be advisable.
Employment-Based Immigration. All those involved in labor-based immigration know that the system is broken. It takes too long, poorly serves the goal of protecting U.S. workers, and establishes procedures for labor certifications that look more like a game with arbitrary rules than a rational system for meeting the workforce needs of the American economy. The labor certification process should be scrapped; it is a colossal waste of resources for both employers and the government.
As Demetrios Papademetriou and Steven Yale-Loehr have argued, we need to see immigrants who arrive on work-based visas as permanent additions to the U.S. workforce. (Government data supports this view: immigrants rarely stay at the jobs for which they were admitted for very long.) Accordingly, we should evaluate persons based on their ability to contribute over the long-term based on a point system that looks at skills, education, language ability, and other relevant criteria.
My proposal would work as follows. Overall admissions numbers would be set each year by an independent government agency based on macro-economic indicators and the needs of particular industries. For example, the agency might conclude that 150,000 workers could productively be admitted in the following year and that they ought to be allocated to several particular industries in which there are labor shortages (such as information technology and health care). Aliens would apply from outside the U.S for a work-based visa for one or more of the designated industries. The INS would rank applicants according to their total point score and grant visas up to the numerical limits established by the agency. Immigrants receiving visas could apply for any job in the U.S. within the approved list of industries. Employers in those industries could follow usual hiring procedures, selecting among U.S. and visaed immigrant applicants as they saw fit.
It might be advisable to still provide some limited form of labor certification for employers not in the designated industries. But I would impose a very stiff fee on such applications to ensure that such workers are truly needed and that no U.S. workers can be identified for the job. I would also keep the preferences for aliens of exceptional and extraordinary ability whose admission to the U.S. would provide clear benefits to the American economy, or educational or cultural life.
Refugees. Refugee admissions are a crucial aspect of U.S. immigration policy. They serve obvious humanitarian interests and also recall us to basic American values. The problem is that U.S. refugee policy has not always admitted those most threatened by persecution, and it still embraces a Cold War emphasis on persons coming from former Communist states. It is time to repeal both the Lautenberg Amendment and the Cuban Adjustment Act (which provides an incentive to dangerous boat trips to the U.S.). Refugee admissions must be more than another form of family unification. The United States should keep its flexible system for establishing annual numerical limits, with a baseline of about 100,000 per year. Priority should go to persons identified as at risk by UNHCR and other international human rights organizations.
The U.S. also needs a coherent strategy for handling mass flows of persons fleeing significant human rights abuses or civil disorder, even if such persons do not come within the strict definition of "refugee." Our current temporary protection regime is perversely limited to aliens already inside the United States. The U.S. should work with other states in the region to develop offshore safe havens and processing centers for emergencies.