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  • Article: Having to Choose: A Nation’s Agonizing Immigration Duty. By Dr. Peggy Sands Orchowski

    Having to Choose: A Nation’s Agonizing Immigration Duty

    by


    It’s a truth universally acknowledged that no nation can sustain open borders. Even the wealthiest most popular “nations of immigrants” like the U.S. cannot possibly accept everyone who wants to immigrate here or even qualifies to do so. Nations have the core right and duty to choose who can immigrate: come in, stay, work and become a citizen. They do it through immigration laws established by democratic representative government and that are to be enforced. Saying that, immigration decisions certainly are one of the most difficult any nation state must make.

    Think of the U.S. and other highly desired immigrant host countries as a popular public college. Millions of people qualify for entry but college administrators get to and must choose who is accepted for admission. They are making life changing decisions for the applicants, and often agonizing ones for the colleges trying to be fair and diverse. As a result, responding to changing conditions, college admission requirements usually change over time, as do immigration laws. But the admission policies in place at any one time have to be upheld and enforced (allowing for some flexibility in special cases) or there is chaos.

    Our 1965 Immigration and Nationality Act is 50 years old this year. It is the most liberal immigration law in the world, the legacy of Ted Kennedy and the last major Great Society bill to be passed by the “fabulous 89th Congress”. It truly changed the diversity of America. But it did not allow open borders. Instead it imposed a complicated 7% formula. Still today, immigrants from any nationality can apply for a green card. But no nationality will get more than 7 percent of all the permanent immigration visas granted in one year (currently about 1.2 million annually). Surplus applicants from that nation are placed on a waiting list. Every nationality is to be treated equally with no discrimination against and no preferences for (a political exception was made for Cubans in 1966).

    The INA also changed another traditional admission priority for immigrants. Instead of basing admission on the individual migrant’s ability to work as had been the case since earliest days of the nation (remember, handicapped and ill migrants were turned away at Ellis Island no matter now close a family member they were), the INA gave a priority for green cards to extended family members. “Family unification” not “work ableness” is still the top qualification for a green card today.

    Significantly, the Congressional jurisdiction for immigration also changed from the Labor Committee to the Judiciary committee. Immigration suddenly took on the tenor of social justice and even a sacred civil right -- which it isn't of course. Now millions of people feel qualified to immigrate to the United States. Millions apply. The U.S. simply can’t take them all.

    The agonizing universal truth about immigration is that immigrants get to apply but the nation state gets to decide based on national immigration laws. Those laws have two roles: to bring in the fresh new eager labor and energy of new immigrants that most every nation now wants to add to their growth and prosperity; and to protect the integrity, national identity and labor standards of the host country’s citizenry.

    That difficult choice becomes a most terrible dilemma when facing millions of desperate migrants at the borders with their families. Humanitarian and ethnic supporters demand their right to immigrate. But even a collective of small well off nation states like the EU can’t provide enough housing, services and jobs for them all. They can’t expect that hundreds of thousands of migrants from a vastly different culture will integrate within a reasonable time into their national cultures -- ones based especially on freedom for women. Who among them should be chosen? What happens to the vast majority who aren’t?

    Obviously massive permanent immigration is not a solution. It is unreasonable to expect nation states to do it and unfair to call them “anti-mmigrant” when they won’t. Another process other than massive immigration will have to be negotiated to help citizens of failing states find refuge, peace and prosperity.

    Reprinted with permission.


    About The Author

    Peggy Sands Orchowski Ph.D. has covered immigration reform on Capitol Hill for the last 10 years and is the author of the new book, The Law That Changed The Face of America: The Immigration and Nationality Act of 1965. For more information, please visit, www.porchowski.com.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 3 Comments
    1. Stephen Blower Esq's Avatar
      Stephen Blower Esq -
      In reply to some of the statements to the above article, there are frankly some extraordinary misrepresentations if not outright errors. For example, in reference to the 1965 Act, the author states, "Still today, immigrants from any nationality can apply for a green card." That is patently false. Unless a person has an family-based or employment based sponsorship, (setting aside refugee/asylee issues), there are no diversity visas available for any oversubscribed countries, assuming the author has in mind this type of visa. There isn't any other visa that could be applicable to this statement. The statute for diversity visas provide that if 50,000 persons from a certain country have already immigrated to the United States in the past five years (by any means), citizens of that country are excluded from participation in the lottery. The current instructions for DV-2016 excludes citizens of the following countries from participation in the lottery: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Thus, a person with no ties to the United States, family or employment-based, cannot simply "apply for a green card." It is surprising that Dr. Orchowski would be unaware of this basic tenet of the diversity visa regulations.
      The analogy to a public college may be relevant in a limited way, but in ways the author has failed to consider, or probably didn't intend to. For example, far from each applicant to a public college being admitted solely on their academic record on equal footing, there are numerous sports scholarships and minority-based scholarships with quite different standards applied for admission. NCAA minimal requirements to admission to a college program are typically drastically lower than those applied to the 'average' applicant who is not an athlete and fits into the majority demographic. The children of faculty and staff may also receive preferential treatment. Under further scrutiny however, the analogy is flawed: a college, public or private, is essentially a business, and it makes it's decisions in the end based on that premise. Most students are customers, but all students are accepted on the premise that there will be a net corporate gain or advantage to the college for admission. For example, every public university typically has its boosters and donor drives seeking to raise money for specific projects or improvements, beyond what the state funding provides. In many cases, corporate entities interact with the college as part of their 'mission,' and conveniently creates a tax shelter through diversion of funding. The United States does not (or should not) treat its immigrant like customers or clients. Becoming a productive member of society and contributing to the local economy does not render immigrants customers or part of a vast business scheme of the United States. It is doubtful that that would be the driving force behind the family-based preference categories. There may be an argument to be made for business-based employment sponsorship, but as a policy it is difficult to imagine that enhanced revenue to the Department of the Treasury is at the base of the policy. The principal driving ideology of immigration policy is manifold, but only a small fraction of that links big money investment with permanent residency, the EB-5 visa being the most obvious example. Those numbers are minuscule compared to the numbers of family-based admissions.
      The discussion of the present crisis in the EU with refugees from Syria and other countries is entirely misleading in the context of overall immigration. Refugee and asylee status applications and admissions are on a different metric from other immigration programs. The EU does not have its historical roots in a history of immigration like the United States. The Executive Branch here determines the annual number of visa for refugees abroad that will be admitted given various factors; for the coming year President Obama has set the number at 85,000, a significant increase over the last several years. There is no annual limit on the number of asylees that will be granted status for those applying for asylum with the United States. Likening refugees fleeing for their safety and their lives, to applicants to a public college is demeaning to say the least. That is not to say that there is not a real problem in terms of limited resources for any country to set a numerical cap on refugees: but it is a humanitarian crisis.
      Another troubling statement above is the following: "They [presumably EU states] can’t expect that hundreds of thousands of migrants from a vastly different culture will integrate within a reasonable time into their national cultures -- ones based especially on freedom for women. Who among them should be chosen?" Is the author suggesting a culture-based or ethnic screening test for immigrant status qualification? Doesn't that offend the very notion of equality and non-discrimination? What does the author mean by "integrate within a reasonable time?" A Syrian Arab in Sweden will never ethnically or culturally transform to that of the Nordic native Swede, and needn't aspire or wish to be--it is whether he or she becomes a contributing member of Swedish society.
      But introducing the issue of the EU crisis sheds little light on U.S. immigration policy, as far as what it is or should be. There are many critics of those politicians who present ideas related to health care, education, family medical leave, as they are presently implemented in "small well off nation states," quick to point out that it is not feasible to apply those policies to a country the size, diversity, or magnitude of the United States and its economy. If those policy decisions of the EU countries are incompatible with any application here in the U.S., why are immigration policy decisions any different?
    1. ImmigrationLawBlogs's Avatar
      ImmigrationLawBlogs -
      Can the author of this article please spare us her transparent attempt to cover up her bigotry against Muslim refugees in Europe? Mouthing pretentious platitudes such as the fact that no one country has room for everyone in the world who wants to immigrate, while implying that Muslim refugees would be unable to assimilate to European "culture" or that they hate women (even though a large number of them are women) is nothing more than prejudice dressed up as a pseudo-academic argument.

      If the author wishes to share with us the fact that she doesn't like Muslim refugees, let her post some of PEGIDA's hate slogans instead so at least her real views will be clear to everyone.

      Roger Algase
      Attorney at Law
    1. Unregistered222's Avatar
      Unregistered222 -
      Yes, we know, Roger, we know - these "refugees" are nice people etc etc and US should take at least a million of them. We all heard that before. I bet if those were people-eating space alien monsters it would be ok too, provided immigration lawyers can make a few $$$ in the process.

      Just remember one fact which is more valuable than million words, especially words coming from an immigration lawyer. Israel, which is undisputable the smartest country in the world, is taking 0 of those "refugee" people. Not a single of them. They know it is not a good thing to take them - it is actually a very bad thing. Just ask the loved ones of innocent people who were savagely murdered by this kind of "refugees" during the Boston marathon.

      Quote Originally Posted by ImmigrationLawBlogs View Post
      Can the author of this article please spare us her transparent attempt to cover up her bigotry against Muslim refugees in Europe? Mouthing pretentious platitudes such as the fact that no one country has room for everyone in the world who wants to immigrate, while implying that Muslim refugees would be unable to assimilate to European "culture" or that they hate women (even though a large number of them are women) is nothing more than prejudice dressed up as a pseudo-academic argument.

      If the author wishes to share with us the fact that she doesn't like Muslim refugees, let her post some of PEGIDA's hate slogans instead so at least her real views will be clear to everyone.

      Roger Algase
      Attorney at Law
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