Why the Legal Immigration System Is Broken: A Short List of Problems

In no particular order, here is a list of a few problems that comprehensive immigration reform should address (a few of which are mentioned in the immigration chapter of the Cato Handbook for Policymakers):

1. A far too restrictive system overall.
2. Static immigration quotas.
3. Quotas on nationalities—the law micromanages immigrant demographics.
4. Immigrants wait in line for decades.
5. Immigrant workers are counted against multiple quotas.
6. There’s a limit for immigrants with “extraordinary ability”.
7. Workers without college degrees only get 5,000 green cards.
8. The president can end the refugee program unilaterally.
9. No immigration category for entrepreneurs.
10. No way to create new immigration categories without congressional action.
11. Immigrants generally cannot apply for permanent residency on their own.
12. Spouses and minor children of new immigrants count against the quotas.
13. There’s a quota on new spouses and minor children of current permanent residents.
14. Children of temporary workers grow up here, wait in line with their parents for permanent residency, and get kicked out of line on their 21st birthday.
15. Immigrants can live here for decades without receiving permanent residency.
16. Illegal immigrants cannot leave and reapply to return legally.
17. Spouses and children of temporary workers are banned from working.
18. The law requires immigrants to pretend that they don’t want to immigrate.
19. Forcing employers to advertise positions that are already filled.
20. Temporary workers cannot easily change jobs.
21. No temporary visas at all for year-round workers without college degrees.
22. Noncitizens can access federal welfare programs after five years.
23. The president can ban any immigrants that he doesn’t like.
24. No opportunity to appeal visa denials.
25. The burden of proof is on immigrants and their sponsors, not the government.
26. America has closed borders with a few holes.

1. A far too restrictive system overall. Since 1820, the United States admitted on average 30 percent more legal immigrants per capita (0.45 percent of the population per year) than it did in 2017 (0.35 percent of the population), so the current rate is low historically. More importantly, the U.S. net immigration rate—legal and illegal—ranks in the bottom third of the 50 countries with the highest per-capita GDP in the world, and the U.S. share of foreign-born residents is also in the bottom third. This is at a time when population growth is at its lowest levels since the Great Depression, and the U.S. birthrate is the lowest on record. Congress should make it far easier to immigrate legally.

2. Static immigration quotas. Since 1990, Congress has not updated the quotas for the legal immigration system. During that time, the population of the United States has increased 30 percent and the economy has doubled. Quotas—to the extent that they exist at all—should be linked to economic growth (in the case of employment-based immigrants) or population growth (in the case of family-sponsored immigrants), so they don’t immediately become antiquated.

3. Quotas on nationalities—the law micromanages immigrant demographics. Congress treats immigrants differently based on where they were born (literally their place of birth—they can’t even escape this system by getting citizenship in another country). No “country” (i.e. nationals or former nationals of that country) can receive more than 7 percent of the total green cards in a category. These per-country limits are why Indian immigrants sponsored by their employers may have to wait decades for a green card, while other immigrants sponsored by their employers don’t have to wait at all. Congress should repeal the per-country limits and ban discrimination based on nationality.

4. Immigrants wait in line for decades. The symptom of the low quotas and differential treatment for individual nationalities is that nationals from certain countries must wait a long time to immigrate. Siblings and adult children of U.S. citizens from Mexico and the Philippines who are receiving their green cards right now waited two decades. Those who are applying for their green cards now will die before they reach the front of the line because so many applicants have piled up in the backlog since 1998. Immigrant workers from India have had decade-long waits, but those applying right now will wait more than a century. Such wait times are not reasonable. Congress should raise the quotas, but at the same time, it should also limit wait times to no more than 5 years.

5. Immigrant workers are counted against multiple quotas. 88 percent of immigrants sponsored by their employers for permanent residence already live in the United States. Most of them entered as temporary workers on H-1B temporary visas. When they entered, many were counted against the H-1B quota of 85,000 temporary visas. Now that they are in the country, they count again against the employer-sponsored green card limits. If the goal of quotas is to limit increases in the population or rapid changes in labor force competition, it makes no sense to double count immigrants, once when they enter and once when they apply for permanent residence. Immigrants should be counted a single time at their initial entry and not again.

6. There’s a limit for immigrants with “extraordinary ability”. The EB-1 green card category is for immigrants who have “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim” as well as internationally renowned academics and multinational executives. These are the Nobel laureates, scientists, NBA players, and business leaders whose accomplishments contribute to the U.S. economy and society in profound ways. Yet this category inexplicably has a quota of 40,000 (including spouses and children). There is even a waiting list for such immigrants of over 58,000 immigrants. Congress should exempt these workers from the green card limits.

7. Workers without college degrees only get 5,000 green cards. In the Immigration Act of 1990, Congress limited the number of green cards provided to those without a college degree to no more than 10,000. In 1997, Congress passed a law that temporarily cut this meager amount in half. In 2016, the Pew Research Center estimated that there were about 11.3 million unauthorized immigrants in the United States. The vast majority of these have no college degree or U.S. citizen family members who could sponsor them for green cards, meaning that employer sponsorship would theoretically be their only option. But the number of green cards that the law provides is literally a rounding error in Pew’s estimate of the illegal population. To prevent future illegal immigration and provide a legal way for U.S. businesses to hire these workers, Congress should make more green cards available for lesser-educated workers.

8. The president can end the refugee program unilaterally. In and of itself, the fact that the president can permit more refugees is no problem. That is important when a crisis breaks out somewhere in the world. But the idea that the president can unilaterally shut down the entire refugee program, as President Trump has almost done, is absurd. Congress should establish a floor for refugee admissions, and it should permit private refugee sponsorship by individuals, as Canada already does. The easiest way to implement private sponsorship would be to expand family sponsorship categories to extended family members and exempt immediate family of citizens and legal permanent residents who are refugees from the green card limits or, alternatively, create a new category for sponsored refugee immigrants. This category would enable U.S. citizens to have a role in the number of refugees and allow them to target refugees for aid with whom they have a personal connection.

9. No immigration category for entrepreneurs. As the rest of the world tries to roll out the red carpet for entrepreneurs, the United States still has no permanent residence category specifically for immigrants who start or want to start businesses. While the United States does have a couple of temporary visa categories that allow some entrepreneurs to set up shop here (E-1 or O-1), they have no way to become permanent residents. Immigrants need a sponsor—either an employer or family member with citizenship to petition on their behalf. During their time in temporary status, entrepreneurs have to continuously apply for renewals and hope each successive administration still believes their economic contributions are valuable enough to receive renewals. As I’ve written before, this uncertainty discourages immigrant entrepreneurs from using these options to start businesses. Congress should create a broad entrepreneurship category for immigrants to receive permanent residence.  

10. No way to create new immigration categories without congressional action. Congress will never perfectly predict the future needs of the United States at any point in time. Even the best reforms will leave holes that will only become apparent years later. One solution would be to allow the administration far more discretion to design and create new categories. A better idea would be to create a state-sponsored visa program where state governments could set criteria for immigrants that they believe their states need (which could factor in applications from business, family members, or humanitarian groups). Canada’s Provincial Nominee Program would be one model for this approach. This idea would decentralize the making of programs and rules among the states, so that updates wouldn’t need to wait for a national crisis to catch the attention of the federal government.

11. Immigrants generally cannot apply for permanent residency on their own. U.S. immigration law has no mechanism for immigrants without sponsorship by an employer or family members. Unlike Canada, the United States has no “points” pathway to permanent residence that would allow immigrants to apply based on characteristics (years in the United States, English language ability, etc.) without needing to wait for someone to do so for them. This deficiency results in immigrants being totally unable to control their own destinies, and particularly for immigrant workers, it requires them to rely on their employers, which have no incentives to apply on their behalf if the immigrant already has temporary status that can be extended. It also results in workers working for years in temporary statuses with no way to apply directly for green cards. In addition to the employer-sponsored pathways, Congress should create points-based tracks for higher- and lower-educated immigrants.

12. Spouses and minor children of new immigrants count against the quotas. When immigrants sponsored by family members or employers receive their green cards (permanent residence), their spouses and minor children are also eligible for green cards. Rather than only counting the primary applicant—the worker or the family member—against the immigration quotas, the government counts the spouses and children as well. If the purpose of quotas is to establish the desired level of workers or siblings, it makes little sense to reduce that level based on whether the worker or sibling is married or has children. This arbitrarily reduces the immigration quotas by up to 70 percent in certain categories. The fluctuation in the actual levels of workers or family members throws needless uncertainty into the immigration process for legal immigrants and their sponsors. Congress should exempt spouses and minor children of immigrants from the quotas.

13. There’s a quota on new spouses and minor children of current permanent residents. Although spouses and minor children of new immigrants are counted against the quotas, they at least can generally receive permanent residence more or less simultaneously. They wait longer, but they wait together. By contrast, foreign spouses who marry an immigrant who already has permanent residence in the United States must wait more than a year before they can apply to immigrate (and then they have to wait again while that application is processed). Immigration law should never treat the nuclear family in this way. There should be no quota on spouses and minor children of current residents, just as there is no quota on spouses and minor children of U.S. citizens.

14. Children of temporary workers grow up here, wait in line with their parents for permanent residency, and get kicked out of line on their 21st birthday. The law stipulates that to receive status as a child of a new immigrant (as explained in #12), they must be under the age of 21. Because of the long wait times, this means that immigrants can enter the country as the minor children of temporary worker, an employer can sponsor their parent, and then they can wait in line with their parents for 5 or 10 years, but as soon as they turn 21, they “age out,” meaning that their application for permanent residence essentially disappears. They drop out of the green card queue entirely. They either must self-deport or seek out another temporary status, such as a student visa. They essentially become legal immigrant Dreamers, as they are in an equivalent position to those illegal immigrants who entered as children and are now in DACA. This could be remedied by using the age of the immigrant at the time they initially enter the line, rather than when they reach the front of it, for the purpose of the final green card application.

15. Immigrants can live here for decades without receiving permanent residency. #14 highlights a broader issue. America has a variety of temporary statuses that foreigners can use to live in the United States temporarily. They can enter as children of temporary workers (H-4), then transition to student status (F-1), then become temporary workers themselves (H-1B), and then receive an indefinitely renewable status as an entrepreneur (E-1). They could live in this country for decades without ever being able to apply for permanent residence (see #9, #11, #14). Of course, this is an even more significant problem for illegal immigrants. A person who has lived in the United States a decade or more should be guaranteed permanent residence. At that point, America is their home. The law should recognize that fact.

16. Illegal immigrants cannot leave and reapply to return legally. One component of all good governance is self-compliance. The government should not need to rely on force to keep everyone in line. People who make mistakes need ways to correct those mistakes on their own without the intervention of law enforcement. Until 1996, this is the way immigration law worked. If someone made a mistake or entered illegally, they could leave the country and apply for whatever visa they could. But the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 created the “3-and-10-year bars”—which make it illegal to return for 3 years after living in the country illegally for 180 days or 10 years after living illegally for a year. This incentivizes immigrants to remain in the United States in illegal status. It is counterproductive and results in a larger illegal population. Congress should repeal the bars entirely.

17. Spouses and children of temporary workers are banned from working. This ban—partially lifted by the Obama administration in 2014 for certain spouses of H-1Bs who had been in the country for more than six years and soon to be reimposed by President Trump—is pointless. Why would the country want immigrants to be here and not have them contribute? It makes no sense. Anyone staying in the United States for more than a year should be permitted to work legally.

18. The law requires immigrants to pretend that they don’t want to immigrate. To qualify for most temporary visas, immigrants must show that they have “a residence in a foreign country which he has no intention of abandoning.” This requirement imposes all sorts of pointless headaches on different types of immigrants. If foreigners want to come to the United States to get married or engaged, they cannot use a tourist visa or the Visa Waiver Program, even though these are the easiest methods to use to travel to the United States. If they do visit, and their partner proposes to them, the government can accuse them of immigration fraud. This also means that employers cannot petition for green cards for foreign students or seasonal workers (H-1Bs for high skilled workers get an exception). This effectively prohibits legal immigration for them. It is one thing to require temporary visitors to prove that they will return if they will be required by law to do so, but it is pointless to require them to do so when they can legally stay in the country as a permanent resident. The law should simply require immigrants to prove that they will comply with their terms of admission.

19. Forcing employers to advertise positions that are already filled. As #5 points out, 88 percent of immigrants sponsored by their employers for permanent residence already live in the United States generally as temporary workers. Yet the law requires all employers to receive a “labor certification” that proves that there are no workers as qualified as the immigrant for whom they are petitioning. In and of itself, this protectionism would be unhealthy, but it is even worse that employers are required to do this theater for current employees. This wastes everyone’s time because almost no one will be as qualified as the person already doing the job.

For this reason, it is very rare for labor certifications to be denied. This means that the law requires employers to post what are essentially fake advertisements for ghost positions, but they receive real applicants who they have to interview and otherwise fool into believing this is a real position only to then reject them. In other words, the system wastes the time of not only employers and government adjudicators—it directly harms the very people it is supposed to help. Just requiring employers to pay a fee or a tariff would make more sense as a protectionist measure.

20. Temporary workers cannot easily change jobs. Because their status is entirely tied to their employment, temporary workers cannot simply walk away from a job. This places them at a substantial disadvantage when negotiating for wages and benefits. One of the main impediments to quickly transitioning from one job to another is the protectionist labor market regulations that employers must go through in order to hire a temporary worker. Once a worker is already in the United States, these regulations should not apply because an immigrant moving from one U.S. business to another does not increase the total competition for jobs.

In fact, allowing temporary workers to easily change or quit jobs helps protect U.S. workers by removing the non-market reason for employers to favor foreign workers—namely that the workers cannot easily leave the employer. Temporary workers should have an extended grace period to find a new jobs if they quit their initial employer, and their subsequent employer should be permitted to immediately hire them.

21. No temporary visas at all for year-round workers without college degrees. Because of #7, #11, and #18, the only way for lesser-educated workers to work legally in the United States is with a temporary work visa. Existing law has two options for that—the H-2A for agricultural workers and H-2B for non-agricultural workers—but both the H-2A and H-2B visa regulations prohibit year-round employment. The jobs must be seasonal, meaning that if the job is a permanent, these visas won’t work. A temporary visa for permanent positions already exists for high-skilled positions (the H-1B), but there is no counterpart for lesser-skilled workers. The effect is that industries like dairy, meat processing, and construction all operate at a disadvantage compared to industries that can access these seasonal worker programs.

22. Noncitizens can access federal welfare programs after five years. Even though the fiscal effect of immigration is quite positive overall, and even though poor immigrants use  less welfare programs on average at lower rates than other poor Americans, there are still good reasons to limit the welfare state to U.S. citizens. This limitation would go a long way to assuage one of the only legitimate concerns about immigration. It would also prevent immigrants from being denied a green card based on the fear of them becoming a “public charge” and encourage them to naturalize, a process that could aid political assimilation. Most importantly, welfare acts as a disincentive to work, and for this reason, there is some suggestive evidence that when Congress in 1996 restricted welfare for immigrants during their first five years in the country, it had no significant negative effect on their overall income or health insurance rates. More entered the labor force, which resulted in higher incomes and more employer-provided health insurance.

23. The president can ban any immigrants that he doesn’t like. In 1952, Congress passed a statute that authorizes the president to suspend “the entry of all aliens or any class of aliens” if he finds them to be “detrimental.” This power is untethered by any constraints, and as the travel ban case proves, the Supreme Court is willing to allow the president to ban immigrants based on the thinnest of pretexts. Sweeping power of this kind is incompatible with the rule of law and cedes lawmaking power to the president in a way that would shock our founders. Congress should require courts to use strict scrutiny when evaluating these types of actions by the president.

24. No opportunity to appeal visa denials. Immigrants and their sponsors can appeal immigration decisions by U.S. Citizenship and Immigration Services to the Administrative Appeals Office, and if their rights are violated by immigration agencies in the United States, they can challenge the decisions in court. But visa denials by consular officers for foreign applicants seeking to travel or immigrate to the United States cannot be appealed, and thanks to the court-invented doctrine of consular non reviewability, courts almost always turn down immigrants and their U.S. citizen sponsors who challenge consular officers’ determinations—even when they are flagrantly contrary to law or violate fundamental rights of citizens. Given that a single visa denial can doom an immigrant’s chance of ever coming to the United States, such determinations should be subject to both types of review—administrative and judicial. Congress can remedy this situation by creating a Visa Appeals Board like the Administrative Appeals Office and authorizing judicial review.

25. The burden of proof is on immigrants and their sponsors, not the government. In a free society, people are innocent until proven guilty. In the immigration system, immigrants are guilty until proven innocent. The government should have to prove its reasons for keeping someone out rather than forcing immigrants and their sponsors to prove that they will not pose a problem. This is especially relevant for employers attempting to hire foreign temporary workers from abroad. In those cases, the employer must prove to the Department of Labor that the foreign worker will not adversely affect the wages and working conditions of Americans. A better system would require the Department of Labor to prove that the foreign worker will adversely affect their wages and working conditions. This was how the labor regulations worked for the Bracero guest worker program in the 1950s and 60s. Congress should return to this earlier system and require the government to prove why it wants to keep immigrants out.

26. America has closed borders with a few holes. Similar to #25, an overarching problem with America’s immigration system is that it assumes that everyone is ineligible to immigrate unless the government grants them permission to do so. A better system would presume all are eligible to immigrate unless the government has a good reason to prevent them from doing so. This system would be far simpler and focus government’s enforcement apparatus solely on those who either are threats to the property, lives, or health of Americans or who cannot support themselves without substantial government assistance. America is so far from this system right now that it is basically immigration prohibition. Like alcohol prohibition—which had exceptions for home brews, communion wine, medicinal patent liquor, rubbing alcohol, and industrial alcohol—America’s immigration prohibition has exceptions, but the basic story is this: America is closed to almost everyone who wishes to come.