United States. Congress. House. Committee on the J.

Legal immigration reform proposals : hearing before the Subcommitee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, May 17, 1995 online

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years prior to obtaining a long-term residence permit. The transition from short-
term to long-term resident may occur after three years for spouses and minor chil-
dren of German citizens. The same close relatives of resident aliens generally do not
obtain long-term residence permits until they have renewed short-term permits for
eight years. At each permit renewal they must demonstrate compliance with lodging
and resource requirements.

III. THE CANADIAN SELECTION PROCESS

In the Canadian Immigration Act, the Canadian Parliament has largely delegated
responsibility for selection of immigrants to the Immigration Minister. The Act sets
out general immigration objectives including demographic goals, family unification,
refugee protection, the fostering of trade and commerce, tourism, cultural and sci-
entific activities and international understanding, among others.

The Act provides for three major categories of immigrants: (1) family sponsored,
(2) refugee, and (3) independents. The independent class includes skilled workers
and business applicants. The selection process and the nvunber limits for each of
these categories is determined yearly by the administration. In general, the execu-
tive is directed to select immigrants in the independent category by assessing the
degree to which applicants will be able to become "successfully established" in Can-
ada.

A unique feature of the Canadian Act is its requirement that the Immigration
Ministry consult with each province in formulating the annual quotas for each cat-
egory. Each province may enter into a plan with the Ministry to accept varying lev-
els of immigrants in particular categories. Under their respective plans, the prov-
inces participate in the selection of refugees, investors, or independent immigrants
who have designated that province for settlement. For the independent category of



160

immigrants, provinces may, within limits, design and apply their own selection
standards.

Canada has recently admitted about 250,000 immigrants per year. The United
States, with about ten times the Canadian population took in about one million im-
migrants in 1992. Canada has been one of the world's leading immigrant nations
throughout that last decade, admitting per capita weU over twice as many
immmigrants as the United States.

A Family immigration

Canada permits both citizens and permanent resident £diens to be joined by the
following family members:

(1) spouse or fiancee;

(2) parents and grandparents;

(3) children under 19 and unmarried, or supported as fiilltime students since age
19.

These classes of close relatives correspond to the "immediate relative" definition
in American law. Notably, the Canadian approach to family unification affords the
same immigration opportunities to permanent residents as to citizens. By way of
contrast, the American second preference category has resulted in long waiting lists
for the spouses and minor children of permanent resident aliens.

For both citizens and permanent resident aliens, family members beyond the cat-
egory of close relatives described above may obtain immigrant admission under the
point system as "assisted relatives." Assisted relatives include "an uncle or aunt, a
brother or sister, a son or daughter, a nephew or niece or a grandson or grand-
daughter of a Canadian citizen or permanent resident who is at least 19 years of
age and who resides in Canada."

The family member in Canada must "sponsor" the immigrant relatives who enter
in either the "family class" or the "assisted relative" class. Sponsorship requires an
annual income above the poverty level and a pledge that the sponsored family mem-
bers will not receive welfare or government health services for five years after entry.
Reports recently circulated that the government was paying out millions of dollars
in benefits to immigrants whose families had failed to meet sponsorship commit-
ments. Canada is now considering requiring that sponsors of family members post
a bond with the federal government to guarantee their support pledges.

In recent years, family immigration has accounted for about 50% of total immigra-
tion to Canada. In 1994, about 110,000 family sponsored immigrants entered Can-
ada. About 70,000 of these were spouses and dependent children of citizens or per-
manent residents. Another 40,000 were parents or grandparents of citizens or per-
manent residents.

B. Refugees

Canada accepts about 15,000 immigrants each year as refugees or asylees. In its
asylum program, Canada has had an acceptance rate well above 50%, considerably
higher than in the United States or Western European nations.

C. The point system

The Canadian regulations establish a point system for admitting immigrants
other than close family members and refiigees. The allocation of points has recently
been adjusted to give more emphasis to fluency in French or English and overall
educational training and job experience and less credit for specific job skills.

The current regulations evaluate applicants by awarding points under nine major
factors related to how well the applicant is likely to adjust to settlement in Canada.
For each factor there is a maximum number of points which may be awarded. Very
detailed instructions are provided for assigning points under each of the nine head-
ings listed below:

1. Education 16

2. Specific Vocational Preparation 18

3. Experience 8

4. Occupational Demand 10

5. Arranged Employment or Designated Occupation 10

6. Demographic Factor 10

7. Age 10

8. Knowledge of English and French 15

9. Personal Suitability 10

Total points 107

For selection as an immigrant under the point system, an independent applicant
must be awarded at least 70 points out of the total of 107 points. To the extent that
annual demand is greater than that year's immigration quotas for independent im-



161

migrants, the applicants with the highest scores are selected. In this sense the
point system resembles the selection process of an elite private university

"Assisted relatives" who are siblings, sons and daughters must score 55 points in
order to immigrate. The other more distant "assisted relatives" must score 60
points.

D. Business and investor immigration

In the early 1980s, Canada added an investor immigrant category. An investor
must be awarded a minimum of 25 points under the point system and have invested
at least $500,000 in a business "that will create or continue employment for Cana-
dian citizens or permanent residents, other than the investor and the investor's de-
pendents." In 1992, over 8000 persons entered under the investor program.

Canada also accepts immigrant entrepreneurs who can score 25 points under the
point system and who start a business or make a substantial investment in an exist-
ing business. Several thousand immigrants from Hong Kong and Taiwan have re-
cently entered under this program. Close family members are entitled to accompany
skilled workers and business immigrants.

During the 1960s and 1970s, half of Canadian immigrants entered as independ-
ents under the point system, By 1980s, most entered for family unification or under
the refiigee/asylee and business/investor programs. In 1992, only 15% entered under
the point system as independent immigrants.

The Canadian Immigration Ministry is now in the process of preparing a 10-year
comprehensive immigration plan. In general, the plan may seek to reduce the pro-
portion of family immigration and encourage more skilled and business immigrants.

rV. THE AUSTRALIAN POINT SYSTEM

Australia utilizes a point system selection process much like Canada's. Close fam-
ily members of permanent residents are permitted to immigrate without regard to
points. These relatives include:

(1) spouses and fiancees,

(2) parents,

(3) unmarried children.

Non-dependent children and siblings may migrate if they are sponsored and score
the required number of points under the point selection process.

As in Canada, family members must be sponsored by an Australian relative who
provides assurance of support and assistance in settlement. Sponsorship is normally
for a period of ten years. No qualifjang period of residence is required of citizen
sponsors or resident aliens seeking entry of a spouse or minor dependent child. Resi-
dent aliens must have lived in Australia for at least two years before sponsoring
entry of parents or siblings.

Immigrants entering Australia under the labor and business migration categories
are evaluated under the point system. The Department of Emplo3Tnent establishes
quotas for various occupational categories and employers may work with the govern-
ment to obtain entry of specific workers with skills not available in the local labor
market. Like Canada, Australia has encouraged entry of entrepreneurs and inves-
tors. It also provides for refugees and asylees and for special humanitarian pro-
grams.

The Australian point system evaluates worker and independent applicants under
the following seven categories with maximum points per category as indicated:

1. Skills 10

2. Employment 10

3. Age 8

4. Education 8

5. Employment record ■ 10

6. Economic prospects 28

7. Growth area 6

Total possible points 80

To qualify for immigration under the selection system, applicants must score 60
points or more. Under the economic prospects category, applicants who are fiilly
sponsored by an Australian citizen score 28 points; those sponsored by a resident
alien score 25 points. As in the Canadian point selection process, the Australian reg-
ulations contain complex and detailed instructions for allocating points under each
of the seven categories.

V. CONCLUSIONS

The four countries reviewed permit immigration for a category of close family
members (at least the spouse, minor children and parents) of both citizens and per-



162

manent resident aliens. None of these countries place quotas or ceilings on the entry
of these relatives when entering to join either citizens or resident aliens. The Amer-
ican selection process affords immediate entry for these close relatives of citizens
(the "immediate relative" category, but requires long waits for visas under the sec-
ond preference category for the spouse and minor children of permanent resident
aliens.

In France and Germany, the entry of close family members of resident aliens is
subject to proof that adequate housing and resources are available. In Canada and
Australia, the petitioning family member promises to provide support during the ini-
tial years after entry.

These countries also provides for family immigration beyond the spouse and minor
children. In Canada and Australia, extended family immigration (siblings, aunts,
uncles, nieces, nephews) is permitted under the point system selection processes. In
Germany, extended family relatives may immigrate in cases of extreme hardship.
Both Germany and France provide for entry of family members of European Union
nationals under the terms of the free movement provisions of EU law.

In addition to family immigration, all four countries reviewed also admit signifi-
cant numbers of immigrants for emplo3Tnent and for humanitarian reasons (asylee
and refugee). Notably, in each of these nations the Immigration Act delegates the
determination of the appropriate balance in terms of numbers of immigrants accept-
ed each year and the proportion of immigrants in the family, worker and refugee
categories to the executive branch. Only in the American statute are such details
provided at the legislative level.

Mr. Smith. Thank you, Professor.
Mr. Lempres.

STATEMENT OF MICHAEL T. LEMPRES, ESQ., AKIN, GUMP,
STRAUSS, HAUER & FELD

Mr. Lempres. Mr. Chairman, thank you very much for the oppor-
tunity to come here and discuss this important topic with you.

Let me say initially that my perspective on this is perhaps a lit-
tle different. I bring the perspective of someone who has tried to
implement the system that's out there now and found that a very
difficult experience, and I think it's my duty to report to you that
the system as it exists now cannot be implemented effectively.

I think we need to recognize that reform has to be comprehensive
in this area in order to provide integrity in the legal immigration
system. And when I say the reform has to be comprehensive, I
mean that it must effectively address all manner of entry into the
United States.

One of the problems we had with the reforms from 1980 through
1990, which, as you know, addressed humanitarian entry through
the Refugee Act in 1980, illegal immigration through IRCA in 1986,
and some aspects of legal immigration through IMMACT in 1990
was that we addressed these reforms separately, and I don't think
we properly integrated them.

It is instructive to look back and, to realize that we had a long
discussion in 1990 about what level of legal immigration ought to
be permitted at a time when illegal immigration was skyrocketing,
and I think it's imperative that we recognize there is a link be-
tween all manner of entry in the United States and that everyone
who comes to this country has some effect on this country.

There are essentially three questions that we should be con-
cerned with in looking at the legal immigration system, and other
people you have heard from today phrased these questions perhaps
slightly differently, but along the same lines. How many immi-
grants; who they should be, and how they should conduct them-
selves in the United States until they become citizens.



163

With regard to that third question, what I mean is we should not
be ashamed to talk about the types of benefits that people can
bring to this country and to encourage beneficial conduct. By that,
I mean that we should look specifically toward their economic im-
pact, and try to encourage conduct that will improve the economy
of the United States. Obviously, we should encourage the creation
of jobs and discourage crime, not tolerate it whatsoever. The con-
duct of noncitizens is a category that needs to be addressed
through the legal process.

You asked specifically what should guide the determination of
how many and who they should be. Mr. Papademetriou listed some
criteria, and I would find it hard to disagree with any of the cri-
teria he listed, but I would say that determinations of how many
people should be admitted, and also who they should be, are pro-
foundly political questions. And I think the Congress itself should
unabashedly step forward and address those issues on a regularly
recurring basis, because to distinguish those questions based on set
criteria like effect on the labor market purely or effect on any other
single item within the society of the United States I think is an ar-
tificial distinction that can't withstand scrutiny. I think that a peri-
odic congressional review of the numbers is essential to gauging a
proper balance as to who ought to be admitted and who they are.

I would say that that review ought to be held periodically ap-
proximately every 5 years. I don't think it should be held annually
or more often because there needs to be some stability in the sys-
tem. It's extremely hard to implement a system that aims at a
moving target, and I don't think the bureaucracy can effectively im-
plement a system based on annual reviews, something like that.

When I talk about linking all systems of entry into the United
States, I think it's important to have a comprehensive cap that
would include all persons entering the United States under color
of law, excluding at this point temporary nonimmigrants. By that,
I think we ought to look at all manner of legal immigration, family,
skill-based, and also all manner of humanitarian entry, which is to
say refugee and asylum. I would encourage as well that there be
some mechanism that links the level of illegal immigration to the
number of legal immigrants that are permitted.

One proposal that I would put forward for your consideration is
something that would permit, for example, the Attorney General of
the United States to certify that legal immigration is under control
or is not negatively affecting the society, culture, or economy of any
individual State, and if that certification is put forth, an additional
number of slots could be made available.

I will propose specific numbers to you in a moment, but I'd say,
first and foremost, that I think it's most important those numbers
come from Congress and that there be an open and robust discus-
sion about the appropriate level of immigration, and that whatever
numbers are produced reflect the representative role of Congress in
reaching an issue that has no ma^c resolution. It's going to be a
very difficult number to come up with, and it's very important the
process be open and responsive.

I propose, as a strawman more than anything else, a comprehen-
sive cap be set, and the number I recommend is 700,000 people an-
nually, assuming greater control of illegal entry. I arrive at that by



164

permitting the full admission of all immediate relatives in the
United States, and I C2dculate that number to be approximately
250,000 per year at the present time. I also recommend we set
aside 150,000 slots for reftigee or asylum admissions — and, by the
way, I urge a thorough reform of the asylum process at this time.
I think it's basically out of control right now, and the current pro-
posals to add people to the system, more adjudicators, is just not
going to do it. There needs to be a more fundamental reform.

And then I would propose that we have 300,000 skill-based im-
migrants into the United States. That's a significant reshuffling of
the current balance. It provides greater emphasis on skill-based im-
migration.

If I could add a quick caveat, I'm a little concerned about discus-
sions of point systems, not because they're not a good idea in the
abstract, but because they could be very difficult to implement. I
think it's important, as Mr. Papademetriou said, that our system
be transparent; that people need to know what the rules are. We
should make it as simple as possible, and I'm concerned that a
point system, even a simple one initially, would expand and become
increasingly difficult over time.

With that, Mr. Chairman, I'd look forward to answering any
questions you might have.

[The prepared statement of Mr. Lempres follows:]

Prepared Statement of Michael T. Lempres, Esq., Akin, Gump, Strauss, Hauer

&FELD

immigration reform proposals 1

Mr. Chairman, I thank you for this opportunity to meet with you and the Sub-
committee today to discuss the important topic of legal immigration reform propos-
als. I am Michael Lempres, and I have dealt with the issues of immigration for the
last seven years from positions within the Department of Justice, on Capital Hill
and as an attorney in the private sector. I worked within the Department of Justice
from 1988-1993, where my responsibihties included advising two Attorneys General
on immigration matters. I also worked within the Immigration and Naturalization
Service in a position then titled the Executive Commissioner and was responsible
for all operations of the Service. After serving as the Director of the Office of Inter-
national Affairs and a Deputy Associate Attorney General, I continued my involve-
ment in immigration issues. As you know, I advised the Chairman on immigration
issues in 1993, and part of my law practice includes immigration related matters.
Having participated in the Lmmigration system for a number of years from a num-
ber of different perspectives, I am compelled to report that the current system of
legal immigration does not serve our nation well and requires dramatic reform.

Any discussion of how to improve the migration system must begin with the pre-
sumption that the current system is broken. It is impossible to accurately measvire
the impact of migrants on the American economy or society because there is no ef-
fective control over the level or composition of those migrants. In fact, there is not
even an accurate account of how many enter or stay in the country. In order to in-
still integrity in the current system of legal migration. Congress will have to address
more than simply theoretical processes for the lawful migration into this country;
Congress will have to impose a meaningful enforcement system. Only then can we
begin to decide what level of migration best serves the interest of American citi-
zens — the central question which is too often ignored by the current system.

Right now, effective solutions are available to fix the problems with the system
of migration, but there is no short cut or quick fix. Instead, as described below, we
should recognize that all methods of entry to the United States must be considered
together in correcting the system comprehensively, and we must recognize that an
effective response will require the involvement of private individuals, and state and
local governments as well as an aggressive federal role. We must acknowledge that



' The views contained in this document exclusively represent the opinion of the author.



165

immigration enforcement does not belong solely to the federal government, and it
is certainly far beyond the control of the Immigration and Naturalization Service
alone.

THE EXTENT OF THE SYSTEM'S FAILURES

The last decade has seen a record level of migration to the United States, with
legal, illegal and humanitarian entries at all time highs. An estimated 18 million
aliens entered this country to stay from 1981-1993. This number, which has to be
approximated because no one knows precise figures, far exceeds the growth in popu-
lation from America's native bom population during that same period. The 18 mil-
lion migrants were selected almost entirely on the basis of factors that do not con-
sider America's national interest, except in the most amorphous way. Fewer than
five percent of these immigrants were admitted on the basis of skills or job experi-
ence they brought to America. Over 11 million aliens immigrated through the legal
immigration system, and approximately two million entered as either refugees or
asylum applicants pursuant to our system of humanitarian entry. ^ The number of
immigrants who entered illegally is much more difficult to estimate, but the U.S.
Census Bureau estimates that approximately 300,000 aliens enter the country ille-
gally and settle as immigrants eacn year. This estimate provides another 3.9 million
immigrants during this period.^ Estimates of past migration ignores the recent de-
valuation of the peso, which will almost certainly increase the number of migrants
seeking work in the United States.

The number of migrants, legal and illegal, is high by historical standards. More
importantly, these migrants are entering a country that is different from the coun-
try that assimilated peak periods of immigration 70 years ago. Many observers accu-
rately observe that, when measured as a percentage of the total population, immi-
gration is not at an historically high level. Unfortunately, this tells only a part of
the story. In absolute terms, migration is at the highest levels in the history of the
United States. The only period that approaches the current era in terms of migra-
tion is the period from 1905-1914, when an average of slightly over 1 million en-
trants per year. For the bulk of this century, from 1915 through 1980, migration
was greatly reduced, with an average of under 267,000 legal immigrants entering
this nation annually. Although firm estimates are hard to come by, under any set
of reasonable assumptions, leaves of illegal migration were also very low during that
period by current standards. Refugee and asylum admissions were also a fraction
of what they are today.

Up to the present America has maintained a series of incentives in immigration
policy that encourage people to flout the system rather than to try to comply with
it. It is difficult to bring aliens into the country legally, but, having entered illegally,
they need not fear removal. Thus, the United States has essentially ceded its ability
to control who enters the country and what they do when they arrive.

THE GOALS THAT SHOULD GUIDE REFORM

In shaping a solution to the problems posed by our current migration system,
three basic factors must be considered. We must consider the effect of migrants on
the economy; the effect of migrants on the culture; and the ability of the system to
be enforced. It does no good to design a system that works in theory but cannot be
enforced in the real world.

The first goal that should be expressed is the need to instill integrity in the sys-



Online LibraryUnited States. Congress. House. Committee on the JLegal immigration reform proposals : hearing before the Subcommitee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, May 17, 1995 → online text (page 21 of 30)