America’s Immigration System Was Never Built to Make Sense

Immigration is an area of federal policy that engenders public passions somewhat inversely correlated with how much people actually understand it, which is not at all, even for many policymakers. The elusive dream of “immigration reform” — now basically a Rorschach test whose parameters have only narrowed over the last two decades — has not come, leaving us with a mess that has only been highlighted by Donald Trump’s wrecking ball approach.

We’ve already delved into how to address some of the injustices of the enforcement and detention systems specifically, but what about the broader panorama in which they exist? If fixing some of ICE’s abuses stanches the bleeding, understanding and shifting the framework by which people do or do not get to enter and stay in the country is a longer-term imperative.

I sometimes teach an advanced reporting class that has a focus on immigration as a beat, which starts off laying out the functioning and history of the immigration system. There, I use the analogy of the “clothes chair” — where you throw all of the clothes that you don’t feel like dealing with at any given moment — to describe our immigration system. While people tend to think of it as a policy structure that, whether they agree with it or not, was diagrammed out to be cohesive and intentional, the truth is that it has been a piecemeal system shot through with fallacies and contradictions even on its own logic.

To give just one example, the family-based immigration system allows the parents of adult U.S. citizens 21 and over to petition for permanent residence through this family connection. Unfortunately, undocumented parents generally cannot undergo this process in the United States, but must leave and petition from a consulate abroad. An annoyance but a navigable one, right? Sure, except that a separate part of the law, enacted much later, creates what so-called unlawful presence bars, which block people who’ve been unlawfully in the country for a year or more from reentering for 10 years if they ever leave.

Basically, there is a provision of the law that directs undocumented parents of adult citizens to leave the country to receive a path to permanent residence, and a separate provision that would block their reentry if they actually did so. Like this, there are many illogics in immigration law, a product of the fact that this area of federal policy has been developed over a century and half of shifting practical and political realities, mostly building on top of itself rather than attempting full reformulation.

The current framework of our immigration policy is the Immigration and Nationality Act of 1965, one of the last and less heralded triumphs of the civil rights era. That was over six decades ago, four years prior to the moon landing. The roots of the system stretch back further, to the late 19th and early 20th centuries, and since then they have been guided principally by racism and a desire to extract labor without the privileges of civic participation. Paving a better path forward will probably require doing what basically no one wants to do, which is meaningfully rethinking the system and its complications.

As a first principle, this new system must do away with the reality of semi-permanent “temporary” statuses and the possibility that people can remain undocumented indefinitely. The reason Trump can even unilaterally move to strip status from millions of people is because huge numbers of people have spent decades with semi-statuses like Temporary Protected Status and DACA, which feature no path to permanent residence and, despite forming the basis for lives built in the U.S., can in theory be taken away at any time. Millions more have lived without status at all; well over 4 million have been in the country for 18 years or more largely without any avenues toward status.

One of the most enduring myths about the U.S. immigration system is that there is some line toward citizenship that those who’ve not gotten it over the years have either refused or neglected to get in; that’s not true, but there is some historical basis for that idea, namely the so-called registry program. First enacted in 1929, registry set a cutoff (initially 1921) and allowed people who’d been in the country since before then and could demonstrate “good moral character” (more on that later) to register for permanent residence, the precursor to citizenship. That’s it; there are no other substantive requirements to getting status through this pathway.

If you’re wondering why you’ve never heard about this, it’s because it’s functionally obsolete. The last time the cutoff date was updated was in 1986, as part of Ronald Reagan’s broader immigration amnesty, when it was set to 1972. That means that anyone who wants to use that pathway would have to have been in the country for over a half-century at this point without otherwise obtaining status, a vanishingly small population.

As I wrote a few years ago, if Congress passed an incredibly short bill changing a single number in the law — 1972 to, say, 2012 or 2016 — it would provide a concrete and straightforward path to permanent status for millions of people around the country, from those without status to those with TPS and DACA to temporary workers in interminable lines to qualify for employment-based green cards. I would propose a slight additional modification: instead of the cutoff being bumped up to a specific, static year until Congress decides to get its act together again, it should be rolling, advancing one year every year to let people become eligible eventually and prevent another large standing undocumented population from building up.

This idea gets brought up every so often in conversations about immigration reform, but tends to lose out to the dominant strain of thought, which is rebuilding a system of similar complexity but for the 21st century. This tends to include revamped work and student visa categories that would more closely align with economic needs and tweaking waiting periods, caps, and the criteria to qualify. A recent framework by the congressional New Democrat Coalition, for example, calls for creating new visas for caregivers and startup founders and establishing paths to permanent status for certain select groups while maintaining heavy oversight to ensure “workforce visas do not negatively impact American workers or wages,” in effect continuing the trend towards heavy bureaucracy.

As Alaska-based immigration attorney Margaret Stock told me for that registry piece, “one of the problems with Congress is they love complexity over simplicity. So it’s ‘give me a 1000-page bill any day of the week,’ and if you come in, ‘so I can do the same thing in two lines,’ they’ll go, ‘huh?’” Yet many would-be reformers who’ve actually dealt with the immigration system up close and personal, like Stock, believe that complication inevitably leads to inefficiency and unfairness.

“Most of our immigration reforms were kind of outdated within seconds of being passed, right? I mean, the last legal immigration reform was in 1990, before the Internet,” said Doug Rand, a former official at U.S. Citizenship and Immigration Services and the Obama White House. “Instead of having Congress try to micromanage and be like ‘well, we get this many of this kind of job, and this many of that kind of job, and blah blah blah,’ why don’t we let our actual employers decide who they need?”

In essence, Rand’s point is that “we’re too stingy with green cards, period,” which is true for immigrants and would-be immigrants of all stripes, coming through all pathways, from humanitarian to work to family-based. “I don’t like at all the distinction between high skill, low skill. I think that’s nonsense. We should make a lot more green cards available to people who are not only relatives of U.S. citizens, but also willing employees for U.S. companies,” he said.

Registry is a sort of break-glass program to help people already languishing in non-status or semi-status for decades, but the ideal would be to keep people from having to do that in the first place. Lawmakers could eliminate the annual caps on employment and family-based green cards, which cumulatively stand at 620,000 (the reason annual numbers of green cards exceed this is because some are uncapped, such as spouses of U.S. citizens and asylees). This would also functionally eliminate the per-country caps on those green cards, which are what has led people from certain countries, like India, China, Mexico, and the Philippines, to have to wait years or sometimes decades for green cards they qualify for. And they could make these green cards easier to get, making them much more of a default choice as opposed to our byzantine system of visas that may or may not lead into permanent status.

This is not just about easing complexity for its own sake; one of the complaints that the left in particular raises over things like the H-1B work visa, the F-1 student visas, and statuses like TPS is that they’re both rigid and fickle. A worker on an H-1B is practically tethered to their employer, who in firing them can also effectively strip them of status, a powerful disincentive to raise any trouble at work. Trump has targeted student visas to suppress speech. If these statuses could not be so discretionarily terminated, they would not be as exploitable. In tandem with this, and as I discussed in greater detail in my earlier piece, lawmakers must get rid of the tough-on-crime-era restrictions to status, like the moral character standard that makes even people who’ve committed minor crimes ineligible and the three and ten-year bars to reentry I mentioned above.

Getting rid of these limitations might strike a nerve in a context in which one major political party has weaponized the perception that there are mass numbers of people pouring into the country, but if you take a step back, there are a couple easy ways to sell this approach. First, you could double the number of green cards issued in a given year to some two million and that would still represent about a sixth of one percent of the population in our massive and not particularly densely populated country, one in which birthrates have dropped so much that immigration is now the only thing staving off steep population decline. Second, a lot of the chaos that people associate with immigration is precisely the result of these convoluted and capricious pathways that shut a lot of people out.

“We’ve seen a lot of pushback, both among elected and appointed officials and among some sectors of the general public, in relation to asylum… with large numbers of people coming to the border. A large part of that reality has to do with the fact that there aren’t viable paths for the vast majority of people that want to come to the US to be able to do that,” said Jorge Loweree, managing director of programs and strategy at the American Immigration Council. “If people had a clear path to a green card on the employment-based side, how many of them would need H-1Bs? We don’t know the answer to that question.”

One other guiding principle for a better system is the idea of flexibility in dealing with violations. We’ve all gotten used to this over the years, but if you take a step back, it is very bizarre that while there’s a universe of potential consequences for criminal liability, ranging from diversion programs to probation to restitution to incarceration of different lengths, there is practically a binary result to removal proceedings. Either someone is able to qualify for some status or form of relief, or they are removed from the country entirely.

Even as the public and policymakers have moved on from and in many cases disavowed the heavy-handed, War on Drugs, “three strikes”-style approach to criminal law that characterized the ’70s through the ’90s, we’re still stuck with a similar vision of immigration, where decades-old, minor convictions or immigration violations can preclude getting status and leave people subject to deportation forever. “It is, it is very strange that in the criminal justice context you have more and more people who find it non-controversial that we should give people second chances for crimes, and yet we don’t give people second chances for a civil violation,” said Rand.

“One of the things that we call for is a sort of diversion program where people are given an opportunity to demonstrate that they’re committed, that they’re otherwise law-abiding and navigate certain penalties over a period of time, and then ultimately come out on the other side with immigration status,” said Loweree. That could involve having people pay fines or be on some sort of immigration probation for a period of time before receiving residency, as opposed to our current all-or-nothing approach. In general, the flexibility should run the other way — not just in terms of letting the executive keep people out, but taking into account circumstances and a broader range of factors in letting people avoid immigration consequences.

All that requires Congress wresting back some control from the executive. Other than perhaps war-making, immigration is the area of federal policy where the legislature has relinquished the most power to the president, in large part voluntarily. It created a whole convoluted structure governing who can enter the country and how, yet the executive has a tool to circumvent all that and ban entire nationalities or categories from entering the country. Congress laid out a refugee program, but the president can set that number at next to nothing and ensure only white South Africans are included. This type of flexibility must be curbed so that a president can’t just come in and rewrite the immigration system.

Better yet, rather than leaving all the day-to-day functioning in the hands of an erratic executive and a dysfunctional Congress, we could create independent agencies and bodies (yes, even if the Supreme Court has made them less independent) that could have a mandate to welcome more immigrants in an orderly fashion, with the understanding that immigration is good and that the country needs more of it. A functioning immigration system will need predictability, flexibility, and a degree of simplicity.