Legal Immigration: Setting Priorities

THE NATIONAL INTEREST

Immigrants often create new businesses and other employment-generating activities that promote the renewal of city neighborhoods and commercial districts. Immigrants also can strengthen America's economic and political ties with other nations and, thus, enhance our ability to compete in a global economy and provide leadership in international and humanitarian affairs. Properly regulated immigration further strengthens American scientific, literary, artistic and other cultural resources. It promotes family values and ties, important components of good schools and strong communities. At a time of troubling ethnic strife in many parts of the world, an effective American immigration policy can demonstrate to other countries that religious and ethnic diversity are compatible with national civic unity in a democratic and free society.

Legal immigration, however, has costs, as well as benefits. Immigrants with relatively low education and skills may compete for jobs and public services with the most vulnerable of Americans, particularly those who are unemployed or underemployed. Jobs generated by immigrant businesses do not always address this problem. Concentrated and/or rapid entry of immigrants into a locality may impose immediate net costs, particularly in education funding to meet the additional and special needs of newcomers. Concentration of new immigrants can exacerbate tensions among ethnic groups. Certain legal immigrant populations may impose other costs: refugees often need special health and other services, making per capita resettlement more costly than overseas solutions; elderly new immigrants are more likely to draw upon public services than elderly native-born Americans or immigrants who came to the United States at a younger age.

The recommendations in this report strongly affirm the value of a properly regulated immigration system. They seek to maximize the many positive opportunities that legal immigration presents to our nation. At the same time, the recommendations will help mitigate potential negative impacts, particularly on disadvantaged U.S. workers. Finally, the Commission's recommendations support effective Americanization of new immigrants, that is the cultivation of a shared commitment to the American values of liberty, democracy, and equal opportunity. These recommendations should help ensure that our legal immigration system will continue to serve the national interest of the United States.

FRAMEWORK FOR IMMIGRATION REFORM

PRINCIPLES FOR A PROPERLY REGULATED IMMIGRATION POLICY

Clear Goals and Priorities. Sound immigration policy must set out clear goals and give priority to the admission of those immigrants who best meet those goals.

Enforcement of Immigration Limits. An effectively regulated immigration policy establishes limits on the number of immigrants that are consistent with the goals of the various categories under which immigrants enter. Moreover, these limits must be enforceable and enforced. We underscore our commitment to curtailing illegal immigration as embodied in our 1994 recommendations. We will continue to monitor progress toward their implementation until the expiration of our mandate in September 1997.

Regular Periodic Review. An effectively regulated system requires some flexibility with regard to numbers so as to permit adjustment as circumstances in the United States change.

Clarity and Efficiency. Immigration policy should not be overly complex, and the mechanisms used to implement immigration policy should be efficient and comprehensible. The terms used should be as clear and self-explanatory as possible. The number of visas allocated to various immigrant categories should be sufficient to ensure the expeditious entry of those of highest priority. Backlogs in high priority categories undermine the purposes of immigration policy, while backlogs in lower priority categories give false hope to individuals whose admissions are of lesser national interest.

Enforcement of Sponsor Responsibility. A properly regulated immigration policy will hold sponsors accountable for keeping immigrants from becoming burdens on the American taxpayer and enforce that accountability through legally binding obligations.

Protection of U.S. Workers. A properly regulated system will also provide protection to American workers against unfair competition arising from immigrant categories that are designed to enhance U.S. economic strength. A higher level of job protection should be made available to the most vulnerable in our society.

Coherence. Both temporary and permanent admissions categories must be seen as integral parts of a coherent legal immigration policy. Temporary student, worker, and humanitarian categories are linked to permanent immigration. Inefficiencies and inconsistencies in the procedures for determining admissibility in permanent categories frequently lead employees, employers, and even family members to use temporary categories to gain entrance when the immigrant's true intention is permanent residence.

Americanization. Immigration policy is not credible without attention to English language training, civic education, and preparation for naturalization and effective citizen participation. Americanization-by which we mean cultivation of a shared commitment to the American values of liberty, democracy, and equal opportunity-is desirable and possible regardless of the nationality, native language, or religious background of immigrants and their children.

A Transition Period. Fundamental immigration reform, as proposed by the Commission, requires a period of transition to get from the present system to the new one. We recommend prudent, measured steps to make that transition possible.

RECOMMENDATIONS

The Commission supports a tripartite immigration policy that permits the entry of nuclear family members, professional and skilled workers, and refugees and other humanitarian admissions. In addition, the Commission urges Congress to take steps to address the continued aftereffects of the 1986 Immigration Reform and Control Act [IRCA] that provided legal status to formerly illegal aliens.

The Commission proposes a core immigration admissions level of 550,000 per year, to be divided as follows:

Nuclear family immigration 400,000;

Skill-based immigration 100,000;

Refugee resettlement 50,000.*

Nuclear Family Immigration

The Commission recommends:

• Spouses and minor children of U.S. citizens should continue to be admitted as the first priority. Also to be admitted under this priority are the small number of adult children dependent on U.S. citizen parents because of a mental or physical disability. This policy permits the expeditious entry of the closest family members while reinforcing the notion that citizenship confers additional benefits on those who become fully participating members of our polity.
• Parents of U.S. citizens should be admitted as the second priority. This permits adult children to sponsor their parents, most of whom are past working age. However, the Commission is mindful of the potential negative impacts that the entry of parents may pose for the U.S. taxpayer if these individuals utilize Supplemental Security Income, Medicaid, and similar programs. Therefore, the Commission believes that continued admission of parents should be contingent on a legally enforceable affidavit of support. The affidavit should ensure that parents who are unable to work enough quarters to become eligible for Social Security or Medicare do not become a burden to taxpayers through use of SSI, Medicaid, or equivalent state and local services. Further, the Commission recommends that affidavit signers (petitioners and, if necessary, coguarantors) should provide:
  

  Verifiable assurance that they indeed have the capacity to provide what may be a lifetime of financial support to the parent immigrants; and
  Verifiable assurance of the purchase of what may be lifetime health coverage for the parent immigrants (obtained either privately or through buying into Medicare, which the government should make available at an actuarially fair price).

• Third priority should be allocated to spouses, minor children, and adult physically or mentally dependent children of legal permanent residents [LPRs].

We believe that priority for clearance of the backlog should go first to the spouses and minor children of LPRs who entered lawfully under the regular immigration preferences. Only afterwards should expedited admission be offered to the spouses and minor children of LPRs who entered under one of the legalization provisions of the Immigration Reform and Control Act.

The Commission recommends this separate treatment of the family members of those who became permanent residents through regular immigration and those who legalized under IRCA because:

• The circumstances are different for the two sets of spouses and minor children. Many of the families of the immigrants who legalized under IRCA are in the United States and, under the Family Unity provisions of the Immigration Act of 1990, have a quasi-legal status that permits their continued presence and work authorization. Many of the families of the other legal immigrants are separated, with their spouses and/or minor child(ren) living outside the United States.
  
• The legalized have already received special treatment in obtaining amnesty. To further reward their earlier illegal entry by giving equal or higher priority to the entry of their relatives sends the wrong message at a time in which the U.S. must obtain greater control over unauthorized entry.
  
• As of December 31, 1995, most legalized aliens will be eligible to naturalize. As citizens, they will be able to expedite the admission of their spouses and minor children without using the additional visas earmarked for LPRs.

Adult, unmarried sons and daughters of U.S. citizens;

Adult, married sons and daughters of U.S. citizens;

Adult, unmarried sons and daughters of legal permanent residents; and

Siblings of U.S. citizens.

The Commission recommends elimination of these categories for several reasons.

• The numbers now used to admit these individuals in more extended family relationships could be used instead to reduce the waiting time for closer family members without raising the overall levels of immigration.
  
• Elimination of these preferences will remove extraordinary backlogs that now undermine the credibility of our policy. Credible immigration policy should not give false hopes to applicants. An individual now applying under the sibling category, for example, could not expect to enter the U.S. legally for more than a decade. Applicants from the Philippines face the longest waiting period-as much as forty years for those applying today.
  
• Unless there is a compelling national interest to do otherwise, immigrants should be chosen on the basis of the skills they contribute to the U.S. economy. The Commission believes that admission of nuclear family members and refugees provide such a compelling national interest. Reunification of adult children and siblings of adult citizens solely because of their family relationship is not as compelling.

Given the large backlog of spouses and minor children, all efforts should be made to ensure their expeditious entry by fully utilizing authorized visas. Under current policy visas unused because of administrative delay or personal reasons are lost. Allowing such unused visas to be made available to otherwise eligible immigrants after the end of that fiscal year ensures that all the visas allocated for family-sponsored immigrants would be used and charged to the given fiscal year. The new fiscal year visa numbers would not reflect an increase in visas allocated over the annual worldwide limit for family-based immigration.

For example, if 400,000 visas were allocated for family-sponsored immigrants in FY 1997, and during that year only 390,000 visas were issued because 10,000 immigrants were delayed beyond the end of the fiscal year, the remaining 10,000 visas could be issued to the delayed or other eligible aliens during the next fiscal year but would count toward the original year. Under the proposed amendment, the Department of State could charge to FY 1997 all visas allocated in that year even though the visas themselves might not be issued in FY 1997. As the recommendation affects only aliens already entitled to a visa, annual number limitations would not be exceeded.

The Commission further recommends that the INA be amended to address better the aging-out problem of certain aliens. One unfortunate side effect of waiting lists is the aging-out of minor children who become adults while awaiting their already approved petition. This issue, which arises particularly in the case of the minor children of legal permanent residents, will become even more of a problem with the elimination of admission opportunities for adult children. For example, the minor child of a legalized alien may have been granted Family Unity status with the understanding that eventually a visa would be available. Under current law, a child who has aged-out would rarely be deported but is no longer eligible for permanent residence as a minor child. A provision stating that "a person entitled to status at the time a petition is approved shall continue to be entitled to that status regardless of his or her age" would allow such applicants to retain their eligibility for immigrant visas.

Skill-Based Immigration

• Focusing on the admission of highly-skilled individuals;
• Giving employers access to a global labor market when they cannot identify U.S. workers with knowledge and expertise required for a specific job or when they demonstrate a labor shortage that cannot be filled through short-term training programs;
• Helping companies conducting business, both in the United States and internationally, to reassign personnel as needed to maintain their competitiveness;
• Encouraging entrepreneurial activities and other investment in the United States aimed at creation of jobs;
• Providing a means of ensuring that U.S. workers are not displaced or otherwise adversely affected by the entry of foreign workers; and
• Providing incentives or penalties to help ensure that employers in the U.S. engage in serious recruitment of American workers (for example, national rather than local recruitment where appropriate) and contribute significantly to the training of the comestic U.S. workforce.

The Commission recommends that the preferences for the admission of skill-based immigrants be reorganized to establish two categories: those subject to a lobor market test, which we would expect to be the norm; and those who, for significant and specific policy reasons, should be exempt from such a labor market test. Labor market testing requires a demonstration that a business has a bona fide need for the skills of a foreign worker and cannot find a qualified U.S. worker or one who could be readily trained for the intended job.

Exempt workers should include those individuals whose entry will generate economic growth and/or significantly enhance U.S. intellectual and cultural strength without undermining the employment prospects and remuneration of U.S. workers. The following individuals should be exempt:

Individuals at the very top of their chosen field whose extraordinary ability in the sciences, arts, education, business, or athletics is demonstrated by sustained national or international acclaim and whose achievements have been recognized through extensive documentation, or individuals who have demonstrated the potential for extraordinary achievement in their chosen field through extensive documentation, including the receipt of internationally-recognized prizes and the testimony of appropriate experts;

Managers and executives of international businesses whose expertise contributes to U.S. global competitiveness. Greater safeguards must be put in place to ensure that only bona fide international businesses benefit from this policy;

Entrepreneurs whose active investment in new commercial enterprises generate a significant number of jobs for American workers in the United States;

A limited number of individuals ordained by a religious denomination and other religious workers who have carried on the religious vocation abroad during the two years immediately preceding the application for admission and who are members of a religious denomination having a bona fide nonprofit, religious organization in the United States that sponsors them.

Labor market-tested foreign workers permitted to immigrate to the United States under these categories should include only those who have attained a baccalaureate or higher academic degree or those who are needed to fill jobs that require a high level of specific skills above the entry or journeyman level. Categories that would require a test of the domestic labor market include:

Professionals with advanced degrees, including professors and researchers who do not meet the definition of "extraordinary;"

Professionals with baccalaureate degrees, and skilled workers with a minimum of five years of specialized work experience, whose admission should be scrutinized strictly to ensure that they will have no adverse effect on similarly qualified U.S. workers.

The Commission recommends the elimination of the admission of unskilled workers. Unless there is another compelling interest, such as in the entry of nuclear families and refugees, it is not in the national interest to admit unskilled workers. This is especially true when the U.S. economy is showing difficulty in absorbing disadvantaged workers and when efforts towards welfare reform indicate that many unskilled Americans will be entering the labor force.

The Commission is not satisfied with current labor certification procedures because they are neither timely enough to meet the needs of employers with a bona fide interest in hiring a foreign worker nor effective in protecting the interests of U.S. workers. We seek to replace a failed and expensive regulatory system with one that is market-driven. (The cost to the federal government was about $70 million in 1992 and is estimated to be about $60 million in 1995.) The Commission recommends replacing the labor certification procedure with a more timely and effective labor market test.

To demonstrate the bona fide need for a foreign worker and to increase the competitiveness of U.S. workers, an employer should be required to pay a substantial fee, that is, make a substantial financial investment into a certified private sector initiative dedicated to increasing the competitiveness of U.S. workers, for example through education and training. Employers seeking to hire foreign workers already incur substantial financial costs and face lengthy processing delays. Under the Commission's proposal, the fee would go towards developing a well-trained U.S. workforce rather than supporting costly bureaucratic processes. To ensure that the employer, and not the foreign worker, pays the fee, penalties should be imposed upon violators.

Employers should demonstrate that they have engaged in appropriate attempts to find a qualified U.S. worker using normal company recruitment procedures that meet industry-wide standards and offering wages that are at least 5 percent above the prevailing wage.

The resulting permanent resident status so obtained should be conditional for a two-year period. Conditional status would be removed at the end of that period if the foreign worker is still employed by the same employer at the same or higher level and if the employer demonstrates that the attested wage has been paid. The law should specify conditions under which the foreign worker could obtain a waiver of the two-year requirement. For example, it could be waived in situations where unanticipated circumstances, such as layoffs or business failure, occur or where an employer's unfair labor practices would render the foreign worker subject to abuse. To prevent both fraud and abuse against workers, penalties should be authorized.

To provide greater flexibility and allow for market adjustments, the Commission recommends that skill-based visas not used in a fiscal year be carried over to the next year's skill-based numbers.

Refugee Resettlement

The Commission strongly affirms that the United States should continue its commitment to resettle refugees as one of several elements of humanitarian protection for the persecuted. Refugee admissions fulfill a humanitarian commitment to provide protection and assistance to those who otherwise would be persecuted or endangered. The Commission recommends that, on an interim basis:

The U.S. should allocate 50,000 admission numbers each year to the entry of refugees from overseas (not including asylum adjustments);

Other than in emergency situations, refugee admissions could exceed the 50,000 admissions level only with more direct and affirmative participation by Congress than occurs in the current consultation process;

In the case of an emergency, the President may authorize the admission of additional refugees upon certification of the emergency circumstances necessitating such action. The Congress may override the emergency admissions only with a two-house veto of the Presidential action.

Allocating a set number of refugee admissions, with provisions to exceed this number in case of an emergency or other changed circumstances, ensures a continued U.S. commitment to resettlement, particularly following the expected closure of the current refugee programs in Southeast Asia and, possibly, the former Soviet Union. These two programs account for almost 80 percent of current resettlement (about 87,000 out of 112,000 admissions in FY 1994).

Reform of the current consultation process is needed to ensure Congressional oversight of decisions made to exceed the 50,000 limit. Current consultations are often pro forma and occur very late in the planning process. As discussed below, the Commission will provide recommendations on mechanisms for decisionmaking on numbers in a forthcoming report.

The U.S. should take leadership in generating international responses to refugee crises, with particular focus on international burdensharing and regional solutions. Future policies also must take into account the relative weight to be given resettlement versus the other avenues open to the United States to help protect and assist refugees worldwide, including support for repatriation of refugees to their homelands when conditions permit.

The Commission recommends a thorough assessment of the criteria used to admit refugees for resettlement and the procedures for their admission. The contexts for making future policy regarding refugee resettlement are in flux. The refugee resettlement program must be revamped to meet the needs of a post-Cold War world. Today extreme nationalism and ethnic conflicts produce massive population displacements while resolution of other conflicts is permitting large-scale voluntary repatriation. Resettlement criteria should take into account the protection of refugees who otherwise would be endangered in a country of origin or asylum and who would have no other alternatives.

The Commission is reviewing a variety of issues related to refugee resettlement, including: the priority system; in-country refugee processing; country-specific legislation; procedural issues; congressional and Executive Branch roles, including the consultation process; the role of international organizations; parole authority; and domestic assistance, including the role of the state and local organizations (e.g., nongovernmental organizations and voluntary agencies).

Specific recommendations on refugee resettlement-which may include modification of the above interim recommendations-will be included in a future Commission report. This report also will include recommendations related to immigration emergencies.

Nonimmigrant Admissions

The Commission believes that both permanent and temporary (nonimmigrant) admissions must be considered as part of an integrated immigration system. Although we are deferring specific recommendations on most nonimmigrant issues until we have completed a comprehensive review, we do note two areas of particular interest.

Temporary Workers and Foreign Students. The Commission intends to examine in depth the nonimmigrant temporary worker and foreign student systems and their relationships to permanent immigration. In particular, we will be looking at ways to simplify and achieve greater coordination in these systems and to make recommendations as a result of this study. A high percentage of applicants for permanent skill-based admission are already in this country on temporary work or student visas. Businesses that intend to petition for permanent visas for new hires frequently obtain temporary visas first because of long delays in processing. In addition, a significant number of individuals admitted for temporary study or work seek permanent jobs during their stay. As noted above, these categories of temporary admission must be seen as integral parts of a coherent legal immigration policy. The Commission will address these specific issues in a later report.

Agriculture Guestworker Program. The Commission believes that an agriculture guestworker program, sometimes referred to as a revisiting of the "bracero agreement," is not in the national interest and unanimously and strongly agrees that such a program would be a grievous mistake.

First, the Commission is highly skeptical of the need for an agricultural guestworker program at this time or in the near future. Proponents of such a program have failed to demonstrate that a labor shortage is about to occur or that there are no means other than a guestworker program available to agricultural producers to obtain sufficient employees in their industry.

Guestworker programs effectively expand rural poverty. Moreover, guestworker programs are predicated on limitations on the freedom of those who are invited to enter and work. Experience has shown that such limitations are incompatible with the values of democratic societies. For that very reason, "temporary" guestworkers tend to become permanent residents, de facto or even de jure. The inconsistency between the stated intent of guestworker programs and their actual consequences cannot be ignored by policymakers who seek credibility in a reformed system.

Americanization

The Commission supports effective Americanization of new immigrants, that is the cultivation of a shared commitment to the American values of liberty, democracy, and equal opportunity. The United States is one of the most successful multiethnic nations in history. It has united immigrants and their descendants from all over the world around a commitment to democratic ideals and constitutional principles. Those ideals and principles have been embraced by persons from an extraordinary variety of religious and ethnic backgrounds, partly because they permit and protect religious and cultural diversity within a framework of national political unity.

Religious and cultural diversity does not pose a threat to the national interest as long as public policies ensure civic unity. Such policies should help newcomers learn to speak, read, and write English effectively. They should strengthen civic understanding in the teaching of American history for all Americans. They should lead to the vigorous enforcement of laws against hate crimes and of laws to deter and to punish discrimination. Of course, such policies should encourage the naturalization of immigrants as the path to full civic participation.

At the same time, immigration to the United States should be understood as a privilege, not a right. Immigration carries with it obligations to embrace the common core of the American civic culture, to become able to communicate--to the extent possible--in English with other citizens and residents, and to adapt to fundamental constitutional principles and democratic institutions.

In its further deliberations, the Commission will consider other public policies that are believed by some to encourage ethnocentrism in the name of multiculturalism or to promote political separatism in the name of civil rights. For example: Do bilingual education and affirmative action as applied to immigrants and their children promote or diminish civic unity? Now that immigrants come from more than 160 nations and many more ethnic groups, it is extremely important that public policies facilitate, not inhibit, the Americanization of newcomers.

Naturalization is the most visible manifestation of civic incorporation. At present, there is greater interest in naturalization than there is a capacity to act upon this interest. Large backlogs must be overcome so that the nation can benefit from the growing commitment of immigrants to become American citizens.

The Commission strongly recommends that INS adopt and implement as a strategic goal the reduction of processing time and backlogs for naturalization while maintaining rigorous standards in processing applications. The Commission also urges Congress to appropriate sufficient resources to support the implementation of this strategic goal. Applicants for naturalization pay a fee designed to cover the costs of the application process. The fees go into an account dedicated to use for examinations. The Commission believes that naturalization applicants have the right to receive the timely service that their fee represents. Naturalization fees should not subsidize other activities. Nor should an efficient naturalization procedure require a reallocation of resources from other priority functions. If the current fee is not adequate to cover the full costs of timely naturalization, it should be increased appropriately. Further, the Commission urges INS to:

Set a standard reasonable time frame for processing naturalization applications. The time frame should permit timely review of applications without lowering the standards for civics and English language knowledge or compromising the required background checks. The INS also should improve processes and policies, as well as allocation of resources, to establish a level of efficiency that can withstand fluctuations in volume.

Continue to recruit national and community-based organizations, both public and private, as well as employers, to assist in facilitating smooth operation of the processing of naturalization applications. These organizations have proved very helpful in prior partnerships with INS in: overseeing proper completion of applications; taking security check fingerprints; serving as testing sites for the required English and civics examinations; briefing applicants on procedures; providing less intimidating final interview sites; and reviewing files before interviews to make certain that examiners need spend time only on substantive interview issues.

Ensure that there are adequate numbers of personnel to complete naturalization processing efficiently. To reduce waiting periods in districts with backlogs, INS should reassign personnel and, where appropriate, designate examiners who will do naturalization interviews exclusively. In instances where an interview can be waived, INS should permit naturalization applications to be filed, reviewed, and approved at one of its four Regional Service Centers.

Carefully scrutinize the naturalization applications of all Special Agricultural Workers [SAW] to assure that their original SAW status was properly granted. Reports of widespread fraud in this program require such special attention to applications for U.S. citizenship by SAW legalization beneficiaries.

The Commission urges both the public and private sectors to assist legal immigrants in their preparation for naturalization.

The Commission urges private industry, churches, community groups and individual volunteers to redouble their efforts to provide English language instruction and civics education to immigrants. The current increased interest in naturalization presents an opportunity to use instruction in English, U.S. history, and civics to help immigrants participate more fully in the life of the community. Private sector initiatives would fill current gaps in such services. These programs also would benefit the providers, particularly businesses, who would gain from a workforce better able to communicate in English.

The Commission supports targeted outreach programs aimed at informing eligible immigrants about the requirements for naturalization. Outreach programs are critical to civic ncorporation. They encourage immigrants to want to become citizens and help ensure awareness of opportunity and equitable access to information about naturalization.

CONCLUSION

These interim conclusions and recommendations on legal immigration to the United States are a first step in the Commission's examination of the implementation and impact of our legal immigration system. Together with our earlier recommendations on illegal immigration, they seek to restore credibility to our immigration policies.

This report defines the national interest in immigration. It outlines mechanisms that permit the expeditious entry of those who are of highest priority for admission while mitigating potential harmful effects on U.S. communities and vulnerable populations.

The Commission continues our longer-term investigation of the impact of legal immigration on the United States. Based on the results of these studies, the Commission expects to make further recommendations on legal immigration in our final report to Congress in 1997.

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