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A CREDIBLE FRAMEWORK

FOR IMMIGRATION POLICY

In our previous reports, the Commission defined a credible immigration policy "by a simple yardstick: people who should get in do get in, people who should not get in are kept out; and people who are judged deportable are required to leave." By these measures, the U.S. has made substantial, but incomplete, progress. What follows are the Commission's recommendations for comprehensive reform to achieve more fully a credible framework for immigration policy.

Legal Permanent Admissions

The Commission reiterates its support for a properly-regulated

system for admitting legal permanent residents.¹ Research and analyses conducted since the issuance of the Commission's

report on legal immigration support our view that a properly regulated system of legal permanent admissions serves the national interest. We reiterate that such a system enhances the national benefits while protecting against potential harms.

This position is supported by a recent report we commissioned from the National Research Council on the impacts of immigration.² The panel concluded that "immigration produces net economic gains for domestic residents" in the form of increased productivity and

reduced consumer prices. The benefits go well beyond economic ones, however. The panel also identified social and cultural gains

The Commission reiterates its support for a properly-regulated

system for

admitting legal permanent

residents.

¹ For a full explanation of the Commission's recommendations see Legal Immigration: Setting Priorities, 1995. See Appendix for summary of Commissioner Leiden's dissenting statement.

² National Research Council. (J.P. Smith, B. Edmonston, eds.). 1997. The New Americans: Economic, Demographic, and Fiscal Effects of Immigration. Washington, DC: National Academy Press. 62.

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resulting from immigration, particularly through the entry of highly- talented immigrants who choose to live and contribute to the United States. The report continues: "Even when the economy as a whole gains, however, there may be losers as well as gainers among different groups of U.S. residents." The principal "gainers" are the immigrants themselves, owners of capital, higher-skilled workers who are complements to most immigrants (who are themselves lower-skilled) and consumers. The principal "losers" are the low-skilled workers who compete with immigrants and whose wages fall as a result. On a fiscal basis, the panel found national-level net contributions of tax revenues resulting from immigration, but the panel also identified significant net fiscal costs to the taxpayers of states with large number of immigrants. These high fiscal impacts are due, particularly, to the presence of sizeable numbers of lesser-skilled immigrants whose tax payments, even over a lifetime, are insufficient to cover their use of services.

The Commission urges reforms in our legal immigration system to enhance the benefits accruing from the entry of newcomers while guarding against harms, particularly to the most vulnerable of U.S. residentsthose who are themselves unskilled and living in poverty. More specifically, the Commission reiterates its support for:

n A significant redefinition of priorities and reallocation of existing admission numbers to fulfill more effectively the objectives of our immigration policy. The Commission's more specific recommendations on priorities and procedures for admission stem not only from the above analysis of the effects of immigration but also from our review of the workings of the admission system. We argued in our 1995 report that the current framework for legal immigrationfamily, skills, and humanitarian admissionsmakes sense. However, the statutory and regulatory priorities and procedures for admissions do not support the stated intentions of legal

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Proposed Tripartite Immigration System

L E G A L I M M I G R A T I O N

NUCLEAR

FAMILY

ADMISSIONS

SKILL-

BASED

ADMISSIONS

REFUGEE &

HUMANITARIAN

ADMISSIONS

Spouses & Minor

Children of U.S.

Citizens-1st priority

Parents of U.S.

Citizens-2nd priority

Spouses & Minor

Children of Legal

Immigrants-3rd priority

Exempt

from

Labor

Market
Test

n Aliens with Extraordinary

Ability,

n Multinational Executives & Managers,

n Entrepreneurs,

n Ministers and Religious

Workers

Labor

Market-

Tested

n Professionals

with Advanced Degrees,

n Professionals with

Baccalaureate Degrees,

n Skilled Workers

Refugees

Asylees

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immigrationto reunify families, to provide employers an opportunity to recruit foreign workers to meet labor needs, and to respond to humanitarian crises around the world. During the two years since our report on legal immigration, the problems in the legal admission system have not been solved. Indeed, some of them have worsened as is discussed below.

We believe current immigration levels should be sustained for the next several years while the U.S. revamps its legal immigration system and shifts the priorities for admissions away from extended family and toward nuclear family and away from unskilled and toward higher skilled immigrants. Thereafter, modest reductions in levels of immigrationto about 550,000 per year, comparable to those of the 1980swill result from the changing priority system.

The Commission continues to believe that legal admission numbers should be authorized by Congress for a specified time (e.g., three to five years) to ensure regular, periodic review and, if needed, change by Congress. This review should consider the adequacy of admission numbers for

accomplishing priorities. It also should consider the economic and other domestic needs and capacities of the United States to absorb newcomers.

n Family-based admissions that give priority to nuclear family membersspouses and minor children of U.S. citizens, parents of U.S. citizens, and spouses and minor children of legal permanent residentsand include a backlog clearance program to permit the most expeditious entry of the spouses and minor children of LPRs.

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The Commission recommends allocation of 550,000 family-based admission numbers each year until the large backlog of spouses and minor children is cleared. The backlog, which numbers more than 1 million persons, consists of the nuclear family members of legal immigrants who married after the U.S. spouse became a permanent resident, as well as spouses and minor children of aliens legalized under IRCA (most of whom are now eligible to naturalize). Numbers going to lower priority categories (e.g., adult children, siblings, and diversity immigrants), should be transferred to the nuclear family categories. Thereafter Congress should set sufficient admission numbers to permit all spouses and minor children of citizens and LPRs to enter expeditiously.

Since the Commission first reported its findings on legal admissions, the problems associated with family-based

admissions have grown. In 1995, the wait between application and admission of the spouses and minor children of LPRs was about three years. It is now more than four years and still growing.³

Various statutory changes enacted in 1996 make it all the more important that Congress take specific action to clear the backlog quickly to regularize the status of the spouses and minor children of legal permanent residents in the United States. In an effort to deter illegal migration, Congress

expanded the bases and number of grounds upon which

Waiting Time for Spouses and Minor Children of LPRs (FB-2A)

NUMBER OF YEARS

Source: DOS Visa Office Visa Bulletin (1992-1997).

³ It appears that the priority date (i.e., the cut-off date by which an

approved petition must have been filed) has moved forward as much as it has only because of delays in processing applications for adjustment of status within the United States. When it became clear that INS could not keep up with the adjustment backlog, the Department of State moved up the priority date to continue processing visas overseas. As many of the adjustment applications are still to be processed, it is likely that there will be very little movement on the priority date during the next several months.

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persons may be denied legal status because of a previous illegal entry or overstay of a visa. Most important, a person unlawfully present for more than six months will be inadmissible for three years, and those unlawfully present for more than one year will be inadmissible for ten years.⁴ If Congress decides not to renew the provision [known as Section 245(i)] that permits these individuals to adjust status within the United States, they will be unable to become legal immigrants even if they meet all other admission criteria.

An unknown, but believed to be large, number of spouses and minor children awaiting legal status are unlawfully present in the United States. While the Commission does not condone their illegal presence, we are cognizant of the great difficulties posed by the four-or-more-year waiting period for a family second-preference visa. U.S. immigration policy should not force legal immigrants to choose

between family responsibilities and vows and their continued presence in the United States. The Commission believes no spouse or minor child should have to wait more than one year to be reunited with their U.S. petitioner.

The Commission is also concerned with the impact on nuclear family reunification of the provisions adopted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA] to address perceived abuses in the use of

parole. We agree that parole should be used only in exceptional circumstances and that Congress should be involved more directly in decisions to parole large numbers of

⁴ IIRIRA permits the Attorney General to provide a waiver for spouses and minor children if there is an extreme hardship to the U.S. petitioner. Although standards have not been set for implementing this provision, mere separation from family members generally has not counted as an "extreme hardship" in applying other provisions where extreme hardship is a ground for relief.

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individuals for permanent residence. We further recognize the validity of efforts to count long-term parolees against worldwide numerical ceilings. However, we do not agree with the IIRIRA provisions that count parolees against

family-based admission numbers. Moreover, the language of IIRIRA requires the counting of those admitted with the

intention that they reside permanently and those who are paroled for short stays but who are not known to have left one year later. For the first time in U.S. law, persons illegally in the U.S. would be counted against legal admission ceilings. This creates a conflict between policies. Moreover, inadequacies in current entry-exit controls mean that some parolees who leave the country will be determined to have remained and will also be counted against the legal admissions ceiling. Because the parole numbers are deducted from the family preferences, the new provisions hold the potential for delaying still further the already unacceptable delays in admission of nuclear family members.

The Commission believes that the national interest in the entry of nuclear family members outweighs that of more extended family members. We recognize that others disagree; they argue that the bonds to adult children and adult siblings can be as strong as the bond between spouses and with minor children. They also point to the valuable assistance provided by many extended families in setting up and running businesses and providing child care and other supportive services. Whatever the cultural and economic values attached to each family relationship, however, the far stronger responsibilities to one's spouse and minor children are well established in the U.S. We continue to believe that our family reunification system will remain seriously flawed

until the spouses and minor children of LPRs are treated as

a priority.

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An end to extended visa categories is justified even apart from the large nuclear family backlog. The Commission pointed out in its 1995 report that the extraordinarily large waiting list for siblings of U.S. citizens, and to a lesser extent, adult children undermines the integrity of the legal immigration system.

The backlog for siblings of adult U.S. citizens has stabilized during the past two years, but at a very large level. In January, 1995, there were 1.6 million on the waiting list; as of January 1997, the waiting list was 1.5 million. Except for oversubscribed countries, siblings who applied ten years ago are now eligible to enter. Admissions from the Philippines are of those who applied almost twenty years ago. These extended waiting periods mean that most siblings enter well into their working lives, limiting the time during which they can make a contribution to the U.S. economy. More than one-half of all the siblings and their spouses admitted in

FY 1996 were above the age of 45. In other immigration categories, most principals are in their twenties or thirties.

The backlog for adult children is growing. In January 1995, there were about 70,000 unmarried sons and daughters of citizens, 500,000 unmarried sons and daughters of LPRs, and 260,000 married sons and daughters of citizens in the backlog. As of January 1997, the unmarried backlog had grown to more than 90,000 and 575,000, respectively, and the married children backlog is more than 310,000.

A particular concern is the "aging out" of children who were minors at the time of application, but who turned 21 years

of age while awaiting their green cards. The Commission proposed in our 1995 report that the Immigration and

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Nationality Act [INA] be amended so 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."

n Skill-based admissions policies that enhance opportunities for the entry of highly-skilled immigrants, particularly those with advanced degrees, and eliminate the category for

admission of unskilled workers. The Commission continues to recommend that immigrants be chosen on the basis of the skills they contribute to the U.S. economy. Only if

there is a compelling national interestsuch as nuclear

family reunification or humanitarian admissionsshould

immigrants be admitted without regard to the economic contributions they can make. The reunification of adult children and siblings of adult citizens solely because of family relationship is not as compelling.

A number of the NRC report's findings argue for increasing the proportion of immigrants who are highly-skilled and educated so as to maximize fiscal contributions, minimize fiscal impacts, and protect the economic opportunities of

unskilled U.S. workers. The NRC research shows that education plays a major role in determining the impacts of

immigration. Immigration of unskilled immigrants comes at a cost to unskilled U.S. workers, particularly established

immigrants for whom new immigrants are economic substitutes. Further, the difference in estimated fiscal

effects of immigrants by education is striking: using the same methodology to estimate net costs and benefits, immigrants with a high school education or more are likely to be net contributors while those without a high school degree are likely to be net costs to taxpayers.

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Shifting priorities to higher skilled employment-based immigrants will have a beneficial multiplier effect. The highly-skilled are, in effect, new seed immigrants who will petition for admission of their family members. The educational level of the spouses and children of highly-educated persons tends to be in the same range. Hence, our society benefits not only from the entry of highly-skilled immigrants themselves, but also from the entry of their family.

The Commission's framework for legal skill-based

admissions includes two broad categories. The first category would cover individuals who are exempt from labor market tests because their 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: aliens with extraordinary ability, multinational executives and managers, entrepreneurs, and ministers and religious workers. The second category covers individuals subject to labor market tests, including professionals with advanced degrees, professionals with baccalaureate degrees, and skilled workers with specialized work experience.

In our 1995 report, the Commission recommended allocation of 100,000 admission slots to skill-based immigrants. That number represented an increase of about 10 percent over actual usage of these visas, but a decline from the statutory ceiling of 130,000 admission numbers (i.e., 140,000 minus the 10,000 allocated to lesser skilled workers). We further recommended that unused skill-based admissions carry over to the following year's skill-based admissions.

The trend in admission of skill-based immigrants supports our 1995 recommendations, but also indicates the great need

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to monitor and revise admission numbers as needed. In

FY 1995, 85,000 employment-based immigrants were admitted, including 7,900 unskilled workers. This number was artificially low, however, because of INS delays in adjudicating applications for adjustment of status. In FY 1996, admissions totaled 117,000, including 12,000 unskilled workers. The 100,000 skilled admission numbers recommended by the Commission would have been sufficient to cover the period 1994-1996 (with the carry-over provision). However, if the

FY 1996 spike turns out to be real (rather than an artifact of the adjustment of status delays of FY 1995), the number of employment-based visas may need to be revised.

The Commission also continues to recommend changes in the procedures used in testing the labor market impact of employment-based admissions. Rather than use the lengthy, costly, and ineffectual labor certification system, the Commission recommends using market forces as a labor market test. To ensure a level playing field for U.S. workers,

employers would attest to having used normal company

recruiting procedures that meet industry-wide standards, paying the prevailing wage, and complying with other labor standards. Businesses recruiting foreign workers also would be required to make significant financial investments in certified private sector initiatives dedicated to improving the competitiveness of U.S. workers. These payments should be set at a per-worker amount sufficient to ensure there is no financial incentive to hire a foreign worker over a qualified U.S. worker. Labor certification continues to be a time-consuming, unproductive way to protect U.S. workers from unfair competition from immigrant workers. The Department of Labor has tried to institute reforms that have streamlined the process for certain applications. The result, however, has been to slow down even further other applications that do not meet the streamlining requirements.

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n Refugee admissions based on human rights and humanitarian considerations, as one of several elements of

U.S. leadership in assisting and protecting the world's

persecuted.⁵ Since its very beginnings, the United States has been a place of refuge. Today, when millions of refugees are displaced because of persecution, human rights violations, or warfare, U.S. leadership in responding to refugee crises is critical. The Commission believes continued admission of refugees sustains our humanitarian commitment to provide safety to the persecuted, enables the U.S. to pursue foreign policy interests in promoting human rights, and encourages international efforts to resettle persons requiring rescue or durable solutions. The Commission also urges the federal government to continue to support international assistance and protection for the majority of the world's refugees for whom resettlement is neither appropriate nor practical.

Admissions to the U.S. should be seen within the context of broader U.S. interests in protecting and assisting refugees worldwide. The Commission believes a comprehensive U.S. refugee policy should be coordinated by an office within the National Security Council [NSC] to serve as the White House focal point for domestic and international refugee and

related humanitarian issues: to care for and protect refugees overseas; to resettle the few for whom U.S. resettlement is the only or best option and provide sensible transitional assistance to them; to operate an effective system for protecting bona fide asylum seekers in the U.S. while deterring those who are not; and to adopt a humane and effective plan to respond to mass migration emergencies.

⁵ For a full explanation of the Commission's refugee-related recommendations, see U.S. Refugee Policy: Taking Leadership, 1997.

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The admission of refugees should be divided into two broad priority groups with numbers allocated accordingly. The first priority would be for refugees who are in urgent need of rescue and refugees who are the immediate relatives of persons already living legally in the United States. The second priority would include refugees whose admission is of special humanitarian interest to the United States but who are not in imminent danger where they currently reside. Admission numbers would be sufficient each year to guarantee entry to all bona fide applicants within the first priority and an agreed-upon number for the second priority Family members and close household members who are dependent on the principal applicant for financial or physical security

should also be included among admissions within this priority system.

The United States should set annual numerical targetsbut not a statutory limitfor future refugee admissions. The Commission recommends an improved consultation process that will help ensure that admission numbers and allocations meet U.S. national and international interests. The annual consultations should be strengthened by considering projections of admission levels and priorities for at least two years beyond the fiscal year under immediate consideration.

Input should be solicited from a wide range of human rights and humanitarian organizations with knowledge of conditions precipitating the need for resettlement.

The United States also should use an active, inclusive process for identifying and making decisions regarding the admissibility of applicants for resettlement, conferring with a broad set of agencies in identifying possible candidates for resettlement. The U.S. government should confer with a broader set of agencies in identifying possible candidates for

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resettlement, including international and local human rights organizations, relief agencies providing assistance to refugees, and host governments.

The Commission further believes changes are needed to make the administrative processes for admission more flexible and streamlined in determinations of eligibility in order to

respond quickly to refugee crises. Also, refugees should be admitted with LPR status except in cases where there has been inadequate opportunity prior to admission for the

admitting officer to thoroughly review the case(s).

The Commission supports a continuing program of assistance to refugees after entry. The current array of assistance and services that characterize the resettlement program should be maintained, but with increased attention to services that prepare refugees for rapid economic self-sufficiency and civic participation. In addition, the federal, state, and local agencies involved in resettlement should develop a national plan for streamlining the program to address the complexity of the funding process and reporting requirements, the overlap of programs and responsibilities, and the lack of clear

accountability for the outcomes of the program.

The current public/private partnership in the domestic

resettlement program should be continued, but for a three-year trial period their division of responsibility should be more explicit, with (1) the public sector assuming responsibility for refugees eligible for the publicly funded public

assistance programs and (2) the private sector being

responsible for a limited duration program for refugees not eligible for the mainstream public programs.

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The mechanisms by which the refugee program is funded should be strengthened through changes to the Refugee Act: (1) to specify a minimum time period of special refugee cash and medical assistance provided to refugees not eligible for Temporary Assistance for Needy Families [TANF] or Supplemental Security Income [SSI]; (2) to permit the appropriation of "no year" money for the cash and medical assistance portion of the Office of Refugee Resettlement [ORR] budget; (3) to broaden the consultation process to ensure greater consistency between admission decisions and appropriation of funds to support refugee assistance and services; and (4) to establish a domestic emergency fund.

The Commission continues to recommend against denying benefits to legal immigrants solely because they are noncitizens. The Commission believes that the denial of safety net programs to immigrants solely because they are noncitizens is not in the national interest. In previous reports, the Commission argued that Congress should

address the most significant uses of public benefit programs

particularly, elderly immigrants using Supplementary Security

Incomeby requiring sponsors to assume full financial responsibility for newly-arriving immigrants who otherwise would be excluded on public charge grounds. In particular, the Commission argued that sponsors of parents who would likely become public charges

assume the responsibility for the lifetimes of the immigrants (or until they became eligible for Social Security on the basis of work quarters). We also argued that sponsors of spouses and children should assume responsibility for the duration of the familial relationship or a time-specified period. We continue to believe that this targeted approach makes greater sense than a blanket denial of eligibility for public services solely on the basis of a person's alienage.

Basing eligibility for assistance on citizenship debases citizenship. We encourage immigrants to become citizens in order to participate

The Commission

continues to

recommend

against denying benefits to

legal immigrants

solely because

they are

noncitizens.

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fully in the civic life of the country. We do not want immigrants to become citizens solely because the alternative is the serious economic hardship that may result if benefits are lost or unavailable. In some cases, categorical denial of eligibility to legal aliens undermines the very purpose of our immigration policy. For example, the United States admits refugees, as noted above, to provide protection against the dangerous situations they encounter in their home countries and first-asylum countries. Some of the most vulnerable refugees requiring such protection are the elderly and disabled who will have the greatest difficulty meeting our naturalization standards.

This is not to deny that elderly and disabled immigrants pose a cost to U.S. taxpayers. The NRC report confirms this fact. By contrast, however, immigrants who come during their prime working years generally do not pose a net cost to the taxpayer over their lifetime. Most of the fiscal impact related to the presence of immigrants comes in the area of education, which can be seen as both a cost and an investment as education has long-term benefits to the United States both in a more skilled workforce and in higher income and resulting tax payments.

The Congress did not accept the Commission's recommendations to preserve the safety net. Some eligibility for elderly and disabled immigrants receiving Supplementary Security Income lost as of the

enactment of the welfare reform legislation has been restored as a result of budget negotiations. Eligibility for food stamps and other programs designed for the working poor were not restored, however. And, future immigrants will be ineligible for SSI even if they become disabled after entry and have no other means of support.

The Congress did adopt, but in a modified version, the Commission's recommendation for binding affidavits of support. The 1996

legislation framed the requirement in two ways that differ from the Commission's recommendations. First, the legally-binding affidavit, with its more rigorous requirements regarding the income of

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sponsors, applies to some persons who are not likely to be public charges but not to others who are likely to require assistance. The affidavits apply to all family-based immigrants, not just to those who are likely to be public charges. By contrast, the new affidavit will not be used for other admission categories (for example, diversity immigrants) even if an immigrant is likely to be a public charge.

Second, under the new legislation, the same time periods and

requirements apply to everyone who signs an affidavit. The affidavits are in force until the immigrant works forty quarters or becomes a U.S. citizen. The Commission believes the period of responsibility should be geared instead to the family relationship and likely period during which the immigrant may require assistance. For example, the sponsors of an elderly parent would be required to assume

a longer (even an indefinite) period of support if the parent is of

an age that makes it unlikely that he or she would become self-supporting. The responsibility for a spouse, however, would be for a time-limited period or for the duration of the marriage, whichever is longer. Under the new law, the responsibility of petitioners of younger immigrants is so open-ended that it does not provide a realistic or fair set of obligations. For example, if a U.S. citizen marries a foreign student with a professional degree and a job offer, the U.S. citizen must now take on a open-ended obligation to the foreign student, an obligation that carries on even if the marriage ends in divorce. If the immigrant spouse chooses not to work (and therefore doesn't meet the forty quarters requirement) and not to naturalize, the citizen remains responsible for his or her financial support (at 125 percent of the poverty level) indefinitely. The law has no "good cause" exception.

To conclude, the Commission's recommendations on legal admissions are as relevant today as they were in 1995. The Commission urges the Congress to take the measures needed to reform our legal immigration policies so it best serves the national interest in a well-regulated immigration system.

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