Legal Immigration in the 21st Century

By Kevin R. Johnson on March 1, 2001

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Kevin R. Johnson is Associate Dean for Academic Affairs and Professor of Law and Chicana/o Studies; Director Chicana/o Studies Program at the University of California, Davis.


The following proposals for reform of U.S. immigration law operate on the following basic principles.

First. Consistent with modern civil rights sensibilities in the United States, our immigration laws should not discriminate on the basis of race or national origin. Nor should the laws seek to shield the nation from the racial, ethnic, religious, and cultural diversity found throughout the world. Such discrimination has no place in the U.S. immigration laws or in their enforcement.

Second. In fashioning effective legal immigration proposals, immigration law and policy must take into account undocumented immigration. When the demand for migration far outstrips the numbers of immigrants who may be lawfully admitted, undocumented immigration, either through visa overstays and violations or through entries without inspection, will flourish. For example, if per country limits delay the immigration of nationals of certain countries with family in the United States for lengthy periods, those immigrants-to-be will have strong incentives to circumvent the immigration laws. Similarly, if the refugee admissions program remains inaccessible to citizens of nations embroiled in political violence, such as El Salvador and Guatemala in the 1980s and Haiti in the 1990s, persons from those countries will flee, often to the United States, regardless of the law. A coherent immigration policy must take into account modern political, economic, and social realities, including the pressures of undocumented immigration.

Third. Mexico is the leading country of origin of legal and undocumented immigrants to the United States. Regularizing the flow of immigrants – particularly undocumented immigrants – from Mexico obviously is critical to making a legal immigration system work effectively and efficiently. Importantly, regional migration pressures in an increasingly globalizing world economy appear unlikely to subside in the foreseeable future. The ideal legal immigration system must account for these pressures.

Fourth. We must strive to integrate all immigrants into the political, economic, and social fabric of American life. To accomplish that goal, however, the U.S. government should not demand that immigrants "assimilate" or "Americanize" — ill-defined terms that carry emotional baggage among certain national origin minorities because of the unfortunate history of mandatory assimilation programs. We instead should strive to ensure respect for the cultures of immigrants and naturalized citizens and to guarantee equal citizenship for all in the United States.

Proposals

Under current political conditions in the United States, an open borders policy does not appear politically viable. Assuming that the political process demands limits on immigration, we must ensure that such limits do not invidiously discriminate and that the U.S. government does not selectively enforce the laws against citizens of certain nations.

Current Law. Current law recognizes four basic categories of immigration: family, employment, diversity, and refugee. In addition, several forms of relief from removal allow foreign citizens in the country to secure lawful immigrant status. I offer two possible alternatives, which if properly crafted could work in tandem, to the current system: (1) a labor migration agreement between the United States and Mexico; and (2) a point system for allocating immigrant visas.

Alternative 1: Labor Migration Agreement Between the U.S. and Mexico. Reform of the legal immigration system will prove effective only if we are able to regularize labor migration from Mexico to the United States. As a nation, we must seriously consider a labor migration agreement between the United States and Mexico, combined with efforts to develop the Mexican economy in order to reduce economic incentives for Mexican citizens to leave their homeland.

As Europe has come to realize with the evolution of the European Union, trade and migration between neighboring nations are inextricably linked. A labor migration arrangement has worked relatively well in the European Union, which for the most part permits labor migration between member nations.

Although the United States, Canada, and Mexico entered into the North American Free Trade Agreement in 1994, the countries missed a historic opportunity to squarely address labor migration. Formidable challenges to a labor migration agreement between the United States and Mexico include the fact that the economic disparities and cultural differences between the peoples of those nations appear more dramatic than those between the populations of the member nations of the European Union. We must overcome the fears of these differences and the belief that a "flood" of immigrants from Mexico will come if given the opportunity.

A labor migration agreement between the United States and Mexico should not include a numerical cap, although it might require proof of employment or self-sufficiency for a migrant to enter the United States. A labor migration pact would effectively recognize that, absent draconian enforcement measures inconsistent with a modern constitutional democracy, undocumented immigration cannot completely be halted. The allure of jobs, combined with the pull of family and social networks established by generations of migration from Mexico to the United States, remains too strong.

Alternative 2: A Point System. For migration not covered by a regional agreement, a simple point system, allocating points based on family ties, educational attainment, employment skills, and related factors, with foreign citizens with certain point totals eligible for an immigrant visa, would represent an improvement over the current system. Canada’s point system offers a ready model. However, while Canada’s system focuses primarily on employment skills, an American version should allocate points more heavily on family reunification, the central organizing principle of the current immigration laws.

Limited Reforms

If the previous two proposals prove not to be politically feasible, the following incremental reforms to the current immigration system should be considered.

Numerical Limit. Assuming that the political process requires an annual numerical limit on immigrants to the United States, we must recognize that such a limit cannot be anything but arbitrary. Joining Alan Greenspan, chair of the Federal Reserve Board, I believe that current immigration levels have helped the booming U.S. economy. From my vantage point in California, the largest immigration state in the Union, I see little, if any, evidence of social decay resulting from immigration and many indications that immigrant communities are making positive contributions to the community. Immigration, of course, has brought cultural and social change and, to some extent, has stressed the existing social order.

Others obviously differ with my observations about the impacts of immigration. We should keep in mind that immigration history reveals that restrictionists often have claimed the equivalent of "the sky is falling," only to be proven wrong by the passage of time.

My view is that if a numerical limit is necessary, a relatively high ceiling is most appropriate. A limit of two (2) million immigrants a year (not including refugees and others who have fled persecution, as well as others who qualify for relief from removal, see below), less than one (1) percent of the total U.S. population, would be sustainable in the United States. This would represent a modest increase in current levels of immigration.

Family Immigration. Family reunification, a virtue of the U.S. immigration laws, should remain a core value. Many current calls for reform advocate limiting the definition of "family" that may serve as the basis for immigration in the name of family reunification. However, rather than adopt a "one-size-fits-all" definition of family, the U.S. immigration laws should be changed to recognize the diversity of family and kinship ties that exist in various societies. In many cultures, extended families occupy central importance in social life. Indeed, many nuclear families in the United States lament the inability to integrate extended family members into everyday life.

Same-sex marriages and domestic partnerships qualify as a "family" in other countries, as well as in some jurisdictions in the United States. Our immigration laws must recognize the reality and legitimacy of such family units.

In sum, the definition of "family" in the U.S. immigration laws should be expanded to include extended family and alternative kinship arrangements recognized in different societies in the world. As we generally respect the privacy of family arrangements in this country, we should do the same for those common to other cultures.

Employment Based Immigration. As the U.S. Commission on Immigration Reform recommended, the current employment visa system must be streamlined. The labor certification required for certain employment visas has proven to be unduly burdensome, overly technical, time-consuming, and expensive. The perception exists that skillful attorneys can "game" the system.

Legal and undocumented immigrants for the most part come to the United States to work. An immigration system that permits admission of immigrants showing proof of employment or self-sufficiency would represent a significant improvement over the current cumbersome system. With the labor market allowed to operate more efficiently, the U.S. economy would likely benefit.

More incremental change should include elimination of the so-called "million dollar" investment visas. The popular view that those visas essentially were "for sale" taints the public perception of the entire employment visa system. Given that this visa category is under-subscribed, its elimination would not be a great loss.

End the Diversity Visa Program. Congress designed the diversity visa program, with 55,000 visas per year, to offer a special preference to immigrants from Europe. In so doing, Congress hoped to "diversify" the immigrant stream, which had become increasingly dominated by immigrants from Asia and Latin America after the 1965 abolition of the discriminatory national origins quota system. The diversity visa program constitutes a thinly veiled effort to "whiten" the cohort of immigrants coming to the United States. By favoring white migration, the program decreases the diversity of the U.S. population and might more aptly be called the "anti-diversity" visa program.

Refugees. U.S. law should not impose numerical limits on the admission of persons who satisfy the definition of "refugee" under international law, that is, those who have suffered persecution, or who can establish a well-founded fear of persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion. Our humanitarian spirit, as well as the dictates of international law, militate against numerical limits on the admission of persons who have fled persecution.

Unfortunately, most observers consider the overseas refugee admissions program to be a foreign policy tool rather than a true humanitarian effort. Congress must overhaul this program to ensure that refugee admissions are fair, equitable, and based on fears of persecution, not partisan politics. Refugees should not be pawns used by the President, or the Congress, to further foreign policy goals.

The U.S. immigration laws should not limit the number of asylees or others who, after coming to this country, establish eligibility under the law for relief from removal. Such persons have overcome many hurdles and deserve humanitarian treatment through refuge in the United States.

Congress should try to avoid country-specific legislation that offers asylum-like relief to citizens of particular countries. Such laws often create inequities by treating similarly situated persons from different countries in different ways. For example, 1997 legislation providing relief from removal to Nicaraguans and Cubans provoked a firestorm of controversy due to the failure to offer the same relief to similarly situated Haitians. Congress passed a law covering Haitians in 1998. Currently, immigrant rights advocates seek expansion of this relief to Salvadorans, Guatemalans, and other Latin American immigrants. As this demonstrates, country-specific laws often create inequities that fuel calls for legislative expansion of the countries covered. A country-neutral, objectively-defined form of relief avoids such problems.

Abolition of Per Country Limits. The current immigration law imposes annual limits on the number of immigrants from each country for certain immigrant visas. This system disparately impacts potential immigrants from some nations, such as Mexico and the Philippines, with significant numbers of citizens seeking to reunite with family members in the United States. The wait for certain categories of immigrants may be over five years, while similarly situated persons from most countries will be admitted immediately. Such disparate treatment, which results from nothing other than the fortuity of national origin, undercuts the family reunification and employment-based goals of the U.S. immigration laws and encourages undocumented immigration.

Relief From Removal. Congressional amendments to the immigration laws in 1996 significantly restricted relief from removal for undocumented persons in the United States. To obtain "cancellation of removal," undocumented persons, even those with deep family and community ties, must demonstrate that removal would result in "exceptional and extremely unusual hardship to the alien’s spouse, parent or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." The law does not impose this heavy burden on lawful permanent residents facing removal. The "exceptional and extremely unusual hardship" requirement should be eliminated from the law, thereby affording the same discretion to the immigration courts that they possess when deciding whether to grant relief from removal to lawful permanent residents.

Congress should remove numerical limits on the number of persons eligible for relief from removal. Such ill-advised caps have proven difficult to administer and create the potential for serious inequities.

Judicial Review. State Department consular officers in U.S. embassies all over the world make visa determinations for prospective immigrants. Denials of visa applications are currently made with minimal administrative and no judicial review. Even the most highly trained, professional, and well-intentioned consular officers err. The stakes for a foreign citizen seeking to immigrate to the United States are extremely high — a family, job, an entire way of life. Congress should amend the immigration laws to guarantee some form of judicial review.

In 1996, Congress amended the immigration laws in an attempt to bar judicial review of certain removal orders. The court stripping provisions in the 1996
amendments have resulted in great uncertainty, much litigation, and undue hardship. Congress should guarantee judicial review of all removal orders.

Temporary Worker Programs. A legal immigration scheme should not include a "temporary" worker program. Past programs, such as the "Bracero Program," which allowed Mexican workers to enter the United States from the 1940s to the early 1960s, provided cheap labor to agricultural growers while minimum wage and fair working condition provisions proved unenforceable. It created an exploitable and exploited cheap labor force while denying workers the legal rights and obligations of lawful permanent residents and U.S. citizens. There is no reason to believe that a new "temporary" worker program would be any different. In any event, experience teaches that family ties and economic networks established by temporary worker programs create future migration pressures. Such unintended consequences militate in favor of great caution in contemplating programs designed to bring "temporary" workers to the United States.