America's Broken Immigration System is Kneecapping the Military



America's hopelessly gridlocked immigration system is undermining more than its national economy—it's also kneecapping its national security.

The reason behind these twin failures is the same: the Rushmore-sized obstacles our immigration system creates in the recruitment of qualified foreigners. But when it comes to military recruitment, the irony is that while previous presidents have used their statutory authority to draft immigrants against their will, President Obama hasn't used his to recruit even willing immigrants, something he could change via the executive initiative on immigration he's planning to unveil as soon as he grows a spine.

Although the military downplays its recruitment difficulties, the reality is that it is having a hard time meeting its annual goals, and the National Guard and ROTC are already facing a recruitment crunch. The reason is that there aren't enough Americans who meet the military's basic qualifications—and the military can't recruit many immigrants who do.

The military's target cohort of 17- to 24-year-olds is steadily shrinking, thanks to an aging population. Making matters worse, 70 percent of this group fails the military's basic fitness or behavioral criteria. Why? Because of rising obesity, lack of a high-school diploma, felony convictions, and drug use—not to mention body piercings (think large holes in the earlobe and visible tattoos that soldiers are barred from having).

There would be an easy fix if the army could freely recruit immigrants, who tend to have better educational qualifications, score higher on army recruitment tests, and have fewer convictions (or tattoos) as well as a lower attrition rate after recruitment, just as it has done in the past. But it can't.

The foreign born composed half of all military recruits in the 1840s, and about 20 percent of the 1.5 million service members during the Civil War. Indeed, immigrants—largely German and Irish men—arriving to American shores were almost instantly handed their entry papers—along with the draft—and sent off to fight in the Union Army. Likewise, half a million foreign-born draftees from 46 countries—constituting about 10 percent of U.S. troops—served in World War I, with survivors getting automatic naturalization.

But immigrant participation in the U.S. military has now dropped to less than 4 percent, likely the lowest it's ever been. And the main reason is not that immigrants don't want to enlist. It is that they are in a Catch 22: They can't enlist till they get a green card, thanks to a 2006 law. But getting a green card can take decades, by which time they are too old to serve.

Prior to 2006, during a war, all branches of the armed services – Army, Navy, Marine Corps, Coast Guard, and Air Force—could recruit foreigners residing legally in the United States, regardless of whether they had green cards or not, and offer them naturalization or citizenship. This meant that foreigners who enrolled got an expedited route to citizenship without having to obtain green cards first, something that civilians have to do. During peacetime, however, only the Marine Corps and Navy could recruit foreigners—but without being able to offer naturalization. The other branches weren't allowed even that much.

This wasn't a perfect system from the military's point of view, because it hampered its ability to offer foreigners an attractive enough deal during peacetime, but it at least maximized the wartime recruitment pool.

In 2006, irked by the lack of uniformity in the recruitment rules among all the branches, Congress, without any cost-benefit analysis or hearings, passed a new law that Margaret Stock, a veteran and a leading expert on immigration and national security law who advises the military on foreign recruitment, rightly casts as very ill-advised. The law barred all branches from enrolling immigrants without a green card at any time, peace or war, except when the military's service secretary deemed it was in the "vital national interest" to do so. Nor could the military sponsor these foreigners for green cards, putting it at a competitive disadvantage compared to the private sector, which can do so.

Now, theoretically, the Obama administration could make generous use of the "vital national interest" provision, especially since America is still at war, to help military recruitment. President Obama could allow immigrants to serve and naturalize by using his wartime authority under Section 329 of the Immigration and Nationalization Act, something that President Bush did for anyone who had served honorably for even a single day, even illegal immigrants. But the Obama administration hasn't done any of this, save for a small program called MAVNI (Military Accessions Vital to the National Interest) that Stock developed for the Army.

Under this program, for which Stock received a MacArthur genius grant, the Army, using its administrative authority, can recruit foreigners living in the country legally, and then hand them citizenship as soon as they complete boot camp. The program has been a huge hit. It has allowed the Army to fill shortages of personnel in key areas such as linguists, engineers, and cyber security technicians. Meanwhile, it has offered a way out to foreigners stuck in the green card morass—which is why 16,000 of them, many from top-notch universities, apply every year for the 1,500 available slots.

Yes, that's right: Just 1,500 available slots. And there's absolutely no legal reason why the Pentagon couldn't expand the program or allow other military branches to create their own similar programs. "The 1,500-cap is completely arbitrary," Stock insists.

Also, instead of waiting for Congress to hand permanent legal status to 1.75 million DACAs (Deferred Action for Childhood Arrivals)—folks against whom deportation action has been deferred for two years because they were brought to the country illegally as minors—the Obama administration, just like the Bush administration, could use its legal authority to allow them to enlist. This would give the military access to a very large and high-quality pool of people who have already undergone background checks, notes Stock. And it would give these people a way to become naturalized.

But instead of creatively exploring such options, the Obama administration is just sitting around pointing fingers at Congress for failing to fix the country's dysfunctional immigration system.

The administration has been strongly hinting at executive action on immigration yet again. That this has taken it six years to get to this stage bespeaks of a pretty deep dysfunction of its own, however.

This column was originally published in The Week. An archive of Dalmia's columns at The Week is here.