Point of View

Current immigration law counterproductive

August 25, 2011 

President Barack Obama and leaders of both parties in Congress say their highest domestic priority is creating jobs. If they are sincere about this, then let them reform immigration law. Jobs come from new businesses. "Immigrants were more than twice as likely to start businesses each month in 2010 than were the native born," according to a Ewing Marion Kauffman Foundation report in March.

Invention sparks job growth. Immigrants obtain patents twice as often as native-born Americans, spurring economic growth and job creation, according to a March 10 report for the Federal Reserve Bank of Dallas. It went on to say, "Immigrants founded 25 percent of U.S. high-tech startups between 1995 and 2005. Immigrants have much higher rates of business creation than natives and slightly higher self-employment rates."

Immigrant entrepreneurship and innovation have tremendous spillover effects for all Americans, in taxes collected, in productivity, in jobs created, in competitive advantage over other countries. In other terms, immigrants don't steal jobs; the right kind of immigrants create jobs.

But innovators who would love to immigrate to America are often excluded or discouraged by badly written and frequently amended U.S. immigration law. The current Immigration and Nationality Act is pervasively constrictive, contradictory and irrationally convoluted. We are missing out on economic growth - job growth - because Congress has produced an immigration code that makes the Tax Code look like a model of simplicity.

The current law strictly limits the number of people who may immigrate each year based on employment, job creation, innovation and investment. Congress has not changed that quota since 1990. The result for educated workers is spelled out by the Kauffman Foundation report:

"More than 1 million high-skilled workers are waiting for an employment-based green card, and untold numbers have given up on waiting or even applying. For those in the queue, their applications have been approved, but their green cards won't be available for years because of strict numerical limits on employment-based permanent visas."

Immigration law is contradictory; it encourages foreign students to acquire important skills here and some skilled employees to work here temporarily, but then works against their chances of settling here, starting businesses and building the economy in partnership with natives.

Immigration law is also irrationally convoluted. Based on a 1952 law that passed over President Harry Truman's veto, the current code has been amended hundreds of times and is a rabbit warren of exclusions, exceptions, requirements, conditions, qualifications, penalties, waivers, loopholes, potholes and sinkholes.

This unnecessary complexity dramatically magnifies the cost of hiring a foreign worker or of coming to the U.S. to invest in new business, not just by the high fees collected by the government but by the difficulty of understanding the law and complying with it. A good public law is one that anybody can understand and follow. By that standard, our immigration law is really bad.

By restricting the number of immigrant workers and making employment sponsorship expensive and complex, immigration law encourages American businesses to "offshore" many operations, sending jobs overseas, jobs that could have been done in our country, to our economic benefit.

A number of small-scale improvements to the law are possible, such as raising the quota for skilled-worker green cards or creating a new immigrant visa for job-creating entrepreneurs. But the best solution, the only long-run solution, is to scrap the existing law entirely and replace it with rational, clearly written, simple rules that feed the American economy with innovation and initiative and fulfill the dreams of deserving would-be immigrants.

There's another advantage to smarter immigration law: Additional entrepreneurs and innovators will be additional taxpayers, increasing tax revenue - without raising tax rates. Who can't get in back of that idea?

The longer Congress postures and postpones, the slower will be economic recovery and the more ground the United States will lose to countries that are learning to grow by immigration - something America knew, once upon a time.

Hans Christian Linnartz is a certified immigration law specialist practicing in Raleigh and teaching immigration law at Duke Law School.

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