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You Need Points To Win

by Paul Donnelly

The phrase "earned legalization" may yet prove to be the 'New Coke' of the immigration debate: it seemed like such a good idea -- until it didn't work. The substantive and political difficulties that the slogan tries to finesse as the essence of 'comprehensive immigration reform' might be better confronted directly - and resolved through a new approach.

Somebody needs to say it plain: the 1965 Act has to be replaced. A point system is the only way to reconcile the political and substantive problems plaguing America's immigration law. Immigration Daily readers know that my article was unique in predicting of immigration reform in the last Congress that "It's Not Going To Happen", so you heard this here first, too: If this Congress tries comprehensive immigration reform by making ever more exceptions to rules that don't work, continuing the failed approach that has characterized immigration reform since the 1990 Act, the new law won't achieve its goals - if in fact legislation can be passed at all.

Consider what comprehensive immigration reform now looks like: a 'temporary worker' program - except that temporary workers will be able to remain permanently, to be sold politically by a rhetorical rejection of "amnesty" - except that those here illegally will be able to remain legally; coupled with a commitment to an economic justification for employment-based immigration that is an obvious subsidy to favored industries (not to mention immigration lawyers), a "gradual" commitment to enforcement and an algebraic approach to family values. The most conservative estimates of the outyear impact of last year's Senate bill is that it would increase the backlogs for family-based immigration exponentially.

Surely, the last thing American immigration law needs are more promises on which Congress will fail to deliver; more rules to which exceptions must eventually be made. Maybe.

So why not replace the long-obsolete structure of the 1965 Act with a point system that would be uniquely American by combining family and employment, including 'temporary' work?

Unlike the 1965 Act structure which is intelligible only to immigration experts (and not many of them, at that), a point system recognizes that there are characteristics which most Americans generally acknowledge "We, the People" want in immigrants: family ties, employment, skills; even English and civics knowledge, etc.

Yet a point system can also recognize that many of these characteristics are not in themselves sufficient to get someone a green card.

But cumulatively, they can add up - which is more than the 1965 Act does. Instead of managing by backlog, by exceptions to the rules (like 245(i)) - by promises on which we won't deliver - a point system can establish a step by step path to permanent residency for precisely the people we want, based on the same values on which the 1965 Act itself was drafted.

A point system can also support the rule of law, on which US citizenship depends. As Cyrus Mehta has written without visible irony, the very word "illegal" doesn't mean what it says, because there are so many ways for someone who has broken the law to remain indefinitely that it mis-states the law to say that someone could actually be violating it.

Is it any wonder that we have failed to fix the law?

The typical objections to a point system go as follows:

In a point system, governments pick immigrants. In this country, Americans pick immigrants. Yet for the past decade, the immigration coalition of AILA, the National Immigration Forum, EWIC, et al, have managed to define 'comprehensive immigration reform' almost exclusively in terms of illegal workers, who by definition are not chosen by Americans. Unlike those used by Canada, Australia and New Zealand, an American point system would combine family, employment, and temporary worker characteristics: so, it would not only be about 'Americans picking immigrants', but also about Congress delivering green cards promptly.

The 1965 Act structure embodies everything America wants from immigration so altering it would be a loss. This cuts close to the truth, which is that many who claim to want 'reform' have a stake in the way the system fails. The tacit consensus within the immigration coalition is, in fact, that their vision of immigration is distinctly unpopular. Like liberals looking at welfare reform ten years ago, the feeling is that opening up a genuinely comprehensive approach- how could reform be comprehensive without debating the underlying structure of the law? - would be a disaster. But they're wrong: Americans understand that we want legal immigration (that's why it's legal), and don't want illegal immigration (which is why it's illegal). Any 'reform' that isn't based on that fact will fail, both politically and more importantly, in practice.

The 1965 Act's oft-amended but essentially unchanged structural promises are the best we can do. I don't think so. The core of the 1965 Act's promise are separate but connected categories for immigration: unlimited visas to the immediate relatives of US citizens, counted against visas eventually to the spouses and kids of legal permanent residents and after many years to the siblings of citizens, with a complex regulatory structure for employment visas and, since 1990, a lottery for low-immigration sources countries. That may have been politically the best we could have done (how would we know? Nobody ever proposed anything else), but anybody who imagines this is the best possible immigration system for American values must believe Rube Goldberg was an efficiency expert.

The design of comprehensive immigration reform has already been set so we should pass it. This is where the New Coke analogy is so telling: Politically, many immigration advocates are making the same mistake interpreting last fall's election that all those MBA's in Atlanta did in planning New Coke: caught up in a team developing a product, they've confused what they see, with what they want - forgetting that it's not the design team's dynamics but what the public wants, that counts. Advocates have been nearly unanimous that November's election somehow endorsed the Senate approach to immigration reform, removing the obstacle of Republican control of Congress, particularly in the House.

But Senators who get votes by the millions face a different set of political demands than Representatives who get votes by the thousands. In at least 25 of the 31 House districts in which a Democrat replaced a Republican, the winning candidate ran to the enforcement side of the immigration divide. The oldest advice in politics is to 'dance with who brung ya'.

So the margin of Democratic control in the House does not favor last year's shapeless Senate approach, with a tiered amnesty, oops 'earned legalization', a guest worker program that might, or might not have abandoned any reference to the American job market (the drafters didn't know), a 'gradual' approach to enforcement, and (finally!) increases in family immigration by a hybrid of algebra and immigration law that reflected American values - if you think the law expressed in terms of calculus is an American value.

But of course, it is the House leadership which sets the agenda and determines floor votes, so if new subcommittee chair Zoe Lofgren, Judiciary chair John Conyers, Homeland Security chair Bennie Thompson, and especially Speaker Nancy Pelosi choose, there can be hearings and markups and a comprehensive immigration reform bill will be ready.

But - without a new approach, can a bill be written that will pass? Put more subtly, how can a bill be drafted that pleases advocates, like FIRM, the Fair Immigration Reform Movement, yet protects the dozens of House Democrats who must be re-elected in pro-enforcement districts if Democrats are to keep their majority?

FIRM seeks to be a genuine grassroots player urging immigration reform - and it insists that a comprehensive bill must have, among many other things, no tiered structure for amnesty (that is, ALL foreigners living and working illegally in the US will be eligible), and that no enforcement can be done until the verification system is perfect.

Try running on that in the 25 Congressional districts the Democrats must hold to remain the majority.

As if reconciling FIRM with the needs of people who actually win elections isn't enough, President Bush has said bluntly that he opposes amnesty. Bush is not above vetoing a bill with "earned legalization" in it, especially since a large majority of Republicans in Congress, freed of any real responsibility for passing anything, have not changed their core view that amnesty is not negotiable. "Earned legalization" advocate Senator Martinez was nominated for General Chair of the Republican National Committee - which promptly ignited a firestorm among rule of law conservatives.

So much for the politics.

The substantial problem facing Lofgren in particular, is that after 25 years of essentially the same politics (often with the same players, at the Forum, AILA, etc.), the nation faces precisely the same issues as it did when the Hesburgh Commission identified them in 1981: we have too much illegal immigration, and too little legal immigration. It is not that the substance of immigration has caused a political impasse; it is that the dysfunctional politics of 'pro-immigration' coalitions has prevented a substantially sound resolution.

It's not about what the design team wants.

Which brings us to the New Coke slogan 'earned legalization'. Like "temporary workers", it's too clever by half, an attempt to leap a deep chasm in two jumps. That's understandable (if catastrophic), of course. As every poll shows, not to mention the election results district by district, the public has two overlapping majorities on immigration issues. Asked about national security and enforcement, Americans overwhelmingly demands tougher enforcement; asked about immigration and families or the legendary 'jobs Americans won't do' (not at the wages and working conditions offered), the public favors immigrants.

The endlessly complex discussion of how a temporary worker program will intersect with earned legalization and "a path to citizenship" aims at blurring the distinction between two distinct populations: new workers who will enter the US legally, and foreigners who are now living and working in the US illegally.

It is not clear that this blurring is politically effective, because it divides supporters of amnesty from opponents of guest workers, e.g., the AFL-CIO, rather than recruiting supporters of tougher enforcement to advocate increased family visas.

So here is how a point system could be enacted to replace the 1965 Act, resolving the political dynamic in favor of immigration: 100 points gets a green card. So the current immediate relatives category (the spouses, minor children, and parents of US citizens), get 100 points on a valid petition. But expand this category to include the spouses and minor children of legal permanent residents - as the organizers of the FIRM letter have agreed their commitment to "family reunification" means. ("Immediate relatives" status for LPR nuclear families was also in the original Hagel/Martinez compromise in last year's Senate debate.)

That leaves the perennial conundrum of the siblings of US citizens category. This category is misconceived, in that it does not function as 'family unification'. (Want proof? How many of us live with our grown siblings?) Face facts: the sibling category is a jobs network - we should treat it as such, WITHOUT eliminating its essentially family nature. Give 50 points to each sibling on a US citizen's petition, and add a category for LPR siblings, who would get, say, 20 points.

But because sibling immigration is an employment network, temporary workers should not be considered for permanent residency separately from their family ties in the US. Someone who gets one of President Bush's 'temporary' visas should get 20 points toward permanent residency for every year they work legally in the U.S.

And points acquired in one category should be combined with points from another: a US citizen's sibling with 50 points on that petition, would have 70 points after their first year of legal work in the US.

The strong support for Americanization expressed by Senator Alexander and others, urging English acquisition, civics knowledge and military services advance someone for legal permanent residency and citizenship, should be enlisted in a structure for immigration policy that directly connects incentives to goals. Give 10 points toward permanent residency for English and civics competence; as many as you like for an illegal resident who volunteers for military service. A 'temporary' worker who has a US citizen brother could get a green card in as little as two years, instead of the 15-20 anticipated by the current debate - and in a manner that is not only more intelligible to ordinary Americans, but also more consistent with our values.

Leaving the 1965 Act's structure will finally enable a new foundation for immigration policy, restoring the Ellis Island model instead of constantly adding rickety staircases to nowhere and pathways to waiting lists.

There are potentially powerful political forces who have been left off the design team: state and local governments, for example. Cities like Baltimore and states like Iowa recognize that their future is new Americans - Baltimore has already reversed a half-century long decline in its population by becoming the first city in America to deliberately attract immigrants.

Surely, House immigration chair Lofgren can see some political value in building bridges to new Maryland Governor Martin O'Malley (the former Mayor of Baltimore), and Iowa Governor Tom Vilsack, who is running for President.

Why not authorize states and local governments to sponsor foreigners for permanent residency?

That leaves the ultimate problem in immigration politics: how to reward those who follow the rules, and not those who break them. A point system can do that, too, but the 1965 Act structure cannot.

Even the long-snarled debate over worksite enforcement, exemplified by the recent raids in Swift meatpacking plants in six states, presents a knot that could be sliced through.

The fact is, the private sector can do worksite verification in precisely the same way that certified public accountants do taxes. Why not have Congress direct DHS to certify private companies that provide worksite verification of employment eligibility under immigration law, and requires that employers which use such certified verification services be first in line to hire workers with new temporary workers?

That way, employers will have an incentive to do their I-9s right, not merely out of fear that they will be fined or embarrassed (and deprived of their workforce) the way Swift has been, but for the most effective reason of all: they GET something for it - temporary workers.

Smart enforcement can generate synergy with a point system: simply provide that workers who break the law, lose their points toward permanent residency. Instead of the spouses and kids of green card holders breaking the law to obey marriage vows and family values, the law would actually support universally recognized morality plainly.

And instead of the siblings of US citizens and legal permanent residents breaking the law to get jobs, they would be obeying the law to keep on toward their own green cards, which would be ever closer as they work, learning English and civics.

And those workers will have an incentive to comply with the law, because it will REWARD them to do so - and penalize them if they don't.

With a Presidential election (and a potential veto of an amnesty bill) coming up, the political myopia of continuing in the same dreary round of exempting a from b in order to increase c, d, and e; of H-1Bs and H-2As, while the bread and butter of immigration lawyers, is exemplified in Senator John Kerry's response to a question about immigration during the 2004 debate. Instead of talking about the values that ought to be central to immigration - patriotism, our history, family, Ellis Island - Kerry's first words were: "I support earned legalization."

He lost.

A point system will be a lot easier to sell the goodhearted American people on - including their representatives in Congress - because it is not about jargon, but about values. Opposing it would require explaining precisely which values reflected in the point system are NOT American: Clarity? Family? Americanization? Citizenship? The rule of law?

After all, the way to win is to score points.

About The Author

Paul Donnelly writes and consults on immigration and citizenship, and advises Lookout Services and

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