Ten Irrational and Infuriating Aspects of U.S. Legal Immigration

One fortunate aspect of President Trump’s bill to reduce legal immigration by 50 percent is that it has started the conversation on how to reform the nation’s legal immigration system—even if it started it on the wrong foot. Members of Congress now have an opportunity to respond with legislation that would increase legal immigration and fix the various problems with the system, which are numerous.

1) Employment-based quotas haven’t changed since 1990, even as the economy doubled in size. Unlike many other countries, the legislative branch establishes hard ceilings on immigration, rather than flexible targets or administratively determined limits. In 1990, Congress passed the Immigration Act of 1990, which established the current limit at 140,000 visas for immigrants whom employers sponsor for legal permanent residency. Since then, U.S. real Gross Domestic Product increased from 8.9 trillion to 17 trillion. At the same time, the computer and Internet revolutions transformed the economy, yet the quota remained the same.

• Congress should double the 1990 employment-based quota to at least 280,000 and index the quota to GDP growth. Senators Ron Johnson and John McCain incorporate GDP indexing in their State-Sponsored Pilot Program Act, which would allow states to sponsor temporary workers (see p. 24).

2) Half the quota for immigrant workers is filled by family. Of the 140,000 employer-sponsored visas, sponsored employees actually use less than half. That’s because the George H.W. Bush administration in 1991 adopted an interpretation of the law that found that spouses and children of the immigrants—who are entitled to a visa with the primary applicant as well—count against the quota. As I’ve written before, it is far from clear that this is the correct interpretation of the law, but it makes little sense in any case. The quota is targeting the number of workers that the economy needs. Why should married workers take away slots from other applicants? If the quota is hit after a worker receives his visa but before his family does, why should we separate them? For these reasons, all temporary worker categories exempt spouses and children from those caps.

• Congress should clarify that spouses and children of immigrant workers do not count against the green card limits. This would require amending 8 U.S.C. 1153(d) with a statement that the visas or status issued under that subsection don’t reduce the number of visas available to primary applicants.

3) America discriminates against applicants from more populous countries. The law states that the total number of permanent residency visas made available to nationals of any single country may not exceed 7 percent. This means that countries with few applicants, like Iceland and Moldova, receive priority over countries with many applicants like China and India, creating massive wait times for specific nationalities. The wait for Indian employer-sponsored immigrants is so long many of the applicants will die before they see their visas. Nativists, however, openly admit that they prefer the per-country limits specifically because they make the system so frustrating that immigrant workers from certain countries want to give up.

• Congress should remove the per-country limits. The Fairness for High Skilled Immigrants Act (H.R. 392), which has 238 cosponsors, would phase out the per-country limits for employment-based immigrants and double the limits for family-based.

4) Foreign workers can work here for 10 years legally, but still not receive the right to live here permanently. As I’ve said before, America treats its high-skilled immigrants worse than it treats its lowest skilled refugees, who receive permanent residency after one year. Employers can sponsor H-1B high skilled temporary workers for permanent residency, and the law allows them to extend their status indefinitely. Despite living and working in the country for many years—even a decade—they cannot enjoy their full rights. They cannot work for whomever they want. They cannot start businesses. They must apply for extensions every single year. Other work visa categories, such as the E-2 temporary visa for entrepreneurs and investors and the O-1 visa for entrepreneurs and other outstanding achievers, have no visa category for which they can apply because they have no employer to sponsor them. They can work for decades and receive no path to permanent residency.

• Congress should create a path to permanent residency for any worker who has worked legally in the United States for an aggregate period of more than 10 years. It should similarly allow anyone who is waiting abroad to enter if they have waited for 10 years. That would place a hard limit on backlogs and create an incentive for legal immigrants to stay and not abandon the American dream for the Canadian dream.

5) Children of legal foreign workers grow up in the United States but are deported at adulthood—even if they were already waiting in line for permanent residency. This “aging out” problem is one of the more cruel aspects of America’s immigration system. H-1B foreign workers and their spouses and minor children receive a temporary visa that is renewable indefinitely if their employer sponsors the worker for permanent residency. The worker may add his spouse and minor children to the permanent residency application, and the whole family waits together in the U.S. Thus, many children of H-1B workers grow up in the United States, graduate a U.S. high school, and attend U.S. colleges. You can read here about how accomplished these young people are. Yet because only minor children are eligible, they receive a removal order as soon as they reach age 21 if their parent has yet to receive permanent residency. As I’ve written before, they are essentially young immigrant “Dreamers.”

• Congress should end “aging out.” If a person is already waiting in line for permanent residency when they hit 21, they should remain in the green card queue and in legal status in the United States. This could be done in a number of ways, but perhaps the best is section 3(c) of the Johnson-McCain state-sponsored visa bill (pp. 36–37). The Johnson-McCain bill language would also solve a number of other problems for high-skilled workers, including the inability to change jobs and the prohibition on spousal work (which President Obama partially ended).

6) If the administration fails to issue the required permanent residency visas for a year, immigrants and employers are out of luck. This fact is unbelievable, but true. Every year from 1992 to 2009, with the exception of 2008, the government simply failed to issue the full allotment of visas. According to the 2010 U.S. Citizenship and Immigration Services Ombudsman report, nearly 750,000 visas went unused during this time. Immigrants who are the beneficiary of an approved immigrant petition from a U.S. employer cannot apply for permanent residency until their “priority date” comes up. The State Department estimates the priority date, but it cannot know the date for certain. It depends on how many people are waiting and how many of those who are waiting apply once their number does come up. Both of these factors are unknown. Thus, the State Department must guess. If it guesses wrong, not enough immigrants apply, and visa slots are lost.

• Congress should recapture all of the lost visas since 1992 and create a provision that increases the quota in the following year by the number of visas that go unused in the prior year. These provisions were included in the Section 2304 of the Senate-passed 2013 immigration bill (p. 371).

7) The quota for immigrant workers without a bachelor’s degree is just 5,000. This figure is laughably low in light of the more than 11 million unauthorized immigrants in the United States—85 percent of whom have no college degree. It’s also absurd given that even in 2020, only 35 percent of job openings will require a four-year degree, while 36 percent will require no education at all after high school. These positions are not all “low-skilled” either. Dozens of occupations, like these, require no bachelor’s degree, but pay over $70,000, which is close to the threshold for getting “points” under the Trump immigration bill. Opponents of low-skilled immigration claim that these workers are a detriment to U.S. workers, but the empirical evidence indicates that this is false.

• Congress should make available 100,000 visas for workers without a college degree. This is where a points system actually makes more sense. For college grads, the degree is a decent predictor of labor market success. For those with less than a college degree, there is significantly more variability in outcomes, so a points system could be a better predictor. The Senate bill’s Merit-Based Track 1, Tier 2 (pp. 354–356) provides a model for this type of point system.

8) The U.S. educates and trains a million foreign students and then sends them home to compete with us. This must rank highly among America’s worst economic policies. According to the National Academy of Science 2016 report on the fiscal effects of immigration, each foreign bachelor’s degree holder contributes, in net present value terms, between $210,000 and $330,000 more in taxes than they receive in benefits over their entire lifetime. For those with advanced degrees, it’s between $427,000 and $635,000 (p. 341). As my colleague Alex Nowrasteh has detailed, foreign-born immigrants contribute massively to innovation, entrepreneurship, and economic growth. Yet if the U.S. continues its current policy, they will do those things in other countries.

• Congress should exempt from the immigration quotas foreign graduates of U.S. universities, at least for all science, technology, engineering, and math fields. The Senate bill’s Section 2307 would have exempted foreign physicians, doctorate degree holders from U.S. universities, and all advanced degree holders in science, technology, engineering, and math (pp. 407–409). This would be a good start.

9) The U.S. has a limit on the number of “extraordinary” immigrants that it will admit. The EB-1 visa category is for immigrants with “extraordinary ability,” “outstanding professors and researchers,” and multinational executives. These include Nobel Prize winners and those with “original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.” Yet bafflingly, we subject these immigrants to the same quota as other immigrants.

• Congress should exempt all employment-based first preference immigrants from the quota system. The Senate bill’s Section 2307 would have implemented this change (pp. 404–407). Congress should immediately adopt these changes.

10) America has no entrepreneurship visa. Immigrants are roughly twice as likely to start a business in the United States as native-born Americans. Immigrants founded more than half of all new businesses in Silicon Valley from 1995 to 2005. In 2011, nearly 70,000 New York City immigrants owned more than 60 percent of the city’s small businesses. Almost all of the city’s dry cleaning and laundry services and taxi and limo services were immigrant owned. Yet somehow there is no permanent residency category for entrepreneurs. It goes without saying that this is exceptionally counterproductive. It’s important to emphasize that most immigrant entrepreneurs will not start the next Google, but even small business owners play an important role in keeping America’s economy competitive and innovative.

• Congress should create a visa category for businesses owners and entrepreneurs. Sen. Jerry Moran’s Startup Act is the best available option to do so.

Note that these are just the reforms related to the process for permanent residency. There are equally as many reforms needed to the temporary work visa system. Moreover, the RAISE Act, the president's preferred legal immigration reform, contains only one of these reforms (#3). It also makes #7 worse by completely eliminating all permanent residency visas for non-college grads. Surprisingly, the situation in #9 would be worse as well because the RAISE Act does not increase skilled visas at all. Instead, it would completely eliminate the EB-1 extraordinary ability category and replace it with a point system that is so convoluted that Nobel Prize winners may do worse than certain bachelor's degree holders, as I've explained before.