Reform immigration? First recognize unfair rules from 1965

Special to The New York TimesJanuary 30, 2013 

President Obama has made it clear that an overhaul of America’s immigration laws is his top domestic priority. He expressed cautious support for a bipartisan plan by eight senators that would create a pathway to citizenship for 11 million illegal immigrants in exchange for tougher border enforcement, employment checks and temporary work visas for farmworkers and highly skilled engineers and scientists.

Many critical details are still missing, but the general framework is notable for its familiarity. Variations on all of these measures have been tried before, with mixed results. Legalization of the undocumented is humane and practical, but the proposals for controlling future immigration are almost certain to fail.

The promise to “secure the border” made for good politics even before 1986, when Congress passed the last comprehensive immigration reform bill. In the last quarter-century, we have spent approximately $187 billion on enforcement, mostly along the United States-Mexico border. This included a ninefold increase in the size of the Border Patrol since 1980, nearly 700 miles of fencing and the deployment of surveillance drones and motion sensors. These efforts reduced but did not stop unauthorized entries (only the Great Recession was able to reduce the net flow of Mexican illegal immigration to effectively zero). In fact, the hazards of crossing an increasingly militarized border led many Mexican workers to settle permanently in the United States.

Similarly, proposals for a new guest worker program, which were scuttled from the 1986 legislation because of opposition from labor and immigrant advocates, should again give us pause. From the agricultural “Bracero Program” of the 1940s and ’50s to the current H-2 visa for temporary unskilled labor, these programs are notorious for employer abuse.


If we really want to tackle unauthorized migration, we need to understand why it exists in the first place. The most important cause is our system of allocating green cards, or visas for permanent residency, which stipulates that no country may have more than 7 percent of the total each year. With an annual ceiling of 366,000 family- and employer-sponsored visas, the per-country limit is 25,620.

In practice, this means it is easy to immigrate here from, say, Belgium or New Zealand, but there are long waits – sometimes decades – for applicants from China, India, Mexico and the Philippines. These four max out on the limit every year. When critics admonish prospective immigrants – as well as the 11 million plus undocumented migrants currently in America – to “go to the back of the line,” they should realize that for many people the line is a cruel joke.

The United States has followed this one-size-fits-all rule since 1965. It was, admittedly, a vast improvement over the blatantly discriminatory national-origins quota system, which since the 1920s had favored migration from Northern and Western Europe and excluded Asians altogether. But we can do better.

One alternative might be a plan introduced by Sen. Philip A. Hart, a Michigan Democrat, in the early 1960s. Hart, who died in 1976, gave his name to the 1965 immigration law, along with Rep. Emanuel Celler, a New York Democrat. But before that, he proposed a system that would have given 20 percent of the visas to refugees, 32 percent to countries in proportion to the size of their populations (recognizing need) and 48 percent to countries in proportion to their amount of emigration in the last 15 years (supporting family unification and existing ties in immigrant communities in the United States).


To keep the immigration stream diverse, he proposed maximum and minimum per-country limits. The overall ceiling and the distribution would be revisited every five years to reflect changing conditions. Finally, Hart recommended continuing the policy of pan-Americanism, which had long exempted countries in the Western Hemisphere from quota restrictions.

The proposal had broad support, but the Kennedy administration pressured Hart to sponsor the bill that created our current system instead – allocating visas in equal number to all countries, a principle inspired by the civil-rights-era ethos of formal equality. And it has been at the root of our “illegal immigration problem” ever since.

The federal government continues to pour billions of dollars into border control and to impose punitive sanctions on undocumented workers, and the immigration-detention system has swelled. These approaches are not only inhumane but misguided; the labor market, more than anything, determines migration’s ebbs and flows.

The 1986 reform regularized the status of nearly 3 million undocumented immigrants but did nothing to change the system that encourages, even guarantees, future unauthorized entries. This time, we need more than half measures.

We need not mimic the exact structure of Hart’s proposal, but we should push for a similar system, with the same principles of flexibility and fairness. Comprehensive immigration reform must mean a return to the tradition of welcoming immigrants who come here to work and giving them the opportunity to become Americans.

New York Times News Service

Mae M. Ngai, a professor of history and Asian-American studies at Columbia, is the author of “Impossible Subjects: Illegal Aliens and the Making of Modern America.”

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