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Why the Government Cannot Ban All Immigrants from a Certain Country – Article by David Bier

Why the Government Cannot Ban All Immigrants from a Certain Country – Article by David Bier

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David Bier
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I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Why “visa” cannot be interpreted narrowly

Not only is this interpretation based on the government’s own longstanding regulations, the interpretation of section 202 that the government offered during appeal would require it to adopt a variety of other positions that are at odds with the statute and regulations.

If “visa” in section 202 was interpreted to mean only the visa document, then adjustments of status applications for persons inside the United States would be exempt from the numerical limitations on visas in that section and in section 203. The clear intent of Congress was to control the number of persons who are entering the United States, not visa documents issued, and so the department has always held this view. Thus, the U.S. attorney in oral arguments before the district court admitted that per-country limits were about allocating how many people the United States allows “to come into the country.”

If the person is determined ineligible to enter, the visa is revoked at this point, and the State Department considers it not to have been issued at all. In other words, the department only counts “status” determinations against the visa caps, despite the fact that the section never mentions status. It is interesting to note on this point that the original version of the Immigration and Nationality Act of 1952 actually had consular officers grant immigrants “status” abroad, which could be revoked at entry if they were deemed ineligible.

Why the government cannot be biased in entry but not in visa issuance

This interpretation does not undermine the distinction between visa issuance and admission in section 101(a)(4) because a determination of inadmissibility under section 212 applies equally to admission at the border as it does to visa issuance abroad. Immigration officers inside the country rely on the same criteria to determine eligibility to enter that consular officials use to determine eligibility for an immigrant visa. A person granted an immigrant visa in an unbiased manner would not be entitled to enter at the border. He would just be entitled to similar unbiased treatment.

This proves that the law forecloses the idea that the government could be unbiased in visa issuance but not in entry. This is also why all presidential proclamations under 212(f) are immediately printed in the State Department’s Foreign Affairs Manual. The manual explains, “Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.”

The executive order itself admits that the State Department will be enforcing it by suspending visa issuance just as much as the Department of Homeland Security by suspending entry, and indeed, it has suspended visa issuance to nationals of those seven countries.

Another problem for the government’s view is that it implies that Congress intended to create a system in which it required non-discrimination for applicants abroad, but not applicants at ports of entry or inside the United States. Indeed, their argument would free the government to discriminate based on nationality in adjustment of status applications for immigrants who are residing inside the United States right now, even without a presidential determination that they are a “detriment.”

Not only is this plainly absurd, this would create the bizarre result that immigrants adjusting in the United States would have fewer protections against discrimination than immigrant applicants abroad. This leaves the government arguing that immigrants abroad have fewer constitutional rights than immigrants in the United States, while somehow also having more statutory rights.

This obviously cannot have been what Congress intended. In fact, as I have previously explained, Congress debated this very question of whether ending discrimination would allow unvetted individuals to enter the United States from certain countries where information is difficult to obtain. They rejected this argument. No member of Congress in 1965—whether they were for the bill or against it—believed that President Johnson could then have immediately undone their work with a presidential proclamation.

David_BierDavid Bier

David Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

“The Line” for Green Cards Is So Long, You Might Die of Old Age Waiting – Article by David Bier

“The Line” for Green Cards Is So Long, You Might Die of Old Age Waiting – Article by David Bier

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David Bier
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Immigrants are often told to “get in line” if they want to stay in the United States. This demand is disingenuous for many reasons. Many immigrants have no line to get into. And even if they do, we are telling them to join these lines when no one even knows how long they are. In many cases, we could be asking immigrants to join a line that they will literally never live to see the end of.

Immigrants might face a line they will literally never live to see the end of. We don’t know much about who’s in these lines until they get to the front, but here’s what we do: Thousands of immigrants come to the United States each year on temporary work visas. While working in temporary status, some of their employers petition on their behalf to obtain green cards for them to stay permanently. If the employer has jumped through all the appropriate hoops, the worker can then apply for a visa, if — and this is a big if — the limit on visas that year has not been reached.

This is where the line — and the waiting — starts. For lawmakers trying to fix the immigration system, figuring out how many people are at this point in the process is critical. But even they don’t know.

5 million people are waiting abroad.We do have a good idea how many people are waiting overseas. The State Department keeps track of those numbers and publishes them annually, and we’re quickly approaching 5 million immigrants waiting abroad, which is an astounding number on its own.

But for temporary immigrants already in the United States, the Department of Homeland Security doesn’t keep track — or doesn’t publish — the number of applicants who are prevented from receiving a green card due to the limits.

The State Department publishes a monthly visa bulletin that tells people in either line — here or abroad — whether they can apply for a green card. It lists a date, as seen below, next to a visa category. This date is the cutoff. If your employer’s petition was filed after the date listed, you cannot apply for a green card yet.

Figure 1: Visa Bulletin — Application Final Action Dates for Employment-Based PreferencesvisabulletinSource: State Department

These dates can sometimes create the misleading impression that immigrants from India, for example, will have “only” twelve years to wait for a green card. But that’s not right. That’s just how long immigrants who are currently receiving their green cards today have been waiting. We simply don’t know how many people applied since October 2004, so we don’t know how long someone applying today will have to wait.

Even the State Department doesn’t know who’s in line.Apparently, even the State Department doesn’t know who is in the line. When the department moves up the dates, it basically guesses how many people applied between the current date and the new date. When it moved the dates up for EB-2 and EB-3 categories from India (workers who have a Master’s or a Bachelor’s degree) to 2010 and 2007, the government was flooded with more applications than there were visas available, and so it moved the dates back again to 2004.

This mistake, however, gave us some small insight into who is waiting.

We cannot know for sure whether everyone who could apply submitted an application before the date moved back, but the Department of Homeland Security lists 46,098 Indians currently waiting at this stage. The State Department also lists almost 30,000 more waiting for employment-based green cards abroad, for a grand total of nearly 76,000 Indians. Because each country is limited to no more than 2,800 visas in each category, clearing just this backlog alone will take almost 10 years for EB-2 and more than 14 years for EB-3.

But that only gets us up to 2007 and 2010 for those categories. We simply have no idea how many people could be waiting beyond those dates. It would be nice to be able to estimate the number based on green card applications filed before those dates, but the list only gives us the number pending at any given time. It doesn’t show the total number submitted in a year. Some may have already been processed. Others may have been submitted later, after other older applications passed through.

A rough estimate shows 230,000 people in line, a fifty year wait.We know that in 2008, there were at least 19,512 green card applications under EB-2. For EB-3, the numbers haven’t gotten up to 2008 yet, but in 2006, there were at least 12,708 filed for that category. Simply carrying these numbers forward for each unknown year, there would be roughly 230,000 people in line, which would translate into an almost 50-year wait.

The situation is likely worse than that. We know that the number of Indian temporary workers has increased dramatically relative to the number of green cards issued to them in the past couple decades (Figure 2). We also know that roughly half of all employment-based labor certifications (the step employers complete prior to submitting most EB-2 and EB-3 green card petitions) are for Indian workers.

Figure 2: Total Cumulative Green Cards and L or H-1B Visas Issued to Indians Since 2007
h1bslsgreencardsSources: H-1B/Ls: USCIS/State Department; Green cards: DHS

Since 2002, 450,000 Indians received a green card, while roughly 2.4 million high-skilled immigrants from India and their families have entered under the H visa or L visa (for employees transferring to a U.S. branch of their company). Some portion of these workers could have been beneficiaries of an EB-3 green card petition after 2007, the last date on which we know anything about who is in line.

They’ll be waiting somewhere between 50 and 350 years. All we know is this: somewhere between 230,000 and 2 million Indian workers are in the backlog, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards. And that’s just one country. The backlogs for Chinese immigrants and immigrants from the Philippines continue to grow as well.

America’s immigration system is broken worse than anyone can even know.

David_BierDavid Bier

David Bier is an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.

This article was originally published on FEE.org. Read the original article.

59 Policies from One Year of Donald Trump – Article by David Bier

59 Policies from One Year of Donald Trump – Article by David Bier

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David Bier
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One year ago, Donald Trump thrust his bizarre, erratic, and incomprehensible campaign on the world. Much has been said about Trump’s “rhetoric” during his campaign — the racism, sexism, incivility, and much else besides — but rhetoric is not what makes a Trump administration a unique threat to the country. It is his policy proposals that should receive our closest attention and concern.

Below is a list of 59 “policies,” if you can dignify them with such a title, that Trump has proposed during his campaign. The list drives home how truly frightening a Trump presidency would be for the country and the world. Skimming the surface of Trump’s stream of consciousness brings out some particularly disturbing aspects of his agenda: notably, the way he singles out specific businesses and individuals for targeting by the government, as well as his obsessions with China, Mexico, Muslims, and immigrants.

Perhaps worst of all, Trump’s proposals expose how broad he thinks the powers of the presidency are: virtually infinite. There is never a glimmer of understanding that the government is bound by the Constitution, that the federal government has limited scope and authority, or that president is just one of three equal branches of the federal government.

Instead, it is Trump, and Trump alone, who will transform American laws, government, and society, from the top down. Trump will bomb and invade countries, Trump will steal their oil, Trump will kill deserters, torture suspects, bypass courts, ban Muslims, break treaties, and have the military do things like mass executions with bullets dipped in pigs’ blood — all while getting Americans to say “Merry Christmas” again.

Well, all I can say is Merry Christmas, America. Here’s what the primaries brought us this year.

Bold: attack on individual or business.
Italics: attack on Mexico or China.
Underlined: attack on immigration.

June 2015

1. Make Ford Scrap Expansion Plan in Mexico

August 2015

2. Deport 11 Million Immigrants
3. Triple Number of Deportation Agents
4. Force Cities and States to Help Deport Immigrants
5. Force Mexico to Pay for Wall on US Border
6. Strip US Citizenship from Babies Born to Immigrants

September 2015

7. Use FCC to Fine His Critic, Rich Lowry
8. Place 35% Tariff on Ford Cars Made in Mexico
9. “We Will Break” North American Free Trade Agreement
10. “Government Will Pay” for Health Care for “Everyone”

October 2015

11. Deport Syrian Refugees Legally in the US
12. Soldiers Who Desert Should Be Shot
13. Spend Tens of Billions on Border Wall
14. Keep Troops in Afghanistan

November 2015

15. Kill TPP Free Trade Agreement
16. Get Americans to Say “Merry Christmas”
17. Create Special Deportation Force to Remove Immigrants
18. “Bomb the S***” Out of Syria
19. Close Mosques in the United States
20. Create Database for Muslims
21. Bypass Courts in Mass Deportation Plan

December 2015

22. Restart Warrantless Surveillance, Metadata Collection
23. Kill Family Members of Terrorists
24. Washington Post Is a “Tax Shelter” for Amazon, Jeff Bezos
25. Ban All Muslim Travel to US
26. Shut Down “Parts” of the Internet
27. Issue Executive Order Mandating the Death Penalty for Killing Police

January 2016

28. Impose 45% Tariff on Chinese Products
29. Throw Bowe Bergdhal Out of a Plane in Afghanistan

February 2016

30. Tells Supporters to Knock Out Protesters
31. Use Eminent Domain for Economic Development
32. Tax Carrier-brand Air Conditioners Made in Mexico
33. Force Apple, Tim Cook to Break into iPhone for FBI
34. Keep Obamacare’s Individual Mandate for Health Insurance
35. Praises Mass Executions of Captured Soldiers with Bullets Dipped in Pigs’ Blood
36. Threatens Donor for Giving to Opponent’s Campaign
37. Prosecute Hillary Clinton
38. Proposes “Trade War” with China
39. “Open Up Libel Laws” to Sue Critical Press

March 2016

40. Force Apple to Make iPhones in US, not China
41. Force Military to Follow Illegal Orders
42. Prosecute Ed Snowden for “Spying” for Russia
43. “Torture” Terrorism Suspects
44. Increase Military Spending
45. Steal Iraqis’ Oil
46. “Pause” Legal Immigration
47. Send 20,000 or 30,000 Troops to Middle East
48. Trump Could Envision a Nuclear First Strike
49. Appoint Supreme Court Justice to Investigate Clinton’s Email

April 2016

50. Raise Taxes on the Wealthy

May 2016

51. Threatens Pfizer, Carrier, Ford, and Nabisco With 35% Tariff
52. Increase Minimum Wage
53. “Go After” Amazon for Anti-Trust and Taxes
54. Bomb Libya
55. Threatens “Mexican” Federal Judge Trying His Case

June 2016

56. “Keep Business Out of Mexico”
57. Ban All People from Countries with “History of Terrorism”
58. Surveillance of US Mosques
59. Ban Guns for People on Secret “Watch Lists”

David Bier is an immigration policy analyst at the Niskanen Center. He is an expert on visa reform, border security, and interior enforcement. From 2013 to 2015, he drafted immigration legislation as senior policy advisor for Congressman Raúl Labrador, a member of the House Judiciary Committee’s Subcommittee on Immigration and Border Security. Previously, Mr. Bier was an immigration policy analyst at the Competitive Enterprise Institute.  

This article was published by The Foundation for Economic Education and may be freely distributed, subject to a Creative Commons Attribution 4.0 International License, which requires that credit be given to the author.

This TRA feature has been edited in accordance with TRA’s Statement of Policy.

Does America Ban Immigration? – The Land of the Free Isn’t, For Most People – Article by David Bier

Does America Ban Immigration? – The Land of the Free Isn’t, For Most People – Article by David Bier

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David Bier
August 3, 2015
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The United States has a de facto ban on immigration. We can debate about whether this prohibition is necessary, but its existence is undeniable. Other than a few exceptions for family members, refugees, and the highly-educated, it is virtually impossible to come to the United States to live and work legally.

Historically, America held its doors open to all. But in the 1920s, a coalition of unions, progressives, and eugenicists combined to slam them shut. Within a year of passing Alcohol Prohibition, America also banned almost all forms of immigration, cutting immigration by nearly 80 percent.

Alcohol regained its legal status, but immigration never quite recovered.

Today, the government lets in almost a million immigrants each year, but this impressive-sounding number misses the entire legal, historical, and global context of our immigration system. We must compare it to the number who would come if only they could do so legally — and the reality is that most types of immigration are entirely prohibited. To deny the ban on immigration because it has exceptions is like denying Alcohol Prohibition because it allowed communion wine.

The half million people apprehended at the border each year and the 11 million unauthorized immigrants in the country are the clear evidence of this prohibition. The massive immigration underground points to an obvious yet largely ignored fact: If there was a legal way for them to come, they would have taken it. But, trouble is, one doesn’t exist.

The drastic shortage of visas is evident in the unbelievably long wait times for permanent residency. For certain categories, the wait is decades. For employment-based visas, certain Indian and Chinese workers will wait more than a decade. For Mexico, three different family-based categories have wait times over 18 years. There’s northward of 4.3 million people in these lines alone.

Yet these impossible lines hide a deeper problem: most would-be immigrants have no line to stand in at all.

The reality is this: 92 percent of legal immigrants are either 1) immediate family members of US citizens or permanent residents, 2) refugees or asylees, or 3) college graduates — and over 80 percent those needed an advanced degree or at least $500,000 to invest in projects in the United States.

This leaves less than 65,000 visas for everyone else. More two-thirds of these come through a lottery system for which 11 million people applied last year. People in most of the largest countries in the world, including India, China, and Mexico, aren’t even eligible to apply.

This legal flow amounts to barely 7 percent of the average number of immigrants apprehended at the border each year since 2004 (and, of course, that doesn’t count those who crossed successfully, or those who entered and overstayed their visas, or those who would come if there was a legal opportunity). For people without a college degree or a close American relative, the Statue of Liberty’s “Golden Door” is almost completely shut.

Meanwhile, PhDs, scientists, movie stars, pro-athletes, and other elites have a number of different work visas available to them. These allow them to live and work year-round in the United States.

By contrast, there is no work visa that allows lesser-skilled laborers to live and work year-round in this country. Unsurprisingly, this lesser-skilled demographic is disproportionately represented in the illegal population, 85 percent of whom lack a college degree.

Another reason we know that illegal immigration is being driven by the lack of a legal alternative is because of what happened when the government allowed foreign workers to come and go legally.

Thanks to a fluke of history, America had a brief period when it experimented with freer migration between the United States and Mexico. In the 1950s and ‘60s, the Bracero guest worker program let in about 5 million Mexican farmworkers. From 1956 to 1965, when the program was at its height, the number of unauthorized immigrants at the border averaged just 41,000, compared to over 436,000 a year in the prior decade.

After it was terminated in 1966 by another union-led coalition, illegal immigration never again fell to such low levels — not even for a single year, let alone an entire decade. By the 1980s, a million or more immigrants were routinely being caught by Border Patrol every year.

Supporters of the ban on immigration will say that America is at its breaking point, that we’re overwhelmed, that we can’t “handle” any more immigrants. But this fear is groundless: As a share of its population, America admitted four times as many immigrants each year in the early 1900s as it did in 2014. For a century from 1830-1929, immigration was twice as high as a share of the population as it was in the last two decades.

In absolute terms, America admits more immigrants than any other country, but relative to its size, US immigration levels are far lower than many Western countries. Controlling for population, Canada, Australia, and New Zealand all have higher levels of immigration than America today — even as high as the United States in the early 20th century — and they have not collapsed into chaos or poverty.

Immigration prohibition is real. Millions of people cross the border illegally (and thousands of businesses hire them illegally) for the same reason bootleggers had to brew booze in bathtubs. And, for the same reasons we repealed Alcohol Prohibition, we should also finally end America’s ban on immigration.

David Bier is an immigration policy analyst at the Niskanen Center. He is an expert on visa reform, border security, and interior enforcement. From 2013 to 2015, he drafted immigration legislation as senior policy advisor for Congressman Raúl Labrador, a member of the House Judiciary Committee’s Subcommittee on Immigration and Border Security. Previously, Mr. Bier was an immigration policy analyst at the Competitive Enterprise Institute.  

This article was published by The Foundation for Economic Education and may be freely distributed, subject to a Creative Commons Attribution 4.0 International License, which requires that credit be given to the author.

Are Immigration Laws Like Jim Crow? – Article by David Bier

Are Immigration Laws Like Jim Crow? – Article by David Bier

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David Bier
July 7, 2012
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Alabama Governor Robert Bentley was forced to defend his state’s harsh immigration law recently against charges that it amounts to a return to segregation-era racially biased policies.  “What took place in the civil rights era was a series of unlawful actions against lawful residents,” Bentley said in response to the charges. “It was a shameful chapter in our state’s history. The immigration issue of today is entirely different.”

Parallels to segregation might be slightly overdone, but to call immigration policies “entirely different” is disingenuous. America’s restrictive immigration system was invented by the Eugenics Research Institute’s future president, Rep. Albert Johnson (R-Washington), who wanted to protect America’s racial purity from, in the words he quoted from a State Department official, “unassimilable . . . filthy . . . and often dangerous” foreigners. While such laws are no longer justified on racial grounds, their impacts today are just as ethnically disparate—more than 80 percent of immigrants labeled “illegal” are Hispanic, and 97 percent (pdf) of deportees are Hispanic.

Nor was segregation “unlawful”—it was a bizarre system of legal controls. Although it’s best known as a system of social control, it was just as much a system of economic regulation. Jim Crow began humbly—with segregated streetcars in Georgia in 1891—but quickly escalated, imposing on southern businesses ever more burdensome requirements: twice the number of bathrooms, waiting rooms, ticket counters, phone booths, even cocktail lounges. The president of Southeastern Greyhound told the Wall Street Journal in 1957, “It frequently costs fifty percent more to build a terminal with segregated facilities.”

Businessmen Conscripted

Since laws that intend to control personal behavior are so rarely enforceable, governments conscript business people to act as de facto State agents. In this way social controls quickly morph into economic regulations. It is often forgotten that the railroad in the infamous Supreme Court case Plessy v. Ferguson (1896) actually helped fight  the “separate but equal” doctrine because it “saddled employers with the burden of becoming the state’s race policemen.” Immigration law, which began as a way to restrict the movement of foreigners into the United States, has followed exactly the same pattern. Today a vast portion of America’s immigration code targets businesses, not foreigners.

Jim Crow’s regulatory state only affected businesses that served both white and African American patrons. For most small businesses, the costs of the regime were simply too great. Similarly, for many businesses today, hiring migrant workers has just become too dangerous. “I always relate it to tax law,” labor law consultant Barlow Curran recently told the Tampa Tribune. “Federal tax law is so complicated that if the IRS audits you, regardless of how careful you’ve been, they’ll probably find something. The same thing is true of farm labor law.” No wonder Immigration and Customs Enforcement has imposed $100 million in fines in just the last three years alone—more than the Bush administration’s previous eight years.

Alabama has only added to these regulatory threats. The state’s HB 56—enacted a year ago—mandated that employers use E-Verify to check the work authorization for potential employees. Over 60,000 Alabama businesses missed the deadline. If employers are unable to comply, they face license suspensions and may even be given the “business death penalty,” permanent closing.

As Isabel Wilkerson documents in her Pulitzer Prize-winning The Warmth of Other Suns, more than six million African Americans fled the Jim Crow South and left many southern employers facing labor shortages. “Farmers . . . have [woken] up on mornings recently to find every Negro over 21 on his place gone,” editorialized the Macon Telegraph in 1916 as the Great Migration began. “And while our very solvency is being sucked out beneath us, we go about our affairs as usual.”

Fleeing the State

Alabama is discovering that harsh immigration laws can just as easily “suck the solvency out beneath” them. “From a business point of view, it’s a terrible piece of legislation,” Henry Hagood, CEO of Alabama Associated General Contractors, told Reuters. “My counterparts around the country are saying, ‘thanks for sending workers our way.’” Tens of thousands of workers have already fled the state. University of Alabama professor Samuel Addy found that losing these workers reduced the state’s GDP by between $2.3 billion and $10.8 billion.

Conservatives who profess a commitment to the free market must extend that commitment to the labor market. They must realize that harsh immigration laws have the same dire effects on business as other burdensome regulations. They limit not only the free movement of foreign workers but also the rights of American businesses to hire, transport, and associate freely. They need to go the same way as Jim Crow—into the dustbin of history.

David Bier is the immigration policy analyst at the Competitive Enterprise Institute.

This article was published by The Foundation for Economic Education and may be freely distributed, subject to a Creative Commons Attribution United States License, which requires that credit be given to the author.