Proposals for Reform of Legal Immigration Policy

By Mark Krikorian on May 17, 1995

Testimony prepared for the U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
May 17, 1995

By Mark Krikorian
Executive Director, Center for Immigration Studies

Mr. Chairman:

My name is Mark Krikorian and I am Executive Director of the Center for Immigration Studies, a non-profit, non-partisan research organization that examines the economic, social, and demographic impact of immigration on the United States in the context of the broad national interest. Thank you for providing me the opportunity to discuss possible methods of reforming our legal immigration policies.

Although the level of legal immigration fell slightly last year, the total was still 800,000, fully twice the level thought optimum by the 1972 Commission on Population Growth and the American Future (the Rockefeller Commission). When illegal immigrants who settle permanently in the U.S. are included, total immigration is running at a level of more than one million per year, with no end in sight.

Furthermore, immigrant educational attainment lags behind that of natives while there are indeed many immigrant Ph.D.s and engineers, at the other end of the job spectrum there is a disturbingly large proportion of poorly educated, and even illiterate, newcomers. And the number of immigrants waiting in line to be admitted to our country has exceeded three million, and will continue to grow.

"Immigration from That Source Would Virtually Disappear"

Thirty years ago this autumn, Congress changed our nation's legal immigration system, with far-reaching results. The changes were driven by a number of factors -- especially the civil rights movement, the Cold War, and political pressure from European immigrants who wanted their relatives to join them.

The proponents of the 1965 Immigration and Nationality Act amendments were quite confident that the legislation would have little long-lasting impact. Attorney General Robert Kennedy said in 1964 testimony that "the idea the quota immigration could significantly affect our population is absurd." In the same testimony he asserted that 5,000 immigrants from the "Asia-Pacific triangle" would come to the United States during the first year under the new law, "after which immigration from that source would virtually disappear."

Sen. Edward Kennedy, the measure's lead sponsor, also tried to calm opponents fears, vowing that the new law would not lead to one million immigrants per year settling in America's cities.

These assurances would be laughable today if not for the harmful effects of mass immigration. And the opponents of the 1965 act turned out to have been prescient, however unsavory the motives of some and however indefensible the law existing at the time.

Problems with Today's Legal Immigration Policy

The shortcomings of our current law are widely discussed, almost to the point of becoming truisms -- but it's worth listing the high points again.

Numbers -- There are too many immigrants entering the United States each year, insufficient control over the total number (whatever that total number should be), and no easy way to change the number from year to year in response to labor-market needs or shifting political sentiments.

Quality -- The overall level of education and skills among immigrants has declined, partly because of the inordinate emphasis on "family reunification." The principle of family reunification contributes to a mismatch between the quality of immigrants admitted and the needs of the economy, and creates greater job competition for poor Americans. Furthermore, the declining level of education among immigrants creates problems with English acquisition and, ultimately, integration and assimilation into our society. And the family reunification principle helps create a sense of entitlement among prospective immigrants who already have relatives here.

Backlogs -- The structure of the current system necessarily results in huge backlogs, and these backlogs create incentives to immigrate illegally and as well as political pressure for ever-higher admissions.

The events of the past 30 years -- the population explosion in the developing nations, the restructuring of America's economy, the end of the Cold War -- make some change in our legal immigration system imperative. And the Republican majorities in the House and Senate make such reform more likely than before.

The following is a brief outline of some alternatives for reform.

What Can Be Done?

Piecemeal changes are, of course, possible. The 1990 legal immigration provisions instituted many changes, but kept the foundation of the system intact. Most reform proposals put forth over the past few years have called for more tinkering with the existing system. Even moratorium proposals would not dispense entirely with the existing system of family and employment preferences.

A Center backgrounder from the fall of 1993 outlines some options available to policymakers who do not want to scrap the current system, but merely peel away some of the preference categories in order to reduce the overall number of immigrants. (See Appendix A.)

In the spirit of the flat tax proposals, however, immigration policy might be ready for more sweeping reform than has been considered heretofore. It could be argued that the current immigration system is so harmful to the national interest, so inequitable, so convoluted and opaque, that we are beyond the point where tinkering is likely to be beneficial. There's no point, in other words, to adjusting the vertical hold on a television whose picture tube has burned out.

If an entirely new legal immigration mechanism is indeed needed to cope with our new situation, then we need look no further than Canada for an idea of how to proceed. A system which divorces the decision regarding the number of immigrants from the mechanism for selecting immigrants, and which awards applicants points based on various attributes, may well solve many of the problems we currently face. And, of course, Senators Simpson, Kennedy and Simon have introduced legislation outlining such "point systems" in prior Congresses.

Separating the Numbers from the Admissions Mechanism

By uncoupling the two decisions in the legal immigration process -- how many people and which people -- we can eliminate some of the problems referred to above. An independent determination of the total number of legal immigrants would reintroduce control over the level of immigration and allow for flexibility in changing it.

Such a system might enjoy greater bipartisan support in Congress than certain other proposals, since the decision on numbers would be left either to another body (such as the Department of Labor or the Immigration and Naturalization Service or the president) or to another time, if Congress were to elect to retain authority to make that decision. Even many supporters of mass immigration would be able to back such a regime, since they would be able to make their case separately for a high level of admissions.

The annual number could be set in a number of ways. Congress could include a number in the new legislation, leaving the door open for changes in the future. Alternatively, Congress could establish a mechanism whereby it votes on a number each year (or every two, or three, or five years) -- in effect a periodic "appropriation" of immigration numbers. The amount of time this would take, however, and Congress's general reluctance to handle contentious immigration issues, might make this impractical.

If Congress were to delegate the authority to the executive branch, then which agency? The obvious answer would be the INS. However, on what basis would such a decision be made? The INS's responsibilities include enforcement and service -- carrying out other people's decisions. It may not be suited to make its own decisions in this area.

If the setting of immigration limits is to be based on labor-market conditions, then it would seem appropriate to invest the Secretary of Labor with the authority to make the required determination, based on criteria (such as the expected unemployment rate over the coming year) set by Congress. This would be a way to reintroduce workforce considerations into immigration policy without having to move the entire INS over to the Labor Department, as Prof. Vernon Briggs of Cornell and others have suggested.

On the other hand, the president could be empowered to make the decision, perhaps deriving the number as a percentage of the total population or a percentage of population growth. However this were done, Congress could retain the power to veto the executive branch decision within a certain period of time, after which it would go into effect.

A Hole in the Ceiling

Whichever method is chosen for deciding the level of immigration, the question arises whether the cap should be "pierceable" or not. Although "pierceable cap" has an Orwellian ring to it, the issue boils down to whether increases in immediate-family immigration (assuming it remains unlimited) would be subtracted from the numbers allotted to immigrants selected by the point system (a true cap), or whether the numerical limit would apply only to those chosen through the point system.

A true cap, combined with the ability on someone's part to adjust the immigration level periodically, might be the best solution. The number of immediate relatives of U.S. citizens, which is not now (or probably in the future) subject to numerical limitation, has been growing over the years, from about 204,000 in FY 1985 to about 250,000 in FY 1994. Although this number has grown, and is likely to continue to grow for a while due to the naturalization of amnestied illegal aliens, it does not fluctuate wildly. Thus, one could institute a true cap on the level of immigration (where increased numbers of immediate relatives would result in a decrease in those admitted via the point system), and simply adjust for changes in the number of immediate relatives by changing the total during the next periodic adjustment.

Who's Immediate?

If immediate family members of citizens are still to be admitted without numerical limitation (a policy which seems politically and morally sound), we may have to reexamine what the law considers to be "immediate family." There would be little disagreement that spouses and unmarried minor children should be included -- but what about parents of adult citizens? Of the 250,000 immediate relatives admitted or adjusted in FY 1994, about 56,000 were parents, while about 48,000 were children and about 145,000 were spouses. So parents currently make up about 22 percent of the immediate relatives admitted without limitation.

Continuing to include parents of adult children in the definition of immediate family would thus have a significant, though not enormous, effect on the total number of immigrants. If, however, this provision is to be changed to exclude most parents, it might be better to change the terminology in the law from "immediate family" to "nuclear family." The latter term is less open to creative interpretation since it means, according to Webster's New World Dictionary, "a basic social unit consisting of parents and their dependant children living in one household."

If parents are to be excluded from the category of relatives admitted without limitation, it might be advisable to make an exception for those instances where the citizen petitioning for his parents entry is the only surviving child of elderly or permanently incapacitated parents. To do otherwise might create an opportunity for opponents of reform to attack the legislation.

Point System

A system based on assigning prospective immigrants points for various attributes would be similar to the Canadian model (or rather, the model for English-speaking Canada, since Quebec has its own immigration rules) . This could replace all the current family- and employment-based preference categories, as well as the diversity category and the diversity lottery. In other words, a point system could incorporate all (legal) immigrants to the U.S. except nuclear family members, refugees and asylees.

Under Canada's "independent category," applicants are considered for permanent resident status if they score a total of 70 units (out of 100) in nine categories, or "Factors of Assessment." The legislation introduced by Senators Kennedy and Simpson (S.358 in its 1989 version) called for a threshold of 50 points out of 100, which was later raised to 60 points. Sen. Simon's 1989 proposal for a pilot point system program (S.448) called for a cutoff point of 25 out of 49 points.

As far as which immigrants who score above the cutoff are actually selected, the Kennedy-Simpson legislation said 20 percent of the available numbers would be issued to those who scored 80 or above (chosen at random), while the remaining 80 percent of the slots would be allocated among the rest of the qualified pool, again in random order.

Factors of Assessment

The objective of a point system would be to select among the millions who want to come to the U.S. those people who would be most likely to succeed economically and socially and to integrate into the nation. Before looking at each of possible categories that might be incorporated into a point system, it would be useful to note that excessive precision in awarding points should be avoided. Canada uses complicated mathematical formulae in assessing certain qualifications of an applicant, a method which creates the impression of exactitude and fine-tuning in what is at best an exercise in approximation. Also, striving for such false precision can burden the process with unneeded complexity, contrary to one of the general objectives of legal reform, which should be simplification.

What categories have been included in previous point-system proposals and what categories does Canada use?

Education -- The 1989 Kennedy-Simpson legislation awarded a total of 25 points for education -- 10 points for a high school diploma, 10 additional points for a bachelor's degree, and up to five additional points for a graduate degree. The Simon proposal placed similar emphasis on education, allotting a total of 14 out of 49 points in that category, but emphasized a high school education (10 points out of 49), while awarding bachelor's and graduate degrees only two points each.

The Canadian guidelines are a little more complicated, awarding a maximum of 16 points for the highest level of educational attainment. The nature of an applicant's high school education or post-secondary certificate determines the number of points awarded, between five and 13. The holder of a bachelor's degree is awarded 15 points, while a graduate degree results in only one additional point.

Age -- The Kennedy-Simpson proposal awarded a maximum of 10 points based on the age of the applicant -- the full 10 points for those between 21 and 36, or 5 points for those between 36 and 45. Simon's bill was a little less restrictive, awarding the five points to those between 36 and 50.

The Canadian system is again slightly more complicated, with a maximum of 10 points, but two points subtracted for each full year the applicant's age exceeds 44 or is under 21.

English Language Ability -- Kennedy's original legislation awarded 20 points to an applicant who was able to speak and understand English. This provision was removed when some complained that it was racist. And, of course, Sen. Kennedy had indeed intended it to confer an ethnic preference for applicants from Ireland. But inappropriate motives do not make a proposal illegitimate, and it seems hard to argue that seeking out prospective immigrants who speak English is a bad idea. As far as such a provision being racially discriminatory, there are millions of non-whites in India, Nigeria, China, South Africa and elsewhere who speak English. In fact, the number of people who speak English as a second language recently surpassed the number of those for whom it is a mother tongue, according to a recent story in The Wall Street Journal.

Canada awards a maximum of 15 points for knowledge of English and/or French, based, again, on a complicated formula.

Occupational Demand -- The Kennedy-Simpson measure awarded a total of 20 points based on demand for the applicant's occupation, as determined by the Secretary of Labor. Ten points would be awarded if there would be increased demand for the occupation and five or 10 points would be awarded if there was or would be a shortage of individuals to meet the need in that occupation. Sen. Simon's pilot proposal would have awarded five points in this category based on the more general criterion of a "shortage of able, willing, and qualified individuals." Canada awards a maximum of 10 points based on its List of Open Occupations and the Designated Occupations List.

The problem with these attempts at specificity in a dynamic continental economy is that by the time the Department of Labor gathers and processes data about labor shortages in certain professions, the situation may well have changed. Witness the nursing shortage which has now become a nursing glut. Trying to determine the status of specific occupations is a kind of industrial policy, implying micromanagement of the economy, which governments have shown themselves to be woefully incapable of.

Occupational Training and Work Experience -- The Kennedy-Simpson measure awarded a maximum of 20 points for such training or experience, to be judged by the Labor Department. The Simon plan put greater emphasis on this category, awarding up to 15 out of 49 points in it. Canada has a complicated system accounting for specific vocational preparation (maximum of 18 points) and work experience (up to 8 points). This category seems more sound from an economic point of view than occupational demand, since it measures variables which are more easily quanitfiable and more meaningful.

Prearranged Employment -- The original Kennedy bill did not have this category, but a later version, after the English-language provision was dropped, did. This category would award 15 points to an applicant with a job waiting for him, subject to conditions specified by the Labor Department. Canada awards 10 points in this category. The Simon proposal would have granted five points here, but only for prearranged jobs "in an area with a low unemployment rate," as identified by the Labor Department.

Again, this category seems more viable as an economic measure than occupational demand. However, the conditions for such prearranged employment, and the enforcement of these conditions, would determine whether this provision became a useful measure of an applicant's likelihood to integrate into the economy or a category crippled by fraud.

Personal Suitability -- Canada awards up to 10 points based on the visa officer's impressions of an applicant's adaptability, motivation, initiative and resourcefulness, as determined at the time of the interview. Though there is nothing inherently wrong with such a category, its highly subjective nature might make it hard to administer and might leave visa officers open to complaints about discrimination.

Business Immigrants -- Canada had a category within its point system for the self-employed, which would grant fully 30 points to those with the ability and intent to establish a business that will contribute economically, culturally or artistically to the nation. This is being discontinued since it was being used by people who otherwise would have entered in the "entrepreneur" or "investor" categories, avenues outside the point system whose requirements are more onerous.

An immigrant entering Canada as an "entrepreneur" must start, buy, or buy into (and actively manage) a business that employs at least one Canadian other than himself and his dependents. The "investor" category is similar to the U.S. 5th employment preference, requiring a substantial investment in a government-approved project.

The investor visa concept is popular, but appears to be of little use. In FY 94 only 444 people (out of 10,000 possible slots) entered the U.S. under the 5th employment preference, almost two-thirds of whom were dependents. Since most successful businessmen could probably qualify under a point system anyway, it would seem sensible to end the investor visa experiment altogether, and consolidate all numerically limited legal immigration into the point system.

Family Relationships -- Although the Kennedy-Simpson and Simon proposals had no category in their point systems for relatives, it might at least be worth looking at. Canada deals with this issue not with a separate factor of assessment but by giving family members who are not close enough to qualify as "social immigrants" (i.e., uncles, aunts, siblings, adult nieces and nephews) a "discount" on the point system. In other words, such relatives need only reach a score of 55 out of 100, instead of 70, to enter the pool of prospective immigrants.

Incorporating this into a new point system for the U.S. would be problematic, given 30 years of excessive reliance on family reunification. Also, extending such a benefit to uncles and nephews would probably strike the public as a little far-fetched. However, it might be worth incorporating such a category, for, say a maximum of 5 points, to apply to applicants who have parents or adult children in the U.S. This could be a way to placate those who object to the restriction of "immediate family" to the nuclear family, for the purposes of non-limited immigration.

Diversity -- Instead of gimmicks like the transitional diversity category or the diversity lottery, the important objective of attracting immigrants from non-traditional countries (so as to weaken the force of chain migration from established sending countries) could be met within a point system. As it is, moving away from family reunification and using objective criteria based on education, skills, experience, and language ability would automatically benefit applicants from, say Paraguay or Austria or Burma or other countries which do not now send many immigrants to the U.S.

But by incorporating a country-of-origin category into a point system, Congress could institutionalize such search for diversity. Instead of list of "underrepresented" countries and visas being apportioned by continent, a diversity category could award, say, five points to any applicant from a country which contributed an average of, for instance, less than one half of one percent of the immigrant flow over the past three years. Looking only at 1993, that would mean countries sending fewer than 4,500 people to the United States in that year -- all but 35 countries in the world. Those 35 countries accounted for 88 percent of immigrants in 1993, while the other 130 or so countries, whose citizens would receive diversity points, accounted for only about 12 percent of the immigrant flow in 1993.

A minor problem might be that tiny countries like Grenada, Tonga or Cape Verde send a small absolute number of immigrants to the U.S., but that flow may account for a relatively large proportion of those nations inhabitants. The Caribbean island nation of St. Kitts and Nevis, for example, sent 1.3 percent of its population to the United States in 1993 -- should prospective immigrants from such countries receive diversity points? One way to deal with this would be to limit the diversity bonus only to underepresented countries which sent less than one half of one percent of their population to the United States during the prior year.

No More Backlogs

In addition to increasing immigrants' level of skill and education, an advantage of a point system would be the elimination of backlogs. Three million people have been approved for admission to the United States but are waiting in line because the category under which they will immigrate is full for the current year. The argument that this is unfair to the prospective immigrant, by stringing him along and potentially putting his life in limbo, resonates with the public and, frankly, makes some sense, despite the fact that immigration is a privilege, not a right. Backlogs also legitimize illegal immigration in the minds of prospective immigrants, by tempting them with a visa then making them wait years to come in. Furthermore, large, sustained backlogs can create political pressure for Congress to increase immigration.

A point system could eliminate the backlogs by keeping people in the pool of qualified prospective immigrants only for the upcoming year -- if they're not picked, the list is scrapped, and everyone has to apply all over again (although those who had already applied and been approved could have their applications expedited, since the information would already be on file).

Whether the current backlog should continue to be processed under a new point system or simply scrapped would be a difficult political question. Though the "fairness" police will insist that they all be let in, there are, after all, three million of them. A compromise might be to allow a transitional category in the point system for five or 10 years which would award a certain number of points to applicants in the current backlog.

Potential Problems

There are, of course, potential problems with the system outlined above. First of all, independent determination of the level of immigration could lead to higher levels of immigration, something that would not be good for the nation under current conditions. On the other hand, since the level would be reviewed periodically, the level in future years could be reduced if the Administration or Congress or the public had second thoughts about the new, higher level. And, frankly, democracy is about taking responsibility for your decisions, so if the people, through their elected representatives, choose to increase immigration, that's something we have to live with. But allowing easy adjustment of the numbers ensures that if and when such a thing happens, it could easily be undone once the consequences of such a decision become apparent.

Another problem with a point system is the potential for litigation, with lawsuits alleging discrimination on the basis of age, education, skill, national origin, etc. based in disparate impact. Although the potential for problems is real, Congress can deal with these objections proactively, by making it clear in the legislation that anti-discrimination laws do not cover foreigners living in foreign countries, and that immigration to the United States is not a right to be litigated, but a privilege to be granted at the nation's discretion only.

Yet another roadblock could be opposition from State Department consular officials. At least two high-level consular officials expressed opposition to a point system; a chief objection was that to investigate the validity of the claims in all the millions of applications filed each year would require more personnel and funds than Congress would be willing to appropriate.

This objection does not seem well-founded. Applications could be accepted with minimal checking, like lottery applications, and only those applicants selected for visas would have their claims thoroughly investigated. Those who lied would be removed from the list and new names selected from the pool. I think the State Department's main agenda here is to minimize hassles for itself, just as it supported last year's change in the law allowing adjustment of status in the U.S. for illegal residents who pay a fine.

Thank you again for this opportunity to testify. Please do not hesitate to call my office if the Center can help you in any way.