There Is No Line

If we want immigrants to follow the law, we need better laws.


I became a United States citizen on Friday, September 29, 2017.

If I wanted to put a romantic gloss on my story, I could note how I arrived 22 years earlier via a one-way ticket to Detroit on a student visa with just a small bag of clothes, some philosophy books, and $97 in cash. Or how I lived on $10 a week after the rent and bills were paid. How—in the tradition of all good immigrants!—I buckled down and worked hard and graduated with a Ph.D. from Bowling Green State University in three years. How I beat the odds and secured a tenure-track job my first time on the market and then met the woman who was to become my wife on the first day of faculty orientation.

To make my immigration tale even more compelling, I could throw in some of the challenges that I faced. Like how I ditched my useless, high-priced corporate immigration attorney for a man (an immigrant himself!) who shared an office with a taco stand. The new guy charged me a discount price of $80 after I showed I could identify the Dominican Republic on a map, and then he provided me with perfect visa-renewal paperwork within hours. I could recount the harrowing experience of having my work visa granted literally 15 minutes before teaching my first class at The College of New Jersey.

Like so many others', my story could be held up as an advertisement for the American immigration system. While it may have taken me a long time to become a U.S. citizen, I didn't have to wait much to enter the country legally—that initial student visa took just a couple of months. I worked hard, adhered to the law, and was naturalized only after dutifully waiting in line. Shouldn't everyone have to do this? Isn't it unfair to people like me when others jump the line and enter illegally?

No. Because there is no line.

There is an implication in the line metaphor that the current immigration system operates as it did at the time of Ellis Island: People get off the boat (or the plane or the bus), register with the immigration authorities, and then, after waiting their turn, get approved to live and work in the United States. There are more people coming in now than there were in the late 19th and early 20th centuries, so the line's longer, but the principle is assumed to be the same.

It is not.

There are vanishingly few paths to being legally able to live and work here. The two main roads to legal immigration are the family-based visa program and the employment-based visa program. The family-based visa program is only freely available to the parents, spouses, or unmarried under-21 children of a U.S. permanent resident or citizen. (Those two classes of people are grouped together under the legal term "U.S. persons.") There are more-limited slots available to siblings, married children, and adult unmarried children. There are no slots for nieces, nephews, aunts, uncles, or stepchildren if the marriage creating that relationship occurred after the child was 18.

What if you're not related to a U.S. person? It's still possible for you to legally move to America, but it's unlikely. To qualify for an EB-1 employment-based immigration visa, you usually need a job offer from a U.S. employer. Nobel laureates, Olympic gold medalists, and other rare creatures can qualify for the elusive "persons with extraordinary ability" visa without a job in hand. But for the rest of us mortals, a U.S. employer must have made us an offer of a job. And not just any job.

According to U.S. Citizenship and Immigration Services (USCIS), there are two main types of qualifying workers: "outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally," and "multinational managers or executives who have been employed for at least one of the preceding three years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer." Those are high bars to meet. But if you're one of the few with extraordinary qualifications and have an offer from a U.S. employer, you could get the green light to immigrate to the United States.

If you're not a highly skilled worker who's already firmly established at the top of your profession, there's some hope—but not much.

Australians in a "specialty occupation" (kangaroo veterinary science, perhaps?) can apply for an E-3 visa. This allows them to work in the U.S. legally for two years, and they can apply to have it renewed indefinitely.

Not an Australian with specialty knowledge? You won't qualify for a visa that would allow you permanently to immigrate to the United States. (Sorry, huddled masses yearning to breathe free.) But you may be legally able to take a temporary job in America. If you play your cards right—and if you're very, very lucky—you could parlay that into permanent residency.

Under the H-1B visa program, a U.S. employer can file a petition with USCIS to hire a foreigner, temporarily, for a specialty occupation. To qualify for this visa, you will usually need a bachelor's degree (or training that's equivalent to a bachelor's degree) considered necessary to perform the "specialized and complex" job you're being hired to do. No bachelor's degree? No problem—assuming you're a fashion model "of prominence."

Even those who are well-educated or beautiful shouldn't get their hopes up. The number of H-1B visas is capped at 65,000 annually, and USCIS has been getting more than 200,000 valid petitions each year.

If you're lucky enough to receive an H-1B visa, you'll usually have to leave after six years—unless your employer is willing to sponsor you for a green card, which gives you permanent residency in the United States. This is an arduous process. The employer will have to demonstrate to USCIS that there are no American workers who can do your job. It will then have to file an Immigration Petition for Alien Worker form. If all goes well, you can apply for an "adjustment of status" with USCIS. And if that's approved, you'll receive your green card—but don't expect to get it quickly. Depending on which country you're from, this process can take up to a decade.

What about those who are neither well-educated nor beautiful but still want to live and work in America legally, maybe for the local mom-and-pop? They'll likely have to put their dreams of permanent immigration aside.

Under the H-2A visa program, a U.S. employer who meets certain regulatory requirements can file a petition with USCIS to hire a foreigner for temporary agricultural work. These visas are restricted to people from certain countries and are only available if it can be shown that there are not enough Americans "able, willing, qualified, and available" to do the work in question.

Under the H-2B program, some non–field hands can also work here temporarily. Again, these visas are limited to people working for U.S. employers that meet certain regulatory requirements, and they're only available if there are not enough Americans to do the jobs in question. H-2Bs are currently capped at 66,000 annually.

To be clear, H-2s are not immigrant visas—they're only for jobs that last less than a year. If you're a working guy or gal who wants to make a life in the United States, there are few options available to you.

If you're a native of a country that has a low level of emigration to the U.S., you can enter one of President Donald Trump's least favorite contests: the annual Diversity Visa lottery. But the chances of being one of the 50,000 winners are small: 22.4 million people entered in 2017. In theory, you could also be one of the rapidly shrinking number of foreigners—targeted at 18,000 for fiscal year 2020—to be admitted as refugees. But few people become refugees just for the pleasure of working in the United States.

The lived reality of immigration is much less like a line and much more like the forking paths of a Choose Your Own Adventure book. Make the right choices (marry an American, get hired by a U.S. firm at the executive level, win a Nobel Prize, secure an H-1B visa and parlay it into a green card) and you can make a life in the United States! But make just one wrong choice (marry a Canadian, fail to achieve tenure, get hired by a foreign company, don't have an employer that will sponsor your green card application), and you're out of luck.

And most people don't have the opportunity to make any of these choices. A low-education, working-age Mexican male—that staple of blue-collar employment in the American Southwest—does not qualify as a permanent immigrant under any of the visa regimes listed above. There is simply no path for many people in the world.

So those who seek better lives for themselves and their children, faced with the impossibility of ever being allowed to legally immigrate, do what you and I might be desperate enough to do under the same circumstances: They cheat. It's not that they want to skip the line and get an unfair head start. It's that there's no line for them to be in. There are no choices they can make to become legal immigrants to the United States.

Many critics of illegal immigration object not to jumping the line but to breaking the law. That's a reasonable point. It's also easy to address: Change the law so that people who wish to move to the United States and live in peace can do so easily and legally.

How could we do this? Simple—just flip the current system. Instead of the default legal position of prohibiting people from moving to the United States, we make admitting people the norm. In other words, we return to the old Ellis Island approach of actually having a line.

This proposal doesn't amount to open borders. There would still be background checks of the sort that I went through when I applied for my green card. And some people, such as violent criminals, could still be barred because of the choices they made in the past. But rather than telling people, "You're not going to be allowed to live here unless you fit into one of these very narrow criteria for entry," we should tell them, "Of course you can live here—unless you fit one of these very narrow criteria for exclusion."

What if the resulting line is too long? That is a practical consideration. One possible solution would be to boost the current staffing level of USCIS, allowing the agency to process applications much more quickly. This need not lead to a net increase in government, since switching the default would mean there would be far fewer illegal immigrants to chase, prosecute, and deport. (Persons who are currently in the country illegally could be granted amnesty, provided they're willing to undergo the same Ellis Island–style procedures as everyone else.)

USCIS is funded largely by application and petition fees. (It currently costs $1,140, plus for most people an $85 biometrics fee, to register to apply for permanent residency in the United States.) There's no reason these fees couldn't be increased, ensuring that the agency wouldn't cost taxpayers a penny. According to an April 2019 study by the RAND Corporation, undocumented immigrants from Central America pay between $6,000 and $10,000 to cross the border in extremely perilous conditions. So there is demonstrated price elasticity upward for a more safe and regulated system.

We know that legalizing the market in alcohol or drugs leads to better, cheaper products, while significantly reducing the abuses (such as violence and fraud) that are associated with black markets. Similarly, legalizing the market in green cards would lead to a better product—legal rather than illegal U.S. residency, with immigrants securing safe passage to start a new life. This product would be cheaper than its current black-market alternative, and the legal market would drastically reduce the demand for human smuggling that is currently being met by criminal organizations.

Existing Americans would reap economic benefits from this increased immigration. In the respected academic literature, the lowest estimate of the "immigration surplus" (the increased wages and incomes of native-born Americans that is a direct result of immigration) is that of George J. Borjas in his 2014 book Immigration Economics. Borjas calculated this surplus at 0.24 percent of GDP. That might not sound like much, but it would have amounted to a whopping $49 billion in 2018.

All of these benefits can come if we muster the courage to rethink and then overhaul our immigration policy. At the moment, America is closed to all but the privileged few (like myself) who satisfy narrow criteria for entry that are unreflective of true supply and demand. A return to an Ellis Island approach to immigration would be a return to people waiting in line to enter America peacefully and then to prosper. I'm willing to tell people to get in line, but only if there's a line for them to get in.