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Test Time: How Well Do You Understand the Points System?

by Gary Endelman

Gary Endelman Now that the past two classes (1/15/03) and (1/22/03) have been devoted to explaining the points system, it is time for a pop quiz to find out how much you, the reader, have really learned. The format for today's test is question and answer. In the spirit of enlightened pedagogy, I will provide both.

Question #1: Under a points system, who gets to choose immigrants and why do we care?

Answer: In all other countries that have adopted a points system, it is the government that selects the winners. This is fundamentally different than the American approach to immigration that allows employers and family members to identify those they want to come, while Uncle Sam simply says yes or no to whatever comes in over the transom. Adopting what Paul Donnelly has aptly called a "value-based" approach, an American points system would continue to allow the American people, not their Government, to take the initiative. However, since immigration exists to serve the national interest, once a request comes in, the Government should determine its merit according to criteria that values most heavily what the economy needs.

Question #2: Do we have to have the same points system for undocumented migration as for legal migration? If so, why?

Answer: The law is a living thing, as John Marshall reminded Thomas Jefferson when he established the very notion of judicial review. As reality changes, to retain its relevance, the law must also adapt. For this reason, while a points system would be essentially the same for both legal and illegal migration, there would be certain key differences. English proficiency is the most obvious, and politically potent, distinction. While both legal and illegal migrants should be encouraged to learn English, the reality is that most of the undocumented do not. Any points system geared to allowing the undocumented a genuine chance to earn legalization must take this stubborn fact into account. From a political perspective, appearance counts for a great deal. Not only must something not be discriminatory, it must not be perceived as discriminatory. The Latin Community, whose vote is being actively courted by both parties, will never accept a points system that places a high value on English fluency when applied to the undocumented. By contrast, the source of legal migration to the United States is not concentrated to nearly the same degree in Spanish-speaking countries. While English can, and should, count for both streams of migration, the value accorded to it when regulating the earned legalization of the undocumented should be much less, reflecting the fact that criteria can be neutral on their face yet grossly uneven in practice.

Question #3: Will a points system solve the numbers problem?

Answer: No, and it is not intended to. There are some who want no immigration regardless of whether this hurts America, while there are other zealots who clamor for completely open borders, again with little concern for the national welfare. Adoption of a points system will not tell us how many people we should let in, but can give us a much clearer understanding of who should come. It seeks to shift the focus away from numbers to quality and character. While the debate over how many immigrants America needs can, and doubtless will, continue, a points system will reorient the way we, as a people, think about immigration, regardless of where the admission levels wind up. We need to determine what kinds of immigrants we need and how much we are willing to do to attract, retain, and assimilate them. Only a points system can help us do that.

Question #4: Doesn't a points system discriminate against family migration?

Answer: Not at all, but, if it is perceived to operate this way, it will be DOA purely in terms of hard political reality. The challenge then is to explain that a points system really would accelerate not retard what is now seen as chain migration. The points system recognizes that, like everyone else, most family migrants come to America to work. This is where the jobs are. For that reason, except for the Family 2A Category that consists of spouses and minor children of permanent residents, all "family" categories are really employment programs masquerading in disguise. As Paul Donnelly correctly notes, uniting husbands and wives is family unification; bringing in the siblings of US citizens, to name one supposedly family-based example, is a jobs program. Ask yourself this: How much "illegal" migration is really just folks trying to get jobs for their loved ones? It makes no sense for such migration to come in without any labor market controls whatsoever. If the numbers now assigned to most family categories, such as the Family Fourth Preference for adult siblings of American citizens, were reallocated to the employment side of the ledger, these same folks could actually be able to come to the United States much faster than they do now! This is particularly true if Congress raised the employment-based quotas for immigrant visas if only for a sharply limited transition period to clean out the backlog.

Question #5: Do we really want to treat the families of permanent residents the same as we do for US citizens by lifting all quota restrictions?

Answer: Yes, we do. While it's certainly true that many justifiable differences remain between citizens and "green card" holders, this is not one of them. It is a sin to separate permanent residents from their spouses and children for anywhere from 5-7 years as is now the case. Permanent residents should not have to choose between living with their families and coming to America.

Question #6: Doesn't a points system for the undocumented reward those who have broken our laws and encourage others to do the same in the future?

Answer: Ah, the big one! I wondered when that was coming! Sure hope I have enough time left to answer it. On one level, any amnesty, whether arranged by a points system or not, is justifiably open to this stinging critique. The 1980's- era amnesty spawned by the Immigration Reform and Control Act (" IRCA") of 1986 certainly must answer "guilty as charged" when this particular indictment is read out in open court. Why was this so and what would be different now with the amnesty that President Bush is still planning for Mexican illegals? IRCA failed because it created an artificial distinction between legal and illegal migration. They are really two sides of the same phenomenon and can not be logically or effectively separated. IRCA sought to punish employers without doing anything to reform or rationalize the legal immigration system. Those who insist on retention of employer sanctions to limit illegal migration to the US in the event of a new amnesty would have a very valid point if this really had such a deterrent effect. Yet, the fact is, as all who are honest about the subject must admit, that the sanctions regime has not done anything to slow the entry of those who seek a better life without papers. So long as there are hard, dirty, and low-paying jobs which Americans are unwilling or unable to do, no amount of paper sanctions will stem the tide. The continued presence of undocumented in such large numbers, be it 8, 10 or 12 million, reflects a fundamental breakdown of the legal immigration system which must be addressed in an open and frank manner. It is not going to go away and neither are the undocumented. Even the most fervent restrictionists who now see in Special Registration a chance to kick out the undocumented are talking out of their hats. If this ever were seriously attempted, not only would our economy be grievously wounded, but the political fallout would be immense.

Having said this, one must also say that the beneficiaries of any amnesty should have to earn the right to stay permanently, and not by providing documentation which they do not have, such as tax receipts or valid Social Security Numbers. Rather, as Paul Donnelly has suggested, when establishing any temporary guest worker program, Congress should grant each approved beneficiary a certain number of credits towards a green card. When they get a sufficient number, they can then apply for permanent status according to a points system that looks to practical things such as age, physical health, specialized skills, and willingness to live where most people do not want to reside, to name but a few criteria. This would not be a points system for the highly educated. It is a points system for essential workers with little English and less formal learning. Those unable to accumulate enough points can be put on a waiting list and allowed to stay until their time comes.

Well, the time is up and I have to hand in my exam paper. I am not sure how I did. Sure hope it is graded on curve!

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.