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Immigration law shows its age
In system that dates to 1950s, demand for immigrant visas far exceeds supply, producing waits that can last decades.
By Juan Castillo

AMERICAN-STATESMAN STAFF


Monday, July 03, 2006

The depth of frustration many Americans feel about the estimated 12 million illegal immigrants in the country is captured in an oft-heard refrain that goes something like this: "Why don't these people come to our country legally, like millions of other immigrants have over the decades?"

But attempts to draw parallels miss a key point: For most of U.S. history, virtually anyone who wanted to come, except for the Chinese, was welcome through the front door.


Only since the 1950s has immigration law evolved into a highly complicated and selective system in which demand for permanent visas grossly exceeds the supply set by Congress, all but closing the door for the vast majority of foreigners who want to come in.

As Congress weighs the biggest immigration reforms in 20 years, Americans engage in a fractious debate focused on illegal immigrants. But the legal immigration system is also coming under scrutiny. Some researchers and critics say it's time to update an antiquated system, one virtually guaranteeing that members of the largest group of people who want to come to the United States — low-skilled workers from Mexico and Central America — are the least likely to get in.

"We have an immigration selection system that's close to 54 years old responding to the labor market needs of the 21st century in a global economy," said Muzaffar Chishti of the Migration Policy Institute, a nonpartisan think tank.

With a blueprint crafted in the 1950s and amended in 1965, the current system gives preference to relatives of U.S. citizens and legal permanent residents, as well as to highly skilled workers.

But except for immediate relatives — spouses, parents and minor children — of U.S. citizens, the system limits the number of people it lets in, resulting in long lines for permanent immigrant visas.

A U.S. citizen petitioning for a visa for a sibling in Mexico faces a wait of about 40 years, according to Austin immigration attorney Dan Kowalski. While that sobering example is extreme, waiting lines in other visa categories can be 10 years or longer.

Nowhere is the legal immigration system more out of step, some say, than with Mexican immigration. As illegal immigration from Mexico surged during the 1990s, Congress shrank the number of permanent visas available to unskilled workers, leaving everyone in the world competing for about 5,000 visas a year. The U.S. issued 787 of the visas to Mexicans in 2005. That year an estimated half-million unskilled Mexican workers entered the country illegally, most finding jobs.

"President Bush says we want to match willing employers with willing workers," Chishti said. "That's precisely what's happening, but it's happening through undocumented channels because the legal channels are simply not available."

Some analysts say the system's shortcomings don't excuse breaking the law. Others point out that high volumes of relatively unrestricted immigration occurred when America was a frontier and needed the labor.

Yeh Ling-Ling, a naturalized citizen who immigrated to the United States in 1980 and heads the Oakland-based Diversity Alliance for a Sustainable America, says the country has its hands full trying to care for its own. She opposes a Senate bill expanding legal immigration channels.

"Look, the United States does not have the responsibility or the ability to stop global poverty," said Yeh, who was born in Vietnam but has Chinese parents. "Instead of increasing visas, we should stop amnesty and we should impose an immigration moratorium because the United States still has 30 million-plus poor Americans, including Katrina victims, who are not yet living the American dream."

America's longstanding ambivalence about illegal immigration has spawned laws with a seemingly split personality, on the one hand pursuing border security, on the other seeking legalization of the undocumented, said Mae Ngai, a history professor at the University of Chicago.

"I think the guiding philosophy behind (U.S. immigration policy) has been in theory we don't want (illegal) immigrants, but in practice we do," Ngai said.

In 1952, Congress laid the foundation for today's immigration law by establishing three categories of foreigners who can come in: family members sponsored by a U.S. citizen or legal permanent resident; workers sponsored by an employer; and people claiming refugee or political asylum status. A fourth category, the visa lottery, was added in 1986 to improve diversity.

But it was a 1965 law that is widely viewed as having led to mass illegal immigration from Mexico and Central America, though not by design. It scrapped a system in place since the 1920s that — reflecting the country's ethnic characteristics — heavily favored Western Europeans. (Between 1882 and 1943, the system allowed no Chinese.)

That system was seen as racist, so it was changed to give all countries the same number of family preference visas. The U.S. now issues about 226,000 visas per year worldwide in a complex system of family preference categories. But it allocates the same number of visas to bring family members together — about 26,000 per year — each for Mexico and China as it does for every other country, including tiny Liechtenstein with its population of 34,000. As a result, some of the longest lines for visas are for people from Mexico, China, India and the Philippines.

The government also issues about 140,000 employment visas a year worldwide, including about 5,000 for low-skilled workers.

In addition, it gives out about 50,000 lottery visas a year to people from countries that don't send large numbers of immigrants.

The legal system has undergone modifications through the years. A 1990 act, besides making the visa lottery permanent, substantially increased the number of employment-sponsored visas, giving preference to workers with high skills. It also raised the number of family preference visas.

In its version of the competing immigration bills now simmering in Congress, the Senate would substantially increase immigrant visa quotas, from 140,000 to 290,000 a year for employment-based and from 226,000 to 480,000 for family-based, said Crystal Williams of the American Immigration Lawyers Association.

"But for a lot of people, none of those options are viable," Williams said, referring to the millions of low-skilled workers in the country illegally. "They don't have the (legal) family members, and the employment-based categories are for mostly high-skilled workers."

The Senate bill contains other provisions offering illegal workers a path to legalization, as President Bush advocates, and a chance for citizenship.

But citing voter concerns about border security, Republican congressional leaders said last month that the legislation is unlikely to pass this year.

There doesn't seem to be public support for increasing legal immigration, said John Keeley, a spokesman for the Center for Immigration Studies, a Washington-based think tank that advocates stricter enforcement of immigration laws.

"We are very much a settled nation, and if we want, we can continue down the current path of millions coming in unabated," Keeley said. "But I don't think most people in America want to see us congested like China and actually want some forethought given to the design of this country."

Kowalski, the Austin immigration attorney and editor of Bender's Immigration Bulletin, said: "The question is how many people do we want here legally. I think people are going to come whether there's a visa or not. Human migration is basically uncontrollable."

jcastillo@statesman.com; 445-3635