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Flexibility Is The Key In Immigration Reform

by Paul Herzog

Immigration Reform is just one item on a crowded “to-do” list for President Obama and the new congress. In fact, it may appear that its importance is receding. With rising unemployment, there is evidence that illegal immigration is declining, while demand for work visas for legal immigrants is waning. But immigration reform is a necessity, because immigrants have played a key role both socially, since so many American families have immigrant members, and in driving the growth of America’s leading industries, such as high-tech.

Immigration reform in the last congress failed to pass because various proponents tried to do to much at once by both passing an amnesty for illegal immigrants, and also making substantial reforms to the system for legal immigration These proposed reforms to the legal immigration system included implementing a “points-based” immigration system. Immigration reform advocates should consider a more limited reform to remedy some of the fundamental flaws in our immigration system that make legal immigration so burdensome and illegal immigration relatively attractive. At the same time, such a more limited reform may have an easier time winning wider political support.

Let’s consider first how our system of legal immigration works. People who want to come live in American can do so via three means. Those with close family, such as US citizen or Permanent resident spouses, adult children, and siblings can immigrate to the USA. Individuals can also immigrate based on their work. In most cases, employment based immigration requires a U.S. employer to conduct a test recruitment and prove that there are no qualified US workers available for the position the immigrant would fill.

The third big category is the annual green card lottery, formally known as the Diversity Visa lottery. It was first established in 1987 under the sponsorship of Senator Edward Kenney for the purpose of encouraging immigration from underrepresented countries, such as Ireland. The Diversity Visa lottery allows 50,000 people chosen at random from some 8-10 million entries to immigrate. The only requirements are that the person must have at minimum a high school degree and be from a designated country (those countries which have sent high numbers of immigrants to the USA in recent years, such as India, China, Canada and Mexico are excluded).

The major problem with the work and family based categories for legal immigration is that they are subject to strict quotas based on the immigrant’s country of origin and category of immigration. These quotas, established in 1965 now cause long delays and often absurd results. For example, an Indian born dentist, recruited to work at a clinic in rural New Mexico, where no Americans seeks to work must nonetheless wait years to get his green card. However, a Danish born dentist recruited at the same clinic would face no quota. Likewise, the Philippines born sibling of a US citizen who perhaps is well educated and fluent in English must nonetheless expect a wait of possibly twenty years before being allowed to legally immigrate to America. However, a citizen of Peru, with no ties to the United States, no fluency in English and no educational qualifications save for a high school degree would be immediately eligible to immigrate is she was simply lucky enough to win the DV lottery.

A sensible reform would cancel the DV program. Those 50,000 green cards could be then awarded on the basis of a point system. Points would be awarded in such a way as to benefit individuals who can be quickly integrated into the US. For example, people with pending family or work petitions but who are delayed due to quotas would get extra points. Points would also be awarded for people with fluency in English, education or skills in priority fields, and family members already in the United States, or work history in the United States.

This new point system should be open to illegal immigrants, giving those with strong ties to this country a means to legalize their status. However, people here illegally would have to meet a higher point threshold to qualify, so that legal immigrants are not disadvantaged.

This kind of program could be acceptable to people on both side of the immigration reform issue. Opponents of amnesty concede that there are at least some individuals illegally in the United States who should be allowed to stay. This reform would provide a means of legalizing people with outstanding equities-but it is not a blanket amnesty. Nor does it increase the total number of immigrants allowed into the country, or amnesty people at the expense of legal immigrants. Proponents of immigration reform can accept this-because they gain an avenue for legalization and don’t lose anything. Our country as a whole has the most to gain because it will welcome immigrants who most desire to come here and contribute to our society.

This kind of reform is necessary. The recession and rise in unemployment only masks the fact that immigration of highly-skilled workers is critical to the future of our economy. Other countries are making a serious effort to lure the “best brains” to their shores. We can only continue to attract human capital if we provide flexible means for people to immigrate here legally.

About The Author

Paul Herzog practices immigration law in Los Angeles, California. He received his BA in Philosophy from Syracuse University in 1993 and his J.D. from the Tulane Law School in 1996.

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