Legal Immigration: What Is to Be Done?

Blueprints for an Ideal Legal Immigration Policy

By Mark Krikorian on March 1, 2001

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Mark Krikorian is the Executive Director of the Center for Immigration Studies

The United States is in the midst of the greatest immigration wave in its history. We grant permanent residence to 800,000 to 900,000 legal immigrants each year (half of whom are already here) and permit the settlement of 400,000 illegal immigrants. The total foreign-born population stands at about 28 million (6 million of them illegal), accounting for 10 percent of our country’s population. Given the scale of immigration and the breadth and depth of its impact on America, one would expect our immigration policy to be the result of careful analysis and sober deliberation.

Nothing could be further from the truth.

Even by the standards of lawmaking in a democracy, immigration policy has developed in a remarkably haphazard, politicized, and aimless fashion. A ground-up re-examination is warranted. (This essay will examine only immigration policy, i.e., who we take and how many, rather than immigrant policy, which governs how we treat people already here.)

In considering from scratch what should be our nation’s legal immigration policy, we must first annunciate some principles:

Principle One: The purpose of immigration is to create Americans. Whatever the costs and benefits of immigration, we need to remember that strangers should be admitted to live among us only if we intend for them, after adequate preparation, to become members of the American people. The alternative is fundamentally anti-republican: a country with two classes of people, one group consisting of citizens (and citizens-to-be), the other a permanent class of servants. Guestworker schemes and tacit acceptance of illegal immigration are incompatible with this principle.

Principle Two: Our preferences for immigration categories should match our tolerance for total immigration. In other words, we need to decide what categories of people we want to admit, and then admit all of them each year. Currently, we hold out the possibility of immigration to millions, but admit only a fraction, resulting in huge waiting lists and in illegal immigration. Honesty and forthrightness demand that we promise only what we are willing to deliver, and deliver what we promise.

Principle Three: Immigration must serve the national interest. Today’s immigration is not doing this, since the level is too high and the educational attainment of immigrants is too low, exacerbating serious economic, fiscal, demographic, political, and social problems. To briefly list a few of mass immigration’s harmful impacts:

  • At a time when upward mobility requires increasingly high levels of education, the arrival of poorly educated immigrants limits the opportunities of America’s own poor, complicating efforts to help improve their condition. The native poor have seen their wages reduced or held back through immigrant competition, while immigrant households have seen steadily increasing poverty rates and are accounting for a disproportionate share of the total poor population.
  • However it has been reformed, and may yet be further reformed, the welfare state is a permanent fact of modern life. And, as Milton Friedman has said, "It’s just obvious that you can’t have free immigration and a welfare state." Large-scale immigration of people without the tools to succeed in a modern economy has placed severe fiscal burdens on state and local governments.
  • Immigration and children born to recent immigrants account for the overwhelming majority of our population growth, negating the American people’s voluntary embrace of smaller families. In effect, the federal immigration program is a social engineering project that rivals the population policies of Ceaucescu’s Romania.
  • The combination of multiculturalism with advanced communications and transportation technology impedes the Americanization of today’s immigrants. Though immigrant acquisition of English is almost inevitable given our country’s hegemony over global mass culture, the development of a visceral, emotional attachment to America and its history is not. Such "patriotic assimilation" is increasingly unlikely when the schools and the culture at large are skeptical of, even hostile to, patriotism and when technology enables immigrants to maintain strong psychological and physical ties to their countries of origin.

Categories and Numbers

Most immigration, regardless of the source or destination, has three components — family, employment, and humanitarian:

Family-based Immigration

The family-based categories in current law account for the overwhelming majority of immigration, averaging more than two-thirds of green-card recipients over the past four years (this does not include the family members of immigrants admitted under non-family categories). Currently, we offer special immigration rights to the spouses, children, parents, and siblings of Americans, plus the spouses and children of permanent residents. Because the number of immigrants admitted under many categories is limited, with per-country caps for some categories, the result is huge waiting lists; perhaps as many as 4 million people have been approved to immigrate, but must wait up to 40 years for their numbers to come up.

Simply reducing the number of people admitted under each of the family categories would serve to reduce overall immigration, but would do so simply by increasing the waiting lists, making our immigration process even more dishonest and opaque. Keeping all the family categories, but avoiding waiting lists, would require a dramatic increase in immigration. The only way to construct a transparent system that admits fewer family immigrants is to eliminate entire categories, and admit everyone in the remaining categories.

Thus, family immigration should be limited to the spouses and minor children of Americans. Husband, wife, and young children constitute the family core, and these should be the only relationships should trigger immigrant admission. Most of the other relationships — adult sons and daughters of citizens or permanent residents, parents and siblings of citizens — cover people who are adults, with their own lives, for whom the "family reunification" rationale for this element of immigration policy is a misnomer. Because immigration is not a right and because those waiting in these categories to be eliminated are adults, there should be no grandfathering of those already on waiting lists (though honor demands that their application fees be refunded).

Admitting only spouses and minor children of Americans would reduce family immigration by more than half. The average number of spouses and minor children of citizens admitted from fiscal years 1995 through 1998 was about 220,000.

The remaining question regarding family immigration is what to do about the spouses and minor children of permanent residents. If an unmarried person immigrates, understanding that he cannot later get married overseas and bring his spouse here until he becomes a citizen, he has nothing to complain about. But if immigrants have come here with the expectation that they can marry a foreigner and bring that spouse here before becoming citizens, then changing the law ought to take that into account. There is no right to immigrate, but prudence suggests that we not contribute to the separation of spouses and young children.

Therefore, permanent residents who acquired green cards before a change in the law should continue to be able to petition for their spouses and minor children for a period of five years. Of course, if they were to become citizens, this limitation would no longer apply. Such grandfathering of prior immigrants is particularly needed since many non-citizens petitioning for the entry of their spouses and minor children were illegal aliens legalized under the Immigration Reform and Control Act of 1986 (IRCA), which offered amnesty only to principals, not to dependants, as is the case with other recipients of green cards.

An average of about 132,000 spouses and minor children of permanent residents received green cards each year from fiscal years 1995 through 1998. In accordance with Principle 2, all people who qualify should be admitted each year; this would lead to a spike in this category of immigration for a couple of years, followed by a gradual reduction in numbers, until the category was eliminated altogether after five years.

Employment-based Immigration

This component of the immigrant flow selects people based on education, skill, or experience, often with specific offers of employment. An average of 93,000 immigrants a year were admitted under these categories from 1995 through 1998, accounting for approximately 12 percent of the total flow (though the majority of those admitted are family members of the skilled immigrants).

The five employment-based categories, with their numerous subcategories, are commonly imagined to provide for the immigration of the world’s best and brightest — "Einstein" immigration, if you will. In fact, in addition to a handful of Einsteins, the employment-based categories admit a wide array of ordinary people who should not receive special immigration rights.

To ensure that employment-based immigration actually admits only people with unique, remarkable abilities, it should be limited to the first two categories in existing law: (1) "priority workers" and (2) "aliens who are members of the professions holding advanced degrees or aliens of exceptional ability." An important exception is that the priority workers subcategory for multinational executives or managers (which accounts for about 60 percent of the priority workers category) should be eliminated, leaving only "aliens of extraordinary ability " and outstanding professors and researchers.

The 1995-98 average number of immigrants admitted annually under this more-targeted definition of skilled workers was about 24,000, and so a cap of 25,000 would be more than adequate. Such a refinement would eliminate the largest of the employment-based categories, the third employment-based preference, which admits people with little, if any, skills; in addition, the catch-all "special immigrants" category and the investor-visa category would be eliminated.

Humanitarian Immigration

This broad component of immigration has three parts: refugee resettlement (bringing refugees from overseas), grants of asylum (classifying as a refugee someone who is already here illegally or on a temporary visa), and cancellation of removal (a grant of amnesty to an illegal alien whose deportation would cause "exceptional and extremely unusual hardship.").

The Refugee Act of 1980, which incorporated the international definition of a refugee into U.S. law, foresaw an annual intake of 50,000 refugees and asylees per year. Needless to say, the number has always exceeded this target. The average annual number of refugees resettled from 1995 through 1998 was about 80,000, and in 1998 about 16,000 people were granted asylum.

The number of refugees to be admitted in the coming year is set by the president in consultation with Congress and thus varies; but the number of asylum grants is out of the government’s control, since there is theoretically an objective standard by which to judge asylum claims. Likewise, cancellation of removal would appear to be potentially unlimited, depending on judicial interpretation of "exceptional and extremely unusual hardship," though Congress in 1996 placed a limit of 4,000 such grants per year.

To introduce some predictability and control over the numbers, it would be advisable to set an overall ceiling for humanitarian immigration of 50,000 per year, with the element over which we have the most control — refugee resettlement — dependent on the numbers of asylum grants and cancellations of removal. In other words, an increase in asylum and/or cancellation of removal would trigger a reduction in available slots for refugee resettlement; conversely, fewer grants of asylum or cancellations of removal would free up more slots for refugee admission.

A further problem is that many of those admitted as refugees are simply not refugees. In FY 98, nearly half the refugees resettled were from the former Soviet Union and Vietnam, few of whom were genuine refugees; they were admitted because of the Lautenberg Amendment, a Cold-war relic which in effect grants presumptive refugee status to certain groups from these countries. This creates such a large pool of potential "refugees" that the State Department method of triage is to give preference to those with close relatives in the United States, in effect turning refugee resettlement into a family immigration mechanism.

Instead, refugee resettlement needs to be made available only to genuine refugees in immediate danger who have no hope whatsoever of another solution. The United Nations High Commissioner for Refugees already tracks such people, called "refugees of special concern" — they are roughly comparable to Priority One in the State Department’s refugee processing priorities. Given the fact that there are more than 13 million refugees in the world, the only morally defensible approach is to resettle those who are the most desperate, not those who are the most appealing or politically connected.


The other major element of the legal immigration flow is the visa lottery, formally known as the diversity visa program. Under this scheme, 50,000 green cards are granted to people from "under represented" countries that send relatively few immigrants, supposedly to help diversify the immigrant flow. The lottery was originally inserted in IRCA as an affirmative action program for white immigrants in general and, specifically, as an amnesty for Irish illegal aliens (ironically, very few Irish now come under this program). With seven million people applying each year, the lottery does little but create new immigration networks and new opportunities for illegal immigration. It has no defensible rationale and should be discontinued immediately.

Temporary Immigration

A consideration of legal immigration policy must also include "nonimmigrant," or temporary, visas, since they are the source of much of permanent immigration (in 1998, about half of the green card recipients were already living in the United States). In FY 1996, 25 million non-immigrants were admitted. Though most went home (19 million came as tourists, 3.8 million as business travelers), hundreds of thousands of people use nonimmigrant visas as a prelude to permanent immigration, even though they formally affirm to our visa officers that they have no such intent.

The main types of temporary visas that lead to permanent immigration are F visas (students who, together with their families, numbered about 460,000 in FY 1996), H visas (temporary workers and trainees: 280,000), and J visas (exchange visitors: 256,000). To end the practice of using temporary visas for permanent immigration, long-term nonimmigrant visas (good for more than six months) should be made available only to those countries whose nationals do not adjust from temporary visitor to permanent immigrant. This would be modeled on the Visa-Waiver Pilot Program, which allows short-term visa-entry to people from countries whose nationals do not end up overstaying their visas and becoming illegal immigrants.

Even if they somehow did not lead to permanent legal immigration, guestworker programs should never be instituted; whether the guestworkers are tomato pickers or computer programmers, such schemes are subversive of republican government, since they lead to the creation of a helot class and inevitably promote illegal immigration.