Possibly the most popular topic for television’s talking heads in recent months is immigration. The popular catch phrase is “Comprehensive Immigration Reform.” But the most vocal proponents of such reform seem to hold views that comprehend only one extreme or the other: a 3000 mile long wall (whether real or virtual) euphemistically called a “secure border,” or a massive amnesty coupled with increases in the level of immigrants to satisfy the apparent demand for visas, euphemistically called “a path to earned citizenship.”
As someone who has been directly engaged in the field for nearly 40 years, I often bristle when listening to simplistic dialog on the subject. Sadly, the prevailing views expressed on the cable talk shows are those of legislators and others who have staked out positions on the fringes. They cater to constituencies that are not reflective of mainstream America. In my own view, neither of these extreme positions is workable or desirable. Neither serves the national interests of the United States which, after all, should be the driving force behind any immigration (or any other) legislative effort. Either approach would result in little more than further growth in the already burgeoning bureaucracies at CIS, ICE and CBP.
Everyone’s opinion is valuable when it comes to immigration. But everyone doesn’t get to write their own section (which is what appears to have been the origin of nearly all immigration legislation enacted over the last 50 years). Anyone responsible for drafting a new immigration law should be selected based on his or her neutrality on immigration issues. He or she should be tasked with drafting a thorough, balanced bill based on a set of pre-established principles. Although I hesitate to suggest it, a bipartisan commission (not unlike the ill-fated Jordan Commission) could provide these principles. When complete, the bill should not be subject to countless toxic amendments advocated by the usual special interests. It should be managed more like the contentious Defense Base Closure and Realignment Commission legislation: straight up or down, to minimize the influence of special interests.
The current INA must be discarded. It can’t be patched any more. A new law could include everything necessary to administer a complete, well-reasoned national immigration policy while at the same time reducing the number of words in the law by 2/3. This is not an impossible goal. Most of the INA today consists of special interest provisions and gross micro-management of the bureaucracy. As an occasional student of immigration legislation in at least a dozen other countries, I can attest to the fact that bigger is not better. And legislating immigration the way the U.S. has done for the last hundred years is a recipe for the same miserable results.
For whatever it is worth, I offer these random notions for anyone tasked with writing fair, workable, immigration legislation. It’s time for a very different approach.
1. Immigration quotas serve a valid purpose. But the numbers should be based on the needs of the nation and its ability to absorb newcomers, not on an arbitrary number revised about as often as the arrival of Halley’s Comet. Quotas should apply to every class of immigrant and to nonimmigrants who are working in the United States. Just because someone is married to a citizen doesn’t mean he or she has no effect on the culture and economy of the nation. Congress should be required to assess needs and set quotas annually for all classes of immigrants and working nonimmigrants. Quotas should be easy to administer. INS and now CIS have amply demonstrated they can’t count. Why rub their noses in it?
2. All aliens may have been created equal, but they don’t stay that way. Some absorb into the fabric of the country and contribute. Some don’t. There is nothing wrong with a well-reasoned, transparent, mechanical “point” system for selecting immigrants. This would ensure that migrants with best chance of success in the United States will be able to expeditiously obtain residence. It should be applied to all would-be migrants.
3. Bureaucrats are not capable of administering discretionary provisions. For this reason, no provision should include words like “extreme and unusual hardship,” “extraordinary ability,” and the like. Waivers should be based on objective, measurable criteria rather than a creative fiction writing competition. Rather than a myriad of discretionary waivers, various grounds of inadmissibility should simply not be applicable in certain situations (e.g. when a certain family relationship exists, after a specific period of time has elapsed, etc.) Similarly, the notion that an adjudicator ensconced in a cubicle somewhere can equitably determine whether someone is of extraordinary ability in a field of endeavor and is coming to perform services requiring such ability is equally ludicrous.
4. The immigration courts are broken. The answer isn’t more judges. In my view, an immigration court should be in place solely for the purpose of providing an impartial review of the decisions of the administrative agency. The IJ and BIA are not there as a convenient way of indefinitely protracting the stay of an obviously deportable alien. There should be a price to pay for losing in court. This can be accomplished simply by taking away the option of voluntary departure from the IJ and Board: The immigration court system should either grant actual relief (asylum, residence, admission as a nonimmigrant, or citizenship) or give an order of removal with the consequences of deportation attaching immediately. How well would our criminal court system work if the defendant could wait for the jury’s verdict and imposition of a sentence before negotiating a plea bargain?
5. The diversity visa program is a lousy concept and should be dumped. There are sending countries for a reason. Migrants come to the United States for the same economic and social reasons they have always come. The DV program does nothing to promote the interests of our nation.
6. The nonimmigrant alphabet should be pared down to no more than 10 letters. Many of the current distinctions among classifications are pointless and confusing.
7. The labor certification process is hopeless. The notion that it somehow provides protections for U.S. workers is patently false: only a fraction of immigrants and nonimmigrants entering the labor market are subject to labor certification. Some other countries have adopted a more pragmatic approach to importation of labor. Rather than vainly attempting to examine wages, working conditions, skill sets and availability of workers, these countries simply apply a serious monthly visa surcharge fee, based on the category of labor, for visas issued to non-citizen workers. If employers need to import workers badly enough to pay such a surcharge, then in all likelihood they really need the particular skills of those workers and training U.S. workers isn’t a viable option. The scale could be periodically adjusted based on shortages in particular occupations, etc. The surcharge fee should apply even to students on practical training and to dependents of workers who engage in employment.
8. In connection with the previous recommendation, all work-authorized visas (including students on practical training and dependents of workers) should be considered indefinite (quasi-immigrant) for as long as the visa holder is engaged in the occupation and the employer continues to remit the monthly fee. The notion that an arbitrary limit of 5, 6 or 7 years has anything to do with business needs or labor markets has no basis in reality. The current limits for nonimmigrants have no effect other than to force companies and aliens (and their lawyers) to scramble for available loopholes in the INA. After a prescribed period in status as a worker, such long-term residents should have the opportunity to apply for naturalization, just as any other legal resident. This process would eliminate the need for all work-related immigrant classifications.
9. Forget about “knowingly.” If an employer hires an illegal alien and gets caught, there should be a hefty fine per violation. No excuses, no mitigation. The fine should far exceed the cost of hiring a worker the right way, as prescribed in recommendation 7. But the law also needs to be a bit more reasonable on the anti-discrimination stuff. Employers should be given a clear set of procedures which, if followed, would shield them from unreasonable anti-discrimination lawsuits.
10. Curtail chain migration. Preferences for siblings, adult and married sons and daughters and parents need to go. Let’s face it; migration to the U.S. isn’t migration to another galaxy. Despite the eruption of an occasional volcano in Iceland, world travel is cheap and available. If you want to see the extended family now and then, hop on the plane or send them an e-ticket. And bringing mom and dad here so they can apply for SSI and go back home isn’t such a good thing for the U.S.
11. There should be no nationality-specific provisions. Immigration to the United States should not be based on national origins or the special affinities of lobbyists and legislators.
12. Finally, I have one administrative recommendation. I strongly support the “user fee” concept for immigration benefits. But I do not think it is reasonable to charge today’s immigrant benefit applicants for things which have nothing to do with processing the benefit they seek. Presently, applicants support, in whole or in part: refugee and asylum processing; all immigration benefits provided to residents of Puerto Rico, Guam and the U.S. Virgin islands; persons granted fee waivers; diplomatic and official benefit application fees; and EAJA fee awards. In addition, the full cost of infrastructure improvements is absorbed in current year budgets, effectively making today’s applicants fund improvements that may only benefit future applicants. These costs should be paid from appropriated funds, not the fee account. Infrastructure costs should be funded more like a bond issue. If CIS is expected to operate like a business, then all the rules of business should be applicable. The first customers to a new store should not have to pay the entire cost of the building. The present fee account structure is little more than a thinly disguised Ponzi scheme with the current fees used to defray the cost of processing last year’s benefit requests.
There are other ideas where these came from, but you get the point. “Comprehensive” doesn’t mean an amnesty, more fences and finishing off the nonimmigrant alphabet. I personally believe the immigration issue could be settled in a fair, rational manner without imposing a huge burden on the taxpayers. But I have no illusions that it will be.