A Legal Immigration Policy for the 21st Century

By Vernon M. Briggs Jr. on March 1, 2001

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Vernon M. Briggs, Jr., is a labor economist on the faculty of the School of Industrial and Labor Relations at Cornell and author of Immigration and American Unionism (Cornell University Press, 2001).


Historically, the evolution of the immigration policy of the United States centered on its quantitative aspects: the acquisition of a population and labor force of sufficient size to build a viable economy. At times the effort was stained by social concerns over the ethnic composition of the immigrant flow. But as the nation enters the 21stcentury, the quantitative need for more people and workers is no longer compelling, and the discriminatory role of policy formulation is untenable for the world’s pre-eminent superpower. Circumstances have changed, and so must the design of the nation’s immigration policy. At this juncture, its raison d’ etre should be on the qualitative contributions that immigration can make to the American economy and society.

Accordingly, the nation’s immigration policy should reflect national priorities; be flexible to changing economic circumstances; be fair; be minimally legalistic in its administration; and be firm in its enforceability.

National Priorities

Labor-Shortage Immigrants.

A dynamic economy like the United States’ can at times experience job shortages among its skilled occupations. These domestic shortages should primarily be seen as being signals to the nation’s educational and training institutions of demonstrated needs to which they should respond. Priority must always be given to re-train or to relocate citizens (and permanent resident aliens) in the labor force to fill the jobs that are being created if it is possible to do so. Only after such efforts are made should consideration be given to using immigration as a means of filling a small portion of any estimated labor shortfall. Such would-be immigrant workers should already possess the needed skills and have already had work experience in these occupations. Immigration of skilled workers should never be the first recourse or be used to eliminate the total shortage. Using immigration to completely fill all shortages can only discourage the creation of a responsive human resource development system. Moreover, such usage would neutralize the critical effects of wage and employment indicators needed in a free labor market to signal the need to allocate more resources for the needed human capital preparation and to motivate internal labor migration propensities of qualified job applicants. Filling a small portion of existing job vacancies for skilled labor, however, is an appropriate role for immigration policy to assume. Immigration policy, however, should never be used as a method to reduce wage pressures per se. This is because there is a hysteresis-effect associated with immigration policy. Once people relocate to the United States and qualify for citizenship (i.e., become resident aliens), they acquire citizenship rights to remain in the country that cannot be revoked when economic conditions change. Immigration policy is not a form of fiscal or a monetary policy. Its proper role is to serve as a form of human resource policy designed to fill some legitimate job vacancies until the mainstream human resource institutions can perform their skill empowerment functions.

Distinguished Merit and Ability Immigrants.

The enrichment of the nation’s labor force and population can be achieved by the admission each year of a limited number of persons of distinguished merit and ability. Such persons should have achieved international prominence in their respective fields of endeavor or demonstrated their value by virtue of writings, inventions, research, talents or executive skills.

Nuclear Family Reunification.

Because the United States is an open society, there are instances in which citizens and permanent resident aliens as well as those admitted to meet labor force needs or as refugees will have immediate family members who understandably need to be admitted regardless of whether they have requisite jobs skills.

Immediate family member means spouses and minor children (those under age 21 years old). Older children should only be admitted to the degree they can qualify under the needed skills, distinguished merit, or refugee categories. Elderly parents could be included if a majority of their children are already U.S. citizens and if their children agree to be financially responsible for their housing and medical expenses of their relatives (as recommended in 1997 by the U.S. Commission on Immigration Reform). Extended family members (such as adult children of U.S. citizens and adult brothers and sisters of U.S. citizens and permanent resident aliens) who presently qualify for admission should no longer be eligible for such privileged admissions (as was also recommended by the U.S. Commission for Immigration Policy for deletion). Policy should be designed to reflect the national interest, not the private interests of individuals.

Humanitarian Immigrants.

Refugees should continue to be admitted under the provision of the Refugee Act of 1980. The explicit criteria should be that the individual has been the subject of persecution or the threat of persecution on the basis of his race, religion, nationality, membership in a particular group, or political opinion. The persecution criteria should not be generalized to cover groups. Immediate family members (including elderly parents) should be allowed to accompany eligible refugees or to be subsequently admitted. Determination of actual refugee eligibility status should to be done exclusively outside of the United States prior to actual admission.

The number of refugees to be admitted in any one year should be included in the annual number of immigrants to be admitted. Should an international emergency occur, the President could admit additional refugees, but the excess numbers should be subtracted from the following year’s established refugee number.

For those individuals who arrive in the United States and request political asylum, the general case should be that they are held in detainment centers until their applications can be heard and a final determination decision rendered. Persons with obvious cases of persecution could be granted asylum at the time of their entry, without being detained. Asylum should only be granted to those who actually qualify as being legitimate refugees. Asylum cases should be handled entirely by administrative processes with court appeals restricted only to failure by the designated authorities to follow prescribed procedures. Appeals to the court system should not be permitted over substantive issues. Applicants who are approved by the administrative authority should be granted resident alien status. Those who are not approved should be returned to their homeland or to any other nation that will admit them. Anyone who entered the United States by way of passage though third country should be returned to that last country upon arrival and would be ineligible to apply for asylum status to the United States.

In order to maintain approximate control of the total number of immigrants who are admitted each year, the number of approved asylum applicants each year should be deducted from the number of refugee slots sought in the following year.

Flexibility

There is no magic number of immigrants (including refugees) to be admitted each year. It makes no sense to continue the process of legislating numbers that are the result of dubious political compromises at one time but which subsequently remain in effect for a generation or more. Therefore, the annual number of admissions should be set in advance by the administrative agency responsible for immigration policy. Congress could set a boundary ceiling that could not be exceeded, if it feels the necessity to maintain control on the total flow. Otherwise, the administrative agency should be free to set (say by July 1steach year) the actual number of immigrants who can be admitted during the subsequent fiscal year (which currently extends form October 1stto September 30 of the next calendar year). The number could be as low as zero or as high as the ceiling set by Congress, if there is one, or, if not, whatever level the agency deems appropriate.

The agency responsible for setting the annual admission ceiling and for administering the system should be the U.S. Department of Labor (DOL). This agency had responsibility for immigration policy from 1913 through 1940 when it was "temporarily" shifted to the U. S. Department of Justice for national security reasons associated with World War II. Returning the administration of immigration policy to DOL would have the effect of recognizing the most fundamental impact of immigration on the U.S. economy is its labor market effects. The level of immigration affects the size of the supply of labor. It also affects the geographical distribution of available labor and the skill composition of that labor force. All of these considerations require synchronization with prevailing labor market (demand) and labor force (supply) considerations. Presently, there is no coordination in the design or implementation of immigration policies with actual labor market and labor force conditions.

In setting the annual number of immigrants, the administrative agency would also assign numbers to each of the sub-categories. For each category the process would be as follows:

Labor Shortages.

Labor shortages can be either those that are skills-specific or those that are geographic-specific. Unfortunately, the labor market information system of the United States does not presently collect information on job vacancies. Until this critical labor market data is collected, proxy indicators would have to be used. The administrative agency, therefore, would compile a list of unemployment rates for 100 occupations and/or geographic localities. In each instance, the overall unemployment rate for any listed occupation or geographic area should be at least 50 percent lower than the overall national unemployment rate for the preceding year.

Applicants from abroad could apply at U.S. consular offices maintained and staffed abroad by officials of the administrative agency responsible for immigration policy administration (i.e., the U.S. Department of Labor). To be considered for one of the identified eligible occupations, or labor shortage areas, a computer job bank would be established to match would-be applicants for the identified occupations or geographic areas. Potential U. S. employers of workers in these certified occupations or certified localities could apply to the computer job bank to recruit applicants from the lists of eligible foreign job seekers. As an offer is accepted, the remaining number of available openings would be reduced.

Job offers would be expected to be for permanent positions with employment guaranteed for at least six months at prevailing wage and benefit levels as certified by the respective state employment services in the United States. Those admitted would be considered to be on a probationary status for this six month period in that they would be asked to waive the right to quit the jobs for which they were admitted to fill unless there is due cause (i.e., an employer fails to provide the promised wages and benefits, the employer goes out of business, or if the employee claims to be working under verifiable conditions of duress.) After six months, the probationary status would expire and the individual would be granted permanent resident status and be free to seek work wherever he or she wishes. If during the probationary period the applicant is found to be incompetent to perform the prescribed duties or is no longer willing to perform the duties, the applicant’s probationary status would be immediately revoked. The applicant would be expected to return to his or her homeland within a reasonable period of time (e.g., 30 days). Such individuals would not be eligible to look for work elsewhere in the United States.

It is implicit that job shortage immigration is a last resort option. Citizens and permanent resident aliens should have first access for all job openings. To be eligible to hire from the immigrant job bank, a U. S. employer would have had to have placed his or her job openings with the respective state employment services and demonstrated that qualified applicants did not come forth in a reasonable period of time.

Applicants would be expected to be fluent in English and to complete applications in English. The requirement could be waived by the agency if an insufficient pool of applicants cannot be otherwise developed and the occupational shortage is deemed by the U.S. Secretary of Labor to be sufficiently significant to the nation’s needs.

Foreign applicants would be expected to have achieved the specific educational credentials or training certification before entering the United States as well as to have the specific job experience that would qualify them upon arrival for available positions. Those deemed qualified and certified to be so by an interview by DOL officials stationed in the country of origin of the applicant would be listed on the computerized job bank in order of their application approval. They could remain on the list for up to three years. No names or files would be maintained for occupations that are not listed by the DOL as being shortage occupations or labor shortage geographic areas. As the total number would never exceed 100 occupations or areas (often less), the numbers of eligible applicants should be manageable.

No U. S. employer, however, should be permitted to recruit abroad or to use an independent labor contractor to recruit foreign workers to apply for job openings in the United States with their enterprises. This was the law of the United States from 1885 until 1952 and it should again be part of U.S. immigration law.

Distinguished Merit and Ability Immigrants.

The annual ceiling in this category is, of necessity, arbitrary. But as the qualifications are very high, the numbers should normally be quite low and often may not be achieved. Eligible persons would be expected to be employed independently or to be able to secure their own employment opportunities.

Family Reunification Immigrants.

Immediate family immigrants would likewise apply for admission abroad to the out-stationed officials of the administrative agency in their homelands. No applications could be made or received by persons already living in the United States at the time. They would be admitted without annual numerical restriction. It is assumed that this number could be estimated based on past trends but it would mean that the annual ceiling could be pierced if the official annual estimate of their numbers is too low. If, on the other hand, the estimated number in any year exceeds the actual number of applicants, there should be no compensating effort to fill the numerical deficiency by adding the difference to other categories. It would be understood that some variations upward or downward from the anticipated level will occur but, over time, they should balance out.

Refugees.

The refugee number would be set by the administrative agency in annual consultation with the U.S. Department of State (i.e., the President) and with Congress (as is the present case). Refugee admissions would continue to be seen as an ex gratia act by the people of the United States so that there is no expectation that the annual number is actually achieved. If the number is not met, the unused numbers would be left vacant. They would not be carried forward to subsequent years. As discussed earlier, if an emergency case developed, the President could allow the ceiling to be exceeded in one year but reductions would be required in the establishment of the figure for the succeeding year. The federal government should be expected to cover the settlement cost (e.g., housing, subsistence, instruction in English, etc.) of all persons admitted as refugees (including those whose political asylum requests are approved) for up to three years after their authorized admission. Local communities should not be expected to carry these costs. Refugees are admitted by national policy decisions and, accordingly, the federal government should bear these settlement costs.

Fairness

No provisions of the immigration system should give any preference or recognition to either ethnicity or geographic factors in the selection of would-be immigrants. Likewise, there should not be any restrictions imposed on individual immigrants that are based on the ethnicity or geographic origins of any would-be immigrant.

Minimally Legalistic

The intention of the previous discussion is to simplify the administration of the nation’s immigration system. Every effort should be made to minimize the necessity to involve the nation’s legal system in admission decisions.

The administrative agency (i.e., the U.S. Department of Labor in the present context) should have exclusive authority to determine admission eligibility and to carry out its decisions. Appeals to the legal system should be restricted to concerns that procedures were not adhered to.

Enforceability

There is no reason to establish a controlled admission system if its restrictions are easily breeched. Enforcement of the law is what gives meaning to the importance of the law itself.

Border Management.

Appropriate resources and staffing are essential to manage the physical borders of the United States. All apprehended foreign nationalities should be identified and returned to the last country from which they last used to enter the United States. No person who has entered the Untied States illegally should be subsequently allowed to adjust his or her status to become an U. S. citizen for a minimum of 10 years under any circumstance.

Work Site Enforcement.

The key to stopping illegal immigration from making a mockery of the legal immigration system is to rigidly enforce the eligibility to work standards of the nation’s labor force protection laws. A job and its associated wages and working conditions are the most important economic benefits that the nation has to offer to its citizens and permanent resident aliens. With the specific exceptions of certain foreign workers who are given explicit permission to work temporarily in the United States, the opportunity to work is limited only to citizens and permanent resident aliens But expressing this principle in law (as is presently the case) is meaningless unless work site enforcement is aggressively practiced. Such is presently not the case.

Verifiable Identification System.

The most gaping hole in the prevailing enforcement system is the lack of a credible verification system as to who is eligible to work in the United States. The establishment of a telephone call-in system (as recommended by the U.S. Commission on Immigration Reform) to verify the authenticity of social security numbers is a logical first step. But in the emerging electronic age in which identification theft is approaching epidemic proportions, the creating of a national identification system is only a matter of time. In the employment context, the only time that a person would be asked to verify his/her identity would-be after a job offer is actually made. No one would be required to carry such identification with him or her so the verification system would only be used on those few occasions over one’s lifetime when the individual seeks employment and is actually offered a job.

No Future Amnesties for Persons Who Illegally Enter or Who Overstay a Temporary Visa.

The United States provided a general amnesty for illegal immigrants in 1986 because its public policies were unclear as to the status of illegal immigrants in its labor force prior to that time. Since 1986, the law has been clear. The right to work in the U.S. labor market is restricted to only those who are U.S. Citizens, permanent residents aliens and certain foreign nationals in possession of temporary visas issued by the U.S. government.

At times since 1986, political pressures have led to amnesties being given to selected groups of persons from certain countries due to special circumstance associated with miss-application of refugee policies as well as other special programs to provide "temporary" protected status to certain groups. These amnesties have raised the hopes of others who have violated the nation’s immigration laws that they too can expect another amnesty in the future. An immigration policy for the 21stcentury should include a provision stating affirmatively that there will be no future amnesties for those who enter the United States in violation of its laws.