Now that Congress has passed the historic health care legislation, it is turning its attention to immigration reform. The discussion revolves around three major policies—legalization, enforcement, and temporary workers—and all are aimed at grappling with the problem of unauthorized immigration that has burgeoned since the 1970s. Proponents argue that this three-part approach is “comprehensive” because it aims to resolve the problems caused by previous unauthorized entries (legalization) and deter future ones (more fencing along the border, a national ID card for employment, direct low-skilled migrants into legal, if temporary, channels). It is also seen as a compromise between liberal and conservative interests.
This approach reflects current political alignments and predicaments, but it does not address basic design flaws in the system and therefore is unlikely to resolve the problem. The debate over legalization versus enforcement also fuels an incendiary political discourse and leads to political deadlock. We need to rethink the premises of our immigration policy and think outside the box about other kinds of options.
The problem of our present system is that it is based on a core paradox: Our system of allocating visas for the admission of permanent residents—the vaunted green card—is based on principles of equality and fairness, yet that very system has generated an ever larger caste-population of unauthorized immigrants. The current system, enacted by the 1965 Hart-Celler Act, provides for a global ceiling on annual immigration, with visas distributed according to seven preference categories (family relation- and employment-based), and with every country having the same maximum number of visas per year. The law provides 226,000 visas for family categories and 140,000 for employment-based categories, and the country limit is 7 percent of the total, or 25,620. (Family-based immigration is actually higher because immediate relatives—spouses, children, and parents of U.S. citizens—are not subject to numerical limitations.)
This system is deemed to be equitable and fair because it treats all countries the same, subjecting all to the same quotas and preferences. It was meant to replace the patently inequitable and discriminatory system of national origin and racial quotas that had governed immigration policy since the 1920s. Its guiding logic of formal equality was central to the civil rights ethos of the post-World War II era.
We rarely, if ever, question the principles embedded in Hart-Celler, but in fact, “equal rights” in immigration policy is a conceptual muddle and a practical disaster. The rights-bearing subject is at once the U.S. citizen (who views immigration policy toward her ancestors’ country of origin as a proxy for her own social standing in American society), the countries of the world, and the prospective individual migrant. Each set of rights derives a different epistemology: the civil rights of the American citizen, the right of nations to self-determination and equal standing in the world community, and the human rights of the individual migrant without regard to state membership.
In practice, visa demand varies widely against an unchanging supply. Four countries persistently max out on their caps: China, India, Mexico, and the Philippines. When people say you should get on line and wait for your visa, they do not realize that from these countries, the wait can easily be 20 years or more—in the case of Mexico, visas in some employment-based categories are no longer available at all.
We should instead distribute visas to countries in proportion to the relative size of their population (similar to proportional representation in the House of Representatives) and other standards that consider fairness from a substantive, not merely formal, perspective. Why should China and the Philippines have the same quota as, say, Belgium and New Zealand, small countries with few historical or contemporary ties with the U.S.?
We should also consider a special policy toward our hemispheric neighbors, Mexico and Canada. Before 1965, immigration from Western Hemisphere countries was not subject to numerical limitation. The North American Free Trade Agreement provides for free movement of goods and capital, but not persons; by contrast, the European Union provides for free movement of citizens of EU states within the EU.
Finally, in addition to legalizing the unauthorized migrants who are already here, we should establish statutes of limitations on unlawful presence. We used to have such a policy before the 1920s, in recognition of the fact that, over time, immigrants become part of our communities. Statutes of limitations are a normative feature of our legal system. They are withheld only in the case of the most heinous crimes: murder, kidnapping—and crossing the border.
These policies, which all have historical precedent in the United States, are arguably both fairer and more effective.
The author is a professor of Asian-American studies and history.