U.S. Immigration Policy as a 10-Layer Cake with Cuban Frosting

By David North, March 25, 2016

If you were a creature from outer space, complete with really good computational skills, and you were examining U.S. immigration policy, you would find that our policy resembles a 10-layer cake, coated with a Cuban frosting.

While immigration law sometimes applies equally to aliens from all nations, as in the case of a U.S. citizen seeking a visa for an alien spouse, different rules often apply to different kinds of migrants from different countries, in a maze of complications. This blog post is an effort to illustrate how the total set of migration rules impacts different nations. (In some cases a nation will appear in two or more layers, and some of the layers will be much more populated than others.)

There is an inevitable element of subjectivity in some of these designations of mine, and others might re-arrange the sequence of the ratings. If you combine all of our laws, regulations, and policies (which sometime have little relation to our laws), to see how much we welcome people from specific nations you would find the following levels of differential treatment:

The Frosting. Nobody, but nobody gets the treatment we give people from Cuba — if they set foot in the United States, no matter how they got here, they get to stay and later become permanent resident aliens. This is the direct result of our long-standing antipathy for the Brothers Castro, and is based on the Cuban Adjustment Act of 1966.

Layer One. Three Central Pacific island nations, all former de facto colonies of the United States, come next. They are the Federated States of Micronesia, the Marshal Islands, and Palau. Their residents can move to the United States as permanent nonimmigrants without visas or other screening; they can work here legally and can spend the rest of their lives here.

Many of them live on low-lying islands that are likely to be awash in 50 years or so as a result of global warming. They are the only potential global warming victim population that I know of that has that safety valve.

Layer Two. The seven nations in Central America seem to have achieved a de facto status in which their nationals are allowed to stay in the United States as illegal aliens known to the government or as asylees, and seem to be immune from the normal immigration laws. Illegal immigrants from El Salvador, Guatemala, and Honduras clearly fall into this category, and those from Belize, Costa Rica, Nicaragua, and Panama, may be treated in the same way (out of a consideration for regional equality).

Layer Three. While the Cubans and people from the 10 nations in layers one and two currently have the ability to come to the Unite States without the normal restrictions, the special rights for aliens in layers three and four are historic ones. They have obtained a specialized, nominally temporary, and country-specific amnesty called Temporary Protected Status (TPS), a status that is routinely renewed every 18 months. While in TPS they can work legally and cross the borders, but they cannot use that status, as the Cubans can theirs, to move to either a green card or to citizenship.

TPS status is proclaimed, without any involvement of Congress, when the administration decides that conditions in a nation (e.g. a major storm or earthquake or civil war) are such that we should not pay attention to the immigration law as far as the nationals of that country are concerned. While there are minor exceptions, most TPS situations are renewed year after year, providing an amnesty long after the storm or volcanic eruption has passed.

TPS must be applied for when it becomes available; at the moment there are no new enrollment periods for TPS. The status is not automatic, though the chances of a rejected application are slim. The nations that have this status with 18-month renewals, are: El Salvador, Haiti, Honduras, Liberia, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.

Layer Four. Three nations have TPS status, but the last time that the status was renewed it was for a period of six months, which is less advantageous to the aliens involved than 18-month extensions, hence a separate layer.

These three nations secured TPS status because of the Ebola epidemic; one of them, Liberia, had an earlier TPS status because of civil unrest, and is the only nation on both of the TPS lists. The six-month TPS nations are: Guinea, Liberia, and Sierra Leone, all in West Africa.

Layer Five. These nations are favored by two of our major, world-wide migration policies. Their citizens, usually in the role of tourists, can come to the United States for a limited period without obtaining a visa (they are thus visa waiver migrants) and there has been little enough permanent migration from them so that their nationals also can participate in the diversity visa lottery. Visa waiver nations are generally well-to-do and their citizens infrequently become illegal aliens.

The visa lottery allows about 50,000 aliens a year to come to the United States as permanent resident aliens (i.e., green card holders). At one point, the immigration lobby caused the creation of this unique program on the grounds that it would produce a more diversified migrant flow. (Only the United States, and to a tiny extent, New Zealand, use such a device in their immigration programs, as we have noted earlier.) Any citizen of a diversity nation who is an adult and a high school graduate may apply.

Nations covered by both the visa waiver program and the diversity lottery are these: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and Taiwan.

Layer Six. This is a thin layer — consisting only of the United Kingdom — this nation's citizens, while eligible for the visa waiver program, are not eligible for the visa lottery. There is an exception to the latter provision created by our always-creative Irish immigration lobby: People from Northern Ireland are eligible for both the visa waiver and the diversity lottery.

Interestingly, it is only when one gets to the fifth and sixth layers of this policy cake that one encounters the nations of Western and Northern Europe that once provided the main body of migration to the United States.

Layer Seven. This consists of a long list of nations whose citizens are not eligible for the visa waiver program, but who are eligible for the diversity lottery.

Most of the nations of the world fall into this category: Afghanistan, Albania, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Azerbaijan, Bahamas, Bahrain, Barbados, Belarus, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Bulgaria, Burkina Faso, Burma (Myanmar), Burundi, Cape Verde, Cambodia, Cameroon, Central African Republic, Chad, Comoros, Republic of the Congo, Democratic Republic of the Congo, Costa Rica, Croatia, Cuba, Cyprus, Djibouti, Dominica, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gabon, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Honduras, Indonesia, Iran, Iraq, Israel, Ivory Coast (Cote d'Ivoire), Jordan, Kazakhstan, Kenya, Kiribati, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Lesotho, Liberia, Libya, Madagascar, Malawi, Malaysia, Maldives, Mali, Marshall Islands, Mauritania, Mauritius, Federated States of Micronesia, Moldova, Mongolia, Montenegro, Morocco, Mozambique, Namibia, Nauru, Nepal, Nicaragua, Niger, North Korea, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Poland, Qatar, Romania, Russia, Rwanda, St. Kitts and Nevis, St. Lucia, St. Vincent and The Grenadines, Samoa (formerly Western Samoa), Sao Tome and Principe, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Solomon Islands, Somalia, South Africa, South Sudan, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Tajikistan, Tanzania, Thailand, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Tuvalu, Uganda, Ukraine, United Arab Emirates, Uruguay, Uzbekistan, Vanuatu, Vatican City (Holy See), Venezuela, Yemen, Zambia, and Zimbabwe.

Layer Eight. The nations in this category benefit neither from the visa waiver nor the visa lottery program; they tend to be developing nations that already have large numbers of their countrymen living in the United States. They are: Bangladesh, Brazil, China, Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, and Vietnam.

Layer Nine. One of the complications of our immigration law is the concept of admissions ceilings regarding the arrival of numerically limited immigrants. (Not all immigrants are in numerically limited classes, but many are.) No nation is allowed to have more than 7 percent of the world-wide total for the numerically-limited, but four nations routinely send us more than 7 percent of these ceilings, creating substantial backlogs.

In one instance, those ceilings are relieved, more or less, by the workings of the largest of the Obama administration's fiat amnesty programs, Deferred Action for Childhood Arrivals (DACA). This is a legalization program mainly for Western Hemisphere nationals who claim that they entered the nation illegally before they were 16; the few youthful illegal arrivals from elsewhere in the world also are covered.

The only nation that has backlogged applicants for admission and is a significant beneficiary of the DACA program is Mexico.

Layer 10. The three other nations with backlogs of legal immigrants, none of which benefit to any noticeable degree from DACA, are China, India, and the Philippines.

To some extent this bottom-of-the-system status is compensated by the high incidence of people from India and China in the H-1B program, which, in turn, is one of the main reasons why the backlogs exist in the first place.

The four nations in layers nine and 10 contribute a very large percentage of all admissions (and adjustments) each year. In 2013, the last year for which official figures are available, of the total of 990,553 admissions and adjustments, there were these:

  • Mexico: 134,198
  • China: 68,410
  • India: 65,506
  • Philippines: 52,955
  • Total: 321,069

These numbers would be much, much higher were it not for the 7 percent ceilings mentioned above.

The Leftovers. We have not mentioned Canada, whose residents have relatively easy access to this country, because it does not fit neatly into any of the layers, but it would be in one of the top levels of the cake.

Nor did we mention those Chinese who are blessed by birth in either former British Hong Kong, or former Portuguese Macau. They generally are treated by our systems in a more friendly way than those born in Mainland China.

Also missing from this system are a score or more of current colonies of the UK, France, the Netherlands, and Denmark. We do not have heavy inflows from these entities — all are islands, with the exception of French Guyana — because when migration to the First World is contemplated in those places it is usually toward the imperial heartland, not the United States.

This analysis supports, yet again, the notion that our immigration system is extremely complex, with various vested interests shaping the flow of migrants in peculiar ways. The best way to simplify this maze would be to pare away the more extraneous of these programs, starting with the diversity lottery, and then moving on to terminate the least defensible of the family immigration programs, that of adult siblings of U.S. citizens (and all their nieces and nephews).