Spring 1999, Volume XIV Number 2 Immigration: A Dialogue on Policy, Law, and Values Immigration Levels and Priorities EDITORS: As we turn to the 21st century, how open or restrictive should U.S. immigration policies be? Probably most everyone agrees that the flow of legal immigrants to the United States should be "regulated." But just how much and why? What core principles should guide our policies? PETER SCHUCK: Most Americans believe -- and have always believed -- that the current levels of legal (and illegal) immigration are too high. I don’t know what the "correct" number is, but I think the current levels are sustainable under current and foreseeable conditions. The harder question is which criteria should govern our choices. I believe that our admission categories should advance America’s national interest, broadly defined to include immediate relatives, refugees/asylees, and high-skill workers. There is little national interest justification for admitting low-skill or unskilled workers, especially when we are adding 250,000-300,000 illegal workers each year, most of whom (virtually all of the illegal entrants and many of the visa overstays) are low or unskilled. There is no justification whatsoever for so-called "diversity" admissions; the U.S. is already highly diverse in national origins and ethnic terms, and the countries that have sent relatively few immigrants since 1965 are countries that benefited from the pre-1965 restrictions, so their fairness claims are weak, if not hypocritical. A point system, like that used in Canada, might make sense, as it could reflect the weights that Congress wishes to attach to particular criteria, such as job skills, English language, family in U.S., etc., for admissions not based on humanitarian or immediate relative grounds but on skills or more remote family attachments. Instead of the investor admissions program, which the Wall St. Journal described in March, 1999 as something of a scam, it might be better to be more forthright about the fact that we are selling these visas and simply auction them off to the highest bidders, using the auction proceeds to eliminate the backlog in naturalization and other important INS services. CHRISTINA DECONCINI: The principles that guide our immigration admission policies should reflect our country’s "common heritage, values and way of life," including: family reunification; protection of people fleeing war, persecution, human rights violations and natural disasters; and policies aimed at filling labor shortages. Most Americans believe that current levels of immigration are too high. [PETER SCHUCK] All people seeking to enter the United States and all non-citizens currently here should be afforded due process, judicial review and their "day in court." Due process should be the backbone of how all of our admission policies operate; unfortunately, this is no longer true. Policies aimed at filling U.S. labor shortages should honestly deal with the realities of our labor market and address the enormous need for low-wage workers. The current policy of raiding workplaces to deport undocumented people who pick our fruit, clean our hotel rooms, and package our chicken is hypocritical at best, and exploitive and unconscionable in terms of our country’s "common values." Employers consistently report they are unable to fill these positions with documented workers. The conditions under which this large transient workforce labors should not be tolerated in a civilized developed country. SUSAN MARTIN: Current U.S. immigration policies generally provide a good basis for admissions: family reunification, skills-based immigration, and humanitarian admissions. The problem is not the overall criteria but the way in which the system is now managed. We tend to use waiting lists and backlogs to regulate entries rather than assign adequate admission numbers to our highest priorities. Hence, there is almost a five-year wait for the spouses and minor children of legal immigrants to enter the country, a waiting period that does not reflect a serious commitment to family reunification. The wait for siblings of U.S. citizens is even longer. On average, the principal applicants in the sibling category tend to finally reach the head of the waiting list when they reach their 50s. To defer admissions until after the immigrants are past their most productive employment years does nothing for their families or for our economy. We should not set a priori admission numbers and then try to give a few slots to a lot of different categories. We should determine our priorities and set numbers that permit expeditious entry of people in those priorities. That may mean making some hard choices in deciding that some admission categories don’t fit the priorities. MARK KRIKORIAN: A consideration of policy must also include "temporary" immigration, since it is the source of the majority of permanent immigrants. Because legal and illegal immigration are so interrelated, any consideration of one must examine the other. I have learned much from the approach of the Commission on Immigration Reform, which said that our preferences for immigration categories should match our tolerance for total immigration. In other words, we need to decide what categories of people we want to admit, and then admit all of them each year. Currently, we hold out the possibility of immigration to millions, but admit only a portion, resulting in ridiculous waiting lists and in illegal immigration. Since everyone in the categories we delineate should be let in every year, one’s preferred immigration level must be considered. I prefer a low level of immigration. Therefore, family immigration should be limited to the spouses and unmarried minor children of U.S. citizens. As a transitional measure, since parents and young children should not be separated, those who acquired green cards before the passage of the reform would continue to be able to petition for spouses and minor children, perhaps for a period of 10 years. In FY 1997, about 250,000 spouses and children of U.S. citizens arrived as immigrants; that number will probably decline over time as the families of IRCA amnesty recipients are processed. I used to think that a point system for selecting employment-based immigrants, as is used in Canada and Australia, was a good idea. But I’ve dismissed the idea, since it would simply create more waiting lists, is based on a false sense of specificity, and would be inflexible in a system such as ours (as opposed to the parliamentary systems of Canada and Australia). A workable solution would be to limit this segment of immigration to 50,000 per year and preserve the definitions in the current First and Second Employment-based Preferences (priority workers, professionals with advanced degrees, and aliens of exceptional ability). The FY 1997 totals of these two categories was about 39,000. The Refugee Act of 1980 foresaw an annual intake of 50,000 refugees per year. This is a reasonable number, though the actual number admitted has been higher. I suggest that total humanitarian immigration be limited to 50,000 per year, including (1) refugee resettlement, (2) grants of asylum, and (3) cancellation of removal, with the first of these decreasing if the other two increase. In FY 1996, 25 million "nonimmigrants" (people on temporary visas) were admitted. Though most of them go home (19 million came as tourists, 3.8 million as business travellers), hundreds of thousands of people use nonimmigrant visas as a prelude to permanent immigration, even though they formally affirm to our visa officers that they have no such intent. The main categories of temporary visitors who never go home are students (who, together with their families, numbered about 460,000 in FY 1996), temporary workers and trainees (with families, 280,000), and exchange visitors (with families, 256,000). This specifically refers to legal immigration, not illegal; the INS estimates that 60 percent of the 275,000 annual increase in the illegal population comes from visa overstays. To end the practice of using "temporary" visas for permanent immigration, I would limit nonimmigrant visas of six months or more to those countries whose nationals do not adjust status from temporary to permanent visas. RACHEL MORAN: I begin by fighting the question, which suggests that immigration flows can be effectively regulated. Yet, Peter’s reference to illegal immigration indicates how difficult this really is in practice. He seems to believe that formal immigration should focus on desirable applicants, because the informal phenomenon of illegal immigration already produces a large number of unskilled (and hence less desirable) workers. What is missing from this analysis is whether the predictable flow of undocumented persons into the United States should continue to take place in the shadow of the law. Raiding workplaces to deport the people who pick our fruit and clean our hotel rooms is hypocritical. [CHRISTINA DECONCINI] That brings me to the second problem that I have with the question. It seems to envision that all immigrants will remain permanently in the United States and become citizens. However, there are provisions for temporary laborers, such as seasonal agricultural workers, in current immigration law. Are these people also immigrants? And should the discussion consider a range of ways that foreigners come to the United States (for more than a vacation) in deciding how to fashion qualifications for entry? A richer and more textured conception of immigrants seems imperative in a global economy, when the flow of labor and jobs across borders is likely to increase in significance. KAREN MUSALO: We need constantly to argue for and advocate an approach which is just and ethical on both the domestic and international levels. We need to talk about the root causes of illegal immigration -- gross economic disparities between rich and poor countries, political repression -- and see that it is in our national interest to address these through foreign policy decisions. An awareness of the great inequities and massive human rights violations that cause people to leave their home countries (many of whom would not be eligible for refugee status in the U.S. under current definitions) prevents me from embracing restrictionism, or from being a harsh critic of the phenomenon of illegal immigration. DAVID REIMERS: It is clear that there is no agreement about either the numbers or the exact criteria. I can see no reason to increase immigration at this time. Whether we can do much more about undocumented immigration is an open question. Yet, I would not like to see us cut refugee flows. As a rich and powerful nation, I think that we have an obligation to take in refugees and the current number is okay. If we cannot agree on precise numbers and criteria, can Congress and the makers of policy? I do not think so. Immigration policy is a matter of compromise and politics. I doubt there was serious debate before the 1990 law increased immigration, and even in cases where the debate has been long and loud, the result has not necessarily meant a rational policy, however one defines it. MARK KRIKORIAN: Legal and illegal immigration are merely different parts of the same process -- legal and illegal aliens come from the same countries, live in the same communities, are members of the same families. There is no substantial illegal immigration flow that is distinct from a substantial flow of legal immigration. And the sources of legal immigration are substantially a function of government policy -- viz. Indochina, Korea, the Philippines, Cuba, Central America, the former U.S.S.R. Indonesia, for example, is one of the world’s most populous countries and yet sends few immigrants to the United States (1,084 in FY 1996), because we never colonized the place, never fought a war there, never had bases there, didn’t have a guestworker program for Indonesians, and don’t have any Indonesian congressmen or lobbyists inserting nation-specific provisions in legislation. Reduced legal immigration is itself one of the most important tools in reducing illegal immigration. PAUL ONG: I find the arguments for having a completely open or closed-door policy neither informative nor realistic. These extreme positions are rejected by the vast majority of the public. The current level of legal immigration is acceptable and should be continued into the future, but I have no strong arguments for this particular level. My own projections indicate that this would increase the foreign-born population moderately, reaching about 12-13% of the population in the year 2050, compared to about 8% in 1990 -- an acceptable increase, in my opinion. I do spend my time thinking about more political concerns -- in particular, what is acceptable to the public. Clearly, this is based in part on the public’s fuzzy notion about what this nation can absorb in terms of culture, the economy, the environment, etc. I have no doubt that there is some level of immigration that is "too" high. With the upward drift of the flow of legal immigration in recent years, there are increasing cries that the flow is now "too" high. Moreover, the question is confounded by the fact that immigration is comprised of both legal and illegal flows. Establishing the right number is more a political exercise than anything else. In some respects this is not bad in our democratic society. Like other political debates, there is a role for leadership, for those who want to elevate the public discourse by getting past the polemics. We should minimize illegal immigration relative to legal immigration. I accept such a balance so long as we have a reasonable level of legal immigration and the system does not discriminate against certain groups. If this nation returns to its old anti-Asian ways, for example, then I would believe that the immigration law itself is not legitimate. Under those conditions, the distinction between legal and illegal immigration breaks down. I have come to accept the idea that economic concerns should play a significant role in allocating quotas. I realize that many find the discussion of economic-based quotas difficult. It brings up concerns about "brain drain," class privilege, and elitism. At the same time, I think that there is a national interest in balancing immigration flows in terms of educational attainment and skills, in giving preference to those who can contribute to technological innovation and increased economic competitiveness. This is certainly not a new idea. The immigration laws in the early part of this century gave preferences to skilled workers. Because economic needs will become more important in the 21st century, the debate on economic-based preferences will grow. KITTY CALAVITA: From a "national interest" point of view, the questions that are raised regarding immigration policy have to do with economics (such as possible labor shortages and the wage-depression effect), sustainability of the environment, and cultural diversity/assimilation issues. From a broader global perspective, immigration policy raises issues of justice and equity, which concerns have led to family unification and refugee policies. Immigrants assimilate to a multicultural America that rejects its own past, heroes, and myths. [MARK KRIKORIAN] Workable and fair immigration policies have been notoriously difficult to craft -- not just in the United States, but worldwide. In large part this is because immigration policy is not something that should be considered independent of broader national and international policies -- specifically, economic policies. In the absence of any broader national dialogue about "free trade," globalization of capital, living wages, and environmentally sustainable development, those interested in the broadest possible distribution of justice are in a no-win situation when asked to construct a hypothetical immigration and refugee policy. All else being equal (given the current climate of inadequate controls on wages and working conditions, escalating free trade practices, and capital mobility), relatively open doors for immigration may erode efforts to improve wages and contribute to further environmental degradation, while closing the door relegates the economically dispossessed and politically endangered to more of the same, and may even encourage capital flight as industry steps up its transfer to the sources of cheap labor. In the absence of more broad-based social and economic policies, of which immigration might be one piece, we are limited to choosing between the least of the evils. EDITORS: How might transnational policies relating to immigration be better developed in the future? Is there a greater role for bodies like the United Nations? Does the early European Union experience provide insights? PETER SCHUCK: The UN is a useful forum in which different states can engage and perhaps reach common ground, but we would be foolish to idealize it or expect more of it than it can deliver. Little or no common morality exists among the un’s members except at the most hollow rhetorical level. Instead, the relationships are almost entirely ones of power and national self-interest, so it is not surprising that public international law reflects this. The United Nations High Commissioner for Refugees (UNHCR) is an admirable, essential organ and expression of what little common morality there is, yet we all know how power and national self-interest have impaired its effectiveness. KAREN MUSALO: The fact that bodies like the UN or UNHCR fail to be as effective as we might like doesn’t mean than we should resign ourselves to models where national self-interest trumps commitment to human rights and humanitarianism. Those of us who believe in the importance and legitimacy of international standards relevant to human rights, labor rights, and refugee rights should increase our efforts to have the U.S. act in greater compliance with these norms and use the moral weight of this nation to pressure other countries to do likewise. We should use international structures and norms to address economic inequities and human rights crises, which are root causes for much of the global movement of people. SUSAN MARTIN: For me, the best way to think about international migration is in terms of pull/demand, push/supply, and networks. For example, people move to the U.S. for labor migration purposes, because there is a demand for their labor here, an oversupply of workers unable to earn sufficient income there, and a formal (e.g., smuggling rings) or informal (family members) way to link the supply with the demand. Given these factors, regulating migration effectively requires international cooperation. I agree with Peter that the UN has not been a particularly strong player in setting out a framework for international cooperation, but necessity may well force developments in this area. In the meantime, regional mechanisms show more promise for developing the type of cooperation needed to manage migration in a way that serves national interests while recognizing the human rights of the migrants. The Puebla process (involving the countries of North and Central America) is already evolving from an almost purely enforcement focus aimed at cooperation in curbing smuggling to a forum for discussion of other issues, including the rights of labor migrants and cooperation in addressing population movements from Hurricane Mitch. EDITORS: Does the U.S. need more or fewer low-skilled workers? PETER SCHUCK: It is consistent with a concern for both high-skill and low-skill workers to observe that we should emphasize high-skills in our legal, employment-based admissions, while not admitting low-skill workers as a separate category, recognizing that many of the illegal workers who will enter and many of the humanitarian and family admittees will have low skills. That there is still a strong demand for low-skill workers is evident from the fact that the unemployment rate among illegal aliens is probably close to zero. The effect of this on low-skill Americans, of course, is harder to pinpoint. KITTY CALAVITA: In some ways I think Peter’s description is more or less how the current system is set up, and while it may be logical in some sense, from the perspective of what’s good for the economy, it is also what has created enormous confusion, a hypocritical backlash against undocumented immigrants, and continued marginalization for the poorest immigrants. If a large proportion of "unskilled" immigrants (in some cases, this is really a euphemism for cheap, since many low-wage manual workers have substantial skills) are illegal by design, this means that poor immigrants will be consigned to the margins, socially and economically. Having said this, I agree with Peter that we probably need both high skilled and unskilled workers. While it is perhaps more politically palatable to say we need only highly educated, high-tech workers, the reality suggests quite a different scenario, as the bulk of immigrants work in low-wage, arduous, manual labor. Should the predictable flow of undocumented persons continue in the shadow of the law? [RACHEL MORAN] KAREN MUSALO: I think it is hypocritical and exploitive to acknowledge the nation’s need for low-skill labor, but to consign those needed workers to a situation where they have no legal status or concomitant legal rights. On a different, but related point, in all the discussions which have taken place in this country over the past few years scape-goating undocumented persons for competing for scarce jobs, I rarely hear anyone harshly criticizing corporate CEOs who greatly contribute to the economic detriment of U.S. workers by relocating in countries where they can pay low wages, and avoid many of the labor and environmental protections which apply within the U.S. I would like to see some of the people who are concerned about American workers focus their attention on the loss of jobs through the establishment of maquiladoras and other similar corporate practices. SUSAN MARTIN: The economic effects of immigration are indeed complex. Immigration provides modest benefits to the U.S. economy (up to $10 billion a year, according to the National Research Council) because immigrants are different from the overall U.S. population. They are either better educated or worse educated than we are. Immigrants benefit the middle class in the U.S. by complementing our economic contributions. They take jobs we do not want to do at the wages offered, or they take jobs we do not now have the education to do. There’s a down side, however, in that competition is most severe with those for whom immigrants serve as substitutes in the labor market. Since such a large proportion of the immigrant population (about 40%) have less than a high school education, many are competing with our most vulnerable population -- i.e., those with few skills. The NRC panel calculated that immigration accounts for a real loss in earnings of about 5% for unskilled workers because of this competition. Interestingly, the group that is most adversely affected, in terms of earnings, by continued immigration of unskilled workers consists of immigrants who came previously. There are, implications to this economic pattern. If the aim is to grow the economy, regardless of human cost, immigration is a valuable tool. If the aim is to reduce income inequality in the U.S., immigration presents more challenges. Immigrants coming from developing countries can earn more here than they could at home, but they may not be able to earn their way out of poverty if large-scale immigration of unskilled workers continues indefinitely. RACHEL MORAN: I would like to echo the concerns raised about the creation of marginal, vulnerable shadow populations in our midst. The truth is that America does require a steady flow of unskilled and semi-skilled labor. Yet, there is a reluctance to confer citizenship on those who pick our crops, bus our dishes, and clean our homes. In many ways, America wants the work without the worker. The result is a population of workers (some with their families) who are neither here nor there. Those who are employed find it nearly impossible to assert their rights at the workplace by unionizing or filing grievances. They form a labor pool that is easily exploited. It is no accident that the debate over the undocumented is often seen as a Latino issue. In Latino communities, particularly immigrant communities, the undocumented live side by side with permanent resident aliens and citizens. Efforts to root out the undocumented often impose an "enforcement tax" on those legally here. Individuals who "look Mexican" can be stopped by Border Patrol officers to produce the bona fides that establish their right to be here. Thus, one cost of simply leaving the situation regarding unskilled and semi-skilled labor as it is must be the special onus placed on Latino citizens and permanent resident aliens to justify their right to be here. Spring 1999 Issue Home | American Values | Levels and Criteria | Congress and Courts Bilingual Education | The Future | The ABA & Immigration | Resources Contributors | Comments | Credits/Disclaimers Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues