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Time For A Change: Why A Points System Should Replace Family Immigration

by Gary Endelman

Gary Endelman Those who champion earned legalization for the undocumented are all too familiar with the charge flung back at them by their critics: Amnesty rewards and encourages those who violate our immigration laws. Beyond that, the argument runs, one amnesty program is never enough; it always leads to another one somewhere down the road. So, for example, the legalization progam enacted by Congress in 1986 served as a precursor to the one that "earned legalization" advocates want now. When honestly raised by critics of good conscience, such a concern is a weighty one indeed, one that deserves a sober response devoid of polemics. If we concede, as we must, that Congress failed to solve the problem of illegal immigration by enacting the Immigration Reform and Control Act (IRCA) in November 1986, why do proponents of earned legalization think that they will be more successful this time?

While it is true that "earned legalization" will demand its beneficiaries to demonstrate satisfaction of certain core criteria that played no role in the IRCA amnesty, such as stable employment, payment of back taxes, a minimal degree of English proficiency and specialized skills that the economy demands, that is not the reason that "earned legalization" can succeed where IRCA did not. IRCA left the legal immigration system untouched; "earned legalization" must not repeat this mistake. Due to artificial limits imposed on the family-preference system, fixed at 226,000 immigrant visas for Fiscal Year 2001, spouses and children of lawful permanent residents faced a 5 year wait before being reunited with their loved one, while Mexican families had to spend 7 years apart. Waiting times for siblings of American citizens reached 20 years in some cases. Senator Sam Brownback (R-KS), the ranking Republican on the Senate Immigration Subcommittee, spoke out during a September 7, 2001, hearing of the Senate Judiciary Committee on why illegal migration was a reflection of legal inadequacies:

We should open up family and business-based immigration to address presently massive backlogs. Illegal immigration is symptomatic of a system that fails to reunify families and address economic needs in the U.S. To ensure a rational and fair system, we must reduce bureaucratic obstacles and undue restriction to permanent legal immigration...We need an earned 'regularization' for undocumented people who work, pay taxes, contribute to their communities, and seek American citizenship. Such people should be given the opportunity to obtain permanent residence, instead of being forced outside the boundaries of the law.
Illegal immigration remained unchecked because legal immigration remained out of balance . One cannot be solved without the other. IRCA sought only to punish the employers of the undocumented, but did nothing to rationalize the legal immigration system in an efficient and humane manner. The goal of "earned legalization" should be to unify families and direct a sure and steady flow of skilled workers into legal channels so that they can leave the shadows and strengthen the economy in which we all work and on which we all depend. It is for this reason that a points system for essential workers is not only the best way to legalize the undocumented, but also to reform the legal immigration system.

What should such reform consist of? On what bedrock precepts should it rest ? America should have a legal immigration system for only three reasons: (1) to serve as a refuge for the oppressed who flee persecution; (2) to unify the nuclear family and (3) to enrich the domestic economy. This is why any limits that divide the nuclear family are inhumane and must be immediately scrapped. There should be no reason why the families of legal permanent residents are kept apart any longer than the families of American citizens. They should be treated precisely the same . Not to do so, to tolerate the present family-based immigration system is an affront to the human dignity of those who wait and those who keep them separated.

At the same time, once we make the nuclear family sacrosanct, America must take the next step and abolish all other forms of family immigration as well as the diversity visa lottery. In its place, adopt a points system based on the same criteria that "earned legalization" articulates: age, English language fluency, ties to the United States, the presence of skills that the economy needs, education, and a willingness to live in places that have been chronically unable to attract migration, whether domestic or international. If America does not need the married children or siblings of United States citizens, the older sons or daughters of Americans, or the over- 21 sons and daughters of permanent residens, they should not come. If they can earn a sufficient number of points , let them in. In the long-run, most people come here to work and chain migration that is unchecked by any labor market controls must be replaced by a system that puts national interest first.

Out of fundamental fairness to those who have been waiting for so long, the replacement of the current Family immigration preferences can be phased in on a gradual basis. The beneficiaries of approved immigrant petitions in the curent Family First ( adult sons and daughters of US citizens), 2B ( over age 21 sons and daughters of permanent residents), Family Third ( married children of US citizens) and Family Fourth ( siblings of US citizens) categories should be given a chance to convert their applications to those under the new points system. To clean out the backlog, Congress should authorize a dramatic expansion of these categories to last only as long as the change-over requires. It should be possible to accomplish this in two years if we have the will to do so.

Finding ways to bring longtime illegal residents into the sunshine, reuniting nuclear families, and making all other forms of family migration subject to a points system will enhance national security, promote economic vitality, give permanent residents the chance to realize the promise of American life, and avoid the mistakes of the 1986 Amnesty. What's not to like?

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.