Chapter 5: State‐​Sponsored Visas

Congress has plenary power over immigration, meaning that it can establish almost any rule for admission and residence into the United States that it wants. Current law allows a variety of entities and individuals to sponsor foreigners for visas, including U.S. businesses, family members, the U.S. military, universities, and foreign governments. States can only sponsor foreigners for visas in their capacities as employers and universities. Under a state‐​sponsored visa program, Congress would allow states to sponsor migrants for temporary residence for any reason. States that opt into the program would then pass legislation establishing their criteria for sponsoring individuals, taking into account the needs of employers and communities in the state.

Under this system, state governments would submit petitions to the federal government requesting admission for whomever they wanted to see admitted to their state and for whatever period they wanted them admitted. States would already have familiarity with filing visa forms as they currently sponsor government employees and foreign students at public universities.⁵¹ Just as they do for all foreign travelers, the Department of Homeland Security (DHS) would perform background checks, while the Department of State would collect biometric information, conduct interviews, and issue federal visas allowing migrants to travel to the United States. DHS would then complete the process by inspecting the migrants at land, air, or sea ports of entry.

States would then register migrants’ names and addresses with the federal government when they arrive in the state. The state‐​sponsored visas would not allow access to means‐​tested federal benefits or permit migrants to vote. The migrants would be required to work and reside in the state sponsoring them, a burden that is less onerous than current laws that require nonimmigrants to live near their sponsors.⁵² States could also enter into compacts with other states to share economic migrants.

As part of a state‐​sponsored visa program, Congress should also create incentives for immigrants to follow the rules. One way to do that is by providing that state‐​sponsored migrants may only renew their visas if they are residing and working in the state that sponsors them. Current temporary worker programs incentivize compliance in a similar manner, forbidding workers who overstay their visas and those who work illegally from reapplying or extending their status. This incentive alone has generally maintained high levels of compliance.⁵³ Congress should further incentivize compliance by allowing immigrants who abide by all rules of the state’s program for a decade or longer to receive legal permanent residence in the United States, which would allow them, if they met the existing criteria, to apply for U.S. citizenship after five more years.

Canada and Australia have large regional visa systems similar to the state‐​sponsored visa proposal outlined here. The Canadian Provincial Nominee Program allows provinces to nominate immigrants for permanent residency. A 2011 review of the program by Canada’s federal immigration department concluded that the program was a success that distributed the benefits of immigration among the provinces. About 90 percent of all provincial nominees were employed or self‐​employed within one year, and almost 80 percent remained in the province for three years, even though there was no long‐​term residency requirement.⁵⁴ The 52,460 nominees accounted for 16.3 percent of all immigrants to Canada in 2015.⁵⁵

Australia has four regional residency visas.⁵⁶ Altogether, those regions issued 40,101 visas during the financial year of 2015–2016, representing 31.2 percent of skills‐​based immigration to Australia.⁵⁷ A 2004 Australian survey of one of these programs found that 91 percent of primary applicants were living in the region that originally sponsored them, that their unemployment rate was less than 1 percent, and that both employers and immigrants rated the program very highly.⁵⁸ Canada’s Provincial Nominee Program grew fivefold from 2005 to 2016, while Australia’s regional visa programs doubled.⁵⁹

States already have the experience to manage state‐​sponsored migration programs and have increasingly shown a desire to do so. American states already coordinate with the federal government on immigration enforcement, and Congress can constitutionally delegate some of its migration powers to states.⁶⁰ States currently help determine “targeted employment areas” for the EB‑5 investor visa. For the physician visa program, state public health departments can sponsor doctors to serve in medically underserved areas. States, in their capacity as universities and employers, also directly sponsor foreign students and state employees.⁶¹

Some states clearly wish to go further. Federal law has no provision for foreign entrepreneurs, so several states have taken advantage of the special treatment that universities receive to allow foreign entrepreneurs to stay in the United States. The law exempts foreign professors from the H‑1B high‐​skilled visa quota, so state institutions in New York, Massachusetts, and Colorado have created programs whereby the university sponsors the entrepreneurs as professors but allows them to spend most of their time building their businesses.⁶²

Both the Colorado and Utah legislatures passed laws to create state‐​level migration programs in 2008 and 2011, respectively, but neither have received federal permission to begin recruitment.⁶³ Utah’s laws go even further by also creating state‐​sponsored immigration and legalization programs.⁶⁴ Elected officials and legislatures in Arkansas, Kansas, Georgia, and Michigan have passed resolutions or lobbied Congress for permission to create their own migration programs.⁶⁵ In the past decade, the workforce committee of the Arizona legislature passed a state‐​sponsored guest worker program, and the California State Assembly passed a legalization program for agricultural workers.⁶⁶ State representatives in Texas, New Mexico, and Oklahoma have also introduced legislation to create state‐​sponsored visa programs.⁶⁷

The federal government has a monopoly over both the number of foreign workers and the type of workers that enter the United States; yet this one‐​size‐​fits‐​all approach is ill equipped to address the diverse needs of the states. It is simply an impossible task for Congress to determine the economic demands in every corner of the country and design a visa that meets them. In 2015, for example, the national gross domestic product (GDP) grew 2.5 percent, but the top 10 GDP growth states grew an average of 3.6 percentage points more than the worst performing 10.⁶⁸ Recessions expand these differences. In 2008, the difference between the top and bottom 10 states was a mammoth 10.5 percentage points.

Unemployment rates also vary considerably across states, and recessions have a similar effect. In 2015, the 10 states with the highest unemployment rates had an average rate (6 percent) double that of the 10 states with the lowest unemployment rates (3 percent). In 2008, this difference was 5.5 percentage points.⁶⁹ In 2009, Congress ignored these variations and focused instead on creating jobs in economically depressed states.⁷⁰ The new administration actually adopted restrictions on work visas nationwide.⁷¹

The federal government fares no better at calculating the types of workers that each state requires. Employment by sector differs dramatically across states.⁷² Technology occupations, where immigrants are twice as likely to be employed as natives, highlight this issue well.⁷³ For instance, the location with the highest share of computer and mathematics employment (Washington, DC) had a share six times greater than the location with the lowest share (Wyoming) in 2015. Differences in employment shares across states are large for the other 21 Bureau of Labor Statistics major occupational categories.

Congress is also very slow to respond to shifts in the labor market in states. Manufacturing fell from being the leading sector of employment in 36 states in 1990 to just 16 states in 2016. Health care was not the leading industry in any state in 1990, but by 2015, it was the top industry in 33 states.⁷⁴ Unauthorized immigrants shifted their employment too. In 1990, Congress left the H‑2A seasonal farm worker program uncapped because most undocumented workers performed agricultural work. Yet, by 2014, U.S. agricultural employment had halved, and 83 percent of unauthorized workers were performing year‐​round labor in other industries.⁷⁵

Despite these changes, Congress has made no major reforms to the immigration system—no temporary worker visa for year‐​round, lower‐​skill jobs, and barely any increase in the high‐​skilled worker programs.