Broken Again? A Brief History of Recent U.S. Immigration Law

During my 35 plus years practicing U.S. immigration and nationality law I have heard one constant complaint from colleagues and the chattering class alike. Like Chicken Little’s refrain about the “sky falling,” the complaint is that the immigration system is somehow “broken.”

When I first started practicing in 1976 it was our way of dealing with asylum seekers and refugees that was purportedly not working. At the time, the refugee system in place heavily favored persons from communist or communist-dominated countries or from the Middle East, with even a separate preference category in our immigration quota just for this persecuted group. Recognizing that the world was changing and that the problems associated with political asylum and refugee status were larger than any one political class or region of the world, the U.S. modified its immigration laws to bring them in line with the definition of refugees and political asylum established by the U.N.’s High Commissioner for Refugees and expressed in its Handbook on Procedures and Criteria For Determining Refugee Status.  Replacing the focus on persons fleeing Communist tyranny, the definition adopted by the U.S., consistent with the U.N. protocol, was that a refugee was someone who had a “well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.” In 1980 Congress enacted the Refugee Act of 1980 that incorporated this definition. Although the American system of dealing with asylum and refugees after 1980 has had its ups and downs and persistent critics since its inception, for the most part it has worked well. The tragic Boston Marathon bombing in April 2013, however, has caused some to doubt whether our refugee laws and/or their administration are adequate to deal with potential fraud and/or threats to our national security.

Not too long after the refugee law was revamped the nation was forced to come to grips with the problem of the millions of foreign nationals residing unlawfully in the country. With the help of a sympathetic and pragmatic Reagan administration, Congress passed the Immigration Reform and Control Act of 1986, or IRCA. The law offered to applicants an amnesty, i.e., temporary residence and then permanent residence status if qualified. It is estimated that approximately two million undocumented persons were able to gain resident status under IRCA. There was, however, a quid pro quo for this act of generosity on the part of Congress, the Reagan administration, and the American people. The law would never have been passed if it had not included provisions designed to secure the borders and, in recognition that jobs were the magnet that attracted foreigners to our shores, punishing the employment of those who lacked federal employment authorization. Monetary fines, and even criminal sanctions for excessive employment violations, could now be imposed against employers who hired unauthorized workers or who failed to make sure that all new hires possessed proper work authorization. These laws penalizing employers were collectively known as employer sanctions and there was great optimism, naïve in retrospect, that they would put a stop to unlawful immigration.

 Four years after IRCA’s adoption, Congress grappled with another major immigration problem, namely the inadequacy of the American immigration system to meet U.S. employment needs in a globalized world in the forthcoming twenty-first century. The U.S. employment-based (EB) immigration system was seen in particular as archaic and ill-suited to meet the needs of the world’s leading economy, in competition with other advanced countries for the best available talent. Prior to the adoption in the 1990’s of the new law IMMACT, discussed below, there were merely two EB preference categories, the third and the sixth. The former was available to professionals and persons with exceptional ability in the arts and sciences. The sixth preference included both skilled and unskilled workers. Only 54,000 visas (27,000 each) were available under the two categories and that included the family members of the principal immigrant.

IMMACT’s most important effect was to change the EB immigrant visa system from two categories to five that remain in place to date as follows:

  1. Aliens with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and certain multinational managers and executives;
  2. Aliens who are members of the professions holding advanced degrees; or aliens of exceptional ability in the sciences, arts, or business; or aliens whose services will promote the national interest;
  3. Skilled workers, professionals, and other workers;
  4. Certain special immigrants (includes religious workers);
  5. Employment creation (investors).

One hundred forty thousand visas were set aside for EB immigrants (including family members).  The immigration of the unskilled was discouraged and limited to 10,000 visas per year, further reduced by 5,000 with the passage of the Nicaraguan Adjustment and Central American Relief Act (1997).

IRCA introduced other important changes. For the first time a cap was placed on the number of H-1B visas. Originally set at 65,000, the cap has been modified since IRCA’s adoption, seldom to everyone’s satisfaction, to meet new economic contingencies. An annual diversity lottery program was established, administrative naturalization implemented, the definition of aggravated felony expanded, and the immigration court given the power to enter in absentia orders, a practice generally anathema to the American system of justice.

IMMACT has essentially been a success, especially with regard to the EB immigrant visa system. As good as the changes have been, the EB immigrant visa system IMMACT introduced has not been immune to problems such as quota backlogs for certain highly educated foreign nationals (the Indians and the Chinese), the need to introduce a new labor certification system that took effect in 2005 known as PERM, and criticism over how the immigration authorities interpret key provisions such as “extraordinary ability,” “national interest,” and “academic degree equivalency.” So the complaints have continued.

In 1996, during the Clinton administration, law enforcement was particularly concerned with the threat of terrorism, aliens who had been convicted of serious crimes, and the continued porousness of our borders a mere ten years after IRCA’s adoption. In light of the first World Trade Center bombing in 1993 and, in hindsight after the horrific events of 9/11, Congress’ desire to get tough with illegal immigration was understandable. So along came the Illegal Immigration Reform and Responsibility Act of 1996 or IIRIRA. Congress got strict with serious immigration lawbreakers, adopting, among others, the following significant measures: 1) A three year inadmissibility bar for persons present unlawfully in the U.S. for more than 180 days and a ten year bar if unlawful presence was one year or more; 2) Made inadmissible those who incited terrorism; 3) Increased the one year bar after exclusion to five years and the five year deportation bar to ten years; 4) Created summary removal for persons entering without proper documents; 5) Made more onerous the provisions for suspension of deportation, now to be called cancellation of removal; and 6) Established mandatory detention of persons removable due to certain criminal convictions or activities.

Since IIRIRA there have been many changes to the immigration laws, the two most prominent being the American Competitiveness in the Twenty-First Century Act (2000) and the Patriot Act (2001). The former is noteworthy because, among other things, it raised the H-1B nonimmigrant visa cap for specialty workers, i.e., professionals, from 65,000 to 195,000 for a three year period. It also allowed H-1B visa holders to stay under certain conditions beyond the previously authorized six year limit. The highly controversial Patriot Act was Congress’ answer to the nation’s demand to provide increased vigilance in the fight against terrorism.

The aforementioned legislation has met with varying degrees of success. All have had their critics, some protesting that they went too far, others not far enough. Which brings us to the present and the cry heard from many that we need immigration reform to deal with the roughly eleven million undocumented people in our country. There are few issues in the national domain that inspire as much heated emotion and debate. Across both aisles of Congress, one can find legislators for or against what is euphemistically called “immigration reform.” A serious effort has been made recently by Congress to accomplish immigration reform, the product of private negotiations among eight lawmakers known as “The Gang of Eight.” Some critics refer to their proposal as an amnesty that rewards lawbreakers. Its proponents view it as the only way America can move forward in resolving our immigration problems.

Despite the fact that Presidents Clinton and George W. Bush supported some type of immigration reform, the prospects for change were always dubious due to the issue’s divisiveness. But recent polls show that the majority of Americans support immigration reform including the legalization (or at least normalization) of the immigration plight of the eleven million undocumented. Until the recent Boston bombing, the prospects for some kind of immigration reform this year were very positive, but they may have changed in the bombing’s aftermath.

Before discussing the bill introduced in Congress, it is interesting to note some of the major hurdles that immigration reform at any time has had to clear. Our immigration laws have always had to confront a fundamental tension between an attachment to individual rights that is hospitable to more open immigration, and a limited admissions policy designed to protect national sovereignty, the culture, and employment opportunities for those already residing here.

The first hurdle is that there will be persistent critics of allowing the undocumented to become legalized as long as our borders are insufficiently secure to prevent massive illegal immigration in the future. Immigration reform that allows millions to legalize without steps to secure the border just invites another undocumented immigrant problem down the road and eviscerates the concept of sovereign borders that many regard as the backbone of stable nationhood. There is also a fairness argument that questions why persons here unlawfully should be allowed to cut the immigration queue while law-abiding immigrants wait patiently abroad.

A second hurdle is that legalizing lower skilled workers, while addressing the problems of worker shortages and of filling the kinds of jobs that Americans find unattractive because of poor work conditions and/or pay, risks creating a permanent underclass. The American paradigm is that immigrants who come to this country are free to pursue their dream of attaining a higher standard of living.  Immigrants today are no different from those of previous generations.  If there is an amnesty, in another decade or two, one can assume if the American dream is working, that many of these immigrants by dint of hard work and ambition will rise to a higher level of employment. With an amnesty the need for lesser skilled workers may again have to be filled by the foreign born.  Increasing the quota numbers for lesser skilled workers runs contrary to what advanced western countries throughout the world now accept as gospel, and what recent U.S. commissions studying immigration have advocated, namely, creating an immigration system that favors highly skilled and educated workers because of the benefits they produce to a nation’s economic well-being.

A third hurdle is that U.S. reliance on foreigners with advanced degrees in many industries, especially the science and technology-related, while undoubtedly providing a benefit in terms of access to the best and the brightest, has the negative effect of being a disincentive to American youth to the study of science, technology, mathematics, and engineering (STEM) subjects. Why should American students bother to pursue expensive college educations in the aforementioned fields when employment prospects, or the opportunity for advancement, may be stifled by foreign competition? The issue is also raised whether the national interest is served when foreign nationals are so dominant in key American industries, i.e., the country runs the risk of becoming overly dependent on foreign brains and talent which is highly fungible in today’s global village.

A final hurdle is developing a system to reduce the magnet of available jobs that brings so many to the country. While U.S. employment rates do fluctuate, opportunity, pay, and working conditions are still significantly better in the U.S. than in many third world countries and even many western-oriented economies plagued by high unemployment and welfare-statist economies. E-verify, an electronic system that allows U.S. employers to check a governmental database before hiring new workers, promises to be a strong deterrent to the unemployment of the undocumented but it is still not perfected and to be fully effective will likely require a major expansion that could be costly and raise privacy issues.

The Senate bill recently introduced has been described as a bipartisan effort to create legal avenues for foreign nationals to remain in the U.S. while putting an end to, or at least sharply curtailing, illegal immigration. The bill would also remake the nation’s existing legal immigration preference system and create a new “merit visa” aimed at bringing people with talent to the USA.  Some specific proposals are as follows:

  1. Will reduce the four family-based preference categories to two covering married adult children who file before age 31, and unmarried adult children;
  2. Repeals the availability of immigrant visas for siblings of U.S. citizens once 18 months have elapsed since the date of enactment;
  3. Amends the definition of “immediate relative”  to include a child or spouse of an alien admitted for lawful permanent residence;
  4. Repeals the Diversity Visa Program;
  5. Exempts from annual numerical limits on EB immigration the following categories: derivative beneficiaries of EB immigrants; aliens of extraordinary ability; outstanding professors and researchers; multinational managers and executives;
  6. Increases to 40% of the EB quota the percentage of EB visas for skilled workers and professionals;
  7. Establishes a merit based visa program to be implemented five years after the bill’s enactment that will award immigration points to prospective immigrant visa applicants based on education, employment, length of residence in the U.S., and other factors;
  8. Will establish a goal for border security to achieve and maintain effective control in high risk border sectors along the Southern border;
  9. Will require all employers to use the E-Verify system over a five-year phase-in period.  Employers with more than 5,000 employees will be phased in within two years;
  10. Will amend the H-1B cap from 65,000 to 110,000;
  11. Will allow individuals in unlawful status to adjust their status to the legal status of Registered Provisional Immigrant Status for those residing in the U.S. prior to December 31, 2011 upon payment of a $500 penalty fee and the fulfillment of various conditions.

Although the prospects for immigration reform at this time look good, there is, of course, no assurance that it will be enacted, or that the bill introduced will not be altered in significant ways during congressional negotiations. In the event an immigration reform bill is adopted, we can, however, like the sun coming out tomorrow, be sure of one thing. You’ve probably guessed it that there will be “complaints” down the road about how our immigration system is broken.

Contributed by Herbert A. Weiss

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