Georgia Republican Senators David Perdue and Kelly Loeffler lost to Democrats Jon Ossof and Raphael Warnock in a tight election. The Senate now has 50 Democrats (including 2 independents who caucus with Democrats) and 50 Republicans. With Kamala Harris as a tie-breaker, Democrats will now have an opportunity to reform the immigration system in 2021 as they will control Congress and the Presidency. President-elect Joe Biden said that he will “introduce” an immigration reform bill

This bodes well for immigration reform becoming law as the median voters in the Senate will be moderates like Kyrsten Sinema (D-AZ) and Joe Manchin (D-WV). Because the median voters in the Senate are moderate and the bill will need some Republican support, any legislation will also be moderate. The riots in the Capitol have also unified the Democrats so they will be able to push more effectively for reform. The House of Representatives will pass better immigration reform bills that the Senate will then water down, but there is a much better chance that they will attempt to pass legislation.

A Senate bill will also have to attract some Republican votes. Fourteen Republican Senators voted for the 2013 immigration reform bill, just over 30 percent of the GOP delegation. There is no way that 30 percent of Republican Senators would vote for a similar immigration reform bill today unless many in the GOP believe that Trumpist nativism is one of the main reasons that they lost the Senate. This is more possible now because both Loeffler and Perdue were anti-immigration. Senator Perdue even cosponsored the RAISE Act, the most anti-legal immigration piece of legislation proposed in a generation. Senator Perdue did sponsor a bill in 2020 to recapture unused green cards and give them to medical professionals, but that did not salvage his reputation.

Convincing 10 Republican Senators to vote for an immigration reform bill requires it to be watered down or split into numerous pieces. Numerous bills with small and attainable goals would be better and may result in some of the positive aspects of immigration reform becoming law, such as legalization for illegal immigrants and (less likely) some expansion of green cards, while avoiding mandatory E-Verify or boosting immigration enforcement. To be clear, moderate reforms are more likely to become law but the chance of those moderate reforms becoming law is a lot higher than a week ago due to the Georgia elections and the riot on Capitol Hill.

Legal Immigration Reforms

Congress will have a chance to pass moderate immigration reform that will legalize some illegal immigrants, reform immigration enforcement, increase legal immigration, and vastly reduce the power of the president to reduce legal immigration. All four portions of immigration reform are important, but this blog post will focus on expanding legal immigration because only changes to the legal system will provide the biggest benefits to the United States and prevent future illegal immigration. Improving the legal immigration system can provide the stability, order, and perceptions of control that will make immigration reform politically sustainable.

President Joe Biden can deregulate immigration through executive actions but he can only go so far without Congress. Many of the ideas to expand and reform legal immigration come from other Cato publications, such as David Bier’s superb list, a white paper I edited earlier this year, and others. My only real piece of political advice is to avoid talking about numbers of immigrants because numbers provide little useful information to most people, most people won’t understand the context of those numbers, and numbers become a lightning rod for the opposition. “Ten thousand new visas” sounds huge until you realize that there are over 330 million people in this country. On the policy side, it is wiser and more economically efficient to devise good selection criteria without numerical limits where the market regulates quantity than it is to pick numerical limits.

Here are some ways for Congress to expand legal immigration, short explanations, and with links to longer explanations and legislative text:

1. State-based visas: States will be able to sponsor a limited number of dual-intent economic migrants. Importantly, the state determines or creates a process to determine which economic migrants to sponsor so states can experiment and change requirements in response to conditions. The annual number grows if the states adhere to the rules of the program and few state-based migrants abscond and become illegal immigrants. Representative Curtis (R-UT) and Senator Johnson (R-WI) introduced bills to create such a program modeled off of the Canadian provincial nomination program.
2. Immigration Tariff: The federal government will sell an unlimited number of Gold Cards to immigrants at fixed prices. The price charged will be designed by Congress to create a positive fiscal effect based on the worst-case average fiscal estimate for an immigrant based on his age and education. The Gold Card would be permanent residency without an option for naturalization, but it would be dual intent so migrants could naturalize if they are able to adjust to a green card through another means. The government could also sell a temporary residency version called the Silver Card at a lower price, similar to the IDEAL plan. This could raise tens of billions of dollars of tariff revenue annually to pay for extra immigration enforcement or, preferably, a tax cut for Americans as well as spur the creation of a huge industry. This is roughly based on a proposal by the Nobel prize-winning economist Gary Becker.
3. Auction Visas: The federal government would auction off a limited number of visas to the highest bidders. The visas could be green cards or temporary work visas. If the government must allocate a limited number of visas, this is the most economically efficient way of doing so. The revenue raised could pay for immigration enforcement or, better yet, a tax cut.
4. Immigration Taxes: Congress could allow in many more immigrants in a visa category that requires the beneficiaries to pay a much higher income tax rate. Not all immigrants would be subject to higher taxes, only those who choose to enter on this visa would pay higher taxes. This would be better than not allowing them to immigrate, in the same way that legalizing marijuana and levying a tax on it is better than maintaining prohibition, but less efficient than letting them in without different tax rates. Regardless, the tax revenue gained here would be large.
5. Bilateral Worker Agreements with Mexico and Canada: The United States should create bilateral worker programs with Mexico and Canada that would allow people from those countries to work here and allow Americans to work in those countries. Not only is this economically efficient, but it creates a sense of fairness that overcomes some gut-level objections to liberalized immigration amongst Americans. The creation of reciprocity will make this reform popular, reduce opposition to immigration, and create large economic benefits for all nations involved.
6. Community Sponsored Visas: Similar to the state-based visa reform above, this would allow local communities to sponsor migrants based on their own criteria. This is similar to the Heartland Visa endorsed by the Biden administration.
7. Congressional Visas: Individual members of Congress would be allowed to nominate a certain number of immigrants for a green card each year similar to how they nominate students for military academies. The numbers for this system would not be large but it would expose Senators and Congressmen to the problems of our immigration system, the large number of their constituents who want it to be reformed, and incentivize members of Congress to fix those systemic problems so they can maximize the value of the visas they personally have control over.
8. Immigration Moneyball: A new visa category will select immigrant applicants based on the outcomes of a multidimensional data-driven system to favor immigrants who would best thrive in American society and contribute to the economy. A moneyball system could select more for social characteristics or economics.
9. Automatic Adjustment of Visa Numbers: Congress could build in an automatic escalator for all numerically capped visas so their numbers grow with the size of the economy, the labor market, the population, or any other metric. The numerical caps for green cards and temporary visas were often set decades ago and haven’t changed in response to growth in the U.S. economy, population, or demand for immigrants. As a result, long wait times have paralyzed portions of the immigration system and reduced the growth potential of the U.S. economy.
10. Maximum Wait Times for a Green Card: This would set a maximum wait time of five years for a green-card eligible immigrant. Once the immigrant hits that maximum wait time then he would be automatically issued a green card that would not be deducted from the numerical cap for that year. This would introduce fairness into the immigration law that voters could easily understand. After all, waiting for decades for a green card is nobody’s idea of fairness. This would reduce family separation, increase the flow of highly skilled immigrant workers into the United States, and fix many of the problems with the green card system.
11. Replace the Permission Slip System with a Veto: Currently, most employers applying to hire temporary migrant workers must prove that they will not adversely affect the employment and wages of American workers as well as checking myriad other unnecessary bureaucratic boxes. Instead, all temporary worker visa petitions should be assumed to be valid unless government agencies discover a problem with an individual petition. In other words, the current system of asking for permission should be replaced with one that gives the government a veto.
12. Deregulate and Expand Temporary Work Visas: Numerical caps for all temporary work visas should be eliminated or greatly increased. All family members of H, L, E, and other visas worker should be allowed to legally work. Workers on the H-2A and H-2B visas should have their visas approved for 3 years, they should be able to return year-after-year without counting against the numerical cap in those subsequent years, and they should be able to change employers without asking for government permission. Congress should turn all seasonal worker visas into seasonal or year-round work visas.
13. Private Refugee Sponsorship: A private refugee system would allow individuals and organizations to sponsor refugees and their families if they pay some money to the U.S. government to offset the fiscal costs. President Biden could create this through executive action but Congress should also create it to bind future presidents.
14. Refugee Numbers Set by Congress: The number of refugees admitted is set by the President. Congress should instead create a flexible numerical cap of 1 percent of the worldwide refugee population identified by the United Nations High Commissioner for Refugees at the end of the previous fiscal year or a minimum of 150,000, whichever number is higher. This would bind future presidents.
15. Universal Visa Recycling: Visas and green cards should be recaptured and added to the next year’s total if an immigrant with a visa adjusts his status, violates the terms of his visa and loses it, surrenders it, or otherwise loses it.
16. Recapture Unused Visas from the Past on a Permanent Rolling Basis: There are about 220,000 green cards that have not been issued since 1990. They should be recaptured and all future green cards that go unused in any given year should also be reissued. All green cards or other visas not issued as far back as possible should be recaptured and reissued.
17. All Lawfully Present Residents Should be Granted Work Authorization: Everybody who is lawfully present in the United States and who resides here should be allowed to work for any employer anywhere in the country under any mutually agreed upon wage.
18. STAPLE Act: Any foreign-born person who earns a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics should be exempt from the numerical cap for H-1B visas and green cards. This should be expanded to those who graduate with a master's degree or, even better, a bachelor’s degree.
19. BELIEVE Act: The BELIEVE Act would double the number of employment-based green cards and then exempt the family members of the principal immigrant worker from the numerical cap. The effect would be to increase the number of employment-based green cards issued annually by at least a factor of four.
20. Universal OPT for All Foreign Graduates of American Universities: Optional Practical Training (OPT) has existed in some form since 1947 to provide temporary employment authorization to international students after graduation. DHS authorizes 12 months of initial OPT to all foreign graduates and 24 months of additional OPT employment authorization for graduates with STEM degrees. It should widen the type of graduates who can get work authorization to all graduates and increase the term to 60 months.
21. All Adjustments of Status Should be Exempt from Green Card Numerical Caps: This would more than double the number of employment-based green cards, clear the backlog, and increase the number of family-based green cards issued. In 2019, there were 130,691 adjustments of status in the employment-based (110,689), family-sponsored (18,999), and diversity (1,003) visa categories.

Conclusion

There are many other immigration reforms that Congress should consider, but the above are a very quick summation of some reform ideas that my colleagues and I have written about elsewhere and that we’ve discussed for years. Even a slight liberalization of immigration would be very positive for the United States so politicians should not hesitate to take it. The political situation will change in the coming months and years, but right now there is a lot of momentum for the new Congress and President to pursue reform.