Food for Thought on Immigration (Part I)

August 15th, 2014

Back when I practiced law professionally, my focus was on environmental and immigration law.  As legal matters both subjects are interesting, but as policy issues they’re big and are at the forefront of some of the most controversial topics in our country today.

Currently, immigration is a burning issue.  I’ve travelled quite a bit this summer (hence the dearth of blog posts), but all the while I’ve watched with interest the immigration controversy unfolding primarily on the Texas border.  It’s particularly interesting to me because years ago one of my responsibilities was to advise Rick Perry on immigration matters. Back then, that wasn’t much of a job.  He was Lieutenant Governor and the issues requiring his attention in this area were extremely limited.  In fact, I only recall one time ever having to sit in his office and brief him on an immigration matter.

Obviously, times have changed.

With President Obama threatening to create his own brand of immigration law via executive order, I’ve decided to thoughtfully write about immigration law as events unfold over the next few weeks.  I think it’s important to truly understand the entire issue in order to make informed judgments about our country’s immigration system in the future.  It oftentimes disappoints me to hear politicians and influence leaders making broad statements based on half-truths and even outright lies about this subject.

The fact is that immigration has historically been so politically charged that many legislative decisions made in the past make little sense on their face today.  It’s only when the politics behind a given law or rule are shared that one can start to comprehend why we do one thing or another with respect to immigration.

Let’s start with the basic premise you hear over and over.  We are indeed primarily a nation of immigrants so we have a recent and pretty rich experience dealing with immigrants entering our country.  While we can proudly say we’re a nation of immigrants and a melting pot of cultures, we can’t really say we’ve accomplished this seamlessly or without a great deal of pain and sacrifice for many people.  There have been some pretty unpleasant episodes in our history to get us to this place. As with lots of things in life, sometimes it takes many mistakes to get something right.  While we’ve made lots of errors (even recently), for the most part we’ve developed a formula based on sound principles to craft immigration policy.

Here’s the first basic principle I’ll address today.  With a few exceptions (e.g., political asylum), we do not admit anyone to work and live in the United States who can’t clearly demonstrate that they have the financial means or family support to live here without government assistance.  To some, that sounds harsh but it actually makes us the envy of countries similar to ours worldwide.

Earlier this summer, I visited London.  While there, I watched a television program with a panel discussing immigration.  One of the panelists observed that the American immigration system is better than that of other Western European nations because immigrants coming to America need to demonstrate that they can afford to live in the United States in order to be admitted.  The other panelists agreed and lamented that their own countries hadn’t followed this formula and were now paying a price for those decisions.

Later, I asked a friend of mine who lived in Paris for many years why this is the case.  She explained that Europeans feel a sense of “colonial guilt” that for years made them more willing to look the other way when immigrants entered their country who couldn’t likely stay easily without assistance.  Now that it’s clear this system isn’t working for them, they’re experiencing regret and in some cases outright hostility towards their new neighbors.

This is one reason why President Obama’s pledge to provide work authorization to illegal aliens is problematic.  He offers no evidence that they would receive this authorization only if they can demonstrate employment or otherwise show that they have the means to stay here without assistance.  Given that many of these individuals are in low wage jobs, that’s potentially millions of people staying here who possibly couldn’t do so without significant government help.

Meanwhile, we remain careful to scrutinize the applications of skilled workers with specialized knowledge who apply for temporary H1B visas.  Some of these applicants won’t receive approval because their job descriptions won’t meet the statutory and regulatory requirements for that visa. Even when the visa is approved it’s only for a designated number of people annually. Typically, these available visas run out well before the end of a given year.

Does this make sense?

On a planet where there are no new territories to occupy and colonize, immigration is all about making smart decisions to assure a culture and society that works to benefit the greatest number of its citizens as is reasonably possible.  Creating what is in effect an open borders policy as President Obama is promising to do would thus be a grave mistake.