A Hierarchy of Immigration Policy Problems

By David North on May 7, 2012

One of the knee-jerk reactions of restrictionists — and I am one of them — is to view any loosening of immigration policy and/or enforcement with equal vehemence, seeing each bit and piece as a more or less equal part of a disturbing picture. Instead, since we have limited energy and (sadly) limited influence, we should allocate and calibrate our outrage in order to accomplish something.

If one of your worries is the exploding American population — it is one of mine — you might keep in mind this totem pole of problems, spending more energy on those at the top, and less on those lower down:

  • Class A. Actions that produce additional legal immigrants, with no finite limits.

  • Class B. Actions that produce a finite number of additional immigrants set by law.

  • Class C. Actions that, within numerical limits, grant new rights to some migrants at the cost of others, and thus do not expand the total immigrant population or the total U.S. population.

Let me cite some recent examples of each class; some relate to overt immigration policy and some to enforcement polices.

Class A immigration policy examples include the recent creation of a Temporary Protected Status program for people from Syria and the open-ended extension of TPS for Somalis, both described in a recent blog.

Similarly the much discussed "Dream Act" would give legal status to an unlimited number of illegal aliens now in the United States who entered as children and have other qualifications.

Naturally there are inherent limits to many of these populations as there are not very many eligible aliens for the Somali TPS, for example, but these limits are not set by law.

One of the most widely discussed Class A enforcement situations at the moment is the Obama administration's decision to give legal status of some kind to people who otherwise would be deported through prosecutorial discretion. There is no upper legal limit on either the number of people who would be legalized through discretion, nor on the follow-on effect this policy would have in encouraging further illegal immigration.

There are fewer Class B examples, though one is the U.S. Senate-approved expansion of the limit on U visas for crime victims and their victim and non-victim relatives from 10,000 a year to 15,000 a year, described in the blog cited above. I don't think it is a good idea, but at least 5,000 more a year is preferable to infinity.

In Class C, the two most prominent recent examples are the recently passed House bill (HR 3012) for H-1B workers and the controversy about the EB-5 immigrant investor program.

The House bill, pushed by corporate America and by Indian interests, would reduce the green card waiting time for H-1B workers from China and India, not by expanding the total number of visas available, but by moving them to the front of the line — adding waiting time for skilled workers from other nations. That bill is pending in the Senate.

There are numerous problems with the EB-5 program. It gives green cards to aliens who (without a half million dollar investment) could not possibly qualify for immigration status. The investments themselves are usually unattractive, some of the private sector middlemen handling the program are dubious characters, and the investment rules are often bent or broken, as is spelled out in my CIS Backgrounder "The Immigrant Investor (EB-5) Visa: A Program that Is, and Deserves to Be, Failing".

On the other hand, the new investors and their family members do not swell the immigrant population. Since the EB-5 beneficiaries are members of the numerically limited employment-based migration stream, they simply displace or delay the admission of other immigrants and their relatives.

The EB-5 program, however, is too full of low hanging fruit to ignore.

Turning to a tradeoff between Classes A and C in an enforcement context, let me recall an incident of some years ago. I engaged a senior INS official in a hypothetical discussion about the enforcement priorities between two types of marriage fraud investigations. In one the crime involved a phony marriage to a citizen — a Class A situation, in that the alien spouse would get one of the unlimited immediate relatives green cards.

The other the questionable marriage involved a permanent resident alien and was thus a Class C situation — the alien spouse would get a green card, but from a numerically limited pool.

My question: "Assuming all else is equal, shouldn't INS give priority to the first type of fraud, because it will swell the American population, while the second would not?" The officer had never thought of that tradeoff, but his almost immediate reply was that other priorities, such as the strength of the evidence, should prevail and the population consequences should not be considered.

I suspect ICE still operates on the same premise.

I made a similar argument about prioritizing immigration issues in an earlier blog. I suggested that we should be much more upset about illegal aliens taking jobs in the American economy, a matter measured in the millions, rather than worrying about aliens voting when they had no right to do so. The latter is a small (even tiny) political problem, compared to the former, which is a massive economic one.