How the More-Migration People Manipulate Numerical Ceilings

By David North, February 12, 2012

American immigration policy since the 1920s has been based on the concept of numerical limits.

Not even the most blatant open borders types actually argue that there should be no numerical limits at all; to do so would to invite certain defeat.

But the same people are extremely skilled at outmaneuvering numerical limits, as recent events on Capitol Hill have shown. Perhaps it would be helpful to create a little list of these ploys, on how to undermine numerical ceilings on immigration without making a direct attack on the central concept:

  • Create relatively small classes of favored aliens who are granted additional allocations, such as the 50,000 or so who get green cards through the visa lottery;
  • Decide that certain favored groups of aliens, such as relatives of U.S. citizens, can be admitted outside of all limits;
  • Pass legislation putting the establishment of some numerical limits on certain classes of aliens into a legal framework outside the normal congressional channels, such as the setting of the annual inflows of refugees, a process dominated by the State Department;
  • Rewrite the rules so that certain favored sets of aliens (Indian professionals, juveniles in the custody of the courts, investors) have an easier time getting visas within the current numerical limitations, at the expense of other, less-favored aliens;
  • Recapture previously "unused" visas on a one-shot basis (a current favorite of the U.S. Senate in connection with the crime-victim, or U, visas);
  • Fuzz the difference between nonimmigrant and immigrant classifications by allowing endless extensions of nonimmigrant status (as with Treaty Investors (E-2), and the newly-proposed scheme for Irish migrants described below);
  • Redefine existing regulations so that persons previously unable to work legally (such as live-in lovers of U.S. and foreign diplomats, and spouses of some H-1B workers) can now hold jobs, thus converting a zero ceiling to infinity;
  • Devise systems that appear to be temporary in nature, but turn out to be, for all practical purposes, permanent, such as Temporary Protected Status; and
  • Mix, match, stir and/or attempt to disguise all the above.

It's an awesome – if discouraging – list.

For more information on some of the more specialized existing tweaks to the system, see my earlier blogs on live-in lovers of diplomats, juveniles in the custody of the courts, and spouses of an elite subset of H-1B workers.

Three recent congressional developments call one's attention to this collection of ploys.

They are: 1) a proposed bill for the Irish now before the Senate; 2) another Senate bill that would open the gates for more U visa holders (victims of crimes); and 3) a House bill designed to cut the waiting time for green cards now being experienced by workers from China and India. Each of these uses one or more of the ploys to increase migration for favored groups of aliens.

Needless to say, the most creative and most manipulative of these items comes from the all-too-able minds of former Rep. Bruce Morrison (D-CT) and current Sen. Charles Schumer (D-NY), both former members of the House immigration subcommittee, and, in the case, of the senator, current chairman of Senate immigration subcommittee. Morrison is now the leading lobbyist for more Irish migration.

Their bill creates an additional, apparently modest, ceiling (10,500) for one group of nonimmigrants from Ireland; it gives the beneficiaries an unlimited number of extensions of a nonimmigrant status, thus blurring the difference between immigrants (permanent) and nonimmigrants (ostensibly temporary); and it allows the admission, outside of any ceiling, of dependents of the prime beneficiaries. It also permits those qualifying for its benefits, i.e., those with a job in a "specialty field", to apply while in illegal status in the U.S. For an enthusiastic description of the bill see this from Irish America.

The second of these bills came before the Senate Judiciary Committee, on February 2, when it voted – along party lines – to reauthorize the Violence Against Women Act (VAWA). Along with many non-immigration matters, that bill included a provision considerably expanding the number of U visas available for alien victims of crimes, normally set at 10,000 a year. (These are mostly battered wives.)

Two of the maneuvers listed above are included in this legislation: the continuation of an arrangement whereby the immediate family members of the victims are not counted within the 10,000 limit, and a move to "recapture" 34,000 visas that were unused in the early years of the program. In the last two fiscal years, all 10,000 slots a year have been utilized, as USCIS has made sure that all and sundry knew about this way to obtain legal status in the U.S. These nonimmigrant visas can be converted to green cards after three years.

Unfortunately, the committee voted down an attempt by Sen. Charles Grassley (R-IA) to implement fraud safeguards in the program. For more on his efforts see this press release and for more on the legislation see here.

The senator pointed out: "We have numerical caps on many visa programs. We have caps for a reason. The U.S. can't take everybody who comes to our shores, as much as many would like to. Caps are a way to control the flow of people. They are a stopgap measure against fraud."

I think Sen. Grassley was right to be worried about fraud in this program. By definition, most of the beneficiaries must be living in high-crime environments. Most are illegal aliens, probably with low incomes, and most are within the U.S. when they apply, so it is another little amnesty program.

As proof, in a partial response last year from USCIS to our Freedom of Information Act (FOIA) request in which we asked for approval/denial rates for all nonimmigrant classes, we were told that in the first half of FY 2009 the agency had turned down 25 percent of the14,621 forms filed in the U visa program, the I-918 petitions. This is an agency that says "yes" to the overwhelming majority of applications, so the staff must have seen many problems with U petitions, at least in the first half of that fiscal year.

The third bit of legislation in this set, and the one with the least impact on the size of the American population, is H.R. 3012, which has passed the House and is now before the Senate, where Sen. Schumer and others are trying to attach the previously described Irish amendments to it.

H.R. 3012, in its current version, would, over time, eliminate the country-of-origin ceilings that operate within the numerical limits for the admission of "needed" workers, without increasing the total number of visas. It would do this by cutting the waiting time – a matter of years – for skilled and not-so-skilled workers from India and China, who are slated to get green cards, while extending the waiting time for comparable people from other nations. I find it a non-alarming bit of legislation, as noted in an earlier blog.

The USCIS activities to promote filings by juveniles in the custody of the courts had a similar relation to numerical ceilings; the more juveniles (a subset within the employment-based limits) the fewer other workers.

Thus the battle continues on many fronts as the more-migration advocates seek to find new and creative ways to get around the numerical ceilings built into our immigration laws.