Reforming the Immigration System: A Brief Outline

The U.S. immigration system is inflexible and restrictive. Adopting the reforms outlined in this compilation would allow the system to respond to future challenges and opportunities without requiring repeated congressional actions to correct its mistakes.

November 11, 2020 • Study
Statue of Liberty with a red overlay

Reforming the Immigration System: A Brief Outline

The U.S. immigration system is inflexible and restrictive. Adopting the reforms outlined in this compilation would allow the system to respond to future challenges and opportunities without requiring repeated congressional actions to correct its mistakes.

November 11, 2020 • Study

With the election of a new president, Congress has the opportunity to correct the two fundamental flaws that plague the current U.S. system. First, the system is too restrictive, which leads to violations of the law by immigrants who fail to qualify, lengthy wait times for immigrants who do qualify, and lost benefits to Americans who wish to interact with both. Second, the system is too inflexible to adapt to new economic or social conditions, allowing initially small or local problems to build into national crises.

What follows is a compendium of 52 reform ideas to correct these two major flaws—first, in the enforcement of violations of the immigration system and then, in the implementation of a less restrictive and more flexible legal immigration system. Its central theme is that these two components interact. An easier‐​to‐​navigate system that adapts to changing conditions will encourage and enable compliance with the laws, while benefiting both immigrants and Americans.


As Congress considers potential reforms to the U.S. immigration system, it should start with a recognition that the United States has one of the most restrictive immigration systems in the developed world. America ranks in the bottom third for both the foreign‐​born share of its population and the per capita rate of increase in foreign‐​born population among wealthy countries.1 Even compared with its own history, the current system stands out as especially restrictive. The legal immigration rate—number of new legal immigrants as a share of total population—is far below the highs of the early 20th century (Figure 1).2 Indeed, the second half of fiscal year 2020 saw possibly the greatest cut in legal immigration from abroad in American history.3 To improve its economy and society, Congress should strive to restore America’s exceptionalism on legal immigration.

Illegal Immigrants and the U.S. System

America’s immigration laws and the enforcement of those laws should maximize the benefits that immigrants can bring to the United States. With that in mind, U.S. immigration enforcement should focus on resolving violations of the law in ways that benefit the country. Enforcement should reduce the number of violations by directing immigrants who have not committed other serious crimes toward viable, legal pathways for entry, residence, and employment. Agents should identify infractions with the goal of correcting them, not merely punishing them. Prioritizing punishment over rehabilitation perpetuates rather than cures legal breaches by encouraging all violators to further conceal their activity. By providing a fair and reasonable process, immigrants would have a reason to meet legal expectations.

Allow Current Illegal Immigrants to Choose a Simple Status or Onerous Citizenship Path

The United States has permitted a population of 10.5 million illegal immigrants to build lives in this country—two-thirds of whom have resided in the United States for more than a decade.4 Congress should provide permanent legal status to all illegal immigrants who have not committed serious crimes. This would allow Congress to build a new system that works without the burdens and failures of the old one undermining it.

Rather than a one‐​size‐​fits‐​all approach, Congress should offer illegal immigrants seeking to legalize their status the option to choose between an onerous path to citizenship and a simple path to permanent residence without U.S. citizenship (Proposal #1, see appendix Table A for the full list of 52 proposals and review the endnote after each reform for details about the statutory reforms necessary to enact it).5 The Senate‐​passed 2013 comprehensive immigration reform bill, for instance, created a new temporary status that mandated, among other things, three separate fees, a $1,000 fine, attendance at English‐​language classes, a 13‐​year wait to apply for citizenship, and an annual income that is 125 percent of the poverty line or no unemployment greater than 60 days.6 While this approach is appropriate to allow formerly illegal immigrants to earn citizenship, Congress should also offer illegal immigrants the option to receive a form of permanent status without a path to citizenship that is substantially cheaper and less onerous than the path to citizenship. This would protect them from removal and allow them to work legally, while still allowing them the option to pursue citizenship at a greater cost.

Repeal the 3– and 10‐​Year Bars

A one‐​time legalization is insufficient to prevent this from reoccurring because violations of immigration law will still arise. Congress must also recognize that no matter how much it improves the system, infractions may still happen and that immigrants will need ways to report them and get right with the law. In 1996, Congress made this vastly more difficult by barring illegal immigrants who qualify for a green card (such as through family or employer sponsorship) from receiving one if they have accumulated more than six months of illegal presence unless they remain outside the United States for at least three years.7 The penalty rises to 10 years for a year of illegal presence. Known as the 3- and 10‐​year bars, these restrictions create a perverse incentive for immigrants to continue in illegal status rather than return to apply for visas in their home countries. Congress should rescind the 3- and 10‐​year bars to incentivize immigrants to follow the legal system (Proposal #2, appendix Table A).8

Permanent Immigrant Registry

Congress should create a permanent process whereby immigrants who have lived in the United States for at least 10 years can register with the government to obtain permanent legal status (Proposal #3, appendix Table A).9 Current law allows immigrants to register with the government if they entered before 1972.10 Congress should simply replace this hard date with “any date 10 years before the application date,”11 which would create a permanent legalization process similar to the one in the United Kingdom.12 This change would make it unnecessary for Congress to repeatedly create new amnesty programs as it did five times from 1929 to 1986. This would also result in granting permanent residency to many of the H-1B temporary workers who have been waiting for at least a decade to apply for permanent residence and the foreign‐​born children of those workers who lose their dependent legal status when they reach the age of 21.

A permanent immigrant registry program would reduce the illegal immigrant population in two ways. First, it would focus all enforcement resources on more recent entrants, reducing the illegal population at that end. Second, it would allow long‐​time residents to resolve their violations of the law, reducing the population at the other end. This would effectively set a statute of limitations on prosecutions of immigration violations—one of the few offenses that the government can pursue even if the person committed the initial violation many years before.

Congress should create an independent agency to act as a public defender’s office for all low‐​income persons arrested or detained by Immigration and Customs Enforcement (ICE) (#4, appendix Table A).13 Immigration court is one of the few parts of the U.S. legal system in which a person’s freedom is at stake but the person has never had the right to government‐​provided counsel at any proceeding.14 This lack of representation has resulted in three‐​year‐​olds having to defend themselves in court alone15 and in U.S. citizens being prosecuted and removed.16 In 2020, ICE’s Office of the Principal Legal Advisor spent $290 million prosecuting immigrants in removal proceedings.17 Congress should spend an equivalent amount to obtain independent counsel for indigent defendants.

Less than $300 million is a reasonable price to pay to have correct and fair outcomes—since it represents just 3 percent of the ICE budget and less than 1 percent of total immigration enforcement spending.18 In any case, the evidence shows that representation would actually save at least as much on costs related to detention and removal.19 Attorneys speed cases through the courts, decreasing expenditures on detention, and the higher grant rates for relief result in fewer cases requiring expensive removals.20 Representation also increases compliance with hearing dates for nondetained immigrants, reducing the need to track down immigrants later.21

Allow ICE to Drop Charges and Grant Status

The law should both allow and require ICE’s Office of the Principal Legal Advisor to unilaterally grant immigrants withholding of removal status whenever it affirmatively chooses not to proceed with charges for more than two years against someone whom it has arrested or detained (#5, appendix Table A).22 ICE currently spends significant resources arresting, detaining, and prosecuting people with strong cases for relief. It should focus those resources on higher‐​priority immigrants. ICE already does defer, suspend, or drop proceedings against immigrants when it knows the case will not end in removal or deems the case not worth the effort compared with others more likely to end in a removal.23

While ICE may release these low‐​priority immigrants and allow them to apply for employment authorization documents, these immigrants do not receive—and ICE cannot on its own grant—any legal status to them that would prevent the agency from resurrecting the case even after many years.24 Withholding of removal status is an indefinite legal status.25 While it does not provide for a pathway to citizenship or permanent residence, the status would formalize ICE’s existing process and protect against low‐​priority immigrants’ building lives in the United States as they spend years in immigration limbo. It would also force ICE to spend its resources on the highest‐​priority cases, such as those with criminal bars to eligibility for any status.

An Independent Immigration Court

Congress should make the Department of Justice’s Executive Office of Immigration Review (EOIR), known as the “immigration courts,” an independent court system established under Article I of the Constitution like the United States Tax Court (#6, appendix Table A).26 EOIR is responsible for determining whether someone is removable when ICE asserts the authority to deport them. Moving the courts out of the executive branch would remove them from political interference. EOIR’s ineffective management of cases has caused a dramatic expansion in the backlog of immigration court cases over the last decade.27 Despite hiring many new judges, successive administrations, through political interference, have forced judges to prioritize certain types of cases, requiring them to drop cases that were nearing resolution only to have another directive order them to reverse course.28 This political interference has caused the efficiency of the courts to plummet and the case backlog to increase. A professional and independent immigration court would be more efficient and would encourage immigrants to trust that the system will produce fair results, incentivizing their appearance in court.

One important benefit of a functional legal immigration system is that it will reduce immigration violations by facilitating compliance with the law. But this is not the system’s purpose. The purpose of the legal immigration system is to allow Americans to associate legally with people from other countries—whether they be their employees, employers, investors, customers, family members, parishioners, friends, or otherwise. Congress should reform the immigration system to maximize the ability of Americans to benefit from these relationships without harming others in the process.

Provide Visas for Low‐​Skilled Workers

Congress should greatly expand visas for lesser‐​skilled workers. No single policy has done more to reduce illegal immigration than expanding these types of work visas. Figure 2 demonstrates the inverse relationship between entries of lower‐​skilled Mexican workers and apprehensions of Mexicans by the Border Patrol.29 Note that the partial decline from 1987 to 1989 resulted from a special legal immigration program for Mexican farm workers who had previously worked in the United States.30

Visas reduce illegal crossings in two ways: first, workers who obtain visas no longer need to cross illegally and second, workers who fail to obtain visas still have a reasonable prospect of obtaining them in the future if they choose not to enter illegally. Even if not every worker who wants to come receives a visa, the existence of the visas incentivizes waiting for one rather than crossing illegally. While guest workers only rarely overstay their visas,31 Congress should offer green cards (i.e., permanent residence) to all workers who have spent at least 10 cumulative years in temporary status to encourage continuous compliance (#7, appendix Table A).32

H-2A agricultural visas. The H-2A program provides farmers with a way to hire legal guest workers. The program is numerically uncapped, but it is among the most complex and expensive visa programs. First, many farms cannot use the H-2A program at all because workers on that visa can work only in seasonal or temporary jobs, meaning that the statute prohibits dairies and other animal farms with generally year‐​round labor demands. Congress should not arbitrarily limit farms to only seasonal or temporary workers (#8, appendix Table A),33 and it should end the regulatory requirement that H-2A workers leave after three continuous years in status to avoid forcing unnecessary turnover on H-2A employers (#9, appendix Table A).34

Congress should streamline the H-2A process. Farmers must follow a lengthy process that is often delayed by duplicative reviews by the three agencies in order to prove that U.S. workers are unavailable—which they almost always are when employers attempt to use the H-2A process.35 Congress should require a single filing portal where each field is reviewed only once by the relevant agency (#10, appendix Table A).36 By far the most burdensome H-2A regulation is the Adverse Effect Wage Rate (AEWR)—the H-2A minimum wage—which is set in a way that guarantees annual increases. Congress should not allow the AEWR to increase more than the rate of inflation (#11, appendix Table A).37

Other expensive rules are that employers must provide—but cannot charge—H-2A workers for housing, transportation to and from their home country, and daily transit to the jobsite. Employers should be able to at least split the cost of these items with their employees (#12, appendix Table A).38 The main reason for the onerous regulations is that the government believes that some farmers will take advantage of H-2A workers because they cannot easily find other jobs once in the United States. As an alternative to these rules, Congress should create a program under which farmers are only required to pay the H-2A minimum wage, but workers can transfer between any farm and have a period to look for new jobs after each job ends or they quit (#13, appendix Table A).39

H-2B nonagricultural visas. The H-2B program exists to allow nonagricultural employers to hire foreign workers legally when U.S. workers reject a seasonal or temporary job. It has bureaucratic problems similar to the H-2A program’s but has the added disadvantage of a numerical cap. The cap of 66,000 has been filled every year since 2015 and guarantees that open jobs go unfilled, costing U.S. employers productivity, U.S. consumers access to goods and services, and U.S. workers jobs that depend on the H-2B jobs (such as in supervisory positions). The H-2B cap was arbitrarily set three decades ago in 1990. Congress should rescind the cap entirely to mimic the H-2A program (#14, appendix Table A).40 But in lieu of completely ending the cap, Congress could explicitly and permanently exempt workers returning to the same job that they held in a past year—a policy used to add cap space in individual years from 2004 to 2007 and then again in 2016 (#15, appendix Table A).41

Similarly, Congress should allow employers to advertise an H-2B recurring position across multiple years, accepting offers from only those who commit to return year‐​after‐​year (#16, appendix Table A).42 Treating workers returning to the same position year‐​after‐​year as existing employees would effectively exempt them from both the H-2B cap and the onerous labor certification processes after their initial hire. Congress should also reform the H-2B prevailing wage—the H-2B minimum wage—by allowing employers to pay workers based on their skill level, as opposed to the average rate for the entire occupation, as was permitted until 201343 and is still required under all other immigration programs (#17, appendix Table A).44 Since most H-2B work is entry level, the requirement to pay the average rate inflates the wage rate much higher than what most U.S. workers receive for that work.

Other year‐​round low‐​skilled workers. Congress should create a visa program for year‐​round, nonfarm jobs not requiring a college degree (#18, appendix Table A).45 In 1990—during the last major legal immigration reform—Congress had assumed most illegal employment would remain in a few seasonal jobs as it had for decades, so it failed to create any program for year‐​round jobs in other sectors of the economy. This oversight became the primary driver of permanent illegal immigration.46 Today, employers in meat packing and processing, restaurants, construction, and other year‐​round industries need a streamlined process to hire foreign workers legally like H-2A and H-2B employers. A year‐​round program would allow these businesses to fill open positions without hiring illegal immigrants with fraudulent, borrowed, or no documents. It would increase economic growth and create new jobs for U.S. workers in complementary positions.

Guarantee Asylum

The United States is party to multiple treaties that obligate it not to send people back to countries where they could face persecution for their race, religion, nationality, membership in a particular social group, or political opinion.47 Notwithstanding these commitments, the U.S. government is currently deporting asylum seekers who have crossed through any other country back to the country where they may be persecuted.48 Moreover, it is blocking asylum seekers from applying at U.S. land ports of entry, creating a perverse incentive to cross illegally in order to have their cases heard.49 Thus, this policy encourages asylum seekers to cross illegally.

Congress should clarify that the U.S. commitment to accept asylum seekers requires the acceptance of asylum applications anywhere—particularly at any U.S. port of entry—and the fair adjudication of that application (#19, appendix Table A).50 It should also block agencies from introducing new asylum limitations not provided in law (#20, appendix Table A).51

The law divides the asylum process at the border into two stages: first, asylum seekers must demonstrate within hours of crossing a credible fear of persecution—a relatively low standard to prevent the immediate removal of genuine asylees. Second, if successful in the first interview, applicants must prove in immigration court a well‐​founded fear—a much higher standard. This difference means that someone who has a credible fear of persecution may not be able to prove their claim in court under the higher well‐​founded fear standard, motivating released immigrants to not to show up, subjecting them to removal after multiple years living and working in the United States, or causing prolonged detention of both applicants who can and cannot prove their claims to the extent required.

To rectify this issue, Congress should require that asylum seekers who demonstrate a credible fear of persecution at ports of entry be released and granted parole (a temporary, renewable administrative status) renewable in three‐​year increments for as long as they demonstrate a credible fear (#21, appendix Table A).52 This process would negate the concern about the government’s losing track of released immigrants at the border because they would have an underlying status that is not dependent on their receiving asylum status in court. If asylum seekers wish to obtain asylum status and legal permanent residence (with the eventual ability to apply for U.S. citizenship), they would still be required to meet the law’s higher threshold of demonstrating a well‐​founded fear of persecution. But application and release at ports of entry would eliminate all need to cross the border illegally to request asylum and incentivize applying only at a port of entry.

Protect Refugees

Since 1975, the United States has welcomed nearly 3.5 million refugees,53 who have contributed greatly to the U.S. economy and society.54 The refugee program allows people facing persecution to leave untenable situations abroad and resettle in the United States without having to reach the United States to request asylum. Unfortunately, U.S. law allows the president to cut the refugee limit as much as he wants for whatever reason he decides, and the current president has cut the number of admissions by 86 percent since 2016 to the lowest level in the history of the program.55 Congress should impose a refugee admissions floor of no less than 95,000 (#22, appendix Table A) and index that limit to the number of displaced persons in the world (#23, appendix Table A), so that any increase in displacement would automatically increase the refugee admissions floor.56

Unfortunately, because the government has a virtual monopoly on refugee resettlement, the president also has discretion to select refugees in a very restrictive manner. For this reason, Congress should also allow individuals and nonprofits to sponsor refugees as they can in Canada without a numerical limit (#24, appendix Table A).57 This would allow private parties to get ahead of emerging refugee crises and sponsor refugees for resettlement in the United States without the president’s approval. Similarly, any refugee who is sponsored for a green card by a U.S. family member should be exempt from the family‐​sponsored green card limits so they can immediately enter (#25, appendix Table A).58 The United States should not leave family members of U.S. citizens or legal permanent residents to suffer persecution abroad.

Reunite Families

The U.S. system of family sponsorship allows U.S. citizens and legal permanent residents to sponsor their immediate family members (and the family members’ spouses and minor children) for legal permanent residence. Spouses, children under the age of 21, and parents of adult U.S. citizens may qualify for green cards without any numerical limit. All children of legal permanent residents, their spouses, and adult children and siblings of adult U.S. citizens have a hard, inflexible numerical limit of 226,000 last updated in 1990. The result is a backlog of 3.5 million family‐​sponsored immigrants.59 Most family members who made it to the front of the line and received an immigrant visa last year applied more than 10 years ago, large numbers applied more than 20 years ago, and many of those still in the backlog who applied more recently will likely die of old age before they make it to the United States.60 Mexicans, Filipinos, Chinese, and Indians face waits at least twice as long as a result of the law limiting immigrants from a single birthplace to no more than 7 percent of the visas issued in any year.

First, Congress should repeal the country caps entirely because birthplace should not affect someone’s treatment under the law (#26, appendix Table A).61 Second, as for the overall cap, Congress should at least replace the hard family‐​sponsored cap with a flexible cap that grows with the U.S. population, so it does not become as outdated as the current cap (#27 appendix Table A).62 Third, it should exempt from the limits all spouses and minor children of the family member being sponsored (#28 appendix Table A).63 Fourth, it should similarly not subject spouses and minor children of current legal permanent residents to a cap at all (#29 appendix Table A).64 This cap cruelly and unfairly separates the nuclear family of permanent residents while U.S. citizens can immediately reunite with their foreign spouses and minor children.

If Congress had adopted these four reforms in 1990, there would be almost no backlogged family‐​sponsored immigrants today. But just in case, Congress should guarantee an immigrant visa within 10 years, capping the wait time that an immigrant may face (#30, appendix Table A).65

Restrict Welfare for Noncitizens

Congress should reserve access to all means‐​tested welfare and entitlements to only U.S. citizens except in truly extraordinary circumstances, such as abandoned, neglected, or trafficked children or refugees resettled by the U.S. government who faced persecution in their home countries for their support of U.S. policies (recommendations #31 and #32, appendix Table A).66 In 1996, Congress limited welfare use to those noncitizens with at least five years in legal permanent resident status and those with status based on humanitarian grounds,67 and there is no evidence that this deterred future immigrants (legal or illegal) from coming or even increased poverty among them.68

Immigrants who choose to come to the United States accept the obligation to support themselves. While immigrants do generally pay more in taxes than they receive in benefits over their lifetimes,69 the exceptions impose genuine and avoidable costs on U.S. taxpayers. As importantly, noncitizen receipt of government benefits significantly undermines Americans’ support for immigration.70 Nearly all immigrants come to the United States to seek jobs, not welfare,71 but further reform would make restriction of legal immigration even more politically difficult and save taxpayer money.

Improve Visas for High‐​Skilled Workers

Congress should expand visas for high‐​skilled workers. High‐​skilled immigrants increase economic growth, pay far more in taxes than they receive in benefits, create higher paying jobs for U.S. workers, spawn innovations that have made the United States the world leader in technology and finance, and encourage businesses to grow in the United States.72 Under the current system, U.S. companies hire foreign workers on temporary work visas—such as the Optional Practical Training (OPT) programs for recent graduates of U.S. universities or the H-1B program for skilled foreign workers.73 Then, once employed, they try to obtain green cards (or permanent residence) for them through a second lengthy process. This makes both the temporary and permanent portions of the system critical for the success of the U.S. system overall.

Expand green cards for skilled workers. The United States permits one of the lowest rates of permanent skilled immigration of any developed country (Figure 3). The number of employment‐​based green cards stands at just 140,000—with a majority used by spouses and minor children of the employees.74 The cap has remained constant since it was set in 1990.75 The result is a backlog of nearly a million workers and their families waiting for the ability to become permanent residents.76 Because the law caps the number of green cards that immigrants from any individual country receives, and India is by far the most common country of origin, nearly all backlogged immigrants are from India—with most facing decades‐​long wait times.77

Given the massive economic gains, Congress should eliminate both the overall caps on skilled immigration and the country caps, which impose unfair and economically harmful national origin discrimination onto a merit‐​based system (#33, appendix Table A).78 Failing this, Congress should at least exempt the spouses and minor children of workers from these caps, effectively doubling the visas for workers (#34, appendix Table A).79 In addition, Congress should exempt anyone with advanced degrees in science, technology, engineering, or mathematics (STEM) and anyone with a PhD in any field from a U.S. university (#35, appendix Table A),80 and all immigrants in the EB-1 visa category for multinational executives and managers, outstanding professors and researchers, and those with sustained national or international acclaim in sciences, arts, education, business, or athletics (#36, appendix Table A).81 Forcing Nobel laureates and business executives to wait in line makes no economic sense. Congress should also index the employment‐​based visa cap to growth in the economy (#37, appendix Table A),82 so the cap does not again become quickly antiquated, and guarantee a green card within five years, so lengthy waits cannot reoccur (#38, appendix Table A).83

Create a points‐​based program. Congress should create a separate immigration program that grants entry and permanent residence to those with the highest number of points awarded based on an individual’s characteristics (#39, appendix Table A).84 This would correct the problem that the current skilled immigration system provides no opportunity for immigrants to initiate the process because they must be sponsored by an employer, which makes the workers’ fate dependent on an employer’s willingness to incur steep costs on their behalf. Under a points system, the greatest numbers of points should be awarded to those with the highest annual income or wage offers in the United States.85 Income is the best proxy for an immigrant’s productivity, and it is more meritocratic than requiring certain degrees or professional certifications, which are merely proxies for productivity.

Nonetheless, job offers in certain high demand occupations should receive more points because they represent a more urgent need. Moreover, points should also be awarded for each year before the age of retirement because younger workers have much more opportunity to contribute to the United States than others. Each year of employment in the United States should also receive points because it demonstrates a high likelihood to remain and succeed in the U.S. labor market. Entrepreneurship should also be rewarded. A minimum number of points should guarantee admission to the United States, which Congress should set at a level that would allow successful immigrants in a variety of industries, jobs, and areas to qualify.

Replace the H-1B visa program. Congress should replace the H-1B visa program entirely with a new temporary work visa program. The H-1B visa has served the country well as a springboard for talented immigrants to initially come to the United States before transitioning to green cards, but certain features of the visa limit its potential. To begin with, the H-1B visa program has a very low cap of 85,000 for all positions at for‐​profit companies. The result is that the cap is entirely filled within seconds of the application period opening each year—with four times as many applications as available visas.

The new visa program should have no cap, so long as the employer meets all other requirements. Short of eliminating the visa cap for high skilled temporary workers, Congress should raise it to the highest number of applications (275,000) in any year (#40, appendix Table A)86 and index it to economic growth to guarantee that it does not again become quickly antiquated (#41, appendix Table A).87 The second most important issue is that in October 2020 the Department of Labor attempted to inflate the H-1B minimum wage far higher than the market wage for those positions, effectively blocking most H-1B applications.88 Congress should remove discretion to alter the long‐​used wage structure (#42, appendix Table A).89

The other major issues with the H-1B program is that skilled workers and their families are treated exceptionally poorly by the government relative to other countries, pushing them to choose countries other than the United States. Under a new visa program, Congress should allow skilled temporary workers to change jobs to work for any U.S. business—not just those who undertake the expensive H-1B process—after one year in temporary status (#43, appendix Table A).90 They should be guaranteed a minimum of three years of temporary status (#44, appendix Table A),91 so that they would not fear losing status if they quit their jobs and cannot immediately find a new one. Their spouses and children should be able to work, and the children should not lose status when they turn 21 (#45, appendix Table A).92 Congress should allow them to apply for green cards on their own after one year, so they are not dependent on the good will of their employers to do so for them (#46, appendix Table A).93 Temporary status should provide a short bridge to permanent status for workers, not an indefinite tie to a single employer.

Let States or Localities Sponsor Immigrants

One important way in which Congress can make a more flexible system is to allow states or localities to sponsor legal immigrants under whatever criteria that they choose (#47, appendix Table A).94 This decentralized system—which Canada has used successfully for many years—would allow state or local authorities to address challenges facing their area without those issues becoming national crises. The monopolization of immigration rulemaking by the federal government ultimately means overlooking local problems.95 Under a state or local sponsorship program, these local entities could submit applications to sponsor immigrants for whatever need they see in their communities in the same manner employers sponsor workers to fill their needs. Immigrants could be required to commit to live in the area for a certain number of years but work for any employer or industry. This localized approach would spread the benefits of immigration to places that so far have received few immigrants.

Restrict Executive Authority

President Trump has revealed that a determined president can use the broad discretion that Congress has granted to effectively undo the entire legal immigration system, banning nearly all legal immigration.96 Congress should prohibit bans based on nationality or religion (#48, appendix Table A)97 and raise the evidentiary standard to justify any other ban (#49, appendix Table A).98 Presidential discretion to stop immigration should respond only to truly extraordinary problems, not predictable changes in unemployment or normal security concerns that will always exist.

To enforce these requirements, Congress should create a Visa Appeals Board to allow visa applicants abroad to be able to appeal immigrant or work visa refusals, and the Visa Appeals Board determinations should explicitly be subject to judicial review (#50, appendix Table A).99 Finally, Congress should enact an overarching rule that courts should interpret executive discretion as narrowly as possible when used to stop immigrants from accessing the legal system (#51, appendix Table A)100 and repeal each instance where it has blocked judicial review of agency immigration actions (#52, appendix Table A).101 The executive branch should not be permitted to violate the rights of Americans and immigrants and avoid accountability in court.

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Related Study

President Trump went to unprecedented lengths to restrict legal immigration in his one term—but the system was overly burdensome and expensive long before him. President‐​elect Joe Biden will have the opportunity to reverse these actions and deregulate this system. Here is a compendium of 30 proposals by 15 authors—including several of America’s leading immigration law experts—to help the Biden administration operate the immigration system as openly and efficiently as the law allows.

Read the Reforms  


The United States has benefited greatly from immigration, but a better system will increase the benefits and reduce the costs associated with its current outdated system. The U.S. immigration system is inflexible and restrictive. Adopting the reforms outlined in this compilation would allow the system to respond to future challenges and opportunities without requiring repeated congressional actions to correct its mistakes. The most pressing goals should be to create a process for those with immigration violations to correct them, both now and in the future, as well as to allow future legal immigrants reasonable and viable ways to come to the United States.


About the Author

1 David J. Bier, “America’s Foreign Share Is in The Bottom Third among Richest Nations,” Cato at Liberty (blog), September 25, 2020.

2 David J. Bier, “No Year Has Seen Legal Immigration Cut Like the 2nd Half of FY 2020,” Cato at Liberty (blog), October 13, 2020.

3 David J. Bier, “No Year Has Seen Legal Immigration Cut Like the 2nd Half of FY 2020,” Cato at Liberty (blog), October 13, 2020.

4 Jens Manuel Krogstad, Jeffrey S. Passel, and D’Vera Cohn, “5 Facts about Illegal Immigration in the U.S.,” Pew Research Center, June 12, 2019.

5 For a full explanation of this recommendation, see Alex Nowrasteh and David J. Bier, “Three New Ways for Congress to Legalize Illegal Immigrants,” Cato Institute, Immigration Research and Policy Brief no. 12, April 10, 2019.

6 Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Congress, 2013.

7 8 USC 1182(a)(9)(B)-(C).

8 This would require simply striking 8 USC 1182(a)(9)(B)-(C).

9 For a fuller explanation of this recommendation, see Alex Nowrasteh and David J. Bier, “Three New Ways for Congress to Legalize Illegal Immigrants,” Cato Institute, Immigration Research and Policy Brief No. 12, April 10, 2019.

10 8 USC 1259(a).

11 Strike “January 1, 1972” in 8 USC 1259(a) and replace with “a date that is not less than 10 years prior to the date of application under this section.”

12 GOV​.UK, “Immigration Rules Part 7: Other Categories,” para. A246–276BVI.

13 This would require amending 8 USC 1362 by striking “(at no expense to the Government)” and inserting at the end: “The government shall provide such counsel if the person cannot afford such counsel.”

14 Ingrid Eagly and Steven Shafer, “Access to Counsel in Immigration Court,” American Immigration Council, September 28, 2016.

15 Christina Jewett and Shefali Luthra, “Immigrant Toddlers Ordered to Appear in Court Alone,” Texas Tribune, June 27, 2018.

16 David J. Bier, “Details of 155 Immigration Detainers for U.S. Citizens,” Cato at Liberty (blog), June 3, 2020.

17 Department of Homeland Security, “FY 2021 Budget in Brief,” 2020, p. 86.

18 Department of Homeland Security, “FY 2021 Budget in Brief,” 2020, p. 86.

19 John D. Montgomery, “Cost of Counsel in Immigration: Economic Analysis of Providing Public Counsel to Indigent Persons Subject to Immigration Removal Proceedings,” NERA Economic Consulting, May 28, 2014, p. 5.

20 Ingrid Eagly and Steven Shafer, “Access to Counsel in Immigration Court,” American Immigration Council, September 28, 2016.

21 American Immigration Council, “Immigrants and Families Appear in Court,” July 30, 2019.

22 This would require amending 8 USC 1231(b) to add a new paragraph stating that “(4) Withholding of Removal for Low Priority Cases.—The Secretary of Homeland Security may not remove an alien if the Secretary has affirmatively declined to pursue removal of the alien for not less than 24 months if the alien meets the requirements of paragraph (3)(B). Such alien shall apply to the Secretary to receive documentary authorization to reside indefinitely, be employed, and return to the United States after traveling abroad.”

23 Shoba S. Wadhia, “My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE,” Georgetown Immigration Law Journal 27 (2013): 345–85.

24 Griselda Nevarez, “Arizona Woman Deported to Mexico despite Complying with Immigration Officials,” Guardian, February 9, 2017.

25 United Nations High Commissioner for Refugees, “How to Apply for Asylum, Withholding of Removal, and/​or Protection under Article 3 of the Convention Against Torture,” October 2011.

26 For the Tax Court, see 26 USC sec. 7441–7487. For the only bill on the subject, see H.R. 185, 106th Congress, 1999. The Federal Bar Association has created model legislation as well: Federal Bar Association, “Article I Immigration Court,” 2020.

27 Government Accountability Office, “Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long‐​Standing Management and Operational Challenges,” GAO-17–438, June 2017.

28 Government Accountability Office, “Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long‐​Standing Management and Operational Challenges,” GAO-17–438, June 2017.

29 Immigration and Naturalization Service, Yearbook of Immigration Statistics (Washington: DOJ, 1992); Department of Homeland Security, Yearbook of Immigration Statistics (Washington: DHS, 2019); Department of Homeland Security, Legal Immigration and Status Report Quarterly Data, 2018; “Nonimmigrant Visa Statistics,” Department of State, 2020; “Total CBP Enforcement Actions,” Customs and Border Protection, 2019; Border Patrol, “Nationwide Illegal Alien Apprehensions Fiscal Years 1925–2018,” Department of Homeland Security, 2019; Border Patrol, “Border Patrol Agent Nationwide Staffing by Fiscal Year,” Department of Homeland Security, 2018; and “Border Patrol Agents: Southern Versus Northern Border,” Transactional Records Access Clearinghouse, 2006.

30 Philip Martin, “Good Intentions Gone Awry: IRCA and U.S. Agriculture,” Annals of the Academy of Political and Social Science 534 (July): 44–57.

31 U.S. Citizenship and Immigration Services, “Reports and Studies—USCIS Program Reports: H-2B,” 2020; and Government Accountability Office, “Overstay Enforcement: Additional Actions Needed to Assess DHS’s Data and Improve Planning for a Biometric Air Exit Program,” GAO-13–683, July 2013.

32 Amend 8 USC 1151(b)(1) to add “(F) Aliens who have been admitted to perform labor or services as nonimmigrants under section 101(a)(15) in not fewer than 10 years.”

33 Amend 8 USC 1101(a)(15)(H)(ii) by striking “of a temporary or seasonal nature.”

34 Amend 8 USC 1188(h) to insert “(3) The period of employment or length of stay of a nonimmigrant admitted under section 101(a)(15)(H)(ii) of this title may not be limited as long as such nonimmigrant remains employed pursuant to this section.”

35 David J. Bier, “H-2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers,” Cato Institute, Immigration Research and Policy Brief no. 17, March 10, 2020.

36 Amend 8 USC 1188(a) to insert the language from Sec. 201 of Subtitle A of Title II of H.R. 5038, Farm Workforce Modernization Act of 2019, 116th Congress, 2019.

37 Amend 8 USC 1188(a) to add “(3) In no year may the Secretary of Labor increase the required wage for an H-2A worker more than the percentage increase in the Consumer Price Index (CPI-U) or similar inflation measure in the prior year.”

38 Amend 8 USC 1188(c)(4) to add at the end: “An employer may deduct not more than 50 percent of the market rate for housing and any required transportation expenses from the wage required under this section.”

39 Amend 8 USC 1188(a) to insert the language from Sec. 206 of Subtitle A of Title II of H.R. 5038, Farm Workforce Modernization Act of 2019, 116th Congress, 2019, but without the numerical limitations.

40 Strike 8 USC 1184(g)(1)(B).

41 Amend 8 USC 1184(g)(9)(A) by striking “fiscal year 2013, 2014, or 2015” and inserting “in any of the prior 3 fiscal years” and striking “during fiscal year 2016.”

42 Amend 8 USC 1184(c)(5) to insert: “(C) As part of the consultation under this subsection, the Secretary of Labor shall certify a job described under section 101(a)(15)(h)(ii)(B) as a job for which unemployed persons capable of performing such service or labor cannot be found in this country if the job requires the applicant to commit to return to a temporary or seasonal position in successive years, and no such person committed to return.”

43 78 FR 24047, April 24, 2013.

44 Amend 8 USC 1182(p)(4) by adding at the end: “The Secretary of Labor shall apply this paragraph to aliens entering under section 101(a)(15)(H)(ii)(B).”

45 Subtitle G of Title IV of S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, 113th Congress, 2013, is a useful starting point for such a program, but the caps should be eliminated.

46 Jeffrey S. Passel and D’Vera Cohn, “Size of U.S. Unauthorized Immigrant Workforce Stable after the Great Recession,” Pew Research Center, November 3, 2016.

47 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment codified through the Foreign Affairs Reform and Restructuring Act of 1998 (Title II, Subtitle C, Division G of P.L. 105–27); and 1967 United Nations Protocol Relating to the Status of Refugees.

48 Jaya Ramji‐​Nogales, “Non‐​Refoulement under the Trump Administration,” ASIL Insights 23, no. 11 (December 3, 2019).

49 Shaw Drake et al., “Re: CBP’s Unlawful Turn Back of Mexican Asylum Seekers at Ports of Entry,” American Civil Liberties Union of Texas, November 14, 2019.

50 Amend 8 USC 1225(b)(1)(A)(ii) by adding at the end: “Officers may not block an alien from reaching a port of entry to seek to apply for asylum or express a fear of return.”

51 Strike subparagraph (C) of 8 USC 1158(b).

52 Amend 8 USC 1225(b)(B)(ii) by inserting at the end “or, if the alien sought entry at a port of entry, paroled into the United States for a three‐​year period subject to renewal for as long as the officer determines that the alien has a credible fear of persecution.” Amend 8 USC 1182(d)(5)(B) by adding at the end “or is an applicant for asylum at a port of entry who an officer has determined has a credible fear of persecution.” Amend 8 USC 1158(d)(2) by adding at the end: “An applicant who an officer determines to have a credible fear of persecution shall be authorized to be employed in the United States at such time.”

53 State Department, “Refugee Admissions by Region,” 2020.

54 State Department, “Refugee Admissions by Region,” 2020.

55 David J. Bier, “Encouraging Findings of the Trump Administration’s Report on Refugees and Asylees,” Cato at Liberty (blog), February 12, 2019.

56 Recommendation #22: Amend 8 USC 1157(a)(2) by adding “but not less than 95,000.” Section 2 of H.R. 2146, GRACE Act, 116th Congress, 2019, includes this.

57 Amend 8 USC 1157 by inserting at the end: “(g) Private sponsorship.—A citizen of the United States described in paragraph (3) may file a petition to the Secretary to privately sponsor for resettlement in the United States a refugee and any spouse or minor children of the refugee if the citizen pays a processing fee to cover the cost of adjudication of the petition and all costs related to the admission of the refugee and submits an affidavit of support on behalf of the alien described in 8 USC 1183a. Such a refugee shall not be considered a qualified alien for purposes of 8 USC 1612 or 8 USC 1613.”

58 Amend 8 USC 1151(b)(1) by inserting at the end: “(F) An alien described in section 203(a) who is a refugee as defined in section 101(a)(42) and is the beneficiary of an approved immigrant petition under section 204(a).” For more about this proposal, see David J. Bier, “How to Save Refugees with U.S. Ties,” Cato at Liberty (blog), July 20, 2016.

59 State Department, “Annual Report of Immigrant Visa Applicants in the Family‐​Sponsored and Employment‐​Based Preferences Registered at the National Visa Center as of November 1, 2019,” 2020.

60 David J. Bier, “Immigration Wait Times from Quotas Have Doubled: Green Card Backlogs Are Long, Growing, and Inequitable,” Cato Institute, Policy Analysis no. 873, June 18, 2019.

61 Strike 8 USC 1152(b) through (e).

62 Amend 8 USC 1151(c)(1)(B) by striking “226,000 divided by 328 million times the population of the United States as estimated by the United States Census Bureau in the most recent fiscal year.” Convert the absolute values in 8 USC 1153(a) to percentages.

63 Amend 8 USC 1153(d) by inserting at the end: “Such spouse or child shall not be charged against the numerical limitations in this section or section 201.”

64 Amend 8 USC 1151(b)(2)(A)(i) by striking “the children, spouses, and parents of a citizen of the United States” and inserting “the children and spouses of a citizen or legal permanent resident of the United States and parents of a citizen of the United States.” In 8 USC 1153(a), in paragraph (1), strike “23,400” and insert “20 percent of such worldwide level”; in paragraph (2), strike subparagraph (A), “114,200,” and all that follows and insert “20 percent of such worldwide, plus any visas not required for the class specified in paragraph (1)”; in paragraph (3), strike “23,400” and insert “20 percent of such worldwide level”; and in paragraph (4), strike “23,400” and insert “40 percent of such worldwide level.”

65 Amend 8 USC 1151(b)(1) by inserting at the end “(F) Aliens who are beneficiaries (including derivative beneficiaries) of approved immigrant petitions bearing priority dates more than 10 years prior to the alien’s application for admission as an immigrant or adjustment of status.”

66 Amend 8 USC 1612, 8 USC 1613, and 42 USC 402(t).

67 Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104–193, August 22, 1996.

68 George Borjas, “Does Welfare Reduce Poverty?,” Research in Economics 70, no. 1 (2016): 143–57.

69 National Academies of Sciences, Engineering, and Medicine, The Economic and Fiscal Consequences of Immigration (Washington: The National Academies Press, 2017), p. 445.

70 See “cost too much” question in Gallup, “Immigration,” 2020.

71 Alex Nowrasteh, “Immigrants Are Attracted to Jobs, Not Welfare,” Cato at Liberty (blog), March 25, 2013.

72 Alex Nowrasteh, “Boost Highly Skilled Immigration,” Cato Institute Online Forum, November 17, 2014.

73 Department of Homeland Security, Yearbook of Immigration Statistics 2018 (Washington: DHS, 2019), Table 7.

74 Alex Nowrasteh, “Employment‐​Based Green Cards Are Mostly Used by Family Members,” Cato at Liberty (blog), July 7, 2016.

75 PL 101–649, Immigration Act of 1990, November 29, 1990.

76 David J. Bier, “Backlog for Skilled Immigrants Tops 1 Million: Over 200,000 Indians Could Die of Old Age While Awaiting Green Cards,” Cato Institute, Immigration Research and Policy Brief no. 18, March 30, 2020.

77 David J. Bier, “Backlog for Skilled Immigrants Tops 1 Million: Over 200,000 Indians Could Die of Old Age While Awaiting Green Cards,” Cato Institute, Immigration Research and Policy Brief, No. 18.

78 To eliminate the country caps, amend 8 USC 1152(a)(2) in the paragraph heading by striking “AND EMPLOYMENT-BASED”; by striking “(3), (4), and (5)” and inserting “(3) and (4)”; by striking “subsections (a) and (b) of section 203” and inserting “section 203(a)”; and by striking “such subsections” and inserting “such section.” See generally H.R. 1044, Fairness for High‐​Skilled Immigrants Act of 2019, 116th Congress, 2019.

79 Amend 8 USC 1153(d) by inserting at the end: “Such spouse or child shall not be charged against the numerical limitations in this section or section 201.”

80 Amend 8 USC 1151(b)(1) by adding at the end: “(F) An alien who— (I) has earned a master’s or higher degree in a field of science, technology, engineering, or mathematics included in the Department of Education’s Classification of Instructional Programs taxonomy within the summary groups of computer and information sciences and support services, engineering, mathematics and statistics, biological and biomedical sciences, and physical sciences, from a United States institution of higher education; and (II) has an offer of employment from a United States employer in a field related to such degree.

81 Move 8 USC 1153(b)(1) to 8 USC 1151(b)(1) at the end and update the percentages in 8 USC 1153(b)(2) through (5).

82 Amend 8 USC 1151(d) by adding at the end: “(3) The amount computed under paragraph (1) and this paragraph for the prior fiscal year shall be adjusted annually in proportion to the percentage increase or decrease in the Gross Domestic Product of the United States in the prior year, as determined by the Bureau of Economic Analysis of the Department of Commerce.”

83 Amend 8 USC 1151(b)(1) by adding at the end: “(F) Aliens who are beneficiaries (including derivative beneficiaries) of approved immigrant petitions bearing priority dates more than 5 years prior to the adjustment of status of the alien.”

84 This could be accomplished in a number of ways. One proposal passed the Senate in Subtitle C of Chapter 3 of Title II of the Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113th Congress, 2013.

85 David J. Bier, “What Factors Should an Immigration Points System Include?,” Cato at Liberty (blog), May 23, 2019.

86 Amend 8 USC 1184(g)(1)(A) by striking “65,000” and inserting “275,000.” Note that 275,000 is the highest number of H-1B applications received in a single year. U.S. Citizenship and Immigration Services, “FY 2021 H-1B Cap Petitions May Be Filed as of April 1,” April 1, 2020.

87 Amend 8 USC 1184(g) by adding: “(12) The amount computed under paragraph (1) and this paragraph for the prior fiscal year shall be adjusted annually in proportion to the percentage increase or decrease in the Gross Domestic Product of the United States in the prior year, as determined by the Bureau of Economic Analysis of the Department of Commerce.”

88 David J. Bier, “DOL’s H-1B Wage Rule Massively Understates Wage Increases by up to 26 Percent,” Cato at Liberty (blog), October 9, 2020; and David J. Bier, “DOL Said Its H-1B Wage Rule Should Cost Many Employers $0 but It Imposed Billions in Costs Anyway,” Cato at Liberty (blog), October 15, 2020.

89 Amend 8 USC 1182(p)(4) by adding at the end: “If the survey fails to include information about experience, education, and the level of supervision, the Secretary shall treat the average of the bottom third of wages in the occupation in the area of intended employment to be the entry level wage and the average of all other wages to be the highest wage level.”

90 Amend 8 USC 1182(n) by adding at the end: “(6) The requirements of this subsection shall only apply to an employer seeking to admit a nonimmigrant under section 101(a)(15)(H)(i)(b) for the first time, not to subsequent employers of the worker.”

91 Amend 8 USC 1184(g)(4) by adding at the end: “but such a nonimmigrant may not receive status for a period of less than 3 years.”

92 Amend 8 USC 1184(c)(2)(E) by striking “spouse” and inserting “spouse or child” and striking “section 101(a)(15)(L)” and inserting “subparagraphs (H)(i)(b) or (L) of section 101(a)(15).”

93 Amend 8 USC 1154(a)(1)(F) by inserting “Such an alien may file a petition if the alien has been employed by a United States employer for not less than 1 year.” Amend 8 USC 1182(a)(5)(D) by adding at the end: “unless the alien has been employed in the United States for more than 1 year.”

94 This could be accomplished in the Canadian model, which has provinces sponsor immigrants for permanent residence, or as temporary residents under H.R. 5174, State Sponsored Visa Pilot Program Act of 2019, 116th Congress, 2019.

95 David J. Bier, “Chapter 5: State‐​Sponsored Visas,” 12 New Immigration Ideas for the 21st Century, Cato Institute, May 13, 2020.

96 David J. Bier, “No Year Has Seen Legal Immigration Cut Like the 2nd Half of FY 2020,” Cato at Liberty (blog), October 13, 2020.

97 Amend 8 USC 1152(a)(1)(A) by inserting “or a nonimmigrant visa, admission or other entry into the United States, or the approval or revocation of any immigration benefit” after “immigrant visa”; by inserting “religion” after “sex”; and by inserting “except if expressly required by statute or if a statutorily authorized benefit takes into consideration such factors” before the period at the end.

98 Use section 3 of the H.R.2214, NO BAN Act, 116th Congress, 2019.

99 Use Title II of H.R.750, Save America Comprehensive Immigration Act of 2007, 110th Congress, 2007.

100 8 USC 1103 by inserting at the end: “(h) Authorities.—The Secretary of Homeland Security, Secretary of State, and Attorney General may restrict the rights or privileges of persons detailed under this Act only if such restriction is narrowly tailored, using the least restrictive means, to achieve a compelling government interest and carried out in accordance with all statutory requirements of this Act.”

101 8 USC 1103 by inserting at the end: “(h) Review.—Notwithstanding any other provision of law, courts shall have jurisdiction to review all actions by the Secretary of Homeland Security, Secretary of State, Attorney General, President, or any person accountable to them if any person alleges any such action.”