Fixing the US Immigration System: Back to the Future

U.S. Attorney General Jeff Sessions has announced that the Trump administration is rescinding the Deferred Action for Childhood Arrivals (DACA) program, throwing the future fate of the “Dreamers” up in the air. This is an opportune moment to look at the immigration issue in a broader context.

Immigration law in the United States has changed greatly over time. Over time, it has moved from open borders to race-based rules to skill-based preferences.

To return to a more orderly process of controlled immigration, an important element of the original open system must be reintroduced: the unskilled must have a reasonable shot at a visa. Yet, this issue is almost absent from public discussion.

The three cycles of U.S. immigration law

Immigration law in the United States has gone through three great phases.

1. The first phase lasted until the Chinese Exclusion Act of 1882. Until that point, U.S. borders were pretty much open to any immigrant.

Westward territorial expansion and the interest in populating new territories with settlers and workers produced more than two hundred years of rapid, little controlled immigration.

2. As the name “Chinese Exclusion Act” implies, the second phase of immigration law was driven by racial and ethnic prejudice. Cloaked later as national, rather than baldly racial preferences, immigration law favored people of European origin over others.

The law was refined in the early 1920s to further limit immigration by southern and eastern Europeans, although that cat already was out of the bag, as Jewish and Italian immigration had peaked earlier.

3. In the mid-1960s, U.S. immigration law again changed its foundation. Skill and existing family connections became the criteria for granting permission to immigrate, rather than national origin (though family connections were expected to preserve an element of racial preference).

U.S. immigration law is not working

Today, with an estimated 11 million undocumented immigrants, it is clear that U.S. immigration law is not working. Sadly, the great political tension surrounding illegal immigration has made it all but impossible to reach a consensus about how to reform the law.

Somewhat surprisingly, almost all people who are willing to discuss immigration reform, rather than simply enforcement, appear to agree that skills should remain central to who gets a visa. This is surprising because most Americans are the descendents of an unskilled immigrant.

US roots: Not drawing the best educated, most cultivated people

Between 1600 and 1965, the United States was not drawing the best educated, most cultivated people from the rest of the world.

Conversely, those who had good opportunities in their home countries were underrepresented among immigrants. It was dreamers, risk takers and people in desperate straits who took the leap to seek their fortunes in the “New World.”

Departing from the standards that made America great

It seems odd that Americans today appear unwilling to accept immigrants who are like their own great grandparents.

Americans quickly forget that there was a time when immigrants from Ireland, Italy, Russia, indeed, even Germany, were looked upon as dirty, stupid, hopeless burdens on society. These unwanted people are their ancestors.

More importantly, it is the very limitation of opportunities for unskilled people to immigrate that has led to high levels of illegal immigration. Denied a chance to come in through a door, unskilled people climb over the wall.

Back to our roots – via an immigration lottery

If reform is to work, the most urgent need in immigration reform is to provide opportunities for orderly, legal immigration to those who have neither a high level of education nor family in the United States.

The key to reform is to replace a queue to get a visa, in which the first to arrive at the door are the first to be let in, with a lottery system, where each month, each applicant has an equal chance to be admitted.

Combined with strict enforcement of immigration law and controlled access to the lottery pool, this will create the incentive to wait their turn for those who want to immigrate.

For example, if a person who entered the country illegally were deported and then excluded from the lottery pool for five years (using bio markers, not names or documents), the legal lottery route would look more promising.

A reality check on aspirations

If a young man seeking work is told that there are hundreds of thousands ahead of him in the queue and it will take decades for him to have a shot at legal immigration, he is likely to take this as simply “no.”

On the other hand, if he is told that he will be in an immigration lottery pool every month, in which he has, say, a 2% chance of winning, the legal route is likely to look much better. After three years, about half of repeating lottery entrants will have won.

A monthly lottery with 1% winners still will make 30% of repeat entrants winners within three years. Any given young man will see some of his friends and neighbors get the opportunity to migrate legally and will stick with the system.

As potential migrants wait to win the lottery, they will find local work, get married, and possibly decide to stay home.

In short, in order to make illegal immigration less attractive, it is necessary to have an alternative that looks better than an endless queue. A big immigration lottery is such an alternative.

Learning from Reagan

As Ronald Reagan’s 1986 immigration reform demonstrated, amnesty for undocumented immigrants combined with better enforcement is insufficient.

Although enforcement on an “iron curtain” model certainly can work, most observers are glad that this is not what has happened.

The United States needs more profound reform, reform that creates incentives to use the legal avenue for all those who wish to immigrate. And this, in turn, requires return to a system in which there is less bias against those with little education.