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

. (page 22 of 30)
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 22 of 30)
Font size
QR-code for this ebook


tems by which people migrate to the United States. After gaining control, policy
makers can begin to make rational decisions about the future of immigration to
America.

American immigration policy should also be guided by the national interest of the
United States, and the national interest should be expressed by Congress through
the political process. Although that national interest should include some consider-

2 The 1993 Statistical Yearbook of the Immigration and Naturalization Service counts approxi-
mately 750,000 people who sought asylum protection and approximately 1,150,000 who entered
as refugees during this time period. The most recent publicly available numbers come from the
1993 year at the time of this writing. , • ji i

3 This figure appears to double count aliens who entered illegally but who later obtained legal-
ized status pursuant to the amnesty provisions of the Immigration Reform and Control Act of
1986 CIRCA"), but the level of fraud in that program prevents accurate measure of the number
of truly eligible aliens. Since over 3.3 milUon aliens applied for amnesty, which required continu-
ous presence in this country for three years, it is safe to assume that more than that number
were in the United States. There is no good number, but the Census Bureau statistics, which
are themselves quite conservative, can be extrapolated through this period to provide the best
available estimate.



166

ation of the humanitarian concerns of aliens, U.S. immigration policy should be
guided by the improvement of the lives of current Americans. Moreover, American
policy should seek to encourage the use of the legal immigration system and to
eliminate all illegal migration. In doing this, our policy should explicitly recognize
that all forms of entry into the U.S. are related and that it is futile to attempt to
fix only parts of the system without considering how that "fix" will affect the rest
of the system. Additionally, U.S. policy should seek to encourage aliens who settle
in this country to become citizens, to obey the laws of this country and to sink roots
in America.

Finally, an additional question should be asked of all reform proposals — can this
proposal be effectively implemented? The immigration system is overly complex
today and that very complexity undermines its effectiveness. 1 urge Congress to rec-
ognize that pursuit to the perfect can be the enemy of the good. In immigration,
that means a system that is designed to cover every contingency with a tailored re-
sponse results in a system that provides certainty to no one in practice. The immi-
gration system needs some "bright Unes" to permit effective implementation.

Those simple goals lead to dramatic reform of our current system. The achieve-
ment of those goals may never come, and it will take years simply to achieve the
progress necessary to gain control over the migration of people to the United States
so that Congress or an Administration can make rational decisions to substantively
affect the migration of aliens.

PROPOSALS TO OVERHAUL THE CURRENT SYSTEM

Establish a true comprehensive cap

A fundamental change to instill integrity in the immigration system would be the
creation of a comprehensive cap or numerical limit on the total number of aliens
entering and remaining in the United States. Under the current system, there is
no universal consideration of the variety of different limits that apply to different
modes of entry, and certain types of entry operate entirely without limit. All aliens
who remain in the United States affect the economy and society of the nation, and
there must be one place where all such aliens are counted. In many ways it is less
important how an alien entered the country than it is that the alien will remain
to become part of our economic and cultural fabric.

There is no accurate estimate of how many aliens enter the country each year
with the intent to remain. In 1993, approximately 1,150,000 persons entered or re-
mained under color of law. Included in that figure are 550,000 aliens admitted on
the basis of family connections, of whom 250,000 are immediate relatives (minor
sons or daughters of U.S. citizens). Also included are 147,000 aliens admitted on the
basis of skills or work related criteria and 125,000 refugee admissions or asylum
adjustments. Finally, that figure includes 60,000 new asylum applicants but ex-
cludes the backlog of 450,000 asylum appUcants remaining in the U.S. awaiting ad-
missions. (As a practical matter, very few of those backlogged asylum applicants will
ever be deported, irrespective of the merits of their asylum applications.) Including
this backlog raises the number of aliens remaining under color of law to 1,600,000.

Finally, a comprehensive count of aliens present in the United States must recog-
nize the large number of Ulegal aliens residing here. In 1993, there were an esti-
mated 4,000,000 illegal entries or overstays. Of those, an estimated 500,000 will re-
main for an extended period.

Congress should explicitly link the level of illegal migration to the level of legal
immigration and recognize that all aliens who remain in this country, regardless of
the method of their entry, have an effect on the economy and culture of this nation.
Legal and illegal migration should be linked by permitting the addition of a set
number of legal slots upon a showing that illegal immigration is reduced to an ap-
propriate level. One mechanism for such a nexus between the two forms of migra-
tion would authorize the Attorney General to certify that illegal migration is at a
level that is not negatively affecting the economic, social or cultural environment
of any state, in order to permit a number of additional legal admission slots {e.g.
100,000) to be provided. In this way, a reduction of illegal migration will permit an
increase in legal immigration.

The act of setting the level of a comprehensive cap will permit an open discussion
on the level of immigration that has been lacking as the number of migrants
boomed. The comprehensive nature of such a cap will instill accountabiUty and re-
quire Congress to address the core question of how many immigrants is best for
America. Such a discussion should be held regularly, as the ideal cap level will vary
according to economic and other factors. Accordingly, Congress should revisit the
issue of the level of the cap every five years or so. More frequent changes in the



167

cap will undermine predictability and make it difficult to ascertain the effect of any
particular level of immigration.

The comprehensive cap should be set at a level that reflects Congressional deter-
mination of the national interest of the United States. Moreover, there should be
no "spillover" between categories within the comprehensive cap — unless Congress
decides the national interest so directs. Initially, I recommend that this level ap-
proximate the number of legal immigrants who have been admitted over the past
decade. However, the mix of immigrants admitted should be altered to increase the
consideration of how admitted aliens are likely to affect the American economy. Ac-
cordingly, the comprehensive cap, which would be periodically reviewed by Con-
gress, should begin at a level of approximately 700,000 admissions per year. This
figure would permit the full admission of immediate relatives of i\merican citizens
(approximately 250,000 per year) and approximately 150,000 refugee or asylum ad-
missions. The remaining 300,000 admissions should be reserved for skill based or
work related immigration. This figure doubles the number of skill based immigrants
admitted under the current system.'* Upon appropriate certification by the Attorney
General, an additional 100,000 admission slots would be provided.

Strengthen and re-direct the legal immigration system

The system of legal immigration shovild be strengthened, encouraged and redi-
rected. It is through this system that the American people are able to affirmatively
decide who will join the American society, economy and way of life. The decisions
about legal immigration can be reduced to two issues: how many immigrants should
be admitted; and who they should be. The answer to both those questions should
come from what is in the best interests of the American people, and should un-
abashedly consider what wiU be best for the American economy. Immigrants who
add most to the economy will benefit the lives of American citizens by creating jobs
or otherwise increasing the standard of living.

All migrants or immigrants affect the American economy. In one sense, therefore,
federal decisions about the level and composition of migration or immigration are
macroeconomic policy decisions. The uniquely plenary policy making authority of the
federal government in this area makes it impossible for the federal government to
avoid these decisions, and it should fact up to them forthrightly. To do so, govern-
ment must distinguish between immigrants in terms of how much they are likely
to benefit the economy.

To make these decisions is to place a new emphasis on the skills, talents and ex-
perience that immigrants bring. The current system places a much higher priority
on family unification as a gateway to the United States. In 1990, Congress took
some small steps to increase the consideration given to skill based immigration,^ but
those tentative steps fail to recognize the significant effiect immigrants have on the
economy of this nation.

The emphasis should be shifted from family unification to employment based
entry system. Currently over 600,000 persons are admitted annually on the basis
of family relations; fewer than 150,000 are admitted on skills or employment consid-
erations. Those numbers should be revised significantly. Family unification should
be limited to the spouses and minor children of immigrants, and they should be ad-
mitted through a streamlined process. There should also be consideration for par-
ents of immigrants, but their admission should not be automatic. More extended
family relations should not receive a priority for immigration. Under such a system
approximately 250,000 immediate relatives would be admitted each year. Other
slots should be allocated according to the skills, talent and experience of potential
immigrants.

Skill based immigration should be determined as much as possible by the market-
place for skills. In order to meet this goal, the current cumbersome listing of cat-
egories should be consolidated. The five categories of employment based immigrants
that now exist should be consolidated to two, one a focused category for most skilled,
truly "exceptional" workers and the other a much more broad based category for im-
migrants whose services have been requested by an American employer, provided
specified educational and experience requirements are met. The process for filling
these immigration slots should focus on employer's efforts to recruit employees and
should shift away from the current labor attestation process. The labor attestation
process is too convoluted and is geared to a system where relatively few immigrants
are admitted based on skills. Instead, the presumption that currently operates
against the immigrant in the labor attestation process should be shifted so that en-
tities can challenge a visa issuance by demonstrating that a qualified U.S. worker



''The various admission categories are discussed in greater detail below.

5 The Immigration Act of 1990, Public Law 101-649 (Act of November 29, 1990).



168

would be displaced. Neither the Department of Labor nor labor unions should be
involved in decisions to admit these highly skilled individuals. Both should have a
significant role in defining admission categories and numerical limits. The protec-
tion for American workers comes from the criteria employers wovild have to meet
to demonstrate their efforts to recruit an American worker failed and from the over-
all cap on the number of skill based immigrants. If the process works properly, the
immigrants admitted under this program would increase the efficiency and output
of the U.S. economy — thereby adding to the economic opportunities for American
citizens.

Along with immigrants, temporary workers Should be encouraged if they contrib-
ute to the economy through their skills. These non-immigrant workers have no ac-
cess to public benefits and should be required to leave by a time certain. The re-
quirement to return to the alien's home country should be the responsibility of both
the alien and the employer/sponsor. If it cannot be demonstrated that the non-immi-
grant worker returned to his home country as reqmred, the employer should face
additional requirements before bringing new workers in.

The role of sponsors generally should be strengthened throughout the immigration
- process. Sponsors should be required for all admissions and should be financially re-
sponsible for the alien entrant imtil the alien either leaves the country or becomes
a citizen. As discussed below, the act of sponsorship should become a significant act
that represents a real commitment to the sponsored alien.

Citizenship must be encouraged

Naturalization rates are dropping for migrants who come to the United States.
This trend follows the technological explosion that has made it easier to cross na-
tional boundaries and to stay in contact with family and fiiends in the "old" world,
and it follows the gradual devaluation of citizenship. The rate of naturalization for
all eligible immigrants is now approximately 35%.^ Disturbingly, there is a wide
range of rates which roughly correspond to the difficulty in emigration. Refugees
and immigrants from Asian nations tend to have relatively high naturalization
rates. Immigrants from Mexico, Canada or central American nations tend to have
much lower rates. This is of concern because Mexicans and other Central Americans
make up an increasingly large share of immigrants. The naturalization rate for
Mexicans is under 11% for the 1982 cohort. Fewer than one out of six Mexican na-
tionals eligible for naturalize in the United States since 1970 have chosen to do so.
By contract well over 80% of eligible Vietnamese nationals have naturalized.'^

American policies cannot affect the technological advances that have made the
world a smaller place, but our ix)Iicies shovdd emphasize the value of citizenship.^
The act of naturalizing includes the rejection of loyalties to foreign states and the
pledge of loyalty to the American Constitution, government and people. The alter-
native of dual loyalty was vividly on display when residents and migrants protested
against Proposition 187 in California by parading under a Mexican flag. There is
an inherent weekending of American society and cultiu-e when a significant percent-
age of people in this nation retain loyalties to other nations and other governments,
as evidenced by a disinclination to renounce those loyalties. That small tear in the
fabric of American society can be mended by restoring value to citizenship.

Encouraging citizenship should also remind us of what we have in common as a
people. Today's America divides people in many ways. Bilingual education, bilingual
ballots, multicultural differences are emphasized and there is the potential for a bal-
kanization of our nation. Naturalization properly requires some knowledge of Eng-
lish and American history, thus encouraging some of the commonality shared by all
Americans. This is, by itself, a valuable contribution.

To the extent permitted by the Constitution and our collective conscience, govern-
ment payments should be limited to citizens. Most Americans recognized that our
limited federal, state and local government budgets are finite. Dollars transferred
to non-citizens are not available for citizens. Citizens should have first priority over
such government transfer payments. This is the case even with government pay-
ments to which non-citizens contribute. Until one becomes a citizen of the United
States, his or her presence in this country is a privilege bestowed by the American
people. It is entirely fair and just to require non-citizens to pay something for that
privilege. Of course, aU benefits would become automatically available upon citizen-
ship — thus encouraging aliens to become citizens.



^This figure measure the rate by which the cohort ofimmigrants admitted in 1982 natural-
ized by the end of 1992. 1993 Statistical Yearbook of the INS, at 131.

''1993 Statistical Yearbook of the INS, at 131-132.

^Policies can increase the naturalization rate. The recent publicity given to proposals to re-
duce pubUc assistance to non-citizens has caused a sharp increase in the naturalization rate.



169

Specifically, the immigration laws should be amended to provide that only the im-
mediate relatives of American citizens are eligible to immigrate. The law now pro-
vides that relatives of lawful permanent residents and other non-citizens can immi-
grate. There should be a bright hne distinguishing the rights of citizens from all
others with regard to immigration policy. In addition, that bright line should permit
citizens to receive taxpayer supported benefits, to vote and to provide all the other
benefits of citizenship, including the freedom fi-om threat of deportation. Non-citi-
zens should be entitled to none of these benefits.

Humanitarian entry system

While this hearing focuses on legal immigration reform, I urge the Congress to
recognize that the system of humanitarian entry is part of that legal migration sys-
tem. The United States has a long and noble tradition of admitting people who are
fleeing persecution in their native land. There are two main ways in which such
people can enter and remain in the United States — refugee and asylum. The prin-
cipal difference between the two systems is the locus of the claim. The refugee proc-
ess takes place outside of the United States; asylum applies to aliens who have en-
tered the country. Because adjudication takes place outside of the country, there is
much greater control over the number and type of reftigee admissions. Pursuant to
the Refugee Act of 1980,^ the Executive Branch consults with Congress and agrees
upon a fixed number of refugees to be admitted in the upcoming fiscal year. That
cap is fixed in part by the funding which is required for refiigee admissions. This
funding is a combination of public and private funds but plays a role in the calcula-
tion of refugee admissions. When that cap is reached, no more adjudications are per-
mitted and no more refugees are admitted during that year. By contrast, asylum
applicants are self admitted into this country, and there is no limit on the number
of people who can apply to remain in this country as asylees. As a result, the asy-
lum system is largely out of the control of policy makers in the United States.

America should always keep its door open to people fleeing persecution. It is part
of our tradition, part of our national heritage, and part of Sie American dream it-
self However, in order to gain control over the current system of humanitarian
entry we should move to encourage refiigee admissions and to reduce the manipula-
tion and abuse of the system of asylum. The system of refugee admission seems to
work fairly well, and the thrust of reform should be addressed at the asylum system
in an effort to bring it closer to the refugee system.

The asylum system is badly abused. There are over 450,000 asylum applicants
awaiting adjudication, and most of them will never be adjudicated, despite the fact
that most applications that are adjudicated are eventually denied. ^^ The asylum
system is subject to massive levels of abuse because it provides legal authority to
remain in the United States, with little practical Ukelihood of deportation. Under
the current system, people in the country illegally can seek asylum after they have
been apprehended and after they have been through deportation proceedings. By
clgdming that they possess a well-founded fear of persecution should they be re-
turned to their home country, the asylum applicant then begins an entirely new
legal process that can take years and that permits the applicant to find other ways,
legal and illegal, to remain in the country. Few asylum applicants are ever deported.

The Clinton Administration has tried to fight abuse in the asylum system by hir-
ing more adjudicators and tinkering with the system. This is not working and will
not work. Congress must significantly reform the current system. Without fun-
damental reform, we wiU simply waste money, manpower and other resources.

Reform should place limits on the number of asylum appUcations accepted, and
it should encourage refugee admissions over asylum applications. Asylum applica-
tions could be limited by simply subtracting each year's number of asylum appli-
cants from the next year's comprehensive immigration cap. Refiigee admissions can
be encouraged by limiting the abuse of the asylum system. We should require asy-
lum applicants to declare their fear of persecution within 30 days of arrival in the
United States or within 30 days of a dramatic change of circumstances in their
home country which give rise to a weU-founded fear of persecution. Moreover, we
should adopt a policy recognizing the country of first asylum. Under this system,
asylum applicants would be Umited to the country where they are first safe from
the persecution they claim to flee. Thus, an Iranian who travels through England
on his way to America or a Salvadoran who travels through Mexico would not be
permitted to seek asylum here without demonstrating a well-founded fear of perse-
cution in England or Mexico. The goal of asylum should remain to protect individ-



9 8U.S.C. §§1101e



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 22 of 30)