Amnesty is a backdoor way of increasing legal immigration, so let’s treat it like one.
We live in an era of performative outrage, but it’s worth trying to imagine a middle ground for the immigration issue. To that end, I offer the concept of “visa offsets”: a way to provide amnesty to illegal immigrants in a way that will appeal to restrictionists.
Here’s how it would work. Those given amnesty would receive legal status and permanent-residency visas. However, going forward, a certain percentage of legal-immigration visas would be eliminated each year to “pay for” those amnesty visas. And when all the amnesty visas had been “paid for” over a period of years, the rate of future legal immigration would rise back to its original levels. So, for instance, if a million people got amnesty visas, future legal immigration could be cut by 100,000 a year over a decade in order to offset those amnesty visas.
This case for visa offsets starts from the premise that an amnesty is a backdoor way of increasing legal immigration. Because there is minimal support for expanding legal immigration (fewer than a quarter of Americans want this), visa offsets are a way of keeping the long-term rate of legal immigration the same even as illegal aliens are granted legal status. As Mark Krikorian, head of the Center for Immigration Studies, pointed out to me, visa offsets are not a totally novel idea. The Nicaraguan and Central American Relief Act (NACARA), a 1997 amnesty, cut 5,000 visas from the diversity-lottery program and 5,000 visas from a specific employment category every year to “pay for” the visas granted through this amnesty.
According to numbers from the Department of Homeland Security, on average about a million people gained permanent legal status annually between 2000 and 2016. (This is a high number by historical standards. Between 1980 and 1999, an average of about 760,000 green cards were given annually — and that includes the green cards given as part of the Reagan amnesty.) Extending this figure over the next 20 years gives us about 20 million green cards to work with, and visa offsets force policymakers to choose: Each of these green cards can go to a current illegal immigrant or to a future legal immigrant, but when they’re gone, they’re gone.
The current family-preference system puts constraints on the application of an offsets strategy. Zeroing out the number of visas available for a category without eliminating the category itself would only cause the backlogs to grow, so partial reductions in categories might be more prudent. Under current immigration law, there are no caps on immigration by the spouses, minor children, and parents of U.S. citizens, so no visas can be taken from these categories. Another 88,000 visas are given each year to the spouses and minor children of permanent residents, so promoting the nuclear family would place those off-limits too. But halving all other family-preference categories — siblings, adult children, etc. — would free up about 69,000 visas. Ending the diversity lottery would add another 50,000. This would provide nearly 120,000 visas a year that could be used to “pay for” amnesties. A DACA amnesty (covering only the 800,000 or so DACA recipients) could be “paid for” within about six or seven years.
Because of the current family-preference structure, visa offsets wouldn’t work so well for larger amnesties, considering the total illegal-immigrant population is probably about 10 million. However, ending the current family-preference system could open up more visas for an offset system. Eliminating the family-preference categories that we cut in half above, along with the end of the diversity lottery, would open up about 188,000 visas annually. This would cover a DACA amnesty within four years, a DACA-plus amnesty (of the kind proposed by the White House — about 1.8 million) within a decade, and a massive 8 million–person amnesty within 40 years. After the “pay for” period runs out, those visas could be redistributed to employment-based visas. Changing our treatment of adult citizens’ parents — giving them renewable residential visas instead of green cards, for instance — could open up an additional 100,000 green cards a year. More visas could also be freed up by eating into some employment-based visas or reducing refugee visas. (Whether such reductions are desirable is a separate question.)
It’s worth noting that the offset models suggested above would not unduly restrict new legal immigration. If all other elements of the immigration system were kept the same, an offset plan paid for by zeroing out most extended-family-preference visas would still likely allow over 800,000 new immigrants a year into the country. This would be substantially above the number of new legal immigrants who entered the U.S. annually throughout most years in the 1980s and 1990s. Unless one is willing to call Ronald Reagan and Bill Clinton rank nativists, allowing over three-quarters of a million new permanent residents into the country each year is not exactly draconian, especially as this slightly reduced rate would be paying for an amnesty.
There would be certain drawbacks to an offset plan. It could delay the U.S.’s transition to a more skills-based system for years, and a mass amnesty would delay that skills-based transition for decades. Combining offsets with the current family-preference system would only extend the backlogs for many categories. Of course, backlogs seem almost necessarily to follow from the current preference system.
But there are also certain advantages. An offset system would be a policy representation of a deeper fact: that illegal immigration is in fundamental competition with legal immigration. Even the biggest cheerleaders for immigration maximalism admit, for example, that low-skill immigrants drive down the wages of previous low-skill immigrants. In insisting that an amnesty not increase the long-term number of visas available, offsets would lessen the risk that an amnesty would further weaken the labor market for recent immigrants.
Offsets would also encourage discipline from policymakers. The quarter of the American population that wants increased legal immigration is substantially overrepresented in Congress. This devotion to increased immigration has encouraged many in Congress to design amnesties that are open to fraud and abuse — if 15 million rather than 11 million get legal status, so much the better. Under current policies, amnesties are freebies. And increasing legal immigration through serial amnesties is perhaps one of the least responsible ways of increasing legal immigration.
Offsets would remind policymakers that amnesties have a cost.
Offsets would remind policymakers that amnesties have a cost. Under offsets, every visa given to an illegal immigrant is one fewer that will be given to a future legal immigrant, so Congress will have to think hard about establishing standards about how many people it wants to legalize. Moreover, there is an ethical case for ensuring that any person receiving an amnesty faces strict requirements for establishing residency and so forth: All amnesties are an affront to the legal-immigration system, so it is especially unjust to give legal status to someone who does not really fulfill the requirements for an amnesty.
Offsets would give something to everyone. Over the short term, maximalists would get a substantial increase in legal immigration, albeit in the form of legalizing immigrants who are already here. Over the medium term, proponents of reduced legal immigration would get it. Over the long term, though, immigration rates would remain the same.
In some ways, visa offsets would be the inverse of the White House DACA framework. That framework promises a cut to legal immigration (which enrages maximalists) while delaying it for over a decade (which causes some restrictionists to fret). Offsets would instead redistribute how the current legal-immigration rate is apportioned over a period of time.
Offsets would not be a replacement for the much-needed debate about how our immigration system is structured. Nor would they address the question of sequencing for an amnesty (whether to grant an amnesty before or after certain enforcement efforts are implemented) or how to ensure that an amnesty does not, like the 1986 one, lead to increased illegal immigration. And offsets certainly do not make a case for an amnesty itself.
But they could be a way of forging a consensus on how to administer an amnesty if policymakers decide to implement one.
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