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Time to Bury the Ratchet: Replace it with Real Reform
by Paul Donnelly

No system that relies more on exceptions than rules will work well. Immigration attorneys, God love ‘em, naturally think of themselves as representing the interests of their clients as individuals – but the kind of law that blurs all differences between legal and illegal, permanent and temporary (as defended on ILW.COM by Cyrus Mehta) actually helps lawyers (and lobbyists) much more than it does immigrants as a whole. It makes the difference between people we don’t want and those we do, into a difference in degree, not in kind, with disastrous results.

Many folks don’t like the blunt honesty of noting that there are people living in America whom we don’t want, but that’s why "illegal aliens" are illegal, after all: we don’t want them here. The fact that there are millions of illegal aliens whom we DO want, makes my point. When there are people whom we do want to live here who are illegal, then the law should be changed -- to be the rule, not the exceptions that amnesty and "targetted legalizations" must necessarily be.

Of course, changing the law so the rules work better and allow fewer exceptions is NOT in the interests of the immigration bar.

Instead, the politics of what is known as "the ratchet strategy" led directly to the enactment of the welfare ban for non-citizens in 1996, as well as the atrocities of IIRIRA – summary deportation, the 3/10 year exile, the criminal aliens provisions, and so forth. Since then, there have been marginal improvements -- and an explosion in would-be permanent immigrants on non-immigrant visas, as well as illegal residents.

There is a much better political stance – the kind that wins elections through votes as well as campaign contributions – available for either party to take toward immigration. But it requires dumping the ratchet strategy, which is why those who pretend the ratchet works for immigrants as a whole won’t talk about it.

The ratchet strategy is simple: numbers always go up, never down, and promises are more important than delivery. What has to give is how immigrants are treated – but of course that’s where lawyers and lobbyists make their money.

When times are politically good for immigration, the organized immigration lobbies want to increase numbers available for existing categories, or add new categories. The emphasis in recent years has been on non-immigrant visas like H-1Bs and exceptions, such as targetted legalization programs. The increase in H-1Bs especially means ever more would-be green card holders on "temporary" visas, even though there are scores of thousands of jobs-based green cards that go begging each year.

In short, the ratchet strategy aims at getting Congress to make more promises, which creates more work for lawyers and lobbyists. But the strategy does not call for Congress to deliver, because that would mean less work – fewer billable hours, fewer opportunities to appeal to foundations for grants to fight the injustice of broken promises -- for those who drive the debate. (And try to drive common sense out of it.)

When times are politically bad for immigration, as they were in the early and mid-1990s and may well become in the next few years, the emphasis is on protecting all existing categories and numbers. That is, Congress must never be encouraged to deliver on what it has promised if that means a trade-off. This is the exact opposite of responsible governance which is always a trade-off – "to govern is to choose."

When the inevitable consequences of overpromising -- more immigrants than green cards -- can’t be ignored, rather than make the rules work, Congress is urged instead to make another exception – another "temporary" visa, a new targetted legalization program, with more blurring of the line between legal and illegal, permanent and temporary.

The 2000 Census reports that there are twice as many illegal residents -- 11 million -- as previously estimated, but doesn't explain why. Here is a key reason: Congress promises visas to families of immigrants, including both citizens and green card holders. Yet it refuses to prioritize among literally millions of immigration promises it makes to these families. Left waiting indefinitely, many move to the US illegally. Rather than fix the rules, Congress prefers to make exceptions -- slowly, intermittently, and only as part of bigger deals that reward campaign contributors, while making the underlying problem worse.

Let’s state the obvious: The backlog problem isn't going to resolve itself. As Carl Shusterman advises his clients, those waiting for too long in family categories should try for some other visa – literally suggesting that maybe they should plan on winning the lottery. Sound advice given the options, but no better as an immigration policy than it is as a retirement plan.

So there are just two options for reform: plus-sum, and zero-sum. Either we add visas, or we take from existing categories. Since 1996 the organized immigration lobbies have congratulated themselves on the "success" of the ratchet approach – beginning with defeat of a zero-sum trade-off between the extended family category of siblings and the nuclear families of legal permanent residents. But Congress is rarely reminded that this simply means that, in order to continue to make citizens’ siblings wait at least ten years, green card holders’ spouses and kids must wait five years.

Even this Hobson’s choice does not avoid trade-offs, it just hides them. The choices Congress DID make, from the welfare ban to the 3/10 year exile provision, aim different parts of our immigration laws directly at each other, like a diesel locomotive heading east toward a bullet train heading west.

The immigration bar ought to aspire to something better for the law than picking through the wreckage. The V visa? 245(i)? The law can't get where the polity wants it to go through such a twisted pile of jagged contradictions.

Another obvious point: immigration law does not work the way most people live their lives. It is not simply immoral and un-American, it is also impractical to expect green card holders, as a matter of law, to live in different countries from their spouses and kids (unless and until they can get "temporary" permission to one day become "permanent"). Two questions for our new Immigration Subcommittee chairs, Congressman George Gekas (R-PA) and Senator Sam Brownback (R-KS): How long would you live in a different country than your wives and kids? Why ask legal immigrants to do what you would not?

Likewise, the hermetic separation of family from employment is just not how people live. Wouldn’t you find a job for your brother or sister?

Too much of what passes for a "debate" about immigration policy is polarized, paranoid, nasty, ugly, and most of all, counterproductive: the silly and mean mutterings about "skills" vs. "family," for xample.

Those who propose discussing a point system (such as Cornell legal scholar Steve Yale-Loehr and Carnegie’s Demetri Papademetriou) tend to forget that family and employment are related – particularly when it comes to illegal immigration based on jobs. The Bi-National Study, an official group of Mexican and U.S. researchers, concluded in 1997 that most illegal immigration for employment is not based primarily on the lack of Mexican jobs nor of U.S. workers, but rather on networks – guys getting jobs for their brothers. One hopes that President Bush (of all people) doesn’t forget how important family can be to employment.

The family backlogs and the role families ties play in immigration networks mean that as much as 40% of the illegally-resident population has a legal American family that has filed an immigration petition – that is, much of our illegally resident population are people whom we DO want here.

So why don’t we change the law? The question is how: better rules, or more exceptions? Will those who know the most about this goofy system urge Congress to face reality - or to yank the ratchet again?

Papademetriou in particular is infatuated with the idea of "rejuvenating the circulation," the utterly factually discredited idea that "temporary" immigrants won’t bring their families with them, and settle to build the better life they came here to seek.

The solution most likely lies in doing to the 1965 Immigration and Nationality Act (INA) what it did to the previous regime. Oversimplified a bit, prior to 1965 most immigration law was negative. It was made up of historically-accumulated reasons to keep people out rather than reasons to let them in. The presumption was that someone could settle in the United States provided they weren’t diseased, broke, from the Far East, or going to upset the algebraically-derived ethnic balance of the US (this last survives in the law as the per-country ceilings, confounding all reason.)

A pillar of the Great Society, the INA turned immigration law around, making it affirmative. The new INA consisted of reasons to let people in, primarily to unite families and fill jobs. But like the rest of the Great Society, the political dynamic was ever more promises rather than delivery.

Some of us have been discussing in email exchanges a different approach. Why shouldn’t the family and employment-based categories be linked as a RULE, not an exception? Why shouldn’t there be a direct connection between the "temporary" and permanent immigration systems? After all, let’s face cats: if someone has been here for five years, they ARE permanent.

In other words, just as the '65 Act changed the system from negative to positive, why can't we change an exploding list of unmet promises to an accumulating set of values that renews the direct connection between immigration and citizenship? Why not replace exceptions with rules that work?

There are many ways to move forward, but only one to stand still. The 1965 Act’s system that promises more than it delivers, and the politics that tries to manage the results by backlogs and "targetted legalizations," has collapsed. Those who want a better system – including immigration attorneys who would rather write better rules than find better exceptions – are encouraged to join the discussion. (E-mail me for more at pauldonnelly@medialever.com.)

Ultimately, the best immigration policy renews America’s polity through the direct connection between immigration and citizenship – the Ellis Island model. A pro-immigration system cannot be built on non-immigrant visas and illegal residents, nor on bogus economics that erode civics. Let's replace the ratchet with real reform that is pro-immigration AND pro-immigrant.


About The Author

Paul Donnelly writes about immigration and citizenship. He can be reached at pauldonnelly@medialever.com. He was press secretary for the House Immigration Subcommittee chair in 1990, and Communications Director for the Jordan Commission throughout the mid-1990s. Most recently, he has organized the Immigration Reform Coalition that calls for "green cards, not guest worker visas" www.immigrationreform.com.


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