Thursday, February 15, 2018

Immigration Part 4: The Reality of Current Law

This post is part of my Immigration Series.

In the first part, I introduced the topic.
In the second part, I looked at the (lack of) regulation of Immigration from the founding of our country and the easy path to citizenship for white immigrants.
In the third part, I detailed the racist history of immigration restrictions dating from the Chinese Exclusion Act to the present.


For this post in particular, READ THE DISCLAIMER BELOW!


I am an attorney, but I do NOT practice in, nor am I an expert on Immigration Law. These posts are NOT intended as legal advice, and should not be viewed as such. While the broad sweep of the law is fairly easily understood from publicly available laws, documents, and history; individual circumstances vary, and the law AS APPLIED to your situation may be very different from your understanding of what a statute means.

Therefore, if YOU have an immigration problem, I urge you to contact an attorney who practices in that specific area. I repeat GO SEE AN IMMIGRATION ATTORNEY! If you live in the Southern California area, I know some guys. Send me an e-mail and I’ll pass along contact information. If you live elsewhere, use the Google to find someone who practices in this area.



Okay, with that over, let me add a general disclaimer about the information. Immigration law, like every area of law, is complicated. There is a lot of nuance, arcane regulations, bewildering procedures, and so on. This post is not going to make all of that clear. That is not my point.

My discussion of the law will of necessity be a gross oversimplification. The goal is to provide an overview, not a detailed roadmap.

Also, I am NOT going to say much about how the law might apply to those who are physically present in the United States one way or another. This is the minefield of regulations I mentioned, and I have no interest in teasing out all the exceptions and pitfalls. As above, if you want to know more, go see an attorney if you have a case, or go buy an immigration law textbook if you are just curious.  

Rather, my point in this post is to address a specific issue: can someone who wants to immigrate legally to the United States do so? And how do they do it?

I ask this question for a specific reason:

Of all the falsehoods that are cherished by the Right, the most bald-faced lie of the bunch is that people can just come in legally if they want.:

In reality, for most potential immigrants, there is NO legal way to immigrate. Their only option is to come here illegally and live in the shadows, with the hope that their children will have a better life. 

It is this falsehood that poisons so much of our debate. It allows people to make the distinction of “legal” versus “illegal” without actually thinking through what that means to real people. It allows people to insist that undocumented immigrants are “criminals” and horrible people who just refuse to abide by our laws. It allows many conservatives to believe they are decent compassionate people while the politicians they vote for and the policies they support are the polar opposite of compassionate. So they do harm, based on a false view of reality.

This isn’t to say that everyone opposed to immigration is well meaning. Rather, I have found that a great many people (particularly those passionate about it) harbor deeply racist beliefs like the ones I talked about in Part 3.


So, let’s dive into the law. If you want to read the actual text of the applicable statutes and regulations, the US Immigration and Citizenship Services Department website has them publically available. However, if you are just getting started on immigration law, I have found that a great place is American Immigration Council, an immigration advocacy non-profit. Their resources are well written, accurate, and non-inflammatory. They believe that immigrants are an important part of our American heritage, that they make positive contributions to our nation, and that our debate should be based on actual facts and reason, not on fear mongering. These are all ideals I share. If you want fear mongering, well, Fox News and Breitbart have enough for you, I am sure.

To start with, the AIC fact sheet on how the US Immigration system works is a good primer. I’ll summarize in this post, but I recommend reading the entire thing.

Under our current law, there are essentially three ways to legally immigrate. I’ll look at each in turn.

  1. Family Based Immigration

This is the the system which is current being denigrated as “chain migration.” However, there is nothing nefarious about it, and it has been the express US policy since the 1965 law was enacted. (See part 3 of this series.) The idea is that preference is given to relatives of US citizens (and to a lesser degree, relatives of Legal Permanent Residents (LPR) - what we colloquially call “green cards.”)

For someone who is a US citizen, it is reasonably easy to bring in a spouse, minor (but not adult) children, and parents. That makes sense, doesn’t it? A citizen marries and has children outside the US (say on military deployment) and brings her family back here.

Other relatives can get in, but they are further down the list, and thus often do have to “get in line.” and wait until a slot opens. As you can see from the fact sheet above, unmarried adult children of citizens come next, then spouses and minor children of LPRs, then unmarried adult children of LPRs, then married adult children of citizens, and finally siblings of citizens.

These are all pretty close relatives, and form part of an extended family unit. Speaking from my own experience, most of us are better off with extended family there to assist. It takes us through hard times, illness, job loss, and more - we help each other out and are stronger because of it. And also - and this is key - it prevents individuals from needing to rely on the government safety net as much as they would without family. It seems a win-win to me.

But here is how it is now spun as “chain migration.”

Immigrant A comes here legally, and five years later, becomes a citizen. He then brings his parents, who five years later become citizens, then bring in their other adult children, and so on. Before you know it, you have a whole extended family living and working here.

Now, some of us may be thinking “what exactly is the problem here?”

The problem, apparently, is that for many people on the Right, there are too damn many immigrants here now. At least, that is about all I can see that would be a problem. It’s pretty much how my ancestors came here - we came as whole village groups, actually. One of the reasons we formed solid communities where we settled was that we had support systems. Community. When the 1965 law was passed, many noted that immigrants with family here already find jobs and social support more easily - back then, this was considered a desirable thing. (And, as I note below, this was also a way to exclude “inferior races” - they were less likely to have family here than whites…)

Okay, I lied. There is another “problem.” See, when people bring family here, it means that the actually intend to stay here. If you let a single worker in, but make sure he can’t really put down roots, then maybe he goes back where he came from after a few years. And then you don’t have to have any dirty immigrants here, right?

I believe this is the real objection to family-based immigration. And also why we started hearing about “chain migration” when the Steve Bannons and Stephen Millers got into influential positions. Their view of immigration is the KKK view: stop the immigration of “inferior races.” They’re pretty open about it, actually. That’s why they also use the term “the browning of America.” It is an objection to inferior, browner, races coming here. In other words, open racism and white supremacy.

This is why the Right is openly lying about family based immigration, claiming that anyone can bring in distant cousins and so on. They can’t. But that isn’t the point. The point is to drum up fear of brown people and (as usual) shut down immigration of “inferior races.”

Now, to be clear, while I do not find anything wrong with Family Based Immigration in general, I believe that using it as our main way to immigrate is problematic because it excludes, well, anyone who doesn’t have an immediate relative here. That’s a lot of people who can’t get in under this method.

Another problem with family-based immigration is that it was proposed as a way to exclude undesireable “inferior races,” but without being obviously racist about it. After all, more people from white countries had relatives here, right? It didn’t quite work out that way, however, because over time, enough Latinos and Asians came here to take advantage of this method of legal immigration. (For more on the history of the act, and the racist motivations behind the family-based portion of it, see this excellent NPR article. Many interesting quotes which are relevant today.)

Another problem is that immigration caps, both by total number and by per-country and per-region quotas, reduce the total “legal” immigrants to fairly low numbers, which is why there is a waiting list for family-based immigration. (Except for spouses and minor children - the quotas don’t apply there.)

For some solid facts on how family-based immigration works, and the long waits for family immigrants from certain countries really is, this New York Times article is helpful.

Let’s look at the next path in:

2. Employer Sponsored Immigration

This one is often misunderstood. I would say it is the source of much of the “why don’t they come here legally” nonsense. Let me admit that I too got this one wrong for a long time, until I actually went and looked things up. (It’s a good habit, I recommend it.)

The misconception is that just anyone can sign up for a job here, get an employer sponsorship, and viola! legal immigration! Not so.

First, let me point out that a number of these employer sponsored categories are for temporary work visas. (The H1-B, which has been in the news lately, is one of these.) You are fine as long as you keep your job, but you may well have to leave if you lose it and can’t find another similar job immediately. Even these temporary categories do not generally apply to non-skilled, non-specialty jobs. You can’t just apply to be a migrant farm worker, for example. In practice, you see these for STEM fields, entertainers, artists, chefs, and so on. That Korean software engineer, the Indian surgeon, the French chef, the (ahem) Slovienian model - these are classic H1-B immigrants. These coveted visas typically reach the quota amount in the first week of every year.

There are also more permanent visas. If you look at the chart in the link near the top of this post, you can see that the preferences are for highly educated, highly skilled workers in high-demand industries. The cap on “unskilled” workers of any sort is a paltry 5,000.

As it is, there are far more potential Employer Sponsored immigrants than there are slots, so there is a line to wait in here too.

And if you are uneducated, poor, and don’t work in a skilled field, forget about it. You aren’t getting in through this path.

Let’s touch on the final path:

3. Refugees and asylum seekers.

This is a broad category, with a hodgepodge of specific categories and arcane rules. I’m not even going to attempt to make sense of it, other than to say that it isn’t easy to get in this way, it isn’t available in practice to people from most countries, even if they personally are threatened, and please don’t even attempt this without an attorney to assist you. Also, you probably have a 6 year wait, and you probably will spend it locked up. For more on asylum, see here.

There are also a number of other exceptions and kludges here and there, but the vast majority of people won’t qualify for them.


So, let’s summarize the legal ways to get in:

  1. Be an immediate family member of a US citizen or LPR.
  2. Be an educated, skilled worker in a high demand field, with a guaranteed job.
  3. Qualify for as an asylum seeker or refugee.

Now, think about this:

Let’s say you are an average impoverished person in a country somewhere in the world. You have no immediate relatives here. You can’t afford an education, even if one was available to you. You aren’t a refugee and don’t qualify for asylum.

How the heck are you getting in legally?

The answer is pretty obvious:

You aren’t.

There is no line. There is no process. There is no legal way in.

So what do you do? Well, maybe you come here anyway - or send your children. It does beat crushing poverty, or violent drug wars, right? Just keep your head down, work under the table for an ag giant, have some children here so that at least they will be citizens and have a better life. Realistically, it isn’t that different from what my ancestors - and probably yours too - did. The difference was that the law let our ancestors do it, and it doesn’t let today’s immigrants do it.



Country-based immigration caps and the diversity lottery

Let’s start with the first one. No country may have more than 7% of the total legal immigrants admitted. So there is an overall cap on the number. (More or less 500,000 per year, in practice, if I am reading it right), but there is also a cap on how many can come from any one place. Using big round numbers here, that means that your total legal immigration from, say, Mexico or India or the Philippines is limited to about 35,000 per year, which is FAR below demand, even for family reunification or employment visas. So there are long waiting lists.

It isn’t a mystery why these limits were put in place. As the writers of the 1965 law stated baldly, it was to prevent a change to the ethnic makeup of the US. In other words, the same race and nationality based exclusions, just by a more euphemistic name.

About the next:

What even IS the diversity lottery?

This, along with family-based immigration has been targeted by the Right as Bad Things About our Current System™. But what is it? Most people do not understand it at all.

The Diversity Lottery was put in place as part of the 1990 revisions to the law. (That’s during George H. W. Bush’s term - back before the GOP went Nativist.) It was intended to increase the diversity of immigrants by opening a pool of 50,000 per year to countries that didn’t send more than 50,000 a year to the US. These were people from countries without the same level of family ties as, say, Mexico or India, and thus didn’t have enough family based candidates to immigrate under that program. These people would still have something to contribute, but couldn’t get in through other channels. You can read more about it here.

The program recognized two things: first, the family based system excluded a lot of otherwise eligible immigrants from around the world; and second, that diversity was a source of strength.

Again, there is nothing nefarious here. Just an attempt to work around the restrictions of family based immigration and let in qualified immigrants from around the world.

Note too that the TOTAL number of diversity lottery immigrants is 50,000 yearly, and no one country can get more than 7% of these visas.

I suspect the problem with this program, to the Bannons and Millers of the world, is that it lets brown people from poorer countries in, which is anathema to them. As I will note in a future installment, their vision is to limit legal immigration to educated, wealthy people - which would be a de facto way to limit legal immigration to first world countries plus Japan and Korea (and maybe China.) Third world immigrants, unless of the wealthy class, need not apply. Keep the dirty brown people out.

I’ll talk more in a future installment about the expressly racist vision for immigration (or more accurately, a vision without immigration) that the Trump administration has embraced.


For now, let me leave it at this: under our current system, it is difficult to legally immigrate, and downright impossible for most people, particularly those who lack wealth, connections, or education. For the most needy, our doors are shut, and yet there is a strong push to close the door even more.


  1. I've done a little bit of immigration/refugee status law, and your words "hodgepodge" and "arcane" don't even begin to cover it. It's almost as bad as the IRS code for all the special-interest-inserted kludge.

    1. Far too many of our laws are filled with kludge - bandaid fixes that pile on top of what we already have. A lot of it is because of interest groups. But also, it is because we lack the will to actually reform and completely replace many of these laws. In the case of immigration, I believe the kludges have ended up there as partial patches to mitigate the effects of what is and always has been an unjust law aimed at keeping the ethnic "purity" of our population.

  2. The formatting for this posting is all wonky, in a way that the previous ones in the series were not. I have to scroll a lot for particular sentences while many of the others stay where they belong. Is blogger having fits? I've tried it via both mobile and pc web browsers. Would you mind double-checking?

    1. Gah! Since the first of last December, Blogger has been frustrating. For a while, it wouldn't play well at ALL with Google Docs, which, well, same company, so, what? For a while I had to use MSWord, but remove a bunch of the formatting tags. Now, Docs seems to be working again, and this formats fine on my PC (Firefox) and Android tablet (Chrome.) So I can't find the problem. I'm hoping Blogger gets its stuff together again, because it was fine for years.

    2. Haven’t looked at it on my PC, but this post and your previous one both formatted funny on my iPhone in both Safari and Chrome. The text wrap seems to only care about characters per line, and cuts words in half between lines.

    3. Sigh. And since it formats fine on MY computer, I can't figure out what is wrong either. My sincere apology, and if a reader with some technical knowledge can help, I would appreciate it. My rudimentary knowledge of HTML is insufficient for me to diagnose the issue, alas.

    4. Man, the HTML on Blogger is pretty disastrous. What's with all the spans nested in divs and random ols everywhere? It makes no sense, especially considering how simple the content formatting is.


  3. Nice & clean explanation! This will be highly useful for me.

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