Let (a Lot More of) Them In
Comprehensive immigration reform isn't coming anytime soon. Here's what to do in the meantime.
The United States immigration system doles out millions of green cards every year. Of course, the Post Office manages to deliver millions of letters every day, millions of Amtrak passengers reach their destinations every month, and American public schools hand diplomas to millions of students every year. But no one would say those bureaucracies are high functioning.
America's immigration system is far worse than the Post Office, Amtrak, and public schools combined. It is bottlenecked and broken at every level in almost every category, yet comprehensive reform seems politically impossible.
At the time of this writing, President Barack Obama had just announced a controversial plan to realign immigration enforcement priorities. Since he has been unable to get lawmakers to budge, the president will instead use administrative tools to defer deportation proceedings against illegal immigrants with American children or spouses and deep community ties—at least for as long as he is in office. The plan also involves concentrating resources on ejecting unauthorized immigrants with criminal records. Up to 5 million people who entered the country illegally—about half of the undocumented population—would likely qualify for relief under this plan.
Obama's plan utterly fails to address the underlying problems with the immigration system, yet it still may squelch any hope for comprehensive reform. That doesn't mean, however, that immigrant-friendly lawmakers should simply twiddle their thumbs. They can pass a series of improvements that enjoy bipartisan support to start fixing the system as soon as the new Congress is in session. These include a guest worker program for low-skilled workers and deregulation of the high-skilled visa program.
To make their case, reformers can point to how America worked until the beginning of the 20th century. At that time, immigrants could simply show up on our shores, undergo a physical exam at the point of entry, and obtain their papers on the spot. Today, remote bureaucrats make decisions about who stays and who goes based on their own notions about what is good for the economy and the country, rather than leaving such questions to individuals. The immigration system subdivides the pool of potential immigrants into a complex taxonomy of bureaucratic categories and subcategories—J-1, K-3, L-1A, H-2B—each with its own unique maze of requirements.
Americans who are unlucky enough to fall in love with a foreigner can't simply marry and live happily ever after. Instead, the citizen must sponsor his or her spouse for a green card, which requires the couple to divulge intimate details of their lives to suspicious bureaucrats to prove that they are not faking the whole thing for money or friendship. If you are a green card holder and want your overseas spouse to join you in America, you usually have to wait years. Wait times for green cards for adult unmarried children or siblings of American citizens in foreign countries are somewhere between seven and 22 years, depending on their country of origin.
American employers fare no better under the current system. High-tech companies get an annual quota of 85,000 H-1Bs—temporary work permits, renewable after three years—to hire foreign geeks. That quota is typically filled in a matter of weeks each year, forcing everyone else to wait another year to play the visa lottery again.
And that's not even the worst of it. Companies that sponsor these H-1Bs have to prove to the labor department that they have made a good faith effort to hire Americans, which includes advertising in approved channels. If companies are deemed "H-1B dependent" they become subject to "labor audits"—a stipulation brought to you courtesy of politically connected labor unions. This means they must be prepared to justify the discharge of any American worker 90 days before or after hiring an H-1B. They have to demonstrate either that the employee's departure was voluntary or caused by poor performance or unacceptable behavior. A company that is found to be willfully violating the law can be barred for three years from hiring foreign workers and slapped with serious fines.
Converting these H-1Bs into green cards is so complicated that a whole industry of lawyers has grown up around it. When it goes smoothly, it takes tens of thousands of dollars and decades, especially if the workers are from India and China. Many expensively trained, productive employees give up midway through the process in frustration and go home, especially since their spouses, until the president's executive order, were barred from working unless they miraculously managed to obtain their own H-1Bs.
And believe it or not, these beleaguered high-tech companies are actually the lucky ones. If you are a farmer who wants to hire, say, Mexican apple pickers, you are almost better off praying for a timely gust of wind to knock down your fruit. H-2A visas, the temporary work permits for agricultural workers, require even more hoop-jumping than H-1Bs. Officially, there is no cap on these visas. But in order to get one, you have to agree to pay whatever the government deems to be "market wages," on top of transportation and housing for the foreign workers. The biggest problem may be that farmers have no idea when (or if) government approval will come, putting crops at risk while they cross their fingers and wait for bureaucratic sign-off. What's more, in order to qualify for these visas, the workers themselves sometimes have to prove that they have property and jobs to return to at home. But if they had that, why would they want to come to America to pick apples in the first place?
Likewise, landscape companies or hotels that want non-agricultural seasonal workers from abroad are required to use H-2B visas. The annual cap on these visas is 66,000; the demand in an average year is in the hundreds of thousands. These visas are self-liquidating, meaning that once a project or season is over, the visa automatically expires and the employer has to send the workers packing. Companies can't keep on good workers, even if they desperately need the extra hands.
This dysfunctional system has created a de facto regime of labor prohibitionism. And the 11 million residents who have come to the U.S. in violation of immigration law—"illegal aliens" as restrictionists insist on calling them—are a direct consequence of that, just as a black market in liquor was the result of alcohol prohibitionism.
But instead of overhauling this crazy system and offering relief to the employers and foreigners stuck inside it, anti-immigration activists have held up reform for more than a decade. In a rare instance of opposition to Republican patron saint Ronald Reagan, many conservatives insist that the Gipper's 1986 amnesty for undocumented immigrants was a huge mistake that created the current mess because it offered lawbreakers forgiveness without ensuring guaranteed border security, as if the latter was even possible. Talk show host Rush Limbaugh has made opposition to reform one of his signature issues, and his listeners are always happy to write to their representatives when legislation is on the move. Restrictionists helped kill George W. Bush's comprehensive immigration reform bill in 2007 because it included a special pathway to legalization for undocumented workers. They insisted that any reprieve for the undocumented must be paired with a 2,000-mile barrier on the Rio Grande to "secure" the border. Meanwhile, America has spent $90 billion on drones, border patrol agents, and fence building in the decade after 9/11, a nearly 100-fold—not 100 percent—increase.
In 2013 the bipartisan "Gang of Eight" immigration-reform negotiators tried another tack, crafting a Senate bill that would have upped border spending for more fences, drones, and guards by another $45 billion; forced all employers to use the federal E-verify database to check the legal status of all hires (American and foreign alike); created a high-tech tracking system for immigrants; and significantly raised the already onerous labor certification requirements for foreign hires. In exchange, the proposal put together by South Carolina Republican Sen. Lindsey Graham and New York Democrat Sen. Chuck Schumer would have offered green cards—and 10 years or so later, citizenship—to undocumented workers after they'd paid fines, covered back taxes, and proved proficiency in English. Additionally it would have allowed a somewhat more accelerated path to legalization for the so-called DREAMers (minors brought here illegally); created a very limited year-round work visa program for low-skilled workers; upped the available quota of high-tech visas a wee bit; and removed the country-based quota on green cards that is responsible for creating decade-long processing backlogs.
All in all, it was a cumbersome and ineffective effort that would have considerably tightened the immigration noose on several counts in return for a tiny relaxation on a few, yet restrictionists killed even this because they claimed it was tantamount to "amnesty." Never mind that, unlike the Reagan amnesty, it would not have resulted in quick citizenship and would have required undocumented workers to run a bureaucratic obstacle course.
Thus far immigration advocates have been loath to consider anything less than a comprehensive bill out of fear that moving on the high-tech visa reforms that Republicans support will leave the latter little incentive to come to the table to legalize undocumented workers, as Democrats want. But there is a growing sentiment in the face of repeated failure that piecemeal reforms are now the better bet.
"Getting out the vote for Democrats while vilifying the GOP as a prime strategy to reform our immigration system has failed miserably," say Prerna Lal, a liberal immigration attorney (and former undocumented minor) who founded DreamActivist, an online advocacy network for unauthorized minors. Meanwhile, Grover Norquist, the conservative anti-tax crusader and longtime advocate for a more a generous immigration policy, points out that with both houses of Congress in Republican hands, passing immigration reform piece by piece is the only viable strategy. "You won't get anywhere if you make them feel that they have to swallow the whole horse at once."
Rather than hold out for a single, grand legislative bargain, the most promising strategy is to create a list of concrete reforms that have bipartisan appeal, and then make strategic alliances with separate lawmakers on both sides of the aisle to pass each one. Advocates should make piecemeal progress where they can, while keeping an eye on the prize of better aligning the system with the needs of individuals, families, and employers.
The main reason that the undocumented population in this country has continued to grow is that Congress too often treats the issue as a law enforcement problem rather than a policy problem. After offering an amnesty, Ronald Reagan hiked border spending to catch Mexicans trying to sneak in and made it a crime for employers to hire unauthorized workers. This has been the template that subsequent policy makers have followed in an effort to construct passable immigration bills. But the real—indeed, the only—reason why this problem exists in the first place is the absence of a usable guest worker program for low-skilled workers, which Reagan did nothing to create. (The bracero program, which allowed American employers to import contract labor from Mexico, was scrapped in 1964.)
It's vital to create a guest worker program now, regardless of whether existing undocumented aliens get any form of relief. That's the only way to prevent the ranks of undocumented workers from swelling yet again.
The Gang of Eight Senate bill, however, made only a lame gesture in this direction, with something called the "W visa program." The bill would have created 20,000 such visas in the first year after passage, raising the cap to 75,000 over four years—provided that a new federal bureaucracy called the Immigration and Labor Market Research Bureau, stacked with union reps, deemed that these workers were needed to plug shortages. Construction companies would be allowed to "import" up to 15,000 workers, when the actual need is in the hundreds of thousands.
A more promising approach would be something along the lines of the Red Card solution, proposed by the Helen Krieble Foundation, a public policy foundation dedicated to promoting America's Founding principles. This approach would separate low-skilled immigrants into two groups, one that wishes to simply come here for work and then go home, and the other that wants green cards or citizenship. The crucial thing is that both groups could start the process in their home country, something that most cannot do right now, which is why the restrictionist refrain that undocumented workers should "wait in line" for their permanent residency is a cruel joke. But the path for getting a guest worker visa—or a Red Card—would be much simpler and quicker than existing proposals, which require demonstrated mastery of English, American history, and civics.
Here's how it would work: Uncle Sam would license private employment agencies to open shop in Mexico and other countries and authorize them to distribute Red Cards to workers who match with American employers. The agencies would be responsible for running background checks before handing out the card. The card would contain the biometric data and other personal information of the immigrant, how long he/she was authorized to stay in the country, along with the prospective employer. They would have to return to their country after the card expired or if they lost their job. And they would not be allowed to apply for a green card while in the meantime.
Authorizing private companies to hand out work permits for certain kinds of employees has already been tried successfully in Australia, so that part of the Red Card plan is certainly welcome. But the proposal would also restrict Red Card workers to the company that first hired them, something that gives the employer undue power. There is no good economic reason (besides making it easier for Uncle Sam to track foreigners) not to give employees the flexibility to switch employers if things don't work out with one, or if they get a better offer. That would ensure that they get market wages without bureaucratic mandates and don't undercut American workers.
Also, barring Red Card holders from applying for their green cards while in America seems gratuitously strict. Foreign techies on H-1Bs are allowed to adjust their status while working in America, so it's not clear why low-skilled workers shouldn't be allowed the same courtesy.
Still, something like the Red Card would certainly be a huge improvement over the current system.
High-skilled employment ought to be the easiest part of the current immigration mess to straighten out. There is considerable bipartisan agreement that foreign techies are good for the economy, given that they have founded literally half of the companies in Silicon Valley and are responsible for a disproportionate number of American patents.
The Gang of Eight proposed raising the current 85,000 H-1Bs (which includes 20,000 for foreign students in STEM fields in American universities) to 110,000 initially and 180,000 eventually. In return, it would have imposed more bureaucracy on H-1B-dependent companies. Worse, companies whose workforces are 30 percent H-1B would have to pay exorbitant visa fees. And those with more than 75 percent would be banned from hiring more H-1Bs altogether. (This was actually a backhanded way of killing large, India-originated IT companies, such as Infosys, whose business model depends on bringing large numbers of techies from home.)
These poison pills should be scrapped. In addition, even this higher cap will almost certainly fall short in economic boom times. It would be far better to eliminate the cap altogether and let market demand determine how many H-1Bs are issued annually. Companies should be allowed to sponsor however many techies they want.
But the biggest source of misery for H-1Bs is the multi-decade processing time for green cards. One reason for the delay is the insanely low 140,000 annual cap on employment-based green cards. This ought to go eventually. But there are a series of administrative and legislative fixes that could offer H-1Bs immediate relief.
Currently, when an H-1B obtains a green card, his family gets it too, but all these green cards are counted toward the annual cap. Counting all the green cards issued to an H-1B family as a single card would go some way toward easing the backlog.
Congress should also abandon green cards' per-country limit, under which workers from a single nation can get no more than 7 percent of the total green cards. Allotting techie-rich countries such as India and China the same number of green cards as techie-poor countries such as, say, Kazakhstan and Senegal is absurd. Simply scrapping such quotas would shorten green card processing times considerably.
A full-blown amnesty—meaning, a path to citizenship—for this most misunderstood and reviled group is off the table; restrictionists simply won't let that happen. President Barack Obama used his executive authority to temporarily defer deportation for some portion of the 11 million unauthorized workers in the United States. But the newly empowered GOP is fiercely opposing this, insisting that Obama is provoking a constitutional crisis—even though his move is perfectly legal under the 1986 Immigration and Nationalization Act. With his executive action, the president would at best give about half of the current undocumented population temporary relief from deportation. And then the next president could reverse this at will, using the same "prosecutorial discretion" that Obama is relying on to set completely different enforcement priorities, though it would be politically more difficult to yank legal status for individual workers once it is conferred.
Rep. Bob Goodlatte (R-Va.), who enjoys a fair amount of street cred with restrictionists, has a plan that may offer a glimmer of hope. He proposes a two-stage approach to legalization that would steer clear of one powerful anti-amnesty objection: that unauthorized folks should not be given their own "special pathway" to permanent residency, much less citizenship, ahead of legal immigrants patiently waiting in line. His plan would involve giving all illegal immigrants who have no criminal record formal protection from deportation. Then, after some years, they could apply for green cards, but only through the existing family-based or employment channels. The bill would also offer a separate, accelerated green card process for DREAMers.
An American child could sponsor his or her unauthorized parents for green cards upon turning 18, for example. Or the legal or American spouse of an unauthorized worker could sponsor him or her. Alternatively, an employer could sponsor someone for a green card in the "Other Worker" category. The problem with using this category: It allows only 5,000 individuals, including their dependents, to be sponsored each year. This would significantly limit the viability of this approach unless, of course, Uncle Sam raises this limit to about 30,000 and stops counting the dependents of the primary green card applicant toward this quota.
Estimates by the National Foundation for American Policy suggest that this approach could potentially offer 4.4 to 6.5 million unauthorized people green cards. But here's the beauty of it: Even those who don't have family members or employers to sponsor them could live in the country legally forever. It is just that without green cards, they couldn't sponsor anyone else or ever become citizens.
This is not ideal, but it sure beats living in the shadows.
Leave Immigration Up to the States
Ultimately, America's entire immigration system, under which distant federal bureaucrats sit and plot the labor market for the entire country, needs a complete makeover. Economically meaningless distinctions around low-skilled and high-skilled workers ought to go. There is absolutely no good economic reason why Cupertino, California's need for STEM graduates should be prioritized over, say, Florida's need for farm hands.
One way to do so would be to reform America's immigration system along the lines of Canada's Provincial Nominee Program. Each of Canada's 13 provinces gets a fixed quota to sponsor its own worker-based permanent residencies. Provinces get to pick whomever they want to hand out visas for whatever reason.
The central government in Ottawa can't question either the provinces' criteria or their methods of recruitment. Its role is limited to conducting a security, criminal, and health check on foreigners picked by the provinces, which has cut processing time for permanent residency to one or two years—compared with a decade or more in the U.S.
There is no built-in bias against any province's labor needs. British Columbia gets the same flexibility to sponsor, say, bricklayers as Ontario does to sponsor computer programmers. Amazingly, the program only requires the prospective immigrants to state their intent to live in the sponsoring province; it does not actually require them to do so. Immigrants are free to move where they wish. Still, the average three-year retention rate of the participating provinces was 78.5 percent for the years 2006 and 2007, according to a Cato Institute study. The program allows such a granular matching between immigrants' skills and local labor markets' needs that most immigrants find good jobs pronto, settle down, and stay put.
Giving provinces the flexibility to effectively write their own immigration policy has also elevated the tone of the immigration debate in Canada. In America, the entire conversation is dominated by those who advocate crackdowns, E-verify, barbed wire fences on the Southern border, and self-deportation. In Canada, provinces compete with each other to recruit immigrants. While America is building fences, Canada is dispatching recruiters all over the world, selling their provinces to prospective residents, like companies do on college campuses.
The beauty of the program is that it hasn't made provinces foreigner-friendly by lecturing them about the wonders of diversity or universal brotherhood. By giving provinces more control over their immigration policies, it has changed the incentive structure.
Provinces are certainly free to turn away immigrants if they don't want them, but doing so comes with an economic price, because businesses are likely to move to those places where labor is more plentiful. This means a loss of jobs, tax revenues, and population. Because provinces can control immigration flows so as to avoid strain on their public goods, there is no downside to immigration, only an upside.
If America wants to be true to its own folklore about being the land of immigrants, it might want to learn a lesson or two from its neighbor to the north.
UPDATE: For more, see Dalmia's interview with Helen Krieble, founder and president of the Vernon K. Krieble Foundation and author of the Red Card Solution.