Changing the Immigration Selection System

By Stanley Mailman

New York Law Journal (p. 3, col. 1)

July 12, 1995

LESS THAN FIVE years since it was redesigned in 1990, the immigration selection system again faces a possible overhaul. On June 7, 1995, the U.S. Commission on Immigration Reform recommended a sharp reduction and radical alteration of the nation's immigration program.*1 Under this proposal, annual immigration would be reduced to 550,000, a drop from 900,000 in FY 1993 and about 800,000 in 1994. The views of the bipartisan advisory panel, chaired by former Representative (now Professor) Barbara Jordan, were welcomed by President Clinton,*2 and come at a time when both the public and Congress seem receptive to restrictions on immigration. On June 22, Rep. Lamar Smith (R-Tex.), chair of the House Subcommittee on Immigration, introduced H.R. 1915, a bill that closely tracks the recommendations of the Jordan Commission. (Congress has also been working on problems of illegal immigration, a separate subject on which a later column will focus.) It is unlikely that restrictions on legal immigration will rush through Congress without careful attention. Alan K. Simpson (R- Wyo.), who heads the Senate's immigration subcommittee and is known to favor fewer immigrants, argues that before the legal immigration system is revised, a better approach to stemming undocumented entries must be legislated.*3 On that subject, Sen. Simpson opened a hearing on May 10 with the observation that ``we currently have an atmosphere in which almost anyone who wants to become President of the United States is using immigration as an avenue.'' He stressed the importance of ``careful and thoughtful legislation that is done in a way that is not nativist.''*4

The Commission's proposals should kick off useful debate on the selection system. Is legal immigration on the whole good for this country? If the country needs to be more restrictive, what are the paramount considerations? How important is allowing U.S. citizens and lawful permanent residents to bring in their close relatives? Only spouses and unmarried children under 21? Parents of adult citizens? Unmarried sons and daughters over 21? Married sons and daughters? Siblings of U.S. citizens? Are such relatives an economic burden? Do other considerations apply to refugees? As to those who qualify on the basis of skills or jobs, do the present criteria and numbers make economic sense? And should the selection system be designed to achieve a balance in national origin? These questions, prompted by the Jordan Commission's recommendations, also underlie the present selection system. And there are other questions that need to be asked in order to develop a better consensus on ``whom we shall welcome.''*5

Basic Framework Is Sound

In general, the Commission has reaffirmed the legitimacy of present immigration policy by concluding that its basic framework is sound because it creates economic opportunities, enhances scientific and cultural resources, meets humanitarian commitments and supports family ties. Yet, finding that immigrants who are ``less well educated and less skilled . . . may pose economic hardships for the most vulnerable of Americans, particularly those who are unemployed or underemployed,'' the panel would reduce the numbers significantly and redefine the immigration categories.*6

The Commission's proposals may have been released hurriedly to assure congressional consideration. It was immediately criticized by House Majority Leader Dick Armey (R-Tex.) as ``long on recommendations, but short on analysis.''*7 In fact, the Commission plans to amplify its proposal in a formal report, and welcomes suggestions.*8 As a backdrop to the debate, it may be helpful to take a closer look at the Commission's recommendations, in terms of how the present system works and what alternatives might be considered.

Family Sponsorship

Immigration is now scheduled along four tracks. Immigrants qualify on the basis of: (1) family sponsorship; (2) employment (or outstanding skills), including investment which creates jobs; (3) diversity, by lottery for those born in an area of low U.S. immigration in recent years; or (4) persecution. Family sponsorship includes several categories, the most important being ``immediate relatives,'' who may immigrate in unlimited numbers. These are defined as the spouse or child (unmarried and under 21) of a U.S. citizen, and the parent of an adult citizen. In FY 1993, some 255,000 immediate relatives immigrated, up from 235,000 in FY 1992. There is a cap of 226,000 on other family-sponsored applicants, including any spouse or unmarried minor child of the eligible relative. In order of the so-called family ``preferences,'' the categories covered are sons and daughters (i.e., children unmarried but over 21) of U.S. citizens; spouses, children, and unmarried sons and daughters of permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of adult citizens. This system brought a total of about 480,000 relatives in FY 1993,*9 a figure that could rise each year with the number of immediate relatives. The Commission would hold that family-sponsored immigration to 400,000 per year, and would limit it to nuclear family members in three successive priorities. (Numbers for each lower priority would only be available if demand in the higher is met.) No place would be held for those who now qualify as the adult or married children of U.S. citizens (now about 35,000), adult children of permanent residents (30,000), or the siblings of U.S. citizens (60,000).

The Commission would give first priority to the spouses and minor unmarried children of U.S. citizens (about 190,000 in 1993). Within this priority, citizens could also bring their adult children who are dependent because of a mental or physical disability. Undoubtedly, the petitioners would have to demonstrate how those adult children would be cared for.

Parents of U.S. citizens, who accounted for over 62,000 of the ``immediate relative'' category in FY 1993, would be downgraded to the second priority. Apparently because of the Commission's concern that elderly immigrants sometimes utilize public services disproportionately, it would condition the immigration of parents on a legally enforceable affidavit of support. Those who make such an affidavit would have to show their ability to provide financial support, including health coverage, for the balance of the parent's lifetime. (Currently, such affidavits are considered only moral obligations, although the assets of the affiant are attributed to the immigrant who seeks to qualify for such programs as Medicaid or Supplemental Security Income.)

About 150,000 numbers should initially fall down to the third family priority, that is, to the spouses and minor children of lawful permanent residents and their adult disabled children. The Commission is particularly concerned with the long wait that now faces these spouses and minor children under the existing family second preference. To unjam the existing backlog, it would give them an extra 150,000 numbers a year for three years; they should then be able to immigrate on a reasonably current basis, according to the Commission's demographics. To deal with the current problem of aging out, a child under the age of 21 when the petition is approved would retain eligibility however long the process takes. If the number of immediate relatives in the first and second priorities did rise toward the 400,000 cap, the third priority would soon become oversubscribed, with fewer numbers left for spouses and children of permanent residents than the annual demand. The Commission does not expect such a squeeze, but the possibility is one reason it wants Congress to revisit the selection system every three or five years.

The current categories for siblings and adult children accounted for almost 130,000 immigrants in FY 1993. The proposal to eliminate them was met with outrage in the Hispanic and Asian communities, where extended families figure prominently. There is some evidence that recent immigrants are ``less well educated and less skilled,'' as the Commission suggests, and may therefore ``pose economic hardships for the most vulnerable of Americans, particularly those who are unemployed or underemployed.''*10

Still, the evidence is far from clear, and may be outweighed by other factors. Many of those who came poorly equipped for the job market were refugees from Southeast Asia, a political and moral legacy of the Vietnam War. On the positive side, while intellectual achievements may only be anecdotal, the children of foreign families seem to dominate the rolls of valedictorian contestants, the announcements of Westinghouse science-prize winners, and the acceptance lists of major universities. They also occupy a conspicuous place in the performance of classical music.

Labor-Market Test

The Jordan Commission would also lower the limit on employment- based (EB) immigration from about 140,000 per year*11 to 100,000, and reshape the criteria. (Here too the numbers include any spouse or children of the qualifying immigrant.)

Some aliens would continue to be exempt from a labor-market test on the theory that they do not take jobs from U.S. workers with similar credentials. These would include: (1) applicants of ``extraordinary ability'' (now EB first preference), plus a new category of those ``who have demonstrated the potential for extraordinary achievement;''*12 (2) executives and managers of multinational companies (now also EB first preference); (3) entrepreneurs whose active investments will generate U.S. jobs (now EB fifth preference); and (4) certain religious ministers and other religious workers (now EB fourth preference).

These categories -- the present EB first preference, which also includes outstanding academics, and the EB fourth and fifth preferences -- used fewer than 30,000 of the employmentbased numbers available in FY 1993.

Those in the present EB second and third preferences, as modified by the Commission, would remain subject to a labor-market test. From the present EB second preference, professionals with advanced degrees would be kept, but persons with ``exceptional ability'' would be dropped. Many of the 30,000 applicants who qualified in the second preference in FY 1993 were spared the normal labor-market test by showing that their entry would benefit the national interest. The Commission's proposal would apparently take away that option.

Of those in the third preference, which took 60,000 numbers in FY 1993,*13 the Commission would retain professionals with bachelor degrees and skilled workers. Workers, however, would have to qualify for jobs requiring at least five years of experience, instead of the present two. This would delete from the immigration spectrum, domestic helpers, home-care aides and other unskilled workers, who are now limited to 10,000 numbers. Professor Jordan had this to say: In an age in which unskilled workers have far too few opportunities opened to them, and in which welfare reform will require thousands more to find jobs, the Commission sees no justification to the continued entry of unskilled foreign workers -- unless the rationale for their admission otherwise serves a significant national interest, as does the admission of nuclear family members and refugees.*14

The present allocations received by four of the EB preferences -- the first (40,000), second (40,000), fourth (10,000) and fifth (10,000) -- have been underused. Depending on how the proposed priorities are structured, the effect of cutting back the total EB allocation from 140,000 to 100,000 might only be felt in the third preference, which has enjoyed the benefit of the numbers unused by the other EB preferences. But these professionals and skilled workers could still be left with some 40,000 numbers, their basic allocation now (but without the falldown), if the other priorities continue to use only about 60,000.

As to the labor-market test, the Commission would apparently abandon the present labor certification process, in which employers must show that they cannot find any U.S. worker to do the job. At best, certification, administered by the Department of Labor (DOL), is an unnecessary waste; at worst, an abomination. Of some 60,000 numbers that would remain subject to a labor- market test, only about half represent actual workers (the balance used by accompanying spouses and children). These numbers, spread over the United States, hardly warrant the trouble and colossal costs involved. Even DOL has acknowledged this, as seen in this 1976 statement by a deputy assistant secretary to a congressional subcommittee:

It is clear that the present labor certification procedures are a costly, aggravating process which affect a very small percentage of the immigrants who enter the labor force. In terms of either population or work force, the numbers entering for employment purposes are not significant. The only way that such numbers could adversely affect U.S. workers would be if they were entering in concentrations in a particular occupation or in a single employing establishment in a given area over a relatively short period of time.*15

The same official, noting that many of the jobs cleared for labor certification are already held by the alien applicant (who may have qualified for the position on a temporary visa), also observed, ``It is virtually an impossible task to successfully place a qualified U.S. worker when an alien is already occupying the position.''*16 What a hoax on the American worker who innocently responds to the required job advertisement.

Moreover, the present labor-market test occurs too early in the process to check the alien's impact on U.S. workers, and is otherwise ineffective. From the time the required recruitment is done and documented, it usually takes two years, and often longer, before the applicant immigrates or adjusts status to permanent resident and starts the job.

A 1975 study funded by DOL showed that ``57 percent of the immigrants with labor certification changed occupations -- not just jobs -- within two years after arrival'' (moving to other, uncertified jobs).*17 So much for protecting the American worker. The Commission would establish a different labor-market test, with four elements: (1) the employer would have to pay a substantial fee to fund private-sector programs for the education and training of U.S. workers; (2) the employer has appropriately recruited for a qualified U.S. worker; (3) the wage offered by the employer to the alien worker would have to be at least 5 percent above the prevailing wage, apparently to be monitored through a labor- attestation process enforced by DOL; and (4) the resulting residence status would be conditional for two years, to test whether the applicant continues to work for the same employer, at the same or higher level, and for the required wage, subject to a waiver for such factors as layoffs, business failure or unfair labor practices. This four-part substitute for labor certification would also be bad news for employers. On the plus side, the special tax and enhanced wage might be some measure of the foreign employee's special value. However, it would not necessarily protect U.S. workers. The two-year condition would impose a sentence of officially sanctioned servitude. With the green card on the line, the employer/employee relationship might too often be poisoned, and the potential for exploiting the alien could be harmful to fellow workers. Better to condition the aliens' residence on their remaining within the same line of work.

The special fees and premium wages that employers would have to pay have been criticized by Rep. Armey, business interests and immigration observers as unduly restrictive to beneficial immigration. The New York Times editorialized that these taxes run ``counter to the goals of bringing valuable skills to the economy and closing the earnings gap between high-paid and low-paid workers.''*18

The need for an attestation relating to salary and recruitment efforts would be little improvement for employers over the present certification system; DOL attestation rules under the H-1B (temporary) visa program have been disturbingly complex and burdensome to business.

The worst feature of the Commission's labor-market test is that it would qualify applicants solely because of their value to a specific employer. Working for that employer may serve the economy at the outset. But it fails to vet the alien's potential for holding a skilled job over the long range, and therefore avoiding competition with unskilled U.S. workers.

Diversity and Refugees

The Commission's tacit recommendation to discontinue the ``diversity'' program gets cheers from this corner.*19 Diversity is the third track on which 55,000 applicants a year may immigrate after selection by lottery. It is essentially an affirmative action program that favors the natives of those countries that have had a low immigration rate over the last five years.

Although the idea of diverse immigration looks good at first flash, it is badly flawed. For one thing, diversifying the immigrant stream does not diversify the population of our country; it could have the opposite effect. More importantly, ``[c]ountries don't immigrate. People do.''*20 If we look at immigrants as individuals rather than as national delegates, it is hard to justify immigration schemes based on national origins.

The Commission's recommendation on the resettlement of refugees seems, on its face, at once impractical and unnecessarily political. By statute enacted in 1980, the President decides each year, after appropriate consultation, what number of refugees ``is justified by humanitarian concerns or is otherwise in the national interest.''*21 In recent years the annual figure has exceeded 100,000, but not by much.

Professor Jordan argues that, ``in the context of the post-Cold War era,'' 50,000 admission numbers should normally be allocated each year. On certifying an emergency, the President could authorize additional admissions, subject to a two-house congressional veto. Unfortunately, persecution has not abated with the end of the Cold War. Governments or their unofficial agents continue to persecute individuals ``on account of race, religion, nationality, membership in a particular social group, or political opinion,''*22 in many areas of the globe, and with unremitting ferocity. The figure of 50,000 is arbitrary and impractical, and ties the President's hands when he or she needs flexibility to deal with humanitarian concerns and other aspects of our national interest. The veto would give Congress a more meaningful role in the process and might make these proposals easier to enact. But why inject political issues into the refugee calculus every time humanitarian considerations compel the President to certify an emergency?

There is some suggestion that the Commission wants to peg the refugee figure at 50,000 because the President might drop it lower. The matter of fixing the number of refugees each year should remain with the President, subject to the dynamics in which Congress, human rights organizations and other interested groups participate.

Conclusion

Should the U.S. immigration selection system be changed at all? Save for certain categories on which there is general agreement, even fairly taken positions tend to be arbitrary. After a thorough study, the categories now in the law were in the main supported in 1981 by the Select Commission on Immigration and Refugee Policy, a government-appointed body no less respected than the Jordan Commission, and whose members spent a considerably longer time analyzing the issues before issuing recommendations. But time alters priorities. If the pressure to reduce immigration builds, the Jordan Commission's proposals are a possible model, not immune to improvement. There are solid policy reasons for dropping the diversity allocation and retaining the President's authority to set the number of refugees.

There seems to be little fuss over most of the employment categories that the Commission would retain. Who can quarrel with 5,000 or so numbers for religious workers in FY 1993, a handful for million-dollar investors, and some 20,000 for persons of extraordinary ability and managers transferring within international companies (the figures including spouses and children)? Labor certification should be replaced for professionals and other workers. But the proposals made by the Commission to protect their U.S. counterparts are shortsighted. It would be better to select the foreign workers by a set of criteria that test their ability to function at a high level over the long haul, somewhat akin to point systems used by other countries.

A solid job offer is important as a market test of the worker's value. But there are other considerations, including the worker's age, education, training and previous experience. Perhaps marital status should be considered too, as a spouse and child take numbers and therefore a place in society without independent vetting. As to family immigration, there is probably little opposition to a provision that would enable the U.S. citizen or lawful resident to bring their spouse and minor, unmarried children, as well as disabled sons and daughters. The Commission's proposed reduction would come mainly from other adult children and siblings, a category whose numbers are overwhelmed by demand. It would suggest to many that such family relationships are not important enough to warrant an unproved burden to the U.S. economy. Whether to make that cut is one of the issues certain to provoke a heated debate in the months to come.

Notes

(1) The Commission's proposals were issued as a simple fact sheet, accompanied by a written statement by Professor Jordan, at a press briefing on March 7, 1995, and reported by Robert Pear in the N.Y. Times, June 8, 1995, at B10. For a full account, see 72 Interpreter Releases 793 (June 12, 1995). See also Wall Street Journal, June 8, 1995, at B8; Washington Post, June 8, 1995, at A1. The proposal was discussed even earlier by members of the Commission with Mr. Pear, as appears from his article in the N.Y. Times, June 5, 1995, at A1.

(2) N.Y. Times, June 8, 1995, at B10.

(3) 72 Interpreter Releases 377 (March 20, 1995).

(4) Quoted in 72 Interpreter Releases 653 (May 15, 1995).

(5) The quoted phrase is the title of the Report of the President's Commission on Immigration and Naturalization (1953). It is taken from this statement by George Washington on Dec. 2, 1783: ``The bosom of America is open to receive not only the Opulent and Respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.'' 28 The Writings of George Washington From the Original Manuscript Sources: 17451799, at 254 (John C. Fitzpatrick ed. 1938).

(6) Prof. Jordan's June 7, 1995 press statement.

(7) N.Y. Times, June 8, 1995, at B10.

(8) The Commission's executive director, Susan Martin, spoke on June 17, 1995 in Atlanta and answered questions at the annual conference of the American Immigration Lawyers Association, filled in many of the gaps in the fact sheet, stated that some aspects of the Commission's proposals were not yet firmly formulated, and said that she and her staff were open to thoughtful suggestions. This account of the proposals relies not only on the fact sheet and Prof. Jordan's June 7 statement, but also on a tape of Ms. Martin's speech.

(9) Statistical Yearbook of the Immigration and Naturalization Service 1993, Table B, at 17 (1994).

(10) Prof. Jordan's June 7, 1995 statement.

(11) Actually, in FY 1993, only about 120,000 EB applicants qualified. Another 28,000 Chinese immigrants were charged the EB third preference under a provision of the Chinese Student Protection Act (CSPA). See INS Statistical Yearbook, n.9 supra, at 18-19.

(12) A member of the Commission with whom the author spoke soon after release of the Commission's report suggested that it may be as important to open the way for those who have shown the capacity to win a Nobel Prize as for those who are already laureates.

(13) Added to these in FY 1993 were 28,000 Chinese under the CSPA. See n.11 supra. The third preference is only allocated about 40,000 numbers, but is augmented by any unused numbers in the other EB preferences.

(14) Prof. Jordan's June 7, 1995 statement.

(15) Hearings on S. 3074, Subcommittee on Immigration and Naturalization, Committee on the Judiciary, 94th Cong., 2d Sess. 59, 61 (1976) (statement of Ben Burdetsky).

(16) Id.

(17) Id. at 60.

(18) Common Sense on Immigration, N.Y.

Times, June 11, 1995, ``Week in Review,'' at 14.

(19) See Stanley Mailman, ``Upcoming Visa Lottery,'' NYLJ, Feb. 23, 1994, at 3.

(20) Stephen H. Legomsky, ``Immigration, Equality and Diversity,'' 31 Colum. J. Transnat'l L. 319, 334 (1993).

(21) 8 USC Sec.1157(a).

(22) 8 USC Sec.1101(a)(42) (definition of refugee).