Table of Contents
A. United States Economic National Interest: Quotas and Preferences
Immigration quotas and preferences can be traced as far back as the American Revolution. Although for over a century since independence no laws existed to restrict the admission of aliens, George Washington’s Federalist Party enacted the Alien Act of 1798, 157 which allowed the President to deport any alien he judged dangerous to the United States. However, due to executive abuse of the law (Washington tended to primarily deport his political opponents), it was repealed after only two years yet various leaders at the state and federal levels continued to express concern over unrestricted immigration. Benjamin Franklin, for example, suggested that there were so many German immigrants in Pennsylvania the State Assembly would need interpreters. And Thomas Jefferson expressed concern as to the socio-political ramifications of an immigration free-flow of peoples from countries still ruled by monarchs. However, throughout its formative period, a national policy of open immigration proved beneficial as the United States needed workers and citizens to build a country. 158
The growth of the American West continued the U.S. pull for immigrant labor to work its mines, mills and railroads. Eventually, the sheer number of immigrants, and a growing number of non-Anglo immigrants, coupled with a domestic economic decline gave rise to Congressional legislation that would regulate the influx. The Immigration Act of August 3, 1882 159 levied a "head tax" on each immigrant of fifty cents 160 and blocked the entry of "idiots, lunatics, convicts and persons likely to become public charges." 161 Around this time, Congress began passing a series of labor laws aimed at preventing mass immigration from lowering the wages of domestic workers.
Following World War I, a fear of Bolshevism gave rise to the concept of national origin quotas, which were first introduced in the Congress in 1921. The 1921 bill established a ceiling on European immigration and limited the number of immigrants of each nationality to three percent of the number of foreign-born persons of that nationality resident in the United States at the time of the 1910 census. 162 In 1924, the National Origins Act provided for an annual limit of 150,000 Europeans, a complete prohibition on Japanese immigration, and the development of quotas based on the contribution of each nationality to the overall U.S. population rather than on the foreign-born population. 163 The 1921 and 1924 Acts were both designed to preserve the racial and ethnic status quo of the United States, though they each exempted immigration from the Western Hemisphere.
The quota system of the 1920s remained substantially intact until 1965; however, major intermittent events nevertheless had profound effects on the eventual course of immigration policy. Although the Great Depression, World War II, the erection of the Iron Curtain, McCarthyism, and enlightenment over the atrocities of the Holocaust had profound effects on long-held notions about United States traditions and needs, the 1950s had not produced a climate ripe enough for liberalizing changes. In 1952, the INA (passed by Congress over the veto of then-President Harry Truman) consolidated previous immigration laws into one statute and, in doing so, preserved the national origins quota system. The INA established a system of preferences for skilled workers and the relatives of United States citizens and permanent resident foreign nationals, tightened security and screening procedures, established a 150,000 numerical limitation on immigration from the Eastern Hemisphere and repealed Japanese exclusion.
In 1961, the election of John Kennedy, a descendent of Irish immigrants and the first Catholic president of the United States, marked a turning point in immigration history. Following Kennedy’s assassination and Lyndon Johnson’s landslide victory in 1964, the INA Amendments of 1965 were enacted which abolished the national origins formula, replacing it with a per-country limit of 20,000 on every country outside the Western Hemisphere and an overall ceiling of 170,000 for those countries; placed a ceiling of 120,000 on immigration from the Western Hemisphere with no country limits; and established Eastern Hemisphere preferences for close relatives, as well as for those who had occupational skills needed in the United States under a seven-category preference system. 164
In 1976, a law was passed that applied to the Western Hemisphere the same 20,000 per-country limit and the preference system that was in effect in the Eastern Hemisphere. 165 In 1978, new legislation combined the ceilings for both hemispheres into a worldwide total of 290,000, keeping the 20,000 per-country limit and seven-category preference system intact. 166 The Immigration Act of 1990 instituted another major reworking of the immigration system, substantially expanding employment-based immigration, providing additional visa numbers for certain family-based categories, creating the diversity lottery visa for foreign nationals from low-admission countries. 167 Additional amendments to the INA changed the rules for certain nonimmigrant categories 168 and introduced new classifications. 169
A basest analysis of the historical quotas and preferences system shows little reason for maintaining these arbitrary limits on immigration. Free trade liberalization over the course of the last 20 years, from the United States’ first free trade agreement with Israel to its current negotiations with Latin America, Southern Africa, Thailand, Oman and the United Arab Emirates, has increased U.S. and world production, creating jobs domestically that U.S. natives alone are unable to fill. Visa allocation levels should therefore be significantly increased in both nonimmigrant and immigrant employment-based categories in order to meet current and future labor demands in the United States. Migration management must appropriately respond to the demand for more permanent immigration and temporary work visas by domestic employers. This requires a more thoughtful expansion of legal migration channels that takes responsibility for the immigration process itself, rather than passing off the problems of immigration on migrants themselves, who are merely responding to the international labor market as rational utility-maximizers.
The acquisition of highest-value human and cultural capital from around the world through appropriate modifications of immigration policy will maximize the economic affluence of the United States under a politically feasible model of second-best. Scarcity produces value and the labor market value of scarce qualifications and abilities will provide the United States with a substantial return on its investments of time, energy, thought and political compromise in the liberalization of its immigration policy. In response to the research question posed at the beginning of this piece, the self-selection of high-skilled immigrants filling expanded immigrant visa categories would provide a large part of the comprehensive answer. Engineers, mathematical, computer and life scientists, physicians and other health care workers in the United States are currently comprised of large percentages of immigrants. Nevertheless, the U.S. faces a shortage of these workers as the majority of Americans entering the higher echelons of education are drawn in increasing numbers to such social sciences as law, government and international affairs.
The economic national interest of the United States mandates higher levels of high-skilled workers so that the United States may remain internationally competitive and improve its competitive capacity in the high-skilled sectors in light of new economic challengers arising on the international scene. Likewise, a broad expansion of low-skilled visa quotas is a key reform element necessary to positively shift low-skilled migrant incentive structures towards an embrace of legality, a rejection of black market human capital movements (and the violent shadow industries they create), and a movement from the underground economy into full participation in the labor market. This shift would benefit immigrants, domestic industry and the U.S. government, leading to mutual gains in absolute wages, knowledge transfers, tax revenues, employment transparency, and entrepreneurial opportunities through which additional jobs are created for U.S. workers.
EB-1 and EB-2 Visas
The Senate bill would increase the annual limit on employment-based visas from 140,000 to 450,000 for the next 10 years, and back down to 290,000 in 2017. Exempt from the cap would be certain highly educated migrants, such as advanced degree holders from a U.S. institution, or from any institution in the world if the advanced degree is in a science, technology, engineering or mathematics (hereinafter, "STEM") field of study, and the migrant has three or more years of related work experience in the U.S. Also exempted from the cap would be migrants deemed to have "extraordinary ability" or whose presence in the U.S. would be in the "national interest." Under this bill, there would be an absolute cap of 650,000 employment-based visas. 170 The House bill does not provide for employment-based immigrant visa expansions.
While a step in the right direction, the Senate bill is inadequate for maximizing the U.S. economic national interest as it continues the tradition of imposing arbitrary limits on these market-based high-skilled visas. In contrast, under equitable moderation, the current total and per-country limits for employment-based immigrant visas in the "priority workers" 171 categories (i.e., foreign nationals of "extraordinary ability," 172 "outstanding professors and researchers," 173 and "multinational executives and managers;" 174hereinafter, "EB-1") and the "members of the professions holding advanced degrees or persons of extraordinary ability" 175 (i.e., foreign nationals of "exceptional ability," or who have earned an "advanced degree," 176 and whose work is in the "national interest;" 177 hereinafter, "EB-2") would be eliminated. The current visa allocation ceiling (hereinafter, "cap") for EB-1 and EB-2 workers are approximately 40,040 for each category (calculated at 28.6% of the 140,000 annual worldwide employment-based visa allocation, plus any immigrant visas not used by certain other immigrant visa categories 178), with no more than seven percent of the total worldwide visa allocation (inclusive of both family-sponsored and employment-based visas) coming from any single foreign state. 179 As established in this piece, the United States is in somewhat drastic need of expanding its human capital base in the STEM and health care occupational categories, and in an increasingly competitive international market for these workers (the primary competitor countries being Germany, the United Kingdom, France and the Netherlands) the U.S. should admit as many of these workers as are willing to immigrate.
While the EB-1 and EB-2 categories have remained "current" (meaning that visas are immediately available for those who qualify, i.e., those who have an approved immigrant visa petition in one of the two categories 180) for quite some time for most countries, applicants from India and China (two of the world’s leading producer-states of high-skilled STEM workers) are currently facing visa availability backlogs in these categories. 181 Rather than wait in line for employment in the United States, these professionals are beginning to look elsewhere. It is in the national interest of the United States to erase these arbitrary per-country quotas and to establish the EB-1 and EB-2 visas as permanent cap-less immigration options for the world’s best and brightest. With the extensive criteria attached to these categories, it should not matter where qualifying immigrants originate, as long as they are willing to bring their skills to America, to the great benefit of the United States economy. Moreover, while the idea is founded on respectable principles of cosmopolitan liberalism in the form of pro-diversity and non-discriminatory egalitarianism, it is contrary to economic reason to attach equal allocation caps to each country when the majority of the world’s states have yet to develop their educational and infrastructure capacities to the point of producing anywhere near enough EB-1 and EB-2 workers to meet their seven percent visa allocation. Therefore, per-country as well as total caps on these high-skilled immigrants should be eliminated.
The EB-1 and EB-2 visas are "U.S. demand side" visas in that the United States has higher demand for high-skilled workers than most countries are currently supplying (again, with the exception of India and China). Therefore, aside from a minimal filing fee to cover case review and adjudication expenses, no additional fees or tariffs should be imposed on these visa categories as high fees and other barriers to entry would likely serve to divert these workers into other nations’ markets with less-expensive welcoming mats.
EB-3A and EB-3B Visas
The "skilled, professional and other workers" 182 (hereinafter, "EB-3") employment-based immigrant visa category should be split into two categories: "EB-3A" visas for STEM and health care professionals with at least a bachelor’s degree and any applicable licensure in a STEM or health care field (and who would not otherwise qualify for an EB-1 or EB-2 visa), and "EB-3B" visas for "essential workers" (i.e., low-skilled laborers). In this way, high- and low-skilled workers would be separated into two distinct categories and approached according to changing economic need. The EB-3 per-country quotas are currently overdrawn by all countries with waitlists of between five and six years. 183 This indicates that the total worldwide allotment is too low and that "other workers" (i.e., low-skilled) are most likely filling their portion of the cap (currently, 10,000 of the 28.6 percent of worldwide allotment 184) in the EB-3 category. Once separated, the total and per-country quotas for EB-3A visas should be eliminated along the same line of reasoning presented supra for the EB-1 and EB-2 categories. The total and per-country quotas for EB-3B visas should be dramatically increased in sequential stages so that the United States can build confidence and capacity in the program, while obtaining appropriate levels of needed low-skilled labor in the agriculture, services, manufacturing, construction, fishing, forestry, landscaping, restaurant and construction industries. The pace of these increases should conform to the low-skilled market’s ability to adjust its wages and working conditions in a more equitable fashion as between native and foreign national workers. Moreover, legislation should be made purposefully fluid, with a reassessment of per-country "production" of needed workers made every three to five years and bilateral per-country visas allocated accordingly.
While the U.S. has a substantial need for low-skilled workers, EB-3Bs are nevertheless "U.S. supply side" visas in that the United States has less demand for these workers than the world is willing to supply. Therefore, a substantial fee should apply to these visas in the form of a progressive "immigrant tariff" calculated against the country of origin’s per-capita PPP GDP for the preceding year where the tariff rate increases as the sending state GDP, to which the rate is attached, increases. The tariff would apply only to the EB-3B immigrant visa category and would have to be paid in private funds by the intending immigrant rather than by a U.S. employer or by the sending state government. This would prevent any abnormal coercive relations from forming between U.S. employers and immigrant workers, or the diversion of funds in sending states away from domestic development projects.
One-third of the immigrant tariff would be given back to the country of origin as human capital compensation (redistributive "profit-sharing" to compensate the sending state for the brains drained out of its country due to liberalized EB-1, EB-2 and EB-3A legislation); one-third would be appropriated to the USCIS and earmarked for improving its adjudications processes (specifically with respect to hiring additional personnel and increasing officer training); and one-third would be held in escrow and refunded to the immigrant once he or she has remained gainfully employed in the United States for a period of five years (or, roughly, at the time he or she is eligible to apply for naturalization). Any social benefits (other than public education and emergency hospital treatment) received by the immigrant during those five years would be deducted from the escrow account and transferred to the U.S. Treasury as compensation. To receive its third of the immigrant tariff, the sending state government must reciprocate by lowering certain trade barriers on specified U.S. services in which the United States has a comparative advantage, as determined by the U.S. Trade Representative in bilateral negotiations within or apart from the WTO forum. The sending state would also have to show that these revenues are being directly reinvested in the country’s public education system (i.e., that they are truly being used to refill the brain drain), with a modest bilateral oversight committee established to ensure compliance with this requirement.
While EB-3Bs would require sponsorship by a U.S. employer, these visas would have complete "portability" attached to them (meaning, once granted, they can be used to work for any U.S. employer), thereby placing the burden to retain employees on U.S. employers and allowing at-will employment freedoms in line with basest free-market principles. Full portability would further protect foreign nationals from the possibilities of employer abuse, forms of indentured servitude and other coercive techniques used to secure their labor needs, while protecting U.S. employers from any unscrupulous employee demands that could arise from foreign nationals treating their employers’ investment in them as a form of leverage for obtaining excessive worker benefits.
H Visas: H-1As, H-1Bs, H-1Cs, H-2As and H-2Bs
The Senate bill would create an "H-1C" temporary guest-worker program that admits 200,000 new low-skilled workers a year. The visa would be valid for three years and renewable for an additional three years, with a possibility for adjustment to permanent residence. The bill would increase the quota on H-1B visas to 115,000 per year, with a 20 percent escalation if the quota is reached in any given year. The current 20,000 additional visas for U.S.-educated advanced degree holders would be available to graduates of foreign institutions, and U.S. graduates with advanced degrees would be exempt completely from the cap. 185 Employers of H-1Cs would be required to file a petition, pay an administrative fee, attest that hiring H-1Cs would not depress wages of similarly employed U.S. workers or cause layoffs, and pay H-1Cs the greater of the actual wage of those similarly employed or the prevailing wage and provide the same benefits and conditions as similar workers. 186
While this Senate bill formulation draws closer to economic realities than its immigrant visa proposal, it nevertheless falls short of a second-best optimal due to insufficient caps and the perpetuation of a market interference model conforming to current labor certification requirements. Under equitable moderation, the static H-1B (referenced supra), H-2A (for nonimmigrant agricultural workers 187) and H-2B (for seasonal or temporary skilled and unskilled workers except for members of the medical profession 188) nonimmigrant visa programs should be replaced with fluid quotas based upon the changing economic needs in the United States and upon methodical skill-level econometrics instituted in the United States and abroad by the USDOL in order to measure their effectiveness. Under similar oversight, the former H-1A (referenced supra) and H-1C (an expired program under which nurses could enter the U.S. to work in "health professional shortage areas" 189) visas should be reinstated and merged into a single H-1A visa program for foreign national health care workers, inclusive of physicians, nurses and other health care professionals. Moreover, the "temporary" qualifier in the H-2B program should be eliminated. As with EB-3B immigrant visas, these H nonimmigrant visas would have complete portability attached to them. The quota for each H category should be raised, at the outset, to a level of 250,000 available visas per category, in line with the market demand for these visas over the last decade. The current quota for H-1Bs is woefully inadequate, capped at 65,000 per year 190 - with an additional 20,000 for H-1B beneficiaries with advanced degrees 191 - which has created a dramatic gap in the supply-demand equation and has been used to justify a "corporate tax" on U.S. employers in the amount of between $1,250.00 and $2,000.00 for each H-1B nonimmigrant. 192 Current quotas for H-2Bs (currently at 66,000 193) are likewise severely diminutive in light of U.S. employer demand.
Labor certifications and labor condition attestations are determinations made by the USDOL that there are no sufficient workers who are able, willing, qualified and available at the place where the foreign national worker is to perform the work in question and that the employment of the foreign national will not adversely affect the wages and working conditions of workers in the United States similarly employed. The U.S. immigration statute requires labor certification for most employment-based immigrants, even migrants who are members of the professions holding advanced degrees or foreign nationals of exceptional ability (unless they qualify and apply for a national interest waiver), and professionals who have earned a bachelor’s degree. Through the labor certification process, the government requires U.S. employers to discriminate against foreign workers as the statute requires an employer to prefer any minimally qualified U.S. worker over any foreign national worker, regardless of how much better qualified the migrant worker may be. As long as fiscal policies and employer sponsorship are kept in tact for foreign national workers, these labor certifications and labor condition attestations should be eliminated, thereby bringing the hiring process that much closer to free market principles. 194
Since these are dramatic "U.S. supply side" visas (as measured by upgraded quotas rather than actual U.S. demand, which could prove to be greater than the new 250,000 caps), a substantial fee should apply to these visas in the form of a progressive "nonimmigrant tariff" calculated against the country of origin’s per-capita PPP GDP for the preceding year, where (as with the EB-3B immigrant tax) the nonimmigrant tariff rate increases as the sending state GDP to which the rate is attached increases. A separate tariff would apply to each of these categories (with the current $2,250.00 H-1B corporate tax being eliminated) and would have to be paid in private funds by the intending nonimmigrant rather than by a U.S. employer or by the sending state government. These revenues would be distributed in the same manner in which the EB-3B revenues are distributed, with one-third going to the country of origin and invested in public education, one-third appropriated to the USCIS for adjudications improvements, and one-third held in escrow and deducted or refunded according to nonimmigrant use of social benefits other than public education or emergency hospital treatment.
For all immigrant and nonimmigrant visas, those listed supra and infra, immediate family members should be granted derivative status for a more modest add-on tariff. Immediate family members would include all family members, related by blood or marriage, living in the primary beneficiary’s household at the time the application or petition is submitted to the USCIS or USDOS. In the case of EB-1 and EB-2 permanent residents who later naturalize and wish to bring their family members to the U.S. as "immediate relatives" (a family-based immigration category not subject to numerical limitations), the current legal distinction between "children," "unmarried sons and daughters" and "married sons and daughters" should be eliminated from the law and replaced with a less conditional "household" category. The distinction currently drawn between "children" (under-21 and unmarried 195) and "sons and daughters" (21-or-over and/or married 196) of U.S. citizens unfairly penalizes the foreign-born from certain cultures wherein familial economic and emotional dependencies are not dictated by age or marital status. For example, Mexican households often include over-21 adult children, their spouses and children, and even siblings, and under the current law these more "distant" members of the household are ineligible for sponsorship. These culturally-based legal distinctions are in contrast to democratic liberalism and create a break in the established tradition in U.S. immigration law of family reunification. They should therefore be eliminated from the immigration classification criteria.
Immigration Marriage Fraud Amendments were passed by the U.S. Congress in 1986 to curtail arranged marriages through the enactment of special procedures for foreign nationals seeking permanent residence on the basis of marriage. 197 Moreover, to alleviate concerns about a larger familial immigration’s impact on social programs, the naturalized citizen would have to establish an ability to support his or her household through a combination of his or her salary, the salary of the sponsored beneficiary and/or the contractual support of a third party. In addition, the migrants who pay immigrant or nonimmigrant tariffs would have their escrow accounts subjected to deductions for any public benefits (again, outside of public education and emergency hospital treatment) received by their household members.
157 Chinese Exclusion Act of May 6, 1882 (U.S. Statutes at Large, Vol. XXII, p. 58 ff.)
158 United States Citizenship and Immigration Services, "An Immigrant Nation: United States Regulation of Immigration, 1798-1991" (Washington, DC: Government Printing Office, 1991), 4 (citing Alien Act of June 25, 1978, 1 Stat. 570; Chinese Exclusion Act of 1882 [Act of May 6, 1882], 22 Stat. 58; Act of Feb. 26, 1885, 23 Stat. 332; Act of Feb. 23, 1887, 24 Stat. 414; Act of Oct. 19, 1888, 25 Stat. 566; Repeal of Chinese Exclusion Act, Dec. 17, 1943, 57 Stat. 600).
159 Ibid., 152.
161 Ibid., 153.
163 Hollifield, "The Politics of International Migration," 139.
164 Rudolph, "Sovereignty and Territorial Borders."
165 Huntington, "The Hispanic Challenge."
170 Jorge Castañeda, "Immigration Reform Would Help Warm Mexicans to U.S. ‘Melting Pot," Christian Science Monitor, April 9, 2004.
172 Tamar Jacoby, "Rainbow’s End: A Renowned Student of America’s Maladies Detects a New Threat to Our Identity," The Washington Post, May 16, 2004, BW03.
175 Zadvydas v. Davis, 121 S. Ct. 2491 (2001).
176 USCIS, page 15 (citing Presidential Proclamation No. 2525 of December 7, 1941 [Control of Japanese Alien Enemies]; Executive Order No. 9066 of February 19, 1942).
177 USCIS (citing Alien Registration Act of June 28, 1940, 54 Stat. 670).
179 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Pub. L. 107-56).
180 Aleinikoff, et al., Immigration and Citizenship, 145-169.
186 Federation for American Immigration Reform, "Comparison."
187 Fragomen, "Summary."
188 Meissner, "Lessons Learned."
189 Immigration Act of February 5, 1917 (39 Statutes-at-Large 874).
190 Quota Law of May 19, 1921 (42 Statutes-at-Large 5).
191 Immigration Act of May 26, 1924 (43 Statutes-at-Large 153).
192 Immigration Reform and Control Act of November 6, 1986 (IRCA) (100 Statutes-at-Large 3359).
193 Fragomen, "Summary."
194 Immigration Act of November 29, 1990 (104 Statutes-at-Large 4978).
195 Antiterrorism and Effective Death Penalty Act of April 24, 1996 (110 Statutes-at-Large 1214).
196 Illegal Immigration Reform and Immigrant Responsibility Act of September 30, 1996 (110 Statutes-at-Large 3009).
197 I.N.A. §235(b)(1)(A)(i), 8 U.S.C. §1225(b)(1)(A)(i).