A Mixed Bag on Immigration

‘Compared to what?” is a central question for politics. On immigration, the House “compromise” immigration bill is far better from a center-right perspective than the USA Act, an essentially no-strings-attached amnesty promoted by Democrats and a handful of maximalist Republicans. Unlike the USA Act, the Border Security and Immigration Reform Act is actually a compromise: It trades an amnesty for some concrete reforms to both enforcement and the legal-immigration system. Its reforms are not quite as broad as those offered in the Goodlatte bill (which is also scheduled to be voted on this week), but there are some. However, “Compared to what?” rears its head again: Are these reforms enough compared to the troublesome incentives the “compromise” bill would create?

First of all, yes, this bill is an amnesty. It grants permanent legal status and a path to citizenship to individuals who broke the law. Like other amnesties, it offers an immigration pathway that millions of foreign nationals who chose to follow American law are denied. It offers an amnesty significantly larger than the current set of DACA recipients. It would be offered to many of those currently eligible for DACA — not just those who have received status under it. This could amount to a couple million people, which would be an amnesty about two-thirds the size of the Reagan amnesty. Despite media spin about “DACA kids,” the House immigration bill would offer legal status to 37-year-olds (recipients can have been no older than 31 on June 15, 2012). Amnestied individuals would be given a six-year renewable non-immigrant visa and eventually would be able to get a green card, if they met further additional standards; under this proposal, certain categories of children of guest workers would also be able to get a green card.

And what does the center-right get in return for the massive amnesty? Well, something. It gets a little over $23 billion for border security, including almost $17 billion for the wall. Chain migration would be reduced, and tweaks would be made to the immigration system. The current preference for siblings of U.S. citizens (65,000 visas a year) would be ended, and those visas would be rolled over to employment visas. The diversity lottery (55,000 visas) and preference for married children of U.S. citizens (23,400 visas) would be transitioned into an “escrow” account to “pay for” the green cards for amnestied individuals as well as the children of certain guest-workers (a significantly smaller number). The idea of using existing visas to pay for amnesty visas is something I explored in NRO earlier this year, and it seems a bare minimum for any conservative compromise on amnesty; visa offsets do not reduce legal immigration over the long term but instead rebalance existing immigration flows. After those amnesty visas are “paid for,” the 78,400 visas from these categories would disappear in future years (which differs from offsets program I sketched out). However, this could take decades.

However, the fact that the visa escrow is considered a compromise is a sign that Republicans are only getting so much by offering it. In terms of net migration, the effects of this bill could be hard to predict. The bill would eliminate some per-country caps on immigration, so it could end up making American immigration flows less diverse. Certain elements of this proposal would decrease legal immigration over the long term; because certain visa categories (such as parents, spouses, and minor children of U.S. citizens) are uncapped, ending some migration pathways, such as the diversity lottery, could eliminate some chain migration. And once the amnesty is paid for, the abolition of 78,400 visas annually would cause a slight decrease in legal immigration. However, granting citizenship to DACA recipients and the children of guest workers would also cause legal immigration to increase. Once these recipients become citizens, they could then immediately sponsor their parents for green cards. So the net effects on immigration remain to be gamed out.

This brings up one of the ways in which the House immigration bill undermines some of the moral arguments made on behalf of a DACA-style amnesty: DACA recipients were brought into the country “through no fault of their own,” so they should be welcomed into the American body politic as full participants. This is an argument not without its merits. However, under current immigration preferences, these DACA recipients will be able to sponsor their parents for permanent legal residence shortly after becoming citizens. Starting in a little over a decade (five years to transition from non-immigrant status to green card, five more to transition to citizenship), these amnestied individuals would be able to start sponsoring those who broke the law to bring them into this country in the first place. This amnesty would set a precedent of rewarding people for using their minor children as pawns in order to gain entry into the United States. Moreover, granting permanent legal status to the children of guest workers has its own moral hazard: The premise of guest workers is that they are here temporarily, so giving some of them access to permanent status through their children would be unfair to more recent guest workers as well as those who chose not to become guest workers because they were told that such status was only temporary. (Of course, guest-worker programs as a whole are shot through with moral peril, which is why a substantial reform and reduction of them would be a defensible policy.)

Sometimes the benefits of a policy can outweigh the risks of a bad precedent. But part of responsible policy-making is to take steps to counteract that bad precedent. The experience of the 1986 amnesty proved that amnesty increases the incentive for illegal immigration, and the counteracting measures of the 1986 amnesty were not enough to undercut this incentive.

Prohibiting amnestied individuals from sponsoring their parents for permanent residence, and allowing only a long-term renewable visa (which would not grant the right to work or collect public benefits), could be one way of diminishing this moral hazard. (That prohibition would have its own complications, however.)

E-Verify is a popular measure, and including a mandate for E-Verify could address some of the structural defects of this bill.

Another would be to put E-Verify in place as part of this amnesty. Much of this bill focuses on “border security,” but a significant chunk of illegal immigrants are visa-overstayers, and immigration enforcement at the border is being increasingly politicized. E-Verify is a popular measure, and including a mandate for E-Verify could address some of the structural defects of this bill. It would offer a permanent deterrent to future illegal immigration, and it would not cause the same kind of polarizing images that other routes of immigration enforcement might.

Unlike past supposedly “compromise” measures, the House “compromise” bill actually does give the center-right something up front. It ends certain chain-migration categories immediately; even if those visas are redistributed to other categories, ending chain-migration categories is one of the first steps to making the American immigration system more in accord with the national interest and principles such as equality and opportunity. The border-security money is noteworthy, too, but it’s less impressive. It is parceled out over many years, and, if the White House had not allowed itself to be outmaneuvered in the omnibus negotiations earlier this year, it could have gotten some of this money without making further concessions on DACA. There are other changes made to asylum policies, but the procedural reforms on immigration enforcement do not include all of the Goodlatte bill’s provisions.

A few other process-related points arise. This is a big bill, with many moving parts. It certainly would be one of the most consequential pieces of legislation passed this year. Voting on it less than a week after the text has been unveiled is a risky business. The last time Congress rushed to pass an immigration-related bill (the omnibus), it ended up blocking the president’s campaign promises on immigration. Also, it remains unclear what would happen to this bill in the Senate. As it stands, the bill is a mixed bag from a center-right perspective. Further modifications by the Senate — for instance, continuing certain chain-migration categories or expanding guest-worker programs — could pull it even farther from the hope of an immigration system that encourages opportunity for all Americans.

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