How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)

On May 29, 2013, co-blogger Chris Hendrix started off a very promising post series to explore the origins of immigration restrictions, the rationales used when introducing them, and how they were gradually modified into their present form. His first post in the series took an in-depth look at the Chinese Exclusion Act of 1882, the first large-scale restriction of immigration to the United States after nearly a century with nearly unrestricted migration. Chris went into considerable detail into the rationales proffered for the law, and found them flawed in light of both the evidence available at the time and the evidence that would accumulate over the coming decades.

With Chris’s permission, I’m taking this very important series over from him. This post will look at the Chinese Exclusion Act, but from a different angle: how was it implemented? As the United States’ first foray into a systematic control of a border, what legal ambiguities did it give rise to, and how were those resolved? What aspects of the modern immigration control regime, in the US and elsewhere around the world, can be traced to the way these ambiguities were resolved?

Let’s first get an idea of the sort of world that existed at the time.

A different world

Migration back in the day was qualitatively similar to South-South migration today: relatively unregulated and unprotected. But this is part of a broader feature of society back then: goverment was less centralized and far less powerful and all-knowing than it is today:

  • Passports did exist, but most people didn’t bother to get them.
  • Social Security, and Social Security Numbers, didn’t exist.
  • There was no federal income tax.
  • Since there was no tax withholding, employers had no federal reporting requirements, and they didn’t have reporting requirements in most states either. In other words, the state didn’t have a reason to record most work activity.
  • There was no Green Card, or Green Card-equivalent. Non-citizen permanent residents had no document that directly established that status for them.
  • There was no nation-wide interior enforcement for immigration law.
  • Entry by land from Mexico and Canada was largely unrestricted.

So what did exist?

  • Ports of inspection for people and goods coming by sea, from the Atlantic or the Pacific. These ports were not intended primarily for immigration enforcement, but were mainly used for customs enforcement. At the time of the Chinese Exclusion Act, there were, as far as I am aware, no designated ports on the West Coast exclusively for immigration enforcement. Angel Island, the main such port, would become active only in 1910. The corresponding port in the East Coast, Ellis Island, would open only in 1892, though there were other immigrant processing stations before that on the East Coast, such as Castle Garden.
  • City officials in various cities could act as de facto immigration enforcement. They could ask residents of the area for documentation proving that they were citizens (this would typically involve a birth certificate that would need to match with the city’s records, or a demonstration that the parents were US citizens, or a proof of naturalization). Enforcement would therefore be zealous only in places where the natives and the officials representing them cared enough about the matter. In practice, therefore, immigration enforcement followed the principle of subsidiarity — even though the legislation was determined at the federal level, interior enforcement was largely a local matter.

Racism, citizenism, territorialism, and high versus low skill

All the elements found in the modern border control regime could be glimpsed in the Chinese Exclusion Act as it played out. First off, the act was overtly discriminatory in a racial and ethnic sense. It could be argued that many immigration laws today are racist, albeit in many cases they are not overtly so. But the racial/ethnic component to the Chinese Exclusion Act was both more morally acceptable and palatable and more practically enforceable.

If you are trying to enforce immigration law, that requires a lot of potential violations of civil liberties, not only for the immigrants, but also for people who might be suspected of being immigrants. The Chinese Exclusion Act explicitly restricted itself only to targeting (a subset of) the ethnic Chinese. This subpopulation was sufficiently distinctive in appearance, customs, and linguistic habits. Thus, the collateral damage inflicted by the law on those not in violation of immigration law was limited to other ethnic Chinese.

In today’s world, it is possible (though still far from easy) to carry out some semblance of border and interior enforcement targeted at potential immigrants that has minimal collateral damage for citizens, without being so explicitly racially targeted. For this, we can thank (or blame) the record-keeping surveillance state that can track people much better. At the same time, it is somewhat harder to use explicit racial/ethnic targeting, because of greater levels of ethnic mixing. People of different national origins no longer look so obviously different, thanks to some degree of global convergence in culture, and also (to a less extent) greater interbreeding leading to many many more intermediate forms of physical appearance.

The racism of the law was therefore necessary for it to get off the ground, and for immigration enforcement to get an early testing bed while leaving the majority of the population unaffected. Just as the income tax started out as a tax on the super-rich and gradually grew to cover a majority of income-earners in the United States (and most other countries) immigration enforcement sharpened its ax on a relatively vulnerable, distinctive, and reviled population before spreading its wings to society at large. As they say, First they came for the Chinese. As history.com puts it:

American experience with Chinese exclusion spurred later movements for immigration restriction against other “undesirable” groups such as Middle Easterners, Hindu and East Indians, and the Japanese. The Chinese themselves remained ineligible for citizenship until 1943.

The second interesting emergent feature of the law, as it came into practice, was its citizenism, in more senses than one. First, as Chris described at greater length in his post, the law was justified in terms of citizenist premises, though there was the occasional nod to how it would be good for China as well to keep all its population within. Second, those Chinese who were already citizens continued to enjoy citizenship — at least in principle. They still were at greater risk of getting into trouble (because they were in the ethnic group suspected of harboring illegal immigrants) and they often couldn’t bring family members in, but they still enjoyed the constitutional rights of citizens. They could leave the country and return as they pleased (provided the officer at the port of entry was convinced they were actually citizens, and there were sometimes messups).

Third, the implementation of the law provided the early contours of territorialism: Chinese who had immigrated but not naturalized prior to the passage of the Act were not allowed to naturalize, but they were not required to leave the country. As long as they were physically present in the country, they enjoyed the rights of non-citizens (subject to the caveat of being harassed due to the suspicion). However, if they left the country and tried to return, they could be denied entry. This was formalized in the Scott Act of 1888 discussed later in the post. This was an early precedent for the current regime that distinguishes between entry visas and authorized stays.

Fourth, the high versus low skill distinction emerged in the law. The law banned the migration of skilled and unskilled laborers, but allowed for the migration of people in white-collar professions, if they could get documentation from the Chinese government to that effect, and could convince the officer at the port of entry. In practice, many people in white-collar professions also found it hard to enter due to lack of adequate documentation. This again resembles the current system, where high-skilled immigrants need to, and often fail to, jump through the many hoops needed to demonstrate their high skills.

Continue reading “How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910)” »

GreenCard

Carry your Green Card at all times: the why and how

The Green Card, originally called the Alien Registration Receipt Card, is a card possessed by non-citizen Lawful Permanent Residents (LPRs) in the United States. You can read about the history and color of the card here and here. The card, first introduced in 1940 as part of the Alien Registration Act of 1940 (aka the Smith Act), carries with it an interesting regulation — those having the card are required to carry it with them at all times. Here’s how the USCIS puts it:

A green card is issued to all permanent residents as proof that they are authorized to live and work in the United States. If you are a permanent resident age 18 or older, you are required to have a valid green card in your possession at all times.

As far as I can make out, there is no obligation to carry documentation of citizenship status with one at all times, nor are non-citizens who are not permanent residents obliged to carry their identifying document (such as the Employment Authorization Document (EAD) card) with them at all times. What accounts for the apparently unique status of the Green Card?

This post explores the origins of the regulation, how it was somewhat practical back in the day, and whether it can still be enforced.

Puzzling aspects of enforcement

Today, enforcement of the Green Card regulation would be difficult because there is no easy way of identifying the category of people who should carry Green Cards (i.e., Lawful Permanent Residents, or LPRs) from:

  • US citizens, who have no legal obligation to carry identifying documentation proving their citizen status, and most of them do not carry around such documentation (a large number of them carry driving licenses or state ID cards but, in many states, these cards do not include information about citizenship or immigration status).
  • Those on authorized non-immigrant statuses, such as short-term business/tourism visas (B1/B2), student visas (F), and temporary worker visas (H). Those whose visas allow for employment do need to have an Employment Authorization Document (EAD) but, as noted above, are not required to carry it with them at all times.

So an obvious problem with enforcing the Green Card regulation is that somebody, asked to produce a Green Card, could simply claim to not be a LPR but instead be a US citizen or authorized under a non-immigrant status. Since those statuses don’t carry any requirement, how can anybody intent on enforcing the Green Card regulation push forward? You could argue that:

  • The Green Card regulation is still helpful in cases where people are trying to access benefits (such as welfare benefits) only eligible to citizens and LPRs. But there aren’t any welfare benefits accessible to LPRs and not to citizens. And in any case, government offices have their own requirement for documentation you are supposed to bring, and being required to carry your Green Card at all times is unnecessary for that purpose.
  • It still doesn’t make sense for a person to lie to an official enforcing the Green Card regulation about whether he or she is a LPR, because the officer can investigate the person and know if he or she is lying. But to the extent this is true, it also renders somewhat superfluous the requirement to always carry the Green Card — if officers can investigate you anyway, why do you need to carry the card?

Current enforcement

Though about half of Green Card holders I personally know are aware of this regulation, many people have been skeptical of whether it can actually be enforced. Here’s what online law resource NOLO has to say:

If you are 18 or older, you do have to carry your green card with you. Section 264(e) of the Immigration and Nationality Act (I.N.A.) requires all lawful permanent residents (LPRs) to have “at all times” official evidence of LPR status.

Failing to have your green card with you is a misdemeanor and if you are found guilty you can be fined up to $100 and put in jail for up to 30 days. (I.N.A. Section 264(e).) A copy is not good enough, because the law does not use the word “copy” or refer to “other evidence” of LPR status.

The official evidence of LPR status that most people eventually receive is an “alien registration receipt card,” also known as Form I-551 or, more commonly, a “green card.” Sometimes, people do not have their green card, but are already LPRs. For example, when somebody first arrives in the U.S. with an immigrant visa, they first receive an “I-551 stamp” in their passport. Weeks later, they receive the actual green card in the mail. In the time before receiving the green card in the mail, the LPR would have to carry his or her passport “at all times” or risk breaking the law.

If you decide to carry a copy of your green card instead of the original because you want to keep the original safe, you will be violating the law. Will you actually be stopped by immigration, prosecuted and fined or jailed for not having your original green card with you? It’s unlikely. Like any other government agency, immigration authorities have limited resources and cannot spend precious government time and money on prosecuting people for not carrying their green card “at all times.”

But there have been cases where LPRs are detained or arrested during workplace enforcement actions for not having their green card on them. So to be on the safe side, and obey the law, you should actually carry your green card with you everywhere you go. And it probably goes without saying that if you will be traveling internationally, you should take your original green card with you to board a plane or boat back to the U.S. and to reenter the U.S. as an LPR.

You might also be interested in discussion of the issue at ImmiHelp, Immigration Road, and Immigration Forums. Here’s an excerpt from the latter:

> When there are 20 million illegals easily walking in the streets of USA we the law abiding ones should not have issues.

When the law says you have to carry it with you and you don’t carry it with you, then how can you be a law abiding one?

I believe you cannot apply the photo-copy-is-okay argument to a green card, like you do for approval notices or certificates. Green card is obviously different with the magnetic stripe and stuff.

If we can say photo-copy is sufficient, then we can logically extend the argument to drivers license and start carrying a xerox copy of our drivers license with us instead of the original.

We have to accept what the law says and have to learn to live with it even though it may not be to our liking.

In an Open Borders Action Group post discussing the issue, it was pointed out that immigration regulations in the United States can only be enforced by federal immigration enforcement authorities, and these are active generally only at airports and close to the border, so in practice this does not affect most people. There is much truth to this, but some important caveats:

Do not ask for whom the bell tolls, for it tolls for thee! If you, or people at your workplace, are non-citizen LPRs of the United States, then a federal immigration raid of your workplace could lead to you or your co-workers getting arrested for a month. Is this likely to happen? Probably not — arresting people for not carrying Green Cards is a “low priority” for the ICE because they have so many bigger fish to fry (such as deporting illegal immigrants). Still, better be careful! The law is the law.

Historical enforcement

The Green Card began after World War II. Althogh the Smith Act was passed in 1940, cards began to be issued only after the War. 1950 saw an important step in the formal codification of the idea that non-citizens had a burden of proof of responsibility in maintaining documentation to demonstrate legal status. As Citizen Path puts it:

The Internal Security Act of 1950 increased the value of Form 151, Alien Registration Receipt Card. Effective April 17, 1951, aliens holding AR-3 cards could replace them with a new Form I-151. However, only those with legal status could replace their AR-3. What’s more, aliens who could not prove their legal admission into the United States were subject to prosecution for violating U.S. immigration laws.

As a result, the Form I-151 card represented security to its holder. It indicated the right to live and work in the United States permanently and instantly communicated that right to law enforcement officials. Because of the card’s cumbersome official name – Alien Registration Receipt Card – immigrants, attorneys, and INS workers came to refer to it by its color, calling it the “green card.”

So having a Green Card was a way of getting around an otherwise capricious and uncertain law enforcement process. Mandating that people carry it could be considered a form of libertarian paternalism — nudging people in the direction of doing something they should want to do anyway.

Historically, the Green Card regulation was important because of two salient differences with the present.

First, in response to the present difficulty of distinguishing between citizens and non-citizen LPRs: a foreign-born person in the United States could not be a citizen unless that person was “white” (as defined by the Naturalization Act of 1790) or of African ancestry (this change was made in the Naturalization Act of 1870, as part of the process of post-Civil War rectification of racial injustice). Note that birthright citizenship existed even for people of other races and ethnicities, but the foreign-born of these races were not formally eligible for (or at least had no official process for) acquiring citizenship. This would change with the Immigration and Nationality Act of 1965. But it does mean that back in the day, if somebody looked neither white nor black, you could have high confidence the person wasn’t a US citizen. (It was still conceivable the person was born in the US and therefore a US citizen, but given that this was about a decade after the Immigration and Nationality Act of 1924, that effectively closed the US border to Asians and East Europeans, there would be very few children of immigrants among the population anyway).

So, back in the day, ethnicity as a statistical discriminator allowed almost all US citizens to avoid getting harassed by immigration enforcement (and the few who did get harassed were anyway from an ethnic group that didn’t enjoy a lot of broad support and sympathy). Thus, the regulation was enforcible.

What about my second point about the difficulty of current enforcement, i.e., the fact that people on temporary statuses aren’t required to carry documentation at all times? It’s important to remember that the landscape of temporary statuses and related regulations has changed a lot since that time. The H visas, including the H-1B and the H-2, didn’t exist back then — they were created by the Immigration and Nationality Act of 1965. There did exist a Bracero Program for temporary agricultural labor, and deportation also started becoming a systematic operation with Operation Wetback. The primarily Mexican people in these situations may not have been required to carry green cards, but they had bigger problems and fewer legal protections overall.

Why hasn’t the regulation been repealed?

If the requirement to carry a Green Card is no longer practical to enforce, why is it still on the books? This is best understood in terms of the principle that laws are hard to repeal, particularly if they give power and authority to vested interests in government. Even if immigration enforcement officials do not generally use this regulation, the existence of this regulation gives them more power — power that they can use as and when they see fit. In general, any source of power will be liked by those wielding it, and they will not easily give up.

This ratchet effect is observed everywhere, but is particularly likely in situations where the people enforcing the law do not have direct accountability to the people affected. Non-citizens can’t vote, so getting rid of clauses that could be used against them doesn’t have a strong political constituency.

Featured image credit: Jason Scott, licensed under CC-BY 2.0, via Flickr

US immigrant processing: funded by user fees since 1882

The first piece of US federal legislation detailing procedures for immigration enforcement was the Immigration Act of 1882 (passed at about the same time as, though distinct from, the Chinese Exclusion Act of 1882).

The first component of the act, as described by Wikipedia, was its self-financed nature:

The first was to create a “head tax” that would be imposed upon certain immigrants entering the country. The Act states that “There shall be levied, collected and paid a duty of fifty cents for each and every passenger not a citizen of the United States who shall come by steam or sail vessel from a foreign port to any port within the United States.” This money would be paid into the United States Treasury and “shall constitute a fund called the immigration fund.” These funds would be used to “defray the expense of regulating immigration under this act.” Scholar Roger Daniels commented that the head tax eventually “would rise, in stages, to eight dollars by 1917. In most years the government collected more in head taxes than it spent on administration.”

The fact that the costs of immigration administration are largely borne by user fees, unlike most other government agencies, continues to be true today. For instance, Wikipedia says:

Unlike most other federal agencies, USCIS is funded almost entirely by user fees. Under President George W. Bush’s FY2008 budget request, direct congressional appropriations made about 1% of the USCIS budget and about 99% of the budget was funded through fees. The total USCIS FY2008 budget was projected to be $2.6 billion.

This is true not only of the USCIS as a whole but also of incremental programs. For instance, co-blogger Michelangelo notes that Deferred Action for Childhood Arrivals (DACA), announced by Barack Obama in June 2012, is funded by user fees:

Even if DACA explained the recent surge, Senator Cruz should be aware that no federal funds go towards the management of the DACA program. The DACA program is funded by user fees; currently set at $465. The United States Citizenship and Immigration Services (USCIS), which administers DACA, is unique in being funded almost entirely by user fees. If only that were the case with the rest of the federal government!

Similarly, when, after September 11, 2001, people on student and exchange visitor visas were required to go through a criminal background check in order to be able to get a visa (the so-called “SEVIS record”) that cost was also “user-financed” — recipients had to pay $100 in order to have a background check run on them.

Angelo Paparelli notes that Obama’s November 2014 deferred action proposals would also be financed by user fees:

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees.

It should be noted that the “funded by user fees” applies specifically to the USCIS, the branch of immigration enforcement that deals specifically with processing immigrant applications, and not to the other branches of immigration enforcement, namely U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). ICE and CBP, focused as they are on interior and border enforcement of immigration and customs laws, don’t really have “customers” — and they cost the taxpayers a decent chunk of money (though still chump change relative to the overall US federal budget). Here are the approximate budgets:

  • USCIS: About $3.2 billion, about 99% funded by user fees.
  • ICE: About $5.3 billion, negligible user fees funding.
  • CBP: About $12.9 billion, negligible user fees funding.

These numbers suggest that liberalizing migration, raising user fees somewhat (cf. immigration tariffs), and cutting down on some enforcement functions would probably lead to significant budgetary savings in the short run. However, all these numbers are small relative to the lifetime economic or fiscal effects of immigrants (even though the signs of the fiscal effects are much disputed, their magnitudes are likely to be at least one order of magnitude greater). This is one reason why “save the costs of border enforcement” is not an argument made prominently on this site or by open borders advocates in general. But in the narrowest sense, the fiscal cost of immigration enforcement arises not from immigrants (who seem to be bearing their share of the burden) but on those who seek to keep them out.

Some might object that illegal immigrants don’t pay any user fees. This is technically true, but they pay amounts that are far greater in fees to human smugglers. And when given the opportunity to regularize their status by paying user fees, as happened with DACA, many avail of the opportunity. Those who don’t are deterred not so much by the cost as by the uncertainty of whether registering themselves with the federal government might endanger them.

PS: See this Open Borders Action Group post where the relative costs of the immigration enforcement agencies and their extent of user funding are discussed.

MarsNASA

Isaac Asimov & Immigration

Isaac Asimov & Immigration: Fiction as Social Commentary


The celebrated writer Isaac Asimov (1920-1992) was born in the Soviet Union to his great surprise. He moved to quickly correct the situation by stowing away in a piece luggage at the age of three. He settled down in New York City and by the age of eight he had acquired US citizenship. He wrote prolifically during his lifetime and his books can be found across the Dewey decimal system.

He is perhaps best known for penning the ‘Robot’, ‘Empire’, and ‘Foundation’ books which together paint a history of the future chronicling the early exploration of space, the future relationship between man and robot, and the rise and fall of galactic empires. For this Asimov is often thought as a science fiction writer, but I think this is misunderstanding the point of his fiction. Asimov’s books used science fiction as his setting, but could have worked just as well if they were set in colonial America.

It is better to think of Asimov as a social commentator, and as a social commentator he wrote quite extensively on immigration. One of his most explicit stories on immigration is the novelette, “Mother Earth” (published originally in magazine form and re-published in The Early Asimov).

The premise of the story is that Earth’s former space colonies, the Spacer worlds, have implemented immigrant quotas on Earth. Earth’s population has swelled to the billions and, as Asimov explains in-story, has become technologically stagnant since the brightest of mankind have left to space or are in the process of doing so. In other words Earth is experiencing a severe case of brain drain.

The Spacers, the descendants of the early space colonizers, view their Earth-bound cousins as a lesser sub-race. Even before explicit immigration quotas were put in place the Spacers had begun to genetically modify themselves to get rid of any undesired genetic traits. Their desire to restrict Earth migration is as such partly based on racism.

It is also partly based on economics. The Spacers themselves are more technologically advanced and so do not need ‘high skilled’ migrants from Earth. The use of robots has all but eliminated the need for ‘low skilled’ migrants. The only migrants that are sought after are those skilled in agricultural science. In a plot relevant point, food in the Spacer worlds lack ‘taste’ and there is a premium value in imported Earth food.

The novelette chronicles the conclusion outcome of this scenario. After negotiations to loosen the immigration quotas fail Earth and the Spacer worlds wage a war against each other. Earth is quickly defeated and has the worst possible punishment inflicted on it possible: closed barriers. The Spacers erect a barrier around the solar system and forbid any further migration from Earth.

The conditions of peace were unusual, perhaps unique, and under the force of an unprecedented humiliation, all the hordes of Earth seemed suddenly struck with a silence that came from a shamed anger too strong for words. The terms mentioned were perhaps best commented upon by a voice on the Auroran video two days after they were made public. It can be quoted in part:

“…There is nothing in or on Earth that we of the Outer Worlds can need or want. All that was ever worthwhile on Earth left it centuries ago in the persons of our ancestors.”

“They call us the children of Mother Earth, but that is not so, for we are the descendants of a Mother Earth that no longer exists, a Mother that we brought with us. The Earth of today bears us at best a cousinly relation. No more.”

“Do we want their resources? Why, they have none for themselves. Can we use their industry or science? They are almost dead for lack of ours. Can we use their man power? Ten of them are not worth a single robot. Do we even want the dubious glory of ruling them? There is no such glory. As our helpless and incompetent inferiors, they would be only a drag upon us. They would divert from our own use food, labor, and administrative ability.”

“So they have nothing to give us but the space they occupy in our thought. They have nothing to free us from but themselves. They cannot benefit us in any way other than in their absence.”

“It is for that reason that the peace terms have been defined as they have been. We wish them no harm, so let them have their own solar system. Let them live there in peace. Let them mold their own destiny in their own way, and we will not disturb them there by even the least hint of our presence. But we in turn want peace. We in turn would guide our own future in our own way. So we do not want their presence. And with that end in view, an Outer World fleet will patrol the boundaries of their system, Outer World bases will be established on their outermost asteroids, so that we may make sure they do not intrude on our territory.

“There will be no trade, no diplomatic relationships, no travel, no communications. They are fenced off, locked out, hermetically sealed away. Out here we have a new universe, a second creation of Man, a higher Man…”

-Mother Earth by Isaac Asimov

In the epilogue and further installments of series we learn the outcome of this closed border policy is disastrous for both sides. The Spacer worlds begin to deteriorate without Earth migrants. Earth migrants, it turned out, were those most adventurous when it came to space exploration. Without the entrepreneurial drive of migrants space exploration ceases along with technological advances. Meanwhile the racial policies the Spacers have been following come back to haunt them when they realize that they’ve been retarding their ability to adapt to space.

In the aftermath of the war Earth finds itself taken over politically by those who believe the only answer to ‘overpopulation’ is population control. Balance is only restored when open borders between Earth and the Space worlds is reestablished in the future and a new wave of space exploration migration begins. Open borders, it turns out, is necessary for humanity to flourish across the stars.

Readers may wonder why I have chosen to share this story. Am I, as Murray Rothbard called some of his detractors, a space cadet trying to trivialize the open borders movement by infusing it with unneeded futurism? No, as I noted above, Asimov’s stories are better viewed as social commentaries.  As I’ve written before, there is a place in the movement for philosophy-based arguments in favor of open borders and by all means we should continue down that path. We must however also package our arguments to reach different audiences.

One such method of packaging our arguments is through the use of fiction.

The beauty of fiction is that, when properly written, it can be enjoyed for its own sake while still providing a message. Paul Krugman, whom my co-blogger John Lee has previously written about, is a big fan of Asimov’s fiction despite being a moderate on immigration.

Krugman, who credits Asimov for his choice to enter economics and who wrote a foreword for new copies of the Foundation series, agrees with me that Asimov isn’t a science fiction writer. In Krugman’s words:

Maybe the first thing to say about ‘Foundation’ is that it’s not exactly science fiction—not really. Yes, it’s set in the future, there’s interstellar travel, people shoot each other with blasters instead of pistols and so on. But these are superficial details, playing a fairly minor part in the story.The‘Foundation’ novels are about society…

Asimov himself, in his non-fiction writings, wrote on the dangers of ‘over population’ despite the solid pro-open borders message of his books. That is how powerful good fiction can be. Asimov might have been wrong on economics when he consciously wrote on the topic, but in his fiction writing he got it right. As most fiction writers will point out, it is not uncommon for a story to ‘write itself’ or for a character to become alive on its own after you lay the groundwork.

I propose as such, as a possible avenue of open border advocacy, the pursuit of fiction dealing with open border themes. There are several pieces of fiction that deal with immigration, and I recommended several films this past Christmas that did just that, but few with an explicit open border bent exist. The trouble of course, and here too most fiction writers will collaborate with me, it is difficult to set out to cover a specific topic in fiction. It is easy to begin writing about X and find yourself covering Y as the story evolves. Nonetheless it is a pursuit worth pursuing.

I close by emphasizing that this article should not be taken to mean that we should cease writing in a given direction. The open borders movement has seen its birth in a certain sub-population and I argue simply in favor of adopting our advocacy efforts to attempt to capture readers from other sub-populations.


Read More In This Series

This is an ongoing series on ideas on how the open borders movement should proceed next.

What should be next for the Open Borders movement? by Michelangelo Landgrave

Philosophers, Wonks, and Entrepreneurs by Vipul Naik

What Open Borders Can Learn from the Abolition of Slavery by Nathan Smith

Why the Open Borders Movement Should (Mostly) Avoid Emulating the Gay Marriage Movement by Nathan Smith

Immigration Comics by Michelangelo Landgrave


Related

Orson Scott Card on Immigration by Evan

My Summer in the Orchard: How I Came to Support Open Borders

This post is part of a series by Justin Merrill describing his personal experience with immigration and his embrace of open borders. It is part of our ongoing series of posts that are based on personal anecdotes.

I have been offered the opportunity to write some guest blog posts of my experiences with immigration. My area of expertise is money, banking and finance, not immigration policy. I stay fairly current of the research on immigration, but I am a consumer, not a producer of it. Despite my specialization, I believe that a peaceful foreign policy and open borders are more urgent than any free banking reforms, which says a lot. I’ve decided to share my transformative personal experiences in chronological order to provide their proper context.

I was born in Ellensburg, Washington, a smallish town in the center of the state. It was an agricultural community that often relied on immigrant help. Tree Top Fruit Company is a cooperative based in the neighboring town of Selah and farms, ranches and orchards filled the countryside. Ellensburg also is home to a university whose sister university is in Japan. My mother worked at the university and I ended up learning a lot from her Japanese exchange student interns. Maybe it was fate that I’d end up marrying a Japanese and living in Japan (a future story). But this was my childhood experience with immigrants, mostly Japanese and Mexican. I lived in a community that had both a lot of nativists and immigrants. It was a microcosm of the immigration debate because both sides of the argument were so visible. Clearly the agricultural economy relied on immigrants, but some of those same immigrants caused social ills, such as crime and drains on public resources. Yakima, WA, the city nearest the orchards of Selah, had at or near the highest violent crime rates per capita in the US in the early 90’s, earning the moniker “Crackima” for its rampant drugs and gangs. Conventional wisdom was that the gangs consisted almost entirely of immigrants, who came here to work in orchards, or their children, who then turned to a life of crime, especially if they were here illegally and had no legitimate means of employment. Yakima’s crime was notoriously bad and its ills were perceived to be related to immigration. In school, we played sports against another small town called Mattawa, whose population is 97% Hispanic. Seeing the town’s poverty, crime and education system drowning in ESL students who were failing to adjust planted a seed of doubt in my young mind as to the merits of open immigration. These observations plus some additional experiences with crime formed my nativist beliefs; that is, until I worked in an orchard.

During my adolescent years I’d often spend my summers living with my cousin, Colin, in Idaho. Usually we’d help on our Grandma’s ranch and spend the rest of the time playing, but when we were 14 we decided it was time to get a job that paid. The best paying job we could have gotten was a stock clerk working at a grocery store, but we were too far from town and too young to drive. The only job we were qualified for that was within our bicycling range was working in an orchard at the top of the lane. Colin and I were in for a shock. Aside from the family that owned the business, we were the only native English speaking people out of hundreds of employees. We made the minimum wage, $5.10 at the time. The hours were early. We’d start by 5:00 am sometimes so we could get as much work in before it got too hot in the field. We were put under the supervision of the boss’s son and were treated differently than the other employees. Most employees did the same job over and over. If you picked fruit in the field, that’s what you always did. Women were more likely to stand on the conveyor line sorting fruit by quality. It was air conditioned, but an arduous job. It required standing on your feet and constantly combing through the fruit with both hands working on the conveyor belt, sorting the good fruit to go to fresh produce and the badly bruised fruit to get turned into jam. Colin and I started doing this, but after a week or so they moved us into the orchard. Usually we would help load the picked fruit onto a truck, but often we were given special tasks. The tasks they gave us usually required detailed instructions, such as how to prune this kind of tree specifically, and I noticed how much our native language skills were an advantage, despite our relative lack of experience compared to our Spanish speaking coworkers.

Over time, Colin and I became more friendly towards (less scared of) the Hispanic workers and started to learn Spanish from them. We learned what life was like for them back in Mexico, and one hot afternoon, they let us off early for safety and the workers invited us to a barbeque in their residence, which was almost like a camp. By then it started to click. These were some of the hardest working, nicest, most caring people I’d ever met. This smashed every stereotype I’d had from the bad towns in Washington. I realized that punishing these people because of some gang members was wrong. I also realized that maybe the restrictive immigration policies caused crime as an unintended consequence by preventing undocumented immigrants from attaining work. I realized that what was a summer job to earn some money to buy CDs and movies for two teenagers was the livelihood of these people. We took a $5/hour job because we were limited to a five mile radius. They took the same job but had to leave their home country and travel over a thousand miles away from home for the summer. And even while at the same job, our experience wasn’t the same. Our language advantage gave us a leg up, despite being only fourteen. This is the summer when I became an open borders advocate.

High-skilled hacks: the case of Optional Practical Training

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

Roughly, the situation is like this: creating new visa categories requires legislative action. However, modifying the terms of existing visa categories is a matter of executive discretion. This means that various sorts of extensions can be built into existing visa categories even as people wait for “comprehensive immigration reform” to provide a long-term fix. In this post, I talk of one such stop-gap measure from which I personally benefited (and that was basically my only option): Optional Practical Training.

The system based on original intent

The visa system’s original intent is to try to be as restrictive as possible in granting visas, and to make it hard for people to smoothly transition from one status to another. So, the idea is that those who are on student visas have non-immigrant intent. Once their stay is over, they should go back home. If they want to come back for a job, they should re-apply back from their home countries, without any special advantage over all the other people who didn’t go to the US to study.

What influential high-tech people want to mimic

The students themselves, the universities that they go to, and the companies that wish to hire them, would like another ideal: despite the fact that they are on non-immigrant visas, the students should basically be able to apply for and get jobs, and start working just like US natives. This goal is very clearly at odds with the stated purpose of the student visa, which is intended to encourage study, not a transition to long-term settlement.

With that said, the idea that the US should allow high-skilled students to easily transition to Green Cards has a lot of sympathy within the legislative and executive branches of the US government. Thus, for instance, there have been talks, on and off, of a “staple act” that would allow permanent residency to any U.S. university student who graduates with a Ph.D. in science, technology, engineering or mathematics. But for various gridlock-related reasons cited by Alex, that I discussed in the introductory post, and the fact that this is fundamentally at odds with the purpose of the student visa, this proposal hasn’t really made progress. Incidentally, as Chiappari and Paparelli note, the SKIL bill, an earlier proposal quite similar to the staple act, aimed to do this for student visas. Chiappari and Paparelli:

The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

One direction that high-tech people have made progress in is introducing new skill-based migration schemes, many of which are somewhat niche (this was accomplished with the EB visas, part of the Immigration Act of 1990, and will be the subject of another post). Another direction is to use existing visa statuses, such as the student status (F) and exchange visitor status (J) and tag on more and more at the end of those. These extensions are typically justified based on arguments of “national competitiveness” such as those made in the American Competitiveness in the 21st Century Act (2000). This post discusses one such extension of the F status: (post-completion) Optional Practical Training. There are a number of related programs, including Curricular Practical Training (CPT), pre-completion Optional Practical Training, and Academic Training (this one is for the J status), but for simplicity, this post will focus only on post-completion OPT.

The annual cycle of the H-1B

In principle, you can apply for the capped H-1B (the H-1B category used by all organizations except non-profit research institutes) any time of the year. In practice, however, the quota for a given fiscal year (starting October) is closed within a few days. And applications can be submitted at most six months in advance of the start date. So if you want a shot at the H-1B, you have to apply on April 1 (or rather, the first weekday of April) to start the H-1B October 1.

This poses a problem for people who want to start a job immediately after finishing their studies. Let’s say you intend to graduate on June 15. If you want the H-1B, you need to have found your employer before April 1, and have him or her agree to put in your paperwork by April 1. And then when your studies are over, you have about two months to wrap up and leave. That means you need to leave the US by August 15. And then, since you are now no longer physically present in the United States, and your status has changed from student to worker, you need to apply for a new US visa. Hopefully, you’ve received the H-1B petition approval by then (even though the H-1B itself starts on October 1) so that you can get the new visa. Then, you can start the job on October 1. And graduating in June is the lucky case. If you’re graduating in December, you basically need to spend the next couple months finding a job (potentially violating the terms of your student visa) that you can only hope to start in October, then leave the US by February 15, while your employer files the H-1B petition on your behalf by around April 1. Then, you wait in your home country till around July or August, by which time you have received the petition approval. You then apply for the visa and then enter the US.

So basically, the annual cycle means that students in the US have less of an advantage over the masses of people outside of the US in terms of getting jobs. They still have a huge advantage — they can interview in person for jobs and shop between multiple jobs. But basically, they need to find employers who are willing to agree to file petitions on their behalf seven or more months before they can actually join the job. And unless they graduate in August, they basically need to go back home and get a new visa, with all the uncertainty that engenders.

Enter Optional Practical Training

Optional Practical Training timeline

Source University of Alaska Anchorage

In practice, post-completion Optional Practical Training is a hack around this problem for those on “F” student status. One can apply for 12 months of Optional Practical Training that can start any time within 60 days after the completion of one’s academic program. The terms of the OPT are quite flexible: you don’t need to have a job offer when you apply, and the status is not tied to a particular job. You do need to work during the OPT: a maximum of 90 days of unemployment is allowed. But the work can include contract work (a minimum of 20 hours per week) giving you some flexibility to shop around for jobs.

The most typical use case of OPT is that it serves as a stop-gap for the months between completion of the academic degree and the beginning of the H-1B program. For instance, if you are graduating in June, then you can start your job in July on OPT while your H-1B petition isn’t yet active. This still requires that you secure your job by February so that your employer can file the H-1B petition on your behalf by April, but at least you can start the job right after graduation, and you don’t need to travel back home and re-apply for the visa.

Another use case of the OPT is for somebody who is genuinely unsure about what to do after graduation. The person wants to experiment with different kinds of work. The OPT offers a little breathing room to do that without losing physical presence in the United States.

Related to the program of study

Another bureaucratic requirement of the OPT is that all jobs you do under the OPT must be related to the program of study. That’s because the OPT is tied to your program of study, and is allegedly for the purpose of giving you additional “practical training” in the domains you studied in your degree program (even though in practice it’s just transitional to a H-1B or other longer-term employment status for most people).

However, after some informal investigation, I discovered that relation to program of study was interpreted more loosely than one might naively think. It’s okay for somebody like me, who has studied group theory, to take up my current job that involves machine learning, data science, and programming, as long as I can clearly explain how the skills I learned in graduate school are relevant to my job. Moreover, unlike the H-1B, the job choice doesn’t need to be pre-approved by the USCIS. Rather, what they can do is retroactively ask you to justify how the job (or jobs) you did to meet your OPT requirements were related to your program of study. Having letters from your supervisors at each job, that clearly explained the relation, would generally be sufficient. In most cases, the USCIS didn’t bother. But I heard anecdotally of a chemistry Ph.D. who went into a finance job and was asked by the USCIS to justify it. He was successful in convincing them of the relationship. Basically, unless you are going into a completely unrelated domain (such as a math Ph.D. becoming a barista or an economics Ph.D. becoming a performing artist) you should be fine. (The fact that the relationship to program of study is interpreted loosely is tacit knowledge that you won’t find explicitly mentioned online in any authoritative source. Most university websites that provide detailed information on OPT will not put this information in writing. Oh well. Non-transparent rules and regimes create huge information asymmetries between those in the know and the general masses.)

The cap gap and the STEM extension

H1B cap gap

Optional Practical Training H1B cap gap explained diagramatically. Source: University of Chicago

The OPT has gradually grown to accommodate more and more cases. In the example above, what if you get your job offer only in May? With the original 12-month OPT, you can start your OPT in July (after finishing your academic program in June) but since you can only apply for the H-1B next cycle, you’re still in trouble: your OPT will end by next July. Your employer can file a petition for you next year, but that job can start only on October 1, so basically you are forced to take two or three months off from work, plus you need to travel home to get the new visa. An ingenuous workaround called the “cap gap” has been incorporated into the OPT: if, at the time of the completion of your OPT, you already have a H-1B petition pending with the same employer as you are working with on OPT, you can continue working on OPT with that employer until either your application is denied or your H-1B period begins.

Finally, consider a case like mine. I finished my degree program in December 2013. I didn’t have a job immediately out of graduate school, and was planning on working on a mentoring service with a friend at the time. I did contract work for some employers, including MIRI, using my Optional Practical Training. I finally transitioned to my full-time job in August 2014. It was too late for me to apply for the 2014 cycle. And my OPT would end in January 2015, too early for me to have my H-1B petition for 2015. So what could I do?

Enter yet another ingenuous workaround to the OPT: the STEM extension. This allows a 17-month extension to the OPT for people who have degrees in STEM subjects. The STEM extension comes with heavier restrictions than the usual OPT (in particular, employers need to be enrolled in e-verify). But still, that extra 17 months gives me a chance to apply for a H-1B in 2015. In fact, the STEM extension can be combined with the cap gap, so even if I am rejected in 2015, I can still apply in 2016.

Interestingly, the STEM extension can be attributed to the efforts of one man: Bill Gates. Here’s what he said in testimony to Congress:

First, we need to encourage the best students from abroad to enroll in our colleges and universities and, if they wish, to remain in the United States when their studies are completed. One interim step that could be taken would be to extend so-called Optional Practical Training (OPT), the period of employment that foreign students are permitted in connection with their degree program. Students are currently allowed a maximum of 12 months in OPT before they must change their immigration status to continue working in the United States. Extending OPT from 12 to 29 months would help to alleviate the crisis employers are facing due to the current H-1B visa shortage. This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

Congressional Testimony from Bill Gates, March 12, 2008, that seems to have directly led to the OPT STEM extension

Both the cap gap and the STEM extension, and the contribution of Gates to the passage of the latter, were noted in an article by Ted Chiappari and Angelo A. Paparelli. They write (pp. 2-3, footnotes removed to improve readability):

One of the expansions allows those foreign students lucky enough to win a number in the H-1B lottery to
have their OPT automatically extended until October 1, 2008, when their H-1B status will begin. This makes permanent an accommodation that was first introduced in 1999, but that has lain fallow since 2004. In 2005, Immigration and Customs Enforcement (ICE), the sub-agency of DHS that took over responsibility for administering the F-1 student registration program known as the Student Exchange Visit Information System or SEVIS, refused to implement this provision any more because of its concerns about its ability to track foreign students if they were granted a blanket authorization to stay here beyond their period of OPT. These security concerns are addressed in the new rule, which now requires employers to notify the school’s Designated Student Officer (DSO) of the departure or termination of the student within 48 hours.

The second expansion is an increase in OPT by 17 months to a total of 29 months for students with degrees in science, technology, engineering and mathematics (so-called STEM degrees). This appears to have been inspired directly by the March 12, 2008, testimony of Microsoft Chairman Bill Gates before the Committee on Science and Technology of the House of Representatives. In his testimony, Mr. Gates suggested: “Extending OPT from 12 to 29 months would help alleviate the crisis employers are facing due to the current H-1B visa shortage.” He also correctly observed that “This only requires action by the Executive Branch,” and he pleaded that “Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.” (The regulatory change may also have been inspired, indirectly or in part, by some ideas floated in legislative proposals introduced in 2006 and again in 2007 to meet U.S. employers’ need for skilled workers with STEM degrees. The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from intending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.)

DHS did in fact take action quickly, but it added a requirement that was not part of Mr. Gates’s testimony: mandatory participation by F-1 students’ employers in E-Verify in order to qualify for the additional 17-month extension. Moreover, DHS limited the 17-month extension to those in practical training in connection with one of the identified STEM degrees. The STEM degrees include a variety of disciplines in computer science, engineering, engineering technologies, biological and medical sciences, physical sciences, mathematics and statistics and science technologies, as well as in actuarial science, military technologies and health professions and related clinical sciences. DHS has designated STEM programs using the list of Classification of Instructional Programs (CIP) codes published by the National Center for Education Statistics (NCES).

The DHS action, which appears to have been announced formally by Homeland Security Secretary Michael Chertoff on April 2, 2008 (you can see the full memo here) was ignored by most, but did get noted and critiqued by some people concerned about the wages and employment opportunities of high-skilled workers (see for instance here and here).

Continued repercussions for visa renewal and travel

The hackish way in which OPT has been conceived — an extension of a non-immigrant student status that’s in practice treated as an interim to a dual-intent temporary worker visa — leads to some interesting contradictions. In particular, if somebody wants to travel outside the US for OPT, the person faces complications at two stages:

  • If the person’s student visa is still valid, he or she does not need to renew it. If, however, the student visa has expired, the person needs to re-apply for a student visa. However, a student visa can only be granted if non-immigrant intent is explicitly demonstrated. OPT applicants generally fail to meet this requirement, and might have trouble getting visas.
  • Re-entry at the port of entry is also complicated. For those within their usual student status (who have not yet begun OPT) a valid visa and travel signature on their I-20 suffice — few are subject to additional questioning. However, people on OPT have additional burdens of proof: they need a valid visa, a recent travel signature (within the last six months rather than within the last year), they need their Employment Authorization Document (EAD) card, and they also need proof of continued employment. Those who have applied for OPT and not yet received their EAD card are strongly advised to not travel. The travel signature requirement arises from the fact that the OPT is still part of student status, even though the student may be working in a different part of the country and has little relationship with the university otherwise.

The Georgia Tech Office of International Education offers a particularly candid description:

Students who decide to travel while the OPT application is pending are highly discouraged from leaving the U.S until the application has been received by USCIS and the I-797 receipt notice has been issued. Students should bring the receipt notice with them as proof that an application has been submitted. Although the receipt notice is a good substitution, admission into the U.S. is up to the discretion of the CBP officer, and there have been reports of students without their EAD work permit having problems at the port of entry.

[…]

OPT is a benefit of the F-1 status. Therefore, students traveling while on OPT and have an expired F-1 visa are required to apply for a new F-1 visa. Although the U.S. consulates/embassies are permitted to grant visa renewals to students participating in OPT, these students may be subject to additional scrutiny. The F-1 visa is a non-immigrant intent visa. Therefore, applicants are required to provide proof of “binding ties” to their home country. This may be more challenging for some students on OPT.

Procedures and requirements for visas can vary between countries and are often subject to change. As such, reviewing the visa requirements on the website for the appropriate U.S. Embassy/Consulate is the best way to prepare you for the visa application process. Visit www.travel.state.gov to determine the procedures for applying for a visa at the U.S. Embassy/Consulate in the country in which you’ll be traveling.

Proposed changes to OPT

While US President Barack Obama’s November 2014 immigration executive action announcement was primarily about deferred action for unlawfully present migrants, the memo from Secretary Johnson also contained some guidelines for changes to the Optional Practical Training program. The main changes being mooted are:

  • Increase the base length of the OPT.
  • Increase the length of the STEM extension.
  • Expand the set of degree programs eligible for the STEM extension.
  • Allow people to be eligible for the STEM extension based on their undergraduate degree program, even if that was outside the US. For instance, somebody who gets an engineering degree from India and then gets a MBA in the US would be eligible for the STEM extension under the proposed scheme.

Here’s a summary from the National Law Review:

Most foreign students on F-1 student visas are eligible for a year of post-graduate optional practical training (OPT) as long as the work experience that they gain is in a field that relates to their degree program. But 12 months of authorized OPT frequently is not enough time to bridge the time between the foreign student’s authorization to work on OPT and the granting of a temporary work visa status. The H-1B quota opens every year on April 1st, and the H-1B visas do not become effective until the following October 1st, at the beginning of the government’s new fiscal year. The quota has been exhausted immediately in the last several years, leaving no H-1B visas available until the next government fiscal year – resulting in a 17-month period with no H-1B visa availability.

This problem is less severe for F-1 foreign students who major in STEM (Science, Technology, Engineering or Math) fields. These students are eligible to apply to extend their OPT work authorization for an additional 17 months, as long as they are employed by US employers participating in the government’s E-Verify program. (E-Verify is a program that any employer can participate in, if it is willing to check its employees’ documents through a government database to ensure the employees are legally authorized to work in the United States. Some employers don’t have a choice: if they have certain federal government contracts, or operate in certain states, they must sign up for E-Verify.) Qualified foreign students who graduate with US STEM degrees are able to continue to work legally through multiple government fiscal years, increasing their chances of “winning” an H-1B visa before their OPT period expires.

The list of STEM “majors” that qualify a foreign student for a STEM OPT extension is limited, however, and the focus until now has been on the US degree program that the foreign student has just completed. It would be much more useful if the government would expand the program to allow for STEM-based OPT extensions for F-1 students who either graduate with a US STEM degree OR complete a STEM degree prior to studying in the United States. For example, many of our MBA students come to the United States with a STEM undergraduate degree. Furthermore, the list of STEM “degrees” should be expanded to be much more robust.

Accordingly, Secretary Johnson directed USCIS and ICE to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates.” The business community would like to see a significant expansion of STEM eligibility in the new rules. But the business community may not appreciate some OPT restrictions that the Secretary has suggested might be paired with expanded STEM eligibility. Currently there is great flexibility associated with OPT. F-1 graduates on OPT can be self-employed or work as independent contractors, and if they work as employees on a W-2, there is no prevailing wage requirement associated with their employment. The flexibility associated with OPT has proven extremely helpful to foreign entrepreneurs and inventors who use the post-graduation period to refine their inventions, products and business ideas, form companies, and find investors.

A later article from the National Law Review made some further suggestions:

But the STEM fields are narrowly defined. If the STEM fields are expanded, the STEM extension would benefit a larger number of foreign students and employers. In his memo, Secretary Johnson calls for USCIS and ICE to develop regulations to “expand the degree programs eligible for OPT” and to “extend the time period and use of OPT” for foreign Science, Technology, Engineering, and Math (STEM) graduates.

We hope that the expansion of degree programs will include degree concentrations in business administration, finance, economics, etc. so that a larger percentage of foreign students can take advantage of the STEM OPT extension option. In light of the H-1B visa crisis, employers across the US are clamoring for options to hire and retain foreign talent, and expanding eligibility for a post-graduation OPT extension responds to this need. Expanding the degree programs list would also bring value to the US by keeping talented graduates in the US Secretary Johnson also ordered USCIS and ICE to take steps to ensure that OPT employment “is consistent with labor market protections to safeguard the interests of US workers in related fields.” We hope that the end result of this directive does not decrease the flexibility that the OPT program currently offers foreign students. Students and graduates on OPT can be self-employed and work as independent contractors, a flexibility that is not afforded by other widely-available temporary work visa statuses. F-1 students and graduates are not subject to prevailing wage requirements during their employment on OPT which is particularly helpful to new entrepreneurs who sometimes volunteer their time to their own start-ups.

The current flexibility of the OPT program means students can take internships and employment that offer value and further their education. During this limited period, they now have a range of choices and options, including working on their own start-ups. Undue restrictions on the F-1 OPT program would be counterproductive to the goal of improving and enhancing the program to provide the US with talented, energetic and motivated foreign students and graduates.

Lawsuit

I also recently came across a report of a lawsuit challenging the Optional Practical Training program. The lawsuit predictably attacks the half-truths and hackish workarounds used to justify the program. Although approval for the lawsuit came after the memo suggesting possible changes to OPT, the lawsuit had been filed a while earlier and challenged the OPT as it had existed in the past. The article says:

The WashTech lawsuit, which is being heard in federal court in the District of Columbia, challenges the OPT program. If the judge ultimately sides with the plaintiffs, the case could be bad news for the OPT program generally, as well as Obama’s plans to further expand it.

Students still in school or recent graduates can use their student F-1 visas to take jobs through the OPT program. Employers don’t have to pay them a prevailing wage, or Medicare and Social Security taxes. These tax breaks make OPT workers “inherently cheaper” to employ than U.S. workers, the lawsuit argues.

The last para is somewhat inaccurate. It’s true that students on F status, whether currently enrolled or on OPT, are exempted from paying Social Security and Medicare taxes during their first five calendar years (see the Substantial Presence Test for more). On the other hand, those who have been in the US for more than five calendar years do generally need to pay Social Security and Medicare taxes while on OPT. It is also true that the prevailing wage requirement does not apply to OPT, but a large fraction of OPT employment is meant as a stop-gap prior to a H-1B petition, and the latter is subject to prevailing wage rules.

The article continues:

The 17-month extension may have acted as a catalyst in generating interest in the OPT program. There were 123,000 approved OPT students last year, compared to 28,500 in 2008 when the added time was approved.

John Miano, an attorney involved in the case and founder of the Programmers Guild, said the DHS “knew when they promulgated the OPT expansion that it was illegal.”

The justification for the 17-month expansion of OPT for STEM workers “was a ‘critical shortage’ of STEM workers,” said Miano, adding that the DHS had “no objective evidence to support the claim of a worker shortage.”

Miano said the only justification of a worker shortage is from one government study that made no such conclusion, the Rising Above the Gathering Storm report from 2007.

Now, the government will have to explain “where in the cited reported does it say there is a critical shortage of STEM regulations?” said Miano. And with that, “the regulations fall apart.”

There had also been an earlier lawsuit from the Immigration Reform Law Institute, back on May 29, 2008, challenging the STEM extension shortly after its announcement. However, the lawsuit was thrown out by a New Jersey district court judge (you can see the full proceedings here).

Conclusion

I’m personally quite grateful for this series of hacks. Without them, I wouldn’t have been able to stay in the United States. Or I might have been able to stay but would have been much more constrained in my choices. Without the STEM extension, I could not in good faith have accepted my current job. Just a few weeks ago, I was a little worried, because my case status for the STEM extension wasn’t showing up on the USCIS website. If my case had been lost, this would have been terrible for me and my employer. However, after a long phone conversation with USCIS representatives, I learned that the reason my case status wasn’t displaying online was that Obama’s deferred action announcement had required some system upgrades so they weren’t up-to-date. I finally got information that my case was proceeding normally, and my application was approved last week.

But, while these hacks have served me quite well, I also believe that the system as a whole doesn’t make sense. I wish that the same effective freedom that I enjoy were available to people around the world, high-skilled and low-skilled. People will always be constrained by their personal limitations and the limitations of the world around them. But I believe that many of the limitations imposed by migration law are an unnecessary additional set that should be dispensed with.

PS: For simplicity, I have omitted discussion of many aspects of the OPT, including something called pre-completion OPT. For a more comprehensive overview, see the Wikipedia page [FULL DISCLOSURE: I significantly expanded and restructured the page in a series of edits in September 2013, while researching it in preparation for applying for it. I made another series of relatively minor edits shortly after the publication of this blog post, adding some material I discovered in the course of research for the blog post.]

PS2: This didn’t fit well in the main post, but might be of interest anyway: employers have historically been reluctant to hire people on OPT if the annual cycle for those people means they can’t have a H-1B petition in by then. A National Law Review article notes that it has been ruled legal (i.e., not afoul of anti-discrimination law) for employers to choose to forgo hiring workers on OPT for this reason:

In a Technical Assistance Letter (TAL), the Office of Special Counsel has stated that an employer can disqualify an applicant because of future OPT expiration without running afoul of the Immigration and Nationality Act. The INA’s anti-discrimination provisions apply only to U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. “Accordingly, F-1 visa holders are not protected from citizenship status discrimination,” the Office of Special Counsel states. Therefore, an employer who inquires as to whether the candidate requires sponsorship now or in the future is not participating in discriminatory practices.

This makes conditional sense: the private “discrimination” here isn’t discrimination as much as a government-forced constraint on hiring. My co-blogger Nathan has argued that private discrimination should be permitted even as governments get out of the way, but in this case (and many other cases) the private discrimination is a rational response necessitated by government policy.

Paddington - Migration

A rose by any other name: open borders, freedom of movement, and the right to migrate

In our welcome blog post, we state:

This website is dedicated to making the case for open borders. The term “open borders” is used to describe a world where there is a strong presumption in favor of allowing people to migrate and where this presumption can be overridden or curtailed only under exceptional circumstances.

Many of our leading influencers and those associated with the open borders movement in some fashion spurn the label “open borders”, however. A good example is economist Michael Clemens. Clemens’s chief contributions to open borders are his work summarising the economic literature suggesting free migration would double world GDP and his analysis of the place premium showing the vast wage discrimination effects of the borders status quo. Clemens’s “double world GDP” is literally our website’s motto, yet in an interview with economist Russ Roberts, he states:

People often ask me if I am in favor of open borders. And I take an agnostic approach to that question. That’s kind of a strange term but by it I mean that I think the question is ill-posed. I don’t understand what people are asking when they ask it.

Do they mean anyone from everyone in the world should be able to freely move to every other spot on the world? Well, I don’t have that right right now. I don’t know of anybody who has ever had that right, actually. I can’t walk into your house. I can’t walk into a military base. I can’t go sit on the street–police would remove me after a while. My movements are tightly regulated. Property markets are regulating where I can pitch a tent and live.

If open borders means absolutely free movements then we certainly don’t have that in this country. If open borders means anybody can come get immediate access to any public service no matter whether or not they’ve paid into the system, that’s not something that I enjoy either. I don’t get to take Social Security money out unless I put money in. That’s also true for immigrants, by the way–you can’t get any money out of Social Security until you have paid into it for at least 40 quarters, that is a minimum of a decade of work or more. If open borders means absolutely free movement of people without any sort of tracking of who they are or any sort of concern for free riding in public services or any concern for trespassing on private property, then, no.

Open borders doesn’t exist in any space that I’ve ever seen. I don’t really want it to exist. Before we talk about open borders, I need to know what that means. Usually people mean something like a great relaxation to the policy barriers that people face right now.

Clemens quite clearly wants a “great relaxation” of barriers to human movement, which is how he ultimately winds up defining what people mean by “open borders”, yet he spends almost hundreds of words denouncing the label.

Take too philosopher Kieran Oberman, who supports the concept of a human right to migrate:

Commitment to these already recognized human rights thus requires commitment to the further human right to immigrate, for without this further right the underlying interests are not sufficiently protected.

Does this mean immigration restrictions are always unjust? On the view of human rights adopted here, human rights are not absolute. Restrictions might be justified in extreme circumstances in which immigration threatens severe social costs that cannot otherwise be prevented. Outside these circumstances, however, immigration restrictions are unjust. The idea of a human right to immigrate is not then a demand for open borders.

Rather it is a demand that basic liberties (to move, associate, speak, worship, work and marry) be awarded the same level of protection when people seek to exercise them across borders as when people seek to exercise them within borders. Immigration restrictions deserve no special exemption from the purview of human freedom rights.

Oberman too rejects the label of “open borders”, but he clearly believes that there is a human right to cross international borders that can only be restricted in the most extreme of circumstances. In other words, he accepts the presumptive right to migrate which we at Open Borders: The Case consider the clarion call of open borders, but rejects open borders!

On the flipside, consider philosopher Phillip Cole, who endorses a set of views virtually identical to Oberman’s in his defence of open borders:

…the right to cross borders is embodied in international law, but only in one direction. Everyone has the right to leave any state including their own. This is a right that can only be over-ridden by states in extreme circumstances, some kind of public emergency which threatens the life of the nation. What we have is an asymmetry between immigration and emigration, where states have to meet highly stringent tests to justify any degree of control over emigration, but aren’t required to justify their control over immigration at all.

In effect all I’m proposing is that immigration should be brought under the same international legal framework as emigration. Immigration controls would become the exception rather than the rule, and would need to meet stringent tests in terms of evidence of national catastrophe that threatens the life of the nation, and so would be subject to international standards of fairness and legality. This is far from a picture of borderless, lawless anarchy.

Cole describes his argument as making the case for open borders from the basic principles of human rights — just as Oberman does! The two endorse the same logic, and yet one embraces the label of open borders, and the other rejects it.

Rather than affirm or reject any one of these views (partial as I am to Cole’s views, I would also endorse almost everything I have seen from Clemens and Oberman when it comes to immigration), I would say this points to the nascent nature of the open borders movement. Although suspicion and hostility to the stranger in our land has almost always been a feature of human nature, it is not until recently that anyone has felt compelled to defend the right to migrate; strong outbursts of nationalism in the late 19th century compelled civil rights activists such as Frederick Douglass to speak out for open borders. But even in that climate, German legislators took it for granted that borders were to be crossed at will in peace (their only debate was over whether governments could arbitrarily deport migrants), and Argentina had no problem entrenching the rights of immigrants into its constitution.

The development of borders that are closed by default — the closed borders regime, I like to call it — is a historically recent feature. Because closed borders are so young, the movement to overturn them is even younger. It should not be terribly surprising then that different opponents of the borders status quo have different ways of describing their views, even if all have the same end in mind.

Beyond that, there are pragmatic reasons why we might want to avoid the label of open borders. A good one, exemplified in Clemens’s wariness of “open borders”, is the usage of this term by closed borders regime advocates as an instance of what blogger Scott Alexander calls the Worst Argument in the World:

I declare the Worst Argument In The World to be this: “If we can apply an emotionally charged word to something, we must judge it exactly the same as a typical instance of that emotionally charged word.”

Immigration restrictionists frequently tar moderate immigration liberalisations with the label of “open borders” — never mind that giving a few million people a reprieve from deportation is nowhere close to literally tearing down border checkpoints or striking thousands of immigration laws off the statute books. The reason they do this, as Clemens alludes to, is that many people, intentionally or otherwise, conflate free peaceful movement across borders with something far more extreme or obviously undesirable such as:

  • the abolition of the nation-state
  • the abolition of national defence
  • free rein for criminals or infectious diseases to travel without inspection
  • abolition of any individual right to exclude others from one’s private property as one sees fit

“Open borders” is meant to be pejorative; it is meant to be a dogwhistle, striking an emotional chord with people who consider it an emotional article of faith that sovereignty can never co-exist with open borders (never mind that nation-states existed for centuries after the Treaty of Westphalia without closing their borders). If restrictionists get away with taunting moderates for supporting slightly-less restrictive policies because they amount to “open borders”, imagine the opprobrium and the closed minds we may encounter if we publicly proclaim our support for open borders! So I perfectly understand Clemens’s eagerness to demur here, and state he supports freer human mobility across international borders in lieu of saying he supports open borders.

But what happens if we try Oberman’s preferred formulation? What if we just say we are for a right to migrate? Does this clear up the confusion, since one cannot accuse us directly of wanting to undermine the peace and security of modern societies? Does this preemptively address the unfounded concern that we are out to abolish the right of private property owners to exclude foreigners from their own living rooms and dining tables? It would seem not; on more than one occasion (here and here), I’ve encountered people who allege the right to migrate infringes individuals’ right to keep strangers out of their own homes.

To be honest, it does not bother me much either way whether we call it open borders, the right to migrate, human mobility, freedom of movement, or just the right to be left alone in peace. Whatever you call it, like all those I have cited, I believe in a world where any person who wants to go somewhere for pleasure, family, work, or study, and is willing to pay the fare it will take to get him or her there, will be able to do so in peace. And I believe a major precondition for getting there is to abolish most of the immigration laws in place today.

As I wrote during the Ebola crisis of 2014, immigration laws aimed at quarantining and treating infectious diseases do not bother me. I am no more distressed about immigration laws that prevent terrorists from entering than I am about trade controls that prevent international trade in weapons of mass destruction. But beyond these, I believe most immigration laws are spurious, unnecessary, and aimed purely at excluding people who have done nothing wrong except being born on the wrong side of an arbitrary line.

How do we operationalise open borders? How do we enact the right to migrate into law, and guarantee freedom of movement to all people? The nation-state is not going away any time soon, and so the answer lies in getting our nation-states to change their laws. I am on-board with the liberal premise that the ultimate purpose of government is to protect individuals’ liberty to go about their own lives in peace — and so as sympathetic as I might be to the utopic vision of having no borders at all, I believe we should at least hold our own governments accountable for protecting the liberties of all who seek protection and peace within our borders.

Clemens notes that he tries to refocus the discussion not on the semantics of “open borders”, but rather on what operationally we seek to achieve. I think we in the movement, wonks like Clemens aside, often shy away from articulating a specific policy we would like to see. Part of this is because the legal and policy analysis necessary to enact open borders has rarely been done, and would vary significantly from country to country. Our goal is simply to place freedom of movement on the political agenda in the first place — to force citizens to reckon with the malicious wrongdoings of our own governments in persecuting people who have done nothing wrong.

But a further part of this is also because, just as our goal has many labels, it also has many possible routes — we’ve discussed these paths to open borders plenty in the past and intend to keep doing so. And I do think one appeal of the “freedom of movement” or “right to migrate” labels is that they are somewhat more agnostic about which of the options we have are the best or the appropriate route(s) to take.

Open borders tends to imply, just as it says on the box, borders that are open. This would suggest borders with no checkpoints (perhaps just a sign such as “You are now entering Germany”), or borders with checkpoints where very few are stopped — i.e., guards are posted, but they do not stop anyone unless the person appears suspicious, similar to how guards are often posted in airports or train stations, but they do not stop anyone unless that person fits a suspicious profile.

German-Austria border

You are now entering Germany; the Germany-Austria border. Original photographer unknown; image downloaded from The Lobby.

Meanwhile, freedom of movement and the right to migrate carry fewer explicit connotations about how our societies would in practice respect and protect these liberties. Of course, we could always abolish or minimise border controls, as literal open borders would suggest. But we could also simply offer visas to anyone who applies for them (subject to standard exclusions for people bearing diseases, weapons, or criminal intent of course). We could maintain checkpoints and inspect every traveller while still waving 98% of them through, as was actually done on the famous US checkpoint of Ellis Island in the era of open borders. Or we could even technically maintain more controls on immigration, while blatantly waiving most of these controls, as Argentina does.

But this potential semantic-implementation distinction does not bother me much either. After all, these days virtually every domestic traveller getting on an aeroplane at a regular port of travel is subject to a screening and document inspection of some kind. Beyond the most absolute of pedants, and a handful of laudable liberty-of-travel advocates, I think most of us would agree that this does not mean we lack internal open borders. The internal borders of our countries are porous to virtually all of us except those on government watchlists; our borders are internally open.

At the end of it all, I am less concerned about what kinds of checkpoints we have, or what screenings we may subject travellers to (as worthy a set of issues these might be) than I am about ensuring as many people travelling in peace are able to do so free from government agents standing in their way, preventing them from moving in peace with all the coercive force of the state. To my mind, it is a waste of taxpayer money, a danger to peace and safety, and worst of all abusive and discriminatory for law enforcement officials to be treating people seeking to visit friends and family or work for a fair wage as though they are dangerous criminals. It does nobody any good for our governments to consider peaceful, orderly movement a threat to the fundamental order of society.

It is this dangerous and unjust treatment of migration as a crime that I want to end. And I do not much care what we call our goal, or how we reach it. What I want is a world where my government, and every government, dispenses justice to every person seeking it from them. Where every government respects the right of individuals to go about their own lives and arrange their own affairs in peace, no matter their nationality or circumstance of birth.

A world with open borders; a world with freedom of movement; a world with the right to migrate. It matters not what we call it, but to all of us, it should matter very much that we achieve it. For as two German legislators rising in favour of abolishing deportation once said:

Liebknecht: A right that does not exist for all is no right.

Lasker: …it is a barbarity to make a distinction between foreigners and the indigenous in the right to hospitable residence. Not only every German, but every human being has the right to not be chased away like a dog.

The image featured at the top of this post is of graffiti in the city of Cardiff, the United Kingdom. Photo by David Mordey; original graffiti artist unknown.

Bangladesh and India: move towards open borders

As I’ve previously written, South-South migration — migration within and between poor countries — deserves attention in our understanding of global migration, and we can be inspired by scholars of migration and development who have worked hard on this. India is an important example: it is a large, fast-growing, but quite poor country (in per capita terms) surrounded by neighbors who are somewhat poorer in per capita terms and much smaller in size. I previously wrote part 1 of a two-part series on open borders within India and also looked at the existence of open borders between India and Nepal.

The topic of this post is more difficult: policy options for migration between Bangladesh and India. The lack of easily available public material on the subject, combined with my relative ignorance, make me an inappropriate candidate to delve into the relevant empirics and historical details. I’ve asked some others to do guest posts for the site on the subject, and these will hopefully materialize later this year. But, given that I consider the case for open borders to be universal, I should be able to provide an approximate contour of how I believe the case applies to India and Bangladesh. That’s what I try to do here.

Chickensneckindia

“Chickensneckindia” by Ankur; Additions to original map by uploader. Licensed under CC-BY-SA from http://commons.wikimedia.org/wiki/File:Chickensneckindia.jpg, used in the Wikipedia page Bangladesh–India border

Population and income differences

India’s population is about 1.21 billion and per capita GDP (PPP) estimates range from $4000 to $6000. Bangladesh has a population of about 157 million and per capita GDP (PPP) estimates range from $2100 to $3300. The estimates co-vary, i.e., the sources that estimate higher GDP (PPP) per capita for India estimate proportionately higher GDP (PPP) per capita for Bangladesh. You can see a few lists at this page.

Essentially, Bangladesh has about 13% the population and 60% the per capita GDP that India does.

The population ratio seems huge but not terribly so: even if all Bangladeshis migrated to India over a period of a decade, the effect on the Indian population as a whole would not be huge. On the other hand, current patterns of Bangladeshi migration, whereby they settle primarily in border states, may not be scalable to very large migration levels. I believe it is likely that, if borders were more formally opened, migrants from Bangladesh would move out farther to other parts of India, rather than primarily landing up in the nearby states of West Bengal and Assam. Also, I don’t think Bangladesh would empty out. Rather, the situation would probably be similar to that of Nepal and India: no immediate large-scale exodus, but over a longer timeframe, the “Bangladeshi diaspora” in India would grow to a size comparable with the population that is left in Bangladesh. Note that GDP (PPP) per capita in Nepal is lower than in Bangladesh, so if anything, pure economic pressure to migrate should be lower from Bangladesh. But there are some other differences, that we turn to next.

India-Bangladesh-border-map

India-Bangladesh border map, source India’s second most dangerous border? by Martin W. Lewis, May 26, 2011 GeoCurrents

The GDP per capita differences with the bordering states are not so severe. According to a list of gross state domestic products for Indian states, West Bengal is close to the national average and does reasonably better than Bangladesh. Assam does only slightly better than Bangladesh, and the other North-Eastern states do about the same or worse. Ironically, part of the reason for the relative underdevelopment of these states is their relatively poor land connectivity with the rest of India, and that poor land connectivity is because of the geographical location of Bangladesh. As I mention later in the post, allowing freedom of movement through Bangladesh can facilitate greater economic integration of these states.

Why do Bangladeshis migrate to nearby states despite small income differences? I suspect there are many reasons, including long-term cultural connections, but there is also the advantage of being part of an economy that is on the whole larger, faster-growing, and more promising. Once they are in India, they can more easily move to other parts of India — even if most of them don’t avail of the opportunity. Another factor could be weather-related problems leading people to migrate temporarily or permanently out of where they live in Bangladesh.

Differences with Nepal

I’ll repeat some differences I listed in my post on open borders between India and Nepal:

  • Population: Bangladesh has a population of 150 million, about 5-6X the population of Nepal. So, having open borders with Bangladesh is (considered) less feasible, or at any rate, would be a bigger and more transformative change.
  • Greater cultural similarity propelling more migration: Bangladeshis share close cultural roots with West Bengal (indeed, Bangladesh and West Bengal were both part of the state of Bengal in British India). Thus, there is likely to be much greater migration of Bangladeshis since they may have more confidence they’ll be able to adjust to life in West Bengal. (In practice, due to reasons of geography and the strength of border security, many Bangladeshis migrate to Assam rather than West Bengal).
  • Religion: Bangladesh is an officially Muslim country with a Muslim majority. Although not as hostile to India as Pakistan, it still has some hostility. Nepal is a Hindu majority country with small amounts of Buddhism and Islam — religious demographics very similar to India.
  • Historical accident: Bangladesh and India actually started off somewhat well, because India supported Bangladesh (then East Pakistan) in its struggle for independence against West Pakistan (~1971). But political changes in Bangladesh led to a worsening of relations.

Bangladeshi migration: raw numbers

As with most historical South-South migration, the current situation can be very open in practice for migrants. Or at least it has been until recent changes. An estimate of somewhere between 3 million and 20 million illegal immigrants from Bangladesh to India is a similar magnitude to the number of illegal immigrants from Mexico to the United States (about 7 million) and even comparable to the total illegal immigrant population of the United States (about 11-13 million being the median estimate, though there is again uncertainty). The number is smaller as a proportion of the population of India, which is more than 3.5 times the US population. This might explain the lower national salience in India of Bangladeshi immigration. On the other hand, the geographical concentration of Bangladeshi immigrants in West Bengal and Assam means greater regional salience of the issue.

Cultural camouflage

Here’s what Wikipedia says:

As per 2001 census there are 3,084,826 people in India who came from Bangladesh[1] No reliable numbers on illegal immigrants are currently available. Extrapolating the census data for the state of Assam alone gives a figure of 2 million.[3][4] Figures as high as 20 million are also reported in the government and media.[5][6] Samir Guha Roy of the Indian Statistical Institute called these estimates “motivatedly exaggerated”. After examining the population growth and demographic statistics, Roy instead states that a significant numbers of internal migration is sometimes falsely thought to be immigrants. An analysis of the numbers by Roy revealed that on average around 91000 Bangladeshis nationals might have crossed over to India every year during the years 1981-1991 but how many of them were identified and pushed back is not known. It is possible that a large portion of these immigrants returned on their own to their place of origin.[7]

According to one commentator, the trip to India from Bangladesh is one of the cheapest in the world, with a trip costing around Rs.2000 (around $30 US), which includes the fee for the “Tour Operator”. As Bangladeshi are cultural similar to the Bengali people in India, they are able to pass off as Indian citizens and settle down in any part of India to establish a future.,[8] for a very small price. This false identity can be bolstered with false documentation available for as little as Rs.200 ($3 US) can even make them part of the vote bank.

The cultural camouflage that Bangladeshi migrants can engage in reflects two truths: first, the absence of an all-knowing state that has documentation and records for all existing citizens (this might be changing, though, with new identification and documentation schemes being implemented). Second, the genuine historical and cultural connection between West Bengal and Bangladesh, that were one Indian state under British Rule prior to the Partition of India in 1947 (in fact, an attempted partition back in 1905 by the British had to ultimately be reversed after significant opposition). To the extent that there are no obvious differences between Indian Bengalis and Bangladeshis, it would seem that this should point in the direction of officially recognizing the freedom of movement, since it seems to obviate concerns regarding assimilation. But political commentators, who are keen to enforce the sanctity of borders and the formal concept of citizenship, often bemoan rather than celebrate the difficulty of distinguishing Bangladeshis from genuine Indian Bengalis:

Commonality of language, culture and religion between the two countries emerged as a major challenge in identifying immigrants, making deportation extremely difficult. The immigrants speak the same language as many Indians, and often have familial connections that make it easy to assimilate with the local population. Bangladesh’s consistent denial that its citizens are illegally crossing the border also complicates matters. Even when Indian authorities have identified illegal immigrants, deporting them becomes almost impossible given the reluctance of Bangladeshi authorities to cooperate.

An underdeveloped deportation machinery

As I wrote in my South-South migration post:

In some ways, the current nature of South-South migration as well as the social and political attitudes to it closely resemble 18th and 19th century migration worldwide. People moved from very poor countries to less poor countries with more vibrant cities and growth opportunities. Natives weren’t exactly thrilled, but strong anti-migration sentiment, while often virulent by modern standards, was relatively localized and took a fair amount of time to translate to successful national movements to curb migration. I’m not aware of survey data similar to the World Values Survey for the 19th century, but my guess is we’d see a similar 25-25-25-25 split about migration despite more overtly prejudicial attitudes among the people (similar to the situation in India today).

This connects with my very first post on the Open Borders site, where I blegged readers on why immigration was freer to the 19th century USA. I had listed three potential reasons in that post: (1) wisdom/desirability, (2) technological/financial feasibility, and (3) moral permissibility. At the time, I had written that (1) was unlikely, and the likely truth was a mutually reinforcing loop of (2) and (3) (that did eventually get broken in the United States with the Chinese Exclusion Act). I think the same dynamic is at play in South-South migration, with the difference that South-South migration today has at least some nominal level of border controls, and there’s enough of a global precedent of strict border controls that the learning curve towards very strict border enforcement can be (and in many cases, is being) traversed a lot faster.

Indeed, we can see this in India’s case today. There have been occasional bursts of effort to round up and deport illegal immigrants, often by governments that are prepared to basically “deport them all” — at least in principle. But if you’re used to US deportation numbers, you might laugh at passages like this:

Yet deportation under the Foreigners Act is also problematic. In 2003, the then Home Minister L. K. Advani ordered all states to deport illegal immigrants. A few weeks later 265 people were sent to the border, but authorities in Bangladesh declined to accept them. In fact India’s Border Security Forces (BSF), and its counterpart the Bangladesh Border Guards (then called the Bangladesh Rifles), came to the point of violence over the issue.

The deportation rates do seem to be increasing over time:

At the end of 2012, for instance, 16,530 Bangladeshi citizens with valid travel documents were found to be overstaying in India—while 6,537 and 5,234 Bangladeshi nationals were deported in 2012 and 2013, respectively.

And while the move towards newer, more effective forms of identification will probably mean that previous migrants get effectively amnestied, it may well make things harder for future migrants.

Overall, the level of preparedness and competence of the interior enforcement and deportation machinery at present seems to be comparable to what the US had for Chinese immigrants around the passage of the Chinese Exclusion Act. In both cases, natives are very unsympathetic, and many of them are openly virulent, to the immigrants. But the enforcement machinery is sporadic and erratic, and its throughput is minimal. Contrast this with “pro-immigrant” Barack Obama, who deported over 30,000 people a month, not so much because he personally hated immigrants, but because the deportation machinery was so well-established and functional that trying to slow it down it would be an expenditure of political capital — one that Obama didn’t consider necessary.

The terrorism problem

In the wake of the October 2014 Burdwan blast, close to the border with Bangladesh, carried out by an Islamic terrorist (or, in their view, revolutionary) group called the Indian Mujahideen, concerns about border security and terrorism were revived. The blasts revived concerns about Muslim madrassas (training institutes) as breeding grounds for terrorism Interestingly, Indian Muslim religious leaders (who do not necessarily represent the views of all or even most Indian Muslims, but are considered widely influential) sought to deflect this by stating that the problem wasn’t Indian Muslims, it was Muslims coming from across the border (i.e., Bangladesh). For instance, NDTV reports:

“No madrasa in India is anti-national. No Muslim in India is anti-national,” said Jamiat’s Sidiqullah Chowdhury. “The ones who come from outside are anti-nationals. Indian Muslims or madrasas are not terrorists.”

I believe that the threat of terrorism is in general greatly exaggerated because of its greater political salience and visibility, but it is still a threat that deserves to be taken somewhat seriously. Would an open border between India and Bangladesh lead to a dramatic increase in terrorist activity? I don’t know enough to offer a clear answer, though I’m hoping that posts later this year will explore the question more closely. But going by what we generally know about terrorism and its relation to migration policy, it seems that, to the extent that the threat of terrorism can be reasonably contained, it can be done through better targeted policy, and closing the border to economic migrants can in some ways complicate it. Consider, for instance, this discussion in the Daily Mail:

“The advantages they enjoy here are innumerable: immigrant-pockets which have proved to be excellent hideouts; a big metropolitan, Kolkata offers them concealment and its railway stations, namely Howrah and Sealdah, easy connectivity with the rest of the country,” the official added.

In other words, those with terrorist ambitions can conceal themselves among economic migrants, who are also undocumented and seek to evade detection. What would happen if the border were officially opened? Things could move in either direction: terrorists would be hiding within a larger population, so would be harder to detect. On the other hand, if peaceful migrants did not need to hide from the law, a documentation or identity scheme could be more effectively enforced, so that one could more reasonably presuppose that those who did not seek to get appropriate documentation had nefarious intentions. Also, the cooperation of the Bangladeshi government in combating terrorist activities could be enlisted more effectively if the Indian government weren’t getting in the way of peaceful migrants from Bangladesh. How do these competing considerations balance out? It’s hard to know a priori, and it’s possible that there will be an increase in terrorist activity, but I don’t think that it will be a significant increase.

This is similar to the point that my co-blogger John Lee made about the US-Mexico border, where he drew on statements by officials who actually work in law enforcement at border towns:

Simply put, if you want a secure US-Mexico border, one where law enforcement can focus on rooting out murderers and smugglers, you need open borders. You need a visa regime that lets those looking to feed their families and looking for a better life to enter legally, with a minimum of muss and fuss. When only those who cross the border unlawfully are those who have no good business being in the US, then you can have a secure border.

Co-blogger Joel Newman made some related points when discussing open borders, terrorism, and Islam:

So one argument notes that, unlike our current restrictionist policy which devotes considerable resources and focus on keeping out unauthorized immigrants seeking to work in the U.S., resources under an open borders policy could be focused on screening out terrorists. Another argument is that the free movement of people between countries could lead to the spreading of ideas contrary to those which inspire terrorism; immigrants who move between the U.S. or other western countries and their native countries would share values such as individual rights, tolerance, and democracy with their compatriots who remain in the native countries. A third argument is that if terrorism grows out of weak economies in native countries, the free movement of people from those countries and the resulting economic benefit to those countries (through remittances and immigrants returning to their native country to establish new businesses) could help prevent terrorism.

There is another reason open borders could help combat terrorism. Kevin Johnson, author of Opening the Floodgates, notes that “carefully crafted immigration enforcement is less likely to frighten immigrant communities—the very communities whose assistance is essential if the United States truly seeks to successfully fight terrorism.” (page 35) Without the fear of being the targets of immigration enforcement, immigrants would be more likely to cooperate with authorities in identifying individuals who are potential terrorists in the U.S. and assist with efforts against terrorist groups abroad.

Narendra Modi’s election rhetoric

On February 5, 2014, Prime Ministerial Candidate Narendra Modi gives a Hindi speech in Assam from citizenist premises. He argues that Indian citizens should be given preference in jobs, and Bangladeshi immigrants to West Bengal and Assam have been stealing jobs from natives

Narendra Modi assumed office as the Prime Minister of India in May 2014. While campaigning for the election, Modi emphasized repeatedly that, once elected, he would aim to solve the problem of Bangladeshi illegal immigration. It wasn’t clear at the time whether his words, like most political manifestos, were mere promises, or whether he intended to follow through on them. Modi did make these pronouncements only when campaigning in Bengal and Assam, rather than using a national platform, suggesting that it might be more of a device to connect with and win over voters in the affected regions than a key component of his actual agenda.

Modi’s views on immigrants had some interesting twists. For instance, in February 2014, Modi made remarks to the effect that India’s borders would and should remain open for Hindus worldwide, but not for Bangladeshi Muslims. The “open for Hindus worldwide” idea would be similar to Israel’s Law of Return.

“As soon as we come to power at the Centre, detention camps housing Hindu migrants from Bangladesh will be done away with,” Mr Modi told a public rally at Ramnagar in Assam.

“We have a responsibility toward Hindus who are harassed and suffer in other countries. Where will they go? India is the only place for them. Our government cannot continue to harass them. We will have to accommodate them here,” he said.

Stating that this did not mean that Assam has to bear the entire burden, he said “it will be unfair on them and they will be settled across the country with facilities to begin a new life.”

Earlier, Hindus from Pakistan had arrived in Gujarat and Rajasthan, but Atal Behari Vajpayee during his prime ministership evolved schemes to accommodate them in different states, he said.

However, Modi has threatened deportation for the majority of Bangladeshi migrants, who identify as Muslim:

Narendra Modi has said that “Bangladeshis” will be deported if he comes to power, in his sharpest comments yet on illegal immigrants. They have been given the red carpet welcome by politicians just for votes, he said at a rally on Sunday.

“You can write it down. After May 16, these Bangladeshis better be prepared with their bags packed,” Modi said in Serampore in West Bengal, which shares a porous border with Bangladesh.

Modi accuses other political parties in West Bengal and Assam of encouraging such migration and helping the migrants obtain false documents so that they can vote — a variant of the electing a new people argument, a particularly extreme form of the general political externalities argument. I don’t know enough about the extent of actual voter fraud in West Bengal and Assam (although voter fraud in the US seems to be greatly exaggerated, the situation is likely to be quite different in India). I do think, though, that to the extent the problem is real, it is created to quite an extent by the illegal status that these people have. If one political party keeps announcing its agenda to deport you (even if it rarely executes on that agenda), and another political party, openly or tacitly, allows you to stay, who will you swear allegiance to?

Interestingly, even while disagreeing with specifics, most commentators have tacitly endorsed Modi’s overall frame of needing to restrict immigration from Bangladesh. For instance, the answers to a Quora question about Modi’s speech (YouTube video earlier in the post) defend a nation’s right to arbitrary selection of immigration policy, appealing to intuitive versions of the idea we here call citizenism and collective property rights. For instance, Syed Fuad, who identifies as Bangladeshi, writes:

I’m not an Indian, so it’s not for me to decide. But in my opinion, Narendra Modi shouldn’t take it easy. He, being the Indian Prime Minister, is accountable to Indian citizens. Addressing their issues should always come before anything else, even if it means taking strong and often unpopular stands on sensitive issues.

Narendra Modi’s proposed solution

For the first few months after being elected, Modi seemed to be quiet on the subject of Bangladeshi migration. I assumed that, like most campaign trail rhetoric, this too would not actually be executed.

However, around the end of November, Narendra Modi’s proposed solution was released. Quartz has a detailed review. Here are the highlights:

Prime minister Narendra Modi has indicated that his government is open to executing a land swap with Bangladesh that will iron out long-standing border disputes and help thousands of people who live along the 4,096.7 kilometer-long common land boundary.

The deal, once ratified by the Indian parliament (PDF) will redraw India’s boundary with Bangladesh, where New Delhi will cede 17160 acres of land, in return for 7110 acres and swap enclaves. Enclaves are areas which are surrounded from all sides by foreign territories. India currently has 111 enclaves belonging to Bangladesh, while Bangladesh has 51 such areas.

Modi, in a speech in Assam on Dec. 01, also assured that the land swap—which his own party had previously vehemently opposed—would stop illegal Bangladeshi migrants from entering into India.

“The government will utilise the India-Bangla land transfer agreement to seal all routes across the international border through which illegal Bangladeshi migrants have been entering Assam and creating havoc in the state,” the prime minister said.

Quartz notes many problems with Modi’s solution in terms of the stated aim of reducing the illegal immigrant population, but does not question the goals themselves.

What would I suggest?

For good or bad, Narendra Modi, thanks to his generally hardline reputation, has more leeway to make genuine progress with migration liberalization than most other prime ministers. Given his past record of rhetoric and action, he is relatively insulated from the charge of being soft on Bangladeshis or on Muslims. This gives him a Nixon goes to China opportunity.

Modi has made some surprise moves in that direction. I don’t know about the wisdom of the land swap per se, but insofar as it contradicts his own rhetoric and at least apparently concedes land to the other country, it shows how, as somebody with a hardliner image, he is able to take actions that people with a softer image might be afraid to take as it would make them look weak.

But the land swap does not solve the fundamental need for free movement: even after all these years, the villages of Bangladesh and West Bengal are intertwined. People have extended families across the border. People seek economic opportunity across the border (my co-blogger John Lee made a related point about the borders of South-East Asia and the Nusantara a while back).

Modi can take a bold step forward by proposing a free migration zone with Bangladesh of the same sort that India has with Nepal. If Bangladeshis can come and go as they please, they have few incentives to pretend to be Indian citizens or to vote for parties using fraudulent documentation. Most people from Nepal who come to India are secure in the knowledge that they are free to go back and forth, and feel little need to become Indian citizens because it makes very little material difference to them (of course, there will be some who want Indian citizenship after living in India for a long time, or if they want to travel to third countries). Bangladeshis could get to the same point.

Modi could combine the creation of legal channels for migration with user fees that are slightly greater, but not much greater, than the cost of migrating illegally and getting false documentation. He could also come up with creative ways of encouraging greater geographical spread of Bangladeshi migrants. He’s already given the matter some thought with regards to Bangladeshi Hindu refugees. I don’t know offhand what the ideal solutions would be, or even if the problems faced by the states adjacent to Bangladesh are serious enough to warrant action, but it might still be politically expedient for Modi to show he is doing something in that regard. For instance, there could be special trains for immigrants that, at a relatively low cost, transport the immigrants to specific states, and where the immigrants formally enter the country after getting off the train at the new state. (Incidentally, concerns that immigrants who land at a particular part of the country may just stay there rather than migrating to other parts of the country were also voiced by some officers at Ellis Island).

There is also the question of whether the Bangladeshi government will agree to a free migration agreement with India. If it doesn’t, the Indian government can still do something similar unilaterally, but perhaps with fewer bells and whistles, so as to encourage the Bangladeshi government to reciprocate. Overall, I believe that the case for free migration doesn’t depend on reciprocity, but it may still be politically expedient to negotiate the deal that way, to placate voters that India is getting something from the deal. Independently, there is probably some value in making it easier for Indians to move to and from Bangladesh. There are also trade and transportation advantages: reducing border tensions with Bangladesh can allow for easier transportation of goods and people between the North-Eastern states and the rest of India. Currently, due to the way the borders are structured, the North-Eastern states are connected to the rest of India via a very narrow region of land, making economic integration harder. The free migration agreement can accompany greater ease of movement of goods and people through Bangladesh between the North-Eastern states and the rest of India.

Why does this matter?

The place premium between Bangladesh and India is probably not large (it would approximately equal the GDP per capita ratio, which is less than 2). And the absolute gains per migrant aren’t large either. Why, then, is this important?

  • The absolute population sizes in question are big enough. Allowing the 150 million Bangladeshis to move to India, seasonally or permanently, is a big deal even if the per capita gains aren’t huge. It creates a larger, more flexible, integrated labor market.
  • There may also be a peace dividend: with less border tensions, the residents of the countries have more opportunity to collaborate, and the governments can better negotiate on other issues.
  • The Indian government saves on some border and interior enforcement costs, though there may be some costs to setting up an efficient free movement system. But I suspect that those costs are less than the costs of setting up a border and enforcement process that actually works at the level that the US system does.
  • The free movement zone can create a precedent for a larger free movement zone. Other countries like Sri Lanka and Burma could be encouraged to join at a later stage. And in the longer run, perhaps Pakistan could be part of the zone as well. Open borders between India and Pakistan are unlikely to happen in the near future, because of the usual problems facing open borders between hostile nations. I think a free migration zone offers the best bet.
  • This is somewhat niche, but allowing free movement creates an insurance of sorts against adverse weather events, something that Bangladesh in particular is susceptible to because much of its land is low-lying and flood-prone. It is believed that climate change will exacerbate the problems that Bangladesh is facing. Free migration can possibly help avoid disaster striking suddenly. Similar points has been made by co-bloggers Joel and Nathan.
  • From the open borders perspective, I believe that this is a critical time in the history of India’s immigration enforcement. This is a time when Indian record-keeping is finally getting good enough that the country can start building a systematic enforcement and deportation apparatus. If we start traveling down this road, it can be quite hard (though not impossible) to reverse or change course. I believe that the years immediately before and after the passage of the Chinese Exclusion Act had considerable importance in terms of the development of the basic immigration enforcement apparatus, as well as the legal precendents they created. India could be going through a similar phase. Putting a brake on the process could yield larger-than-meets-the-eye dividends in terms of an undesirable road not taken.

High-skilled hacks: why the US immigration system needs serious refactoring

This post is the introduction to the series of “high-skilled hacks” posts, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled immigrantworkers and their employers have discovered and engineered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just.

Recently, I posted the following puzzle to the Open Borders Action Group:

In a comment on an OBAG post, Alex says of liberalizing high-skilled immigration to the United States: “Most folks in the policy debate want those reforms or something similar to them. They haven’t happened because high tech reform is intentionally bundled with the rest of the less popular elements of the comprehensive immigration reform package to “sweeten” the whole deal. If high-skilled reform becomes law separately, the rest of the portions of immigration reform become less likely to pass. Those who want the less popular items hold enough power to block individual pieces of the reform from becoming law on their own.

That’s the dominant theory that has failed to produce immigration reform just about every year since 2002.”

Does this accord with your impressions? Do you think people calculated correctly? As an open borders advocate, would you try to reduce the chances of a standalone high-skilled immigration passing in the hope that it could later be added to other, more comprehensive, bills, to sweeten the deal and increase the probability of their passage?

The comments were generally supportive of Alex’s view. I’ll have more to say this later (but check out the comments in the meantime) but in this post I want to consider an auxiliary puzzle: why haven’t high-skilled workers (in the technology sector, academia, and elsewhere), a generally influential population segment where even the natives who “compete” with the migrants tend to be more favorable to migration of their competitors than the general population, been more successful at getting their way? The answer is that they have been able to get their way, but in hackish fashion. They’ve basically taken an immigration system that isn’t designed to be helpful to them at all and made a bunch of changes to it here and there that somewhat approximate a migration regime that is, in practice, a lot more liberal than it looks on paper. Indeed, even a lot of criticism of existing skilled migration regimes generally accepts the broad premises of the status quo and only argues for special treatment of their favored groups. An example of this sort is Paul Graham’s recent article, that I recently critiqued. Yet another example may be high-skilled migration proponent Vivek Wadhwa, whose somewhat confused position at the Intelligence Squared Debate was critiqued by my co-blogger John. Relatedly, the advocacy efforts of FWD.us appear to have been at least partly responsible for the inclusion of H-1B liberalization suggestions in Obama’s November 2014 immigration executive action announcement.

The clever workarounds come at a price. The price is simplicity and fairness. Despite that, the system, with all its hacks, is probably vastly better for the high-skilled workers, the United States, and the world at large (through greater economic growth and more innovation), than the system as originally intended and designed.

Why have high-skilled immigrant workers and the groups that lobby for them been able to engineer so many hacks, and yet not fundamentally changed the system? To understand this, we need to understand the division of labor between different branches of government with respect to immigration law. Some types of changes to immigration law (the creation of new visa categories or the expansion or elimination of quotas for some capped visa categories) require legislative action by the US Congress. Any changes that need explicit legislative action are subject to legislative gridlock for the reasons Alex highlighted. On the other hand, there are other changes, including changes to the scope and time limits of existing visas, as well as enforcement details and the types of evidence that need to be provided, that are a matter of executive discretion. Some of these are decided at the very top, by the US President, but others can be decided at lower levels, by the DHS branches (USCIS, CBP, and ICE) working in conjunction. It is changes of the latter sort where interest groups are best able to move fast. For instance, as I’ll describe in my forthcoming post on Optional Practical Training, Bill Gates’ Congressional testimony suggesting that the length of the Optional Practical Training period be extended led directly to the creation of the OPT STEM extension through direct action at the executive level without the need for new legislation. As Gates himself observed:

This only requires action by the Executive Branch, and Congress and this Committee should strongly urge the Department of Homeland Security to take such action immediately.

In a similar vein, co-blogger Michelangelo has proposed that Obama work to expand the scope of NAFTA’s labor provisions (the TN visa):

Expansion of the TN status should be an attractive route and it is surprising that both successive Presidents and open border advocates have ignored it. The TN status is already part of the US code (Title 8 Section 214.6) and no further enabling legislation from Congress would be necessary. The President’s administration would not be creating a new status using executive order, it would merely be easing the administration process of a well established aspect of US immigration law.

Guest blogger Fabio Rojas has noted that there are many “publics” on any given issue, and on the issue of immigration, immigration lawyers and government agents form a public that is easier to influence at the margin than the general public. Fabio was focused on courts, but the same point applies to enforcement agencies:

This is why open borders advocates should directly target the legal public because of its special position in society. Courts are responsible for enforcing and interpreting the law. Contrary to popular opinion, judges do not apply the law in the same way that a baseball umpire calls “balls and strikes.” Instead, judges are influenced by what they learned in law school, in their time as practicing attorneys, and by political and social trends. That is why the open borders movement should target the legal public. If we can introduce a legal theory that supports open borders, then it will be easier for courts to uphold open borders policy and side with immigrants.

The “hacks” to expand the scope of immigration law are not limited to high-skilled workers. Similar hacks can be found in family immigration law, humanitarian statuses, low-skilled temporary work, and the regularization of people who entered unlawfully. But this series will focus on high-skilled hacks, which have the most “above-board” legal status, partly because of the greater political influence of high-skilled workers and partly because high-skilled immigration meets with less nativist opposition.

On this blog, we’ve been somewhat critical of the “high-skill only” focus of some immigration reform efforts (see for instance Nathan’s post). We’ve also been critical of high-skill-focused groups such as FWD.us. I think our criticism is generally valid. But I recently had a chance to look at the FWD.us video section, and I was somewhat favorably impressed at their use of high-skilled immigration as a way to open a conversation on migration policy. They don’t go as far as I’d like, but they offer important information and provoke interesting thoughts. In this series, I hope to go further and deeper, helping people both understand the current status of immigration law and the direction in which it should be changed.

PS: For those curious about the terminology in the title, code refactoring is a common practice in software engineering. A piece of software originally designed for a particular context, that gets successively rewritten to handle a number of special cases, can get very messy over time. Occasional refactoring to clean up the code can be helpful. The FWD.us homepage had a quote to a similar effect. As John Lee pointed out in a comment on the OBAG post, the “outdated” message has been used for quite a while, at least since the time of Harry Truman. My focus here, though, is not so much the “outdated” message as the “messy” message. There’s a lot of copy-and-paste code and clever workarounds in immigration law. Let’s think of a simpler way of accomplishing morally and practically appropriate goals: radically freeing migration.

Dr. Borjas has joined the Sinister Six!

Immigration Comics

Recently my co-blogger Vipul has begun to write about visa policy in the United States: about how most visas cannot be renewed within the United and about automatic visa validation.  Vipul’s posts reminded me about a plot line in PhD Comics, written by Jorge Cham, PhD.

"I'm harboring an illegal alien?"PhD Comics by Jorge Cham

A few years back Tajel, the strip’s social science graduate student and resident foreigner, discovers that her visa has expired. The story chronicles Tajel as she discovers that she might be an illegal alien, her journey to Mexico to renew her visa there and, as obligatory of any comic series dealing with graduate students, makes several jokes at the expense of higher education.

The series also gave birth to this lowly little explanation of the student visa system in the United States:

phd062308sPhD Comics by Jorge Cham

Despite the comedic nature of these comics, they do give us some idea on how we might wish to push forward when making our case for open borders. We must (and currently do) make our case towards intellectuals, but we must also make the case towards the average man on the street. Comics might be one avenue to explore.

The beauty of comics is their simplicity. Due to the history of comics in newspaper the profession has adopted the four-panel (or Yonkoma) standard. A comic had to be short as larger strips were difficult to fit it into the valuable space in a newspaper layout. The result has been that comic artists have had to master telling their story quickly. With the dawn of web comics artists have been able to experiment with panel designs, but even then the most popular comics use as few as possible panels as possible.

Am I implying that the average man on the street is incapable of comprehending ‘intellectual’ arguments? Not at all. The average man does however have different comparative advantages and resources than ‘intellectuals’. The average man on the street is juggling work and family life; the amount of time he can devote to leisurely pursuits is limited. We should not be surprised then if he prefers to browse the funny pages over picking up a book on the economics of immigration.

Comics themselves are often seen as ‘low’ culture, but I think this is unmerited. Comics can be, and have been, used to discuss serious issues. Alan Moore, a comic artist best known perhaps for his work on the Watchmen or V for Vendetta, has used his art to share his  anti-authoritarian view on politics. Aaron McGruder, creator of the Boondocks strip, uses the media form to discuss current events from his uniquely leftist view. Little Orphan Annie, which modern audiences might better remember as the source material of the musical Annie, was created by Harold Gray to attack the New Deal and promote conservative politics.

BoondocksBoondocks by Aaron McGruder


Read More In This Series

This is an ongoing series on ideas on how the open borders movement should proceed next.

What should be next for the Open Borders movement? by Michelangelo Landgrave

Philosophers, Wonks, and Entrepreneurs by Vipul Naik

Why the Open Borders Movement Should (Mostly) Avoid Emulating the Gay Marriage Movement by Nathan Smith


You can read the rest of Tajel’s visa story at phdcomics.com. For the convenience of readers I’ve compiled the relevant comics below (the series had several mini-arcs in between).

Part #1 – Did you know your student visa is expired?
Part #2 – I’m harboring an illegal alien?
Part #3 – Apparently it’s the D/S on the I-20 that determines USCIS…
Part #4 – Give us your tired, your poor, your thoroughly confused…
Part #5 – I’ll go to Tijuana!
Part #6 – The F-1 Student Visa Process Explained
Part #7 – Your application triggered several red flags.
Part #8 – For security purposes we need a statement of exactly what your thesis is.
Part #9 – At least you picked me over the internet.
Part #10 – Professors: More Elusive Than Ninjas?
Part #11 – Ninjas vs Professors: A Comparative Analysis
Part #12 – I see him!
Part #13 - Professors exist as probability density functions.
Part #14 - Does this mean interactions are purely hypothetical?
Part #15 - I wonder what’s going on today?
Part #16 – Did someone not need me?
Part #17 - Free the burros!

All images copyright of their respective creators.

 

australia-anti-immigration-ad

Literally refusing to rescue drowning people: your taxpayer funds at work, putting immigrants to death

Open borders advocates on occasion borrow philosopher Peter Singer’s metaphor of the drowning child:

Imagine you come across a small child who has fallen into a pond and is in danger of drowning. You know that you can easily and safely rescue him, but you are wearing an expensive pair of shoes that will be ruined if you do. We all think it would be seriously wrong to walk on past the pond, leaving the child to drown, because you don’t want to have to buy a new pair of shoes – in fact, most people think that would be monstrous. You can’t compare a child’s life with a pair of shoes!

The analogy is somewhat obvious: many of the people prevented from moving by our immigration laws are fleeing a disaster of some kind that puts their life in serious danger. Those who want to prevent them from moving cannot use the excuse that it might be economically costly to us if we allow them to flee; otherwise, we are literally saying we value an expensive pair of shoes over the life of another human being.

However, open borders advocates are quick to caution that inasmuch as this is a thought trigger, this is not a true reflection of the state of things. Migration is actually rather different: most migrants seeking to move don’t require us to even lift a finger, let alone ruin an expensive pair of shoes. Many of the migrants we exclude, even the weary refugees, are perfectly capable of rescuing themselves. They can afford to pay for their journey to a land safe from political persecution, economic disaster, cholera, or whatever plague ails their native country; they can afford to rescue themselves. All our governments need to do is get out of their way, and allow them to pay for their own fare. The very reason that so many pay expensive fees to smugglers is because our own laws banned them from buying a regular ticket at the market fare in the first place!

Distancing the analogy even further, many migrants are not in any sort of life-threatening bind: they are capable individuals simply seeking to author their own life stories. That many prospective migrants simply want to and are fully capable of authoring their own better life makes it all the more galling that we regularly characterise the migrant as some sort of criminal burdensome leech. The “but my expensive shoes!” sort of excuse doesn’t even hold water when there’s nobody drowning — not when it’s just somebody trying to marry their spouse, pursue an education, or see the city lights, and is perfectly able to do this without troubling any of us in the least.

This is why I rarely refer to Singer’s analogy; it isn’t a very good portrayal of the true situation. If you want a better analogy, the situation is more like a well-dressed person trying to go somewhere, and us standing in the road complaining that if we let him go somewhere, he’ll step on our expensive shoes, and that’s why we need to build a giant electrified fence to keep him from ever coming anywhere near us. Our complaints are unfounded, and the gentleman requires nothing more from us than to move on and go about our own business.

But in another sense, immigration restrictions are far worse than refusing to rescue a drowning child. Most migrants may not face any life-threatening danger — but there are still millions forced to live in countries where they could be tortured or killed, and millions more forced to live in countries where there are no jobs for them outside the sweatshop. When our laws ban these people from moving to a society that won’t literally kill them, we are not just refusing to help a drowning person; this amounts to actively drowning the victim.

In these cases, the drowning person is perfectly capable of swimming to safety; they can buy their own ticket on a plane. The only thing keeping them from saving themselves is our own laws that ban them from doing this. We have prevented the drowning person from swimming to safety; we have become complicit in the death, if not murder, of a human being. When we ban people from fleeing death and suffering, we are complicit in the consequent dangers that befall them.

t1larg.sfax.boat.gi.afp[1]

African migrants banned from buying a regular ferry ticket await rescue on their disabled, overcrowded vessel in the Mediterranean. Photo credit: AFP/CNN.

Mind you, it is already the case that our laws give no reasonable avenue for bona fide refugees to safely travel in search of safety on aeroplanes or boats like the rest of us. Many people stay in their home countries resigned to lives of poverty or persecution because they have no legal avenue to leave for a society that allows them to flourish. But it only gets worse.

Those who do strike up the gumption to leave are punished even more harshly and actively in our name, at our own expense. Our own law enforcement agencies treat penniless unarmed people as though they are an invading army. And so our governments wind up literally killing people — not merely in silence by banning them from pursuing safety, but vocally and actively, by putting them to death.

Take the case of Australia. It is no secret that Australia pursues “pushbacks” or “towbacks” of migrants seeking asylum; there is video evidence showing it, and eyewitness testimony confirming it. The Australian procedure appears to be:

  1. Send the Navy or Coast Guard to intercept migrant boats;
  2. Transfer migrants from their potentially unseaworthy boats to lifeboats (literally, lifeboats manufactured for use only in dire circumstances when one has to abandon ship)
  3. Tow these lifeboats to Indonesian waters;
  4. Cut these lifeboats adrift; they’re now Indonesia’s problem.

This entire procedure is both legally and morally suspect. Migrants generally set sail in rickety and unsafe boats because they are banned by immigration law from purchasing passage on safer, legal vessels. Then, when they do get close to the country they want to settle in peace — a country not riven by war or sweatshop slavery — they are captured, placed on a slightly less unsafe boat, and cut adrift on the open sea. The Australian government surely gives them some provisions and a presumably slightly better vessel, but the fact remains: the government is setting these people at sea, in reckless disregard of their human lives. To quote one media account,

Indonesian sources have told the ABC those on board came from Iran, Pakistan, Bangladesh and Nepal.

The youngest aboard was 18 months old.

They also said the asylum seekers were fed and medically treated by Australian authorities, but claimed to have run out of food 48 hours before landing in Java.

Greens Senator Sarah Hanson-Young says it is concerning that children were on board the lifeboat.

“I’m very concerned that there are reports that there were children as young as 18 months old, toddlers on board this boat,” she said.

“It is never safe to turn back a boat, push a boat back to the high seas with children that young on board.”

But hey, nobody’s died yet from these pushbacks, so maybe it’s ok to leave babies as young as 18 months afloat on a tiny vessel, days away from any shore, and have them fend for themselves — right? This is surely extremely morally dubious. And as it turns out, legally dubious too, if Ben Saul, Professor of International Law at the University of Sydney is to be believed:

Australia cannot turn back boats if it would expose a person to return to persecution contrary to the [UN] refugee convention. That includes sending people back to countries which do not offer effective refugee protection. Those can include transit countries like Indonesia and Malaysia where there is no refugee protection status given to people who are there to claim refugee status.

The second consideration is under the law of the sea. It is not legal to turn back a boat which is unseaworthy and on which the lives of passengers are in danger or at risk.

[Towbacks] would ultimately require the safety of the vessel to be ensured, so Australia presumably would then need to tow it right back to an Indonesian port. It couldn’t just then leave the boat stranded without a motor on the edge of the Indonesian territorial sea, for example.

Australia’s brazen disregard for ethics and the law is hardly unusual. In 2012, the European Court of Human Rights sanctioned Italy for performing near-identical pushbacks. The only substantive difference? Rather than putting migrants into new lifeboats, Italy transported migrants on its own boats back to Libya, where the Gaddafi regime promptly imprisoned many of them. Some of the people who were pushed back were even later granted asylum by the Italian government, a tacit acknowledgement that their initial towback was wrong.

Consider the above interview with some of the migrants immorally and unlawfully sent back to Libya. Does it morally matter whether these people were put in harms way by setting them afloat on a tiny vessel at sea, by returning them to a tyrant’s jail, or by settling them literally in the Sahara Desert? Whether you die of thirst, exposure, or tyrannical murder, whatever the case may be, if you were sent to your death by the Italian government, was your death not effected at the hands of the Italian taxpayer?

This 2012 decision did not seem to affect the Greek government, which has reportedly sent masked commandos to effect near-identical pushbacks of migrants fleeing the mass murder of Bashar Assad and the Islamic State in Syria. And yes, Greece has drowned some of these poor people. About a year ago, the Greek coast guard was towing a refugee boat (survivors allege they were being taken to Turkey, while Greece claims it was towing them to a Greek island) when rough seas, poor handling, or a combination of the two caused the boat to sink, sending many — including children — to death by drowning.

Now, one could take a sympathetic view to the governments of rich countries. They are somewhere in between a rock and a hard place: people will complain no matter what they do. If they allow migrants in, people will circulate false claims of lavish government treatment for these poor people — while at the same time complaining that these people are also cluttering up the streets begging, and also stealing their jobs. If they don’t allow migrants in, they get some bad press, but it’s not their own citizens drowning in the sea or being tortured in some mass murderer’s jail, so nobody capable of holding them accountable will actually bother to do so. So these governments might as well get some blood on their hands; it’s easier than the alternative.

And facetious as I might sound, I do see some room to sympathise with the people effecting these pushbacks. It’s ultimately the citizenry and the institutions that are responsible for political outcomes, and so this political drowning of immigrants is not wholly the fault of, say, the Australian, Italian, or Greek governments. It is the fault of bigotry and the fault of institutions that allow bigotry to fester — that allow us to say our expensive shoes are worth more than human life.

The challenges governments face in handling the problems of migrants, especially the most destitute, are very real. Take for example one report of the Thai government pushing back Burmese Rohingya migrants (though from the description, it sounds like these are actually true deportations, as these migrants have already landed):

The 259 will be put back on boats and sent back to Myanmar, said Police Colonel Sanya Prakobphol, head of Kapoe district police.

“They are Muslims from Myanmar … They are illegal migrants,” Sanya told Reuters by telephone.

“If they come in then we must push them back … once they have crossed the sea border into Myanmar then that’s considered pushing them back. What they do next is their problem.”

Sanya hardly sounds like a sympathetic character. Much like Australia, he intends to set people adrift at sea — and in presumably worse conditions than an Australian lifeboat. But he is really between a rock and a hard place:

Sanya said the 259 people were currently being held at a community hall and that his team were “looking after them like relatives” but that they would soon be put back on boats.

“Who will feed them? I’m struggling day to day to feed them,” said Sanya.

If he were a rich country official, one might be tempted to play him the world’s saddest song on the world’s smallest violin. But he is a developing country official with hardly any resources to effect an orderly resettlement of refugees. He can perhaps feed them for a while, but he cannot help them find homes or jobs. In his shoes, it’s hard to say we could do much different than deport these poor people back to persecution and suffering in Burma.

But this is only a problem because we continue to tolerate the bigotry that views deportation as an solution to poverty, and the bigotry that denies migrants the agency to run their own lives. The Rohingya fled for a reason: they would rather run the risk of starving in a hostile land than continuing to suffer in their own country. Pushbacks and deportations do not cleanse our hands of guilt.

If the Rohingya come to misfortune in our own countries because of their own failings, that is one thing. But if we send them back to the very suffering they toiled so hard to flee, we are directly complicit in all that may befall them — which, in the case of the Rohingya, often turns out to be slavery, summary execution, torture, or rape.

Who will feed them? Ideally, they should feed themselves. But irrespective of how they are fed, the answer to this question of feeding is not “Send them away to be enslaved, murdered, tortured, or raped.”

One would hope that the more “civilised” governments of the Western world would have a more elegant solution to this than Sanya’s “Send them back to the country that’s killing them, then it’s not my problem.” But unfortunately, besides elaborate commando gear and expensive lifeboats, there seems to be little that separates the rich world from poor in the matter of drowning migrants. Whichever the government may be, its callousness is galling.

People often take it to be a strawman when I say that defenders of the border status quo are in essence apologising for persecution and murder. But when governments are putting unarmed civilians adrift at sea, and don’t seem to care whether they live or die as a result, it surely behooves us to ask what on earth these people did wrong to merit such punishment, such endangerment. And when on occasion, someone does pose this question, as one British journalist did, we find the “protectors” of our borders proffering the following:

The British government’s position is that the rescues should stop, because they only encourage more migrants to attempt the crossing. All of the people I interviewed for this story made their first journey to Europe in a smuggler boat across the Mediterranean. Our government believes that, had any of them drowned, it would have been a useful deterrent to others.

We are drowning people for the crime of fleeing destitution and persecution. We are drowning people for seeking to preserve their own lives. We are drowning people to send a warning to anyone else who might dream of a life in a society where they can be free to pursue their ambitions and realise their potential. We are literally drowning innocent children.

I don’t claim to have all the answers for how we should implement immigration law, how we should deal with refugees, or how we should police our borders. But I do know that there is no satisfying rationale for why our governments drown people — metaphorically in the home countries they might want to leave, or literally in the seas surrounding our countries where they dream of being free from oppression and murder.

It is no strawman nor exaggeration to say that our closed borders kill people. Our border politics have led to our governments suggesting it would be quite literally better to let people drown.  And yet one of the most grating aspects of the status quo is that nobody even feels compelled to articulate a justification for so many parts of it that seem obviously wrong — like the fact that ostensibly civilised societies are condoning the drowning of innocent people.

Nobody feels pressured to justify the way we specifically treat immigrants. There are plenty of philosophical arguments for the state’s authority to “control” its borders, but none that specifically explain why throwing people into prison camps or literally refusing to rescue drowning people is a morally acceptable or required method of doing so.

The drowning children are real, and yet we don’t have to do anything to rescue them; they can swim just fine on their own. All we have to do is allow them to save themselves. Yet we would rather use our own ships and our own taxes to prevent them from saving themselves, and watch them drown. Why do we do that? How can we justify it? Maybe you can tell me.

The image featured at the top of this post is an Australian government advertisement warning prospective immigrants and refugees that they are not welcome in Australia.

Tweet

Where are the Spanish tweets?

A few years ago I was on a date with an open borders skeptic. While chatting my date complained that Hispanics were not assimilating quickly enough and refused to learn the language. I pointed out that her family was descended from Poles who had come over only a few generations ago. Today not one of them, including herself, could speak Polish. Why did she think Spanish would fare any better?

My date was not alone in her concern about language assimilation. One does not need to search far to find someone making the same basic argument: X group is not learning the language quickly enough. This will lead to the destruction of our nation! Or worse – the United States will become another Belgium.

I could write a few thousand words discussing why the United States doesn’t have to worry about becoming Belgium. Not that there is anything wrong with Belgium. Instead though I will present a question and a map.

Where are the Spanish tweets?

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J.B. Post, Ken, and Peter Berlich have constructed a map showing the world by language use in twitter. North American is solidly grey (English). The only exception is the urban core of Quebec where French (in violet) has managed to persist. A few spots of pink (Spanish) can be seen in Mexico, but they fail to penetrate the US border. The full map can be shown here.

The beauty of the twitter map is that it shows us the language of choice among the millennial demographic, twitter’s core user base. First generation migrants may retain use of their native tongues but their millennial children certainly aren’t tweeting in Spanish, Chinese, or Tagalog. If migrants are not assimilating quickly enough we should see Spanish tweets dominating Texas, Florida, and California. Instead we see English continues to dominate the North American continent. Indeed, I suspect that the internet age has encouraged both English adoption among millennial children of migrants and by the world as a whole.


Further Reading:

Open Borders: The Case Page on Linguistic Assimilation, Linguistic and Cultural Fluency Requirements, and Assimilation Problems

Nathan Smith on Linguistic Externalities.

Vipul Naik on Two subtle lessons from the “Your in America” twitter bot. 

Open Borders page on Bloggers as Illegal Immigrants.

Tolerance as Not Strongly Opposing What Others Do With Their Own Person and Property

At EconLog, Bryan Caplan responds, in defense of tolerance, to my earlier post, where I had distanced myself from tolerance as a moral and political ideal. Of course, I approve much of what is done, and more importantly, not done, in the name of tolerance, but I would choose different words to express the grounds for my approval.

This is partly a substantive disagreement and partly arises from difficulties in definitions, and Caplan does good service by clarifying the latter. I had argued that “tolerance is subject to this paradox: that a society cannot be tolerant without being intolerant of intolerance,” which I illustrate with an example of a society where 95% of people tolerate both gays and anti-gay violence: such tolerance isn’t worth having. One way out is to define tolerance as respect for others’ rights, but Caplan dismisses this because “a homophobe who spends every day peacefully denouncing gays as disgusting and vile” would, implausibly, be “tolerant” by this definition. Instead, Caplan proposes that:

Tolerance is not strongly opposing what people (especially strangers) do with their own person and property. [To which I think Caplan implicitly means to add: as long as it doesn’t interfere with the person and property of someone else.]

Well done! If I’d thought of this definition before, I would have written the earlier post differently. I think this definition largely defuses the “paradox of tolerance” that I identified earlier. An individual or a society that was tolerant in this sense could still be resolute in defending the natural rights of minorities, while also tolerating the attitudes of intolerant minorities, as long as they remained merely attitudes, not actions.

What, then, is intolerance? What’s the negative of the above definition? Maybe this:

Intolerance is strongly opposing what people (especially strangers) do with their own person and property [even when it doesn’t interfere with the person and property of someone else].

While I find the definition useful as a way to clarify the discussion, I don’t find it as linguistically compelling as Caplan does. Thus, Caplan writes…

Return to Nathan’s hypothetical: A gang physically attacks a gay man.  A bystander pulls his gun and tells them to back off.  Morality aside, it seems linguistically odd to accuse the bystander of “intolerance.”

… but (in my view) it would be odd to “accuse” the bystander of intolerance only because one accuses people of doing bad things, whereas pulling the gun on the gang was a good, courageous action. I don’t think it would be odd to praise the gunman for his intolerance of violence against gays. I could imagine him becoming a local hero, and the town boasting, “See! We don’t tolerate violence against gays around here!”

And by the way, if we take Caplan’s definition straight, without modifying it with my bracketed clause, it would imply that the gunman is intolerant. He is “strongly opposing what other people”– the gang– “do with their persons”– their arms, fists, whatever– “and property”– any weapons they might be using. Only if we assume the extra clause about “when it doesn’t interfere…” is the gunman not a case of intolerance.

In general, I see nothing odd in saying that American society is intolerant of wife-beating, child abuse, and slavery, and that these are among its virtues. I find this to be a rather precise and useful way of expressing an important point. Similarly, open borders advocates want to make the world intolerant of migration restrictions.

Still, if we accept Caplan’s definition of tolerance (with my clarifying clause), an interesting disagreement remains. Caplan strongly favors tolerance, in theory and– on the basis of all my personal interactions with him– in practice. (It’s a genial feature of many libertarians that, whatever one is doing, as long as it doesn’t involve asking the government for any help, they approve of you.) I’m ambivalent about it.

Caplan offers five arguments in defense of tolerance, of which I’ll focus on three:

1. People’s moral objections to how others use their own persons and property are often greatly overstated, or simply wrong.

2. People’s moral objections to how others use their own persons and property are usually superfluous because the Real World provides ample punishment.

3. Intolerance is bad for the intolerant, because being angry at others makes you unhappy.

Caplan admits that his arguments are “not watertight.” Or as I would put it, they are wise and true, except when they’re not.

To (1): yes, of course, it’s undesirable for people to make moral objections to the behavior of others if those objections are mistaken; but correct moral objections may be very desirable. And while people are often mistaken in all sorts of moral judgments, I’m not at all sure that they’re more likely to be correct in moral judgments concerning themselves and those close to them, as they are in moral judgments concerning strangers. People have more of a certain kind of information in their own case, but also more bias.

To (2): yes, vice often (in the eternal Christian perspective, always, except by the grace of God) carries its own punishment; but people are usually much better off if they don’t have to “learn the hard way” (a fortiori in the eternal Christian perspective). Sex is a standard example. Suppose young people feel certain very powerful urges, while a vast literature attests to the disastrous consequences of acting on them. Yes, if society doesn’t scare a girl into chastity by strongly opposing premarital sex, then she’s likely to learn the benefits of chastity ex post through the travails of single motherhood. Similarly, the lazy man may realize after ten years of playing video games in his mom’s basement that his poverty, low social status, and lack of marriage prospects are his own fault, and vow to reform. But he’s lost ten years, and has to overcome a lot of bad habits. He might have been much better off if the insults of contemptuous strangers had shaken him into moral maturity back when he was twenty. Of course, people don’t necessarily learn the right moral lessons even with a lag. They might lead impoverished lives till the day they die, because their neighbors are too tolerant to educate them in the way of virtue.

To (3): Yes, intolerance is not a pleasant feeling, but is it one’s intolerant attitudes, or someone else’s offensive behavior, that is to blame? Simplifying somewhat, a person confronted with offensive behavior has three options: tolerate, oppose, or withdraw. Manipulating oneself psychologically so as to reduce, or possibly eliminate, one’s felt disgust at the offensive behavior, is not costless. You may never feel as good as you would if the offensive behavior stopped. Strongly opposing the offensive behavior may assuage the conscience of a truthful person as silence would not, and better yet, it might cause the offensive behavior to cease. If so, very importantly, it spares others, not just oneself, from the offensive behavior. I may tolerate the chatterer in the classical music concert, hoping he’ll just stop, but I’m grateful to the man who confronts him with an angry “Shhhh!”

As for withdrawal, I’m not sure whether it qualifies as tolerant or not. It seems to fit Caplan’s definition, but would we consider a person “tolerant” whose invariable response, upon finding out that someone is gay, is quietly but irrevocably to terminate the acquaintance? I’m not sure. Caplan and I are enthusiastic Bubble-dwellers, and I’ve come more and more to congratulate myself on the virtues of my immediate circle of acquaintance relative to American society generally. But part of what makes my bubble so nice is that lewdness, blasphemy, and vitriol against undocumented immigrants are not tolerated there. Now, if I can satisfy the duty of tolerance by withdrawal, that’s some comfort. But isn’t it a bit harsh for those from whom I withdraw, to be ostracized without knowing why. At least sometimes, mightn’t it be better to tell them what they’re doing wrong? Then they have the option of changing their behavior to keep my acquaintance, or if not, at least they know why they lost it.

As usual, Jesus sets the right example here. Up to a point, Jesus was tolerant in Caplan’s sense. He never seems to have sought out people who were minding their own business and started blasting them for their sins. He did seek out some and gently call them: “As He was going along by the Sea of Galilee, He saw Simon and Andrew… And Jesus said to them, ‘Follow Me'” (Mark 1:16-17). He taught “Judge not, that ye be not judged” (Matthew 7:1), and illustrated it with a beautiful, rather comic parable about not taking a speck out of your brother’s eye when there is a log in your own. He drove the money changers out of the temple by force (Matthew 21:12), but the temple is a special place, and He doesn’t seem to have interfered with them anywhere else. He was most intolerant of the teachers of the law and the Pharisees– “You snakes! You brood of vipers! How will you escape being condemned to Hell?” (Matthew 23:33) But their problem is that they were hypocrites, that is, they were constantly condemning others in the name of the law, without practice it themselves:

“The teachers of the law and the Pharisees sit in Moses’ seat. So you must be careful to do everything they tell you. But do not do what they do, for they do not practice what they preach. They tie up heavy, cumbersome loads and put them on other people’s shoulders, but they themselves are not willing to lift a finger to move them.” (Matthew 32: 2-4)

Scathing condemnation of hypocrites seems appropriate. Surely people who spend their lives condemning others in the name of a law they themselves are not observing, deserve to be condemned. And inasmuch as people on the receiving end of the Pharisees’ self-righteous condemnations were troubled and oppressed thereby, it might be impossible to relieve them without attacking the Pharisees’ moral authority at the root. But when Jesus was presented with the woman caught in adultery in John 8, He was merciful. “Neither do I condemn you,” He said, but also “Go and sin no more” (John 8:1). Should He have said, “Free love is OK,” or “It’s none of my business what you do with your own body?” Would that have been comforting? Would that have been loving? If sin destroys happiness and damns the soul, one who fails even to advise against it is deficient in mercy. If tolerance means not warning someone that they’re driving over a cliff, it is no virtue. All in all, I think Jesus’s practice is close to tolerance in Caplan’s sense, but not quite the same. But then, Caplan specially advocates “moderate benevolence,” as opposed to loving every stranger as your own child. Jesus did love everyone as His own children, so He couldn’t be quite as tolerant.

While “intolerance” has an unpleasant sound, “moral suasion” sounds nicer. But moral suasion is a form of nonviolent intolerance, and as such, it is an alternative to coercion which libertarians should find attractive. Would you rather private racism be eliminated by pervasive intolerant attitudes of racism, or by a police state reading people’s e-mails and bugging their homes? How about pollution, littering, or loud parties at night? Surely it’s better if communities can deal effectively with negative externalities non-coercively, through intolerant attitudes towards anti-social behavior, than if preventing negative externalities becomes the job of an invasive nanny state.

Bryan Caplan and Vipul Naik seem to feel there’s a connection between tolerance and open borders. I think the two ideas are largely orthogonal: one can argue from any side of either question to any side of the other without about equal plausibility. Here are a few of the possible arguments:

1. Tolerance => Open borders. We shouldn’t strongly oppose anything that people do with their own persons or property. Therefore we shouldn’t restrict immigration. (But this will seem question-begging to a proponent of the collective property rights argument against freedom of migration.)

2. Tolerance => Migration restrictions. Tolerant moral and social values are a distinctive Western achievement which will be diluted if we let in foreigners from less tolerant cultures. So we should keep  most foreigners out.

3. Intolerance => Migration restrictions. Foreigners engage in many repugnant practices. We should exclude most of them to avoid being offended by these practices. In this connection, someone suggested that I take the opportunity to score points against the horrible Hans Herman Hoppe, godfather of restrictionist (pseudo?) libertarianism by this quote from Democracy: The God That Failed:

There can be no tolerance toward democrats and communists in a libertarian social order. They will have to be physically separated and expelled from society. Likewise, in a covenant founded for the purpose of protecting family and kin, there can be no tolerance toward those habitually promoting lifestyles incompatible with this goal. They–the advocates of alternative, non-family and kin-centred lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism–will have to be physically removed from society, too, if one is to maintain a libertarian order.

Shudder. But anyway…

4. Intolerance/Moral suasion => Open borders. Immigrants will bring with them some practices that are morally wrong, or distasteful. It will often be impractical and/or unjust to use force to reform them. Fortunately, intolerant attitudes are a good substitute for legal force. Our strong disapproval of offensive practices will often suffice to make immigrants abandon them. Indeed, one of the benefits of open borders is precisely that a lot of people will come under the influence of our disapproval, and be effectually pressured to conform to our higher moral standards. By contrast, if they remain in their home countries, they will be too far away to notice and be influenced by our disapproval. That may injure our peace of mind to the extent that we know of these practices, but even if they don’t bother us psychically when they’re far away, practices that are really, objectively moral evils should be stopped.

I can’t prove it, but I suspect that the Victorian Age was better able to accommodate open borders in part because it was more socially intolerant, e.g., of blasphemy or sexual license. Strong normative values that pervaded society made the Victorians better able to assimilate immigrants. Also, a civil society strong in its normative values did some of what the modern welfare state does, so the welfare objection to open borders wasn’t a factor in the way it is today.

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An addendum to visa versus authorized stay: “automatic visa revalidation”

In my previous post on the distinction between visa and authorized stay, I had stated that, unless you are a citizen or a permanent resident (Green Card holder), you need to have a valid US visa if you’re entering the United States as a student or temporary worker, even if it is a re-entry. However, you don’t need a valid US visa to stay in the United States. Recently, I discovered an interesting exception to this rule: “automatic visa revalidation” for people who make short trips to Canada and Mexico lasting less than thirty days. Here are here are official US government pages on the subject, and here and here are more details from the University of Washington and Murthy Law Firm respectively.

Basically, this allows people on some types of visas to re-enter the United States with an expired visa but a valid I-94 (Arrival Record Card). The following conditions are necessary:

  • The person’s absence from the United States was 30 days or less.
  • The person did not visit any countries other than Mexico or Canada in that period.
  • The person does not have a pending (or rejected) application for a new visa.
  • The person is not a citizen of one of the countries designated by the US as a state sponsor of terrorism. This includes Cuba, Iran, Syria, and Sudan (more information here).

Additionally, the usual checks applied at a port of entry also apply here (for instance, those on the “F” student visa need to have an up-to-date travel signature, those on work visas need a letter from their employer indicating that they are still employed).

The typical use cases for this are:

  • People with family or other connections in Mexico and Canada can make short trips to visit family and friends back home.
  • Those engaging in tourism or sightseeing have their life made somewhat easier: a US student or temporary worker can go for a brief vacation in Mexico.
  • Those going for short academic or business trips, such as attending conferences, can do so.

The most interesting aspect, to me, of automatic visa revalidation is that it does not allow you to make a short trip to renew your visa. This means that somebody making a short trip to Mexico or Canada to renew an expired visa is taking the risk of being locked out of the US.

Why might those who have a pending application for visa renewal be excluded from automatic visa revalidation? This sheds a little more light on the observation from my preceding post that it is not possible to renew a US visa in the United States. I suspect that the same reasons apply: applying for a new visa should really be done in a context where a rejection can be used to credibly foreclose the person’s return or continued stay in the United States. If people with pending applications are allowed to return, then you might end up with a situation where somebody whose visa has been declined is legally present in the United States.

In fact, as the Harvard International Office explains, even if you have a currently valid US visa, applying for a new one as a Third Country National in Canada or Mexico makes you ineligible for re-entry into the United States until your new visa is approved:

Harvard students and scholars who hold F or J visas should not plan to travel to Canada or Mexico to apply for a visa from a U.S. consulate without consulting their HIO advisors in advance. Any Third Country National (a person applying at a U.S. consulate/embassy in a country other than his/her own) who applies for a visa in Canada or Mexico must have the application approved before returning to the United States. If the applicant is unable to get approval of the new visa application in Canada or Mexico, s/he will not be permitted to reenter the United States. The applicant may need to travel to his/her home country directly from either Canada or Mexico to apply for the proper visa in order to reenter the United States.

Featured image credit: H-1B wiki

PS: Co-blogger Michelangelo alerted me to a similar provision called “advanced parole” that is relevant for asylum applicants and might be used for DACA/DAPA recipients. See the USCIS page on Form I-131 for more. Michelangelo might do a blog post on the subject. I’ll link to it once it is published.

December 2014 in review

December 2014 has been a busy and interesting month for Open Borders: The Case. This post summarizes some of the most exciting developments.

Traffic patterns

As detailed in the November 2014 review, traffic to the site exploded shortly after US President Barack Obama’s deferred action announcement. We capitalized on the interest both by publishing relevant content and by promoting some of our older content and promoting ourselves on Facebook.

The greater interest in migration continued through the first week of December, and we also published posts daily during that week. We got 10,000 pageviews in the first week of December, and over 2,000 on some weekdays. Traffic then started dipping, and our posting frequency also reduced.

We expected the week of Christmas (Monday, December 22 – Sunday, December 28) to be a very slow week, and the first two days of the week were indeed slow. But we published a number of topical posts related to Christmas and migration, and actually got higher traffic on Christmas Day than the previous day. On December 25, UTC, the site got 786 views, compared with about 200 last year on the same day.

Social media successes

Of the posts published this month, two stood out as unusually successful:

Both the posts benefited from our paid Facebook promotion, but the reason we promoted them was that they were already doing well organically. It’s impressive that both our highest-performing posts on social media were published this month.

Some of our earlier posts continued to accumulate social media likes, shares and comments. John Lee’s Thanksgiving post reached 410 Facebook engagements (it had 282 at the end of November). Lee’s post on Argentina’s open borders policy reached 221 Facebook engagements.

Christmas specials

We did three posts on the occasion of Christmas:

Hacker News and Reddit

Prior to Obama’s deferred action announcement, we had received only about 500 visits from Reddit through our entire history, and none from Hacker News. December was a turning point. Many of our posts were widely shared (and panned) on our Reddit, and we received attention from people who didn’t follow the site closely.

On December 26, 2014, somebody (we don’t know who) posted a link to Hacker News to John Lee’s post How did we come to be so certain that closed borders are our salvation? from July 30, 2013. Even though the post didn’t do well on Hacker News (it stayed on the front page for only a few minutes, and it got only 26 net upvotes) it still drove over a thousand views to Lee’s post. As is the case with most Hacker News traffic, it was shallow traffic: most people bounced off the article, but a dozen or so explored the site in depth. We discussed the matter in the Open Borders Action Group.

It turned out that high-skilled migration had become topical at Hacker News because of a post by Paul Graham on freeing high-skilled migration published Friday, December 26. On Saturday, December 27, Vipul Naik mooted to the Open Borders Action Group the idea of writing a response post, and got encouragement and suggestions. On Sunday, December 28, the post was published. It did not get picked up or posted on Hacker News, but it did get posted at many places on Reddit, and got a lot of shallow traffic from Reddit.

Two other posts by Vipul Naik received a fair amount of Reddit and Hacker News attention: Why the Cuba “wet feet, dry feet” policy should continue and Visa versus authorized stay: why can you not renew your visa in the United States? Neither did well in social media terms, but both are likely to gather more search traffic over the longer term.

Search interest

In some cases, posts about a relatively less-well-covered region can get a lot of traffic when that region becomes the subject of international news. Two noteworthy examples from last month:

Other conversation-sparkers

New York Times columnist Paul Krugman’s guarded critique of open borders prompted two responses:

Paul Crider returned after a long hiatus to write a post arguing for a more human-centered focus in the case for open borders, following in the broad tradition of the human capabilities case for open borders. Crider’s post got 139 Facebook engagements and 8 Twitter engagements.

Nathan Smith wrote a post on why the open borders movement should (mostly) avoid emulating the gay marriage movement, a follow-up to his post on what open borders can learn from abolition of slavery. Published December 22, 2014, the post sparked a conversation in the Open Borders Action Group about the diversity of perspectives in the open borders movement and the need to include disclaimers when authors express opinions on topics not very directly related to open borders. We included a disclaimer on Smith’s post and on some older posts, linking to our general blog and comments policies page, and quoting this passage from it:

The moral and intellectual responsibility for each blog post also lies with the individual author. Other bloggers are not responsible for the views expressed by any author in any individual blog post, and the views of bloggers expressed in individual blog posts should not be construed as views of the site per se.

Other metrics

  • The number of pageviews of Open Borders: The Case was reported as 35,318 by WordPress Jetpack Stats and as 34,374 by Google Analytics. Both counts exclude views of posts by people through RSS feeds, and also exclude views by site administrators when logged in. This was the second highest among all months in our history, the highest being November 2014 (about 38,000 pageviews). The corresponding number of pageviews in December 2013 had been about 12,000.
  • Our Twitter follower count now stands at 1014, up by 44 from its value 970 at the beginning of the month. We crossed the 1000-follower mark on December 27, 2014.
  • The Open Borders Action Group increased in size by 70, from 643 to 713.
  • Likes of our Facebook page grew by about 700, from a little over 3400 to a little over 4100.
Visa

Visa versus authorized stay: why can you not renew your visa in the United States?

This post focuses on a small part of US non-immigrant visa and status law. There is a lot of value in comparing the US system to other countries, something that I hope to explore in future posts. But I want to begin with the US case, with which I am most familiar and that is of interest to a larger audience.

One of the first things I learned in the International Student Orientation at the University of Chicago, back when I joined it for graduate studies in September 2007:

You cannot renew a United States visa within the United States. You have to travel outside the country to apply for a new visa.

(see for instance here, here, or here, or just Google around).

This in particular affects students and temporary workers (such as those on H-1B visas). In January 2013, there was a White House petition asking for a change in the law to allow H-1B visas to be stamped in the US. The text of the petition:

At the time of approval of H1B petition, USCIS checks for all the documents but still require petioner to visit home country to get Visa stampped on the passport. Due to which most of the H1B skilled workers can not visit back home to see their families as they don’t want to take chance/risk. If givernment allows visa stamping in US, it will unite many families who have not seen their parents for long long time as Grean card process takes more than 10 years in case of India/China.

So what’s going on? In this post, I provide an overview of the relevant legal rules, the historical development and possible reasons, and some recommendations.

Non-immigrant long-term stays: a middle ground between permanent residents and tourists

One can broadly classify three kinds of non-citizens who can have authorized presence in the United States:

  • Permanent residents: They don’t need a visa to enter the country, though they may still need their passports and Green Cards if entering at certain ports.
  • Business visitors and tourists: They are supposed to only be conducting business meetings or tourism or meeting family and friends, rather than engaging in work or study.
  • All other people with non-immigrant or dual intent visas, including students, exchange visitors, and people on various work visas.

This is of course a very crude oversimplification (I’ve gotten completely rid of humanitarian statuses, short-term commuters from nearby countries, athletes and performers, and various regularized illegal immigrants). This post is about the third category, i.e., people who are neither citizens nor tourists. They have a semi-long-term connection with the United States. For instance, they may be residents for tax purposes, they may own land and cars or rent property long-term, they may have US bank accounts. But their visa category is not explicitly for the (sole) purpose of transitioning to permanent settlement.

Visa, authorized entry, and authorized stay

So you want to come to the US to study or work? Here’s the process:

  • Authorization document: The first step is to get a document that authorizes you to be present in the United States in the appropriate status. For instance, if you are entering as a student on a F-visa or J-visa, you need (respectively) an I-20 or DS-2019 document from the educational institution that you will be attending. This process doesn’t directly involve approval by the US government: as long as you get admitted to an educational institution that has the authority to issue these authorization documents, you’ll get it. On the other hand, to get work authorization under the H-1B quota, your application goes through the US government, that has a quota for the number of applications approved.
  • Entry visa: Armed with the authorization document, you can apply for an entry visa at a consulate in a country other than the United States (typically your home country, but if you’re unlucky enough to be in, say, Iran, you just need to take a trip to Turkey or some other country to get the visa interview; also, not all consulates allow people from other countries to appear for visa interviews). People of some nationalities only get single-entry visas, which means a given visa can be used to enter only once, whereas those in other countries generally get multiple-entry visas.
  • Authorization for entry: The visa is not a guarantee that you will be allowed to enter the United States. It just means that, assuming the rest of your paperwork is in order, you are authorized to present yourself at a United States port of entry, and doing so will not constitute a black mark against you for US immigration even if they don’t let you in. When you are actually present, they make a determination whether to let you in (in practice, this last step is a mere formality, they just wave most people through after checking their visa and authorization document). You can safely present yourself at the port of entry only if both your visa and your authorization document are valid.
  • Authorization for stay: When you enter, you are issued an I-94 Arrival/Departure Record Card with “D/S” written on it. That reads “Duration of Status” and means that you can stay in the United States as long as your authorization document is valid, even if your visa expires. (On a side note, it was big news, when in April 2013, the US finally made the I-94 electronic).
  • While in the United States, you can happily switch from one authorized status to another. For instance, you can transition from student status to H-1B status and then back to student status and so on. Throughout the process, you don’t need to leave the US or apply for a new visa. But if you do leave the US, and your status is different from what you were granted the visa for, or if your visa has expired (time-wise), or if it was a single-entry visa, you need to apply for a new visa. Note: It is not possible to roll over from business/tourist status (B1/B2 visa) or Visa Waiver Program (VWP) travel to any of these statuses. These statuses come with definitive expiration dates rather than “D/S” (duration of status) so they expire after that day. Somebody from a VWP country or possessing a B1/B2 visa who wants to enter to pursue studies needs to get a student visa and make sure that the I-94 clearly marks the entry as “D/S” rather than with the usual 3- or 6-month expiration date of that status.

F-1 Stamp
Paper I-94 Arrival Record Card for a student entering in F-1 Status. The “D/S” indicates that the student may continue to stay in the United States while in authorized status. This includes a possible change from student status. Source: University of Chicago page on visa vs status

For more background reading, see here (focused on students) and here (more general).

The visa interview

US visa interview in Ho Chi Minh
US visa interview in Ho Chi Minh. Source: YouTube video by the Ho Chi Minh consulate

For some visas, such as the student visa or H-2 visa, that are explicitly considered “non-immigrant” visas, it is your job to convince the consular officer who interviews you that you do not intend to permanently immigrate to the United States. Other visas such as the H-1B are explicitly considered “dual intent” — it is okay to indicate intent to possibly immigrate to the United States permanently but it’s still important to demonstrate a strong connection with the home country so that it doesn’t seem like you’ll have nowhere to go once your time in the United States is up.

In practice, this solomonic determination is not made with anything approaching the rigor of a court case. Most visa interviews last somewhere between 1 and 10 minutes (my own was about a minute). It’s not very clear what consular officers are actually evaluating at the time, but it seems that they generally have a small set of guidelines to check against. John Lee has covered this at some depth.

US visa interview process at the US Consulate in Hyderabad, India. Watch the video and see if you agree with the closing line “visiting the consulate is easy. We look forward to seeing you soon.”

Some of the tips that I got on the visa interview illustrate the absurdity of the system. It was stressed that it’s important to wear good clothes to the interview and to greet the officer with a smile and a greeting (and be sure to say “good morning” or “good afternoon” correctly, so that the officer knows you can understand the concept of time of day). Some interviews scheduled for the morning end up happening in the afternoon, and you as an interviewee are probably irritable after standing in line for three hours, so you might mess up the greeting if you weren’t careful. So it’s all the more important to look cheerful, because first impressions matter. And don’t argue with the immigration officers. They won’t generally be awful just for the sake of it, but they don’t like people who argue with them.

Even though the actual interview lasts less than ten minutes, the application process is quite long-drawn. In many places, interview slots open only a month in advance and are booked immediately upon being opened. So if, say, you are on a student visa from China to the United States, and you plan to go for a two-week trip home, you need to make sure you get the visa interview scheduled around the beginning of your stay, so that you get your visa before you leave. Each visa interview costs about $160, plus fees to travel to the consulate and other costs (including a SEVIS fee for those on F and J visas so that the Department of Homeland Security can run a criminal background check on you). And if for some reason your visa gets rejected, you have to cancel your plane ticket, apply again (with another month-long wait for the interview) and then get another plane ticket for when you expect your new visa to arrive. To avoid this, some people make short trips to Canada or Mexico to get their visas renewed (this might sometimes necessitate getting a tourist visa to that country, but the additional cost might still be worthwhile to counter the uncertainty).

Compared to the substantially greater stakes involved with immigration restrictions, the trivial inconveniences faced by a (on average) relatively well-off subset pale in importance. But even if the direct costs to participants are relatively small, the question arises: what brought such a seemingly twisted and convoluted system into place? What purpose does it serve?

The history of the visa/authorized stay distinction

The idea that different standards apply to authorized stay in the United States and authorized entry into the United States dates back to the 19th century. At the time, border controls existed in some form, particularly at sea ports (the land borders with Mexico and Canada were largely uncontrolled). Inspectors at ports of entry were granted authority in some states to turn back migrants they considered dangerous, and this authority was formally recognized by the US Federal Government with the Immigration Act of 1882. Interior enforcement by federal authorities didn’t really exist until much later (the idea of Alien Registration, that would ultimately give rise to the Green Card, was only introduced in 1940), and local enforcement was erratic.

The first federal law I can find that explicitly codified the distinction between stay and re-entry was the Scott Act of 1888. As per Wikipedia:

The Scott Act (1888) was a United States law that prohibited Chinese laborers abroad or who planned future travels from returning. Its main author was William Lawrence Scott of Pennsylvania. It was introduced to expand upon the Chinese Exclusion Act passed in 1882. This left an estimated 20,000-30,000 Chinese outside the United States at the time stranded.

For a more detailed description of the history of the law, see Harpweek.

Returning to the question

What national interest is served by not allowing people to renew their visas in the US, but allowing them to stay on for as long as they want (while in valid status) without a valid visa?

In other words, why does the very act of leaving the United States mean that a person is required to pass additional checks in order to resume physical presence in the United States? This is all the more puzzling, since one of the things a non-immigrant visa applicant needs to demonstrate is strong ties to the homeland. What better way to demonstrate such strong ties than to make frequent trips home? Why should those who do demonstrate such ties — by going back home — have to go through an additional stage of verification? If anything, those who don’t make trips back home are the ones who should need to pass additional checks for non-immigrant intent. But the way things currently work, there is no need to demonstrate non-immigrant intent except during the visa application.

Here are some possible reasons:

  • Territorialism: Requiring people to go through this process while in the US — with the threat of deportation if they fail to pass — runs into the same sort of moral opposition as efforts to forcefully deport people not currently in authorized status. People physically in the US have more legal rights and a better ability to organize and protect themselves. If somebody goes back home for a family event and then is blocked from returning to the US, that is considered a lot less outrageous than if the USCIS turned up at the person’s door and forcefully put him on a plane back home.
  • Practicality: It’s just impractical to keep track of all the people already within the physical boundaries of the United States and interview them and make sure that they continue to have the required non-immigrant intent. It also wouldn’t be practical to deport them if they did fail the interview. There is already an infrastructure to control entry, so it’s quite practical to try to restrict re-entry. Incidentally, there are parallels between this practicality argument and the use of routine traffic stops as a pretext for doing drug searches of vehicles. In both cases, a not-very-closely-related pretext is being used for an entirely different goal. Practicality is what led to the original emergence of the distinction in the 19th century, as in the Scott Act discussed above.
  • Preventing organized terrorist attacks: While this doesn’t seem like a very rational reason (given that terrorism is so rare relative to the number of non-immigrant visas) immigration laws are often designed to counter extreme cases. One can build a plausible case that frequent trips between the US and other countries are necessary to plan complex terrorist attacks. Somebody studying in the US who goes back home may get radicalized and then go back to the US with nefarious intent. It’s possible that the return trip helps the person share information gained in the US with associates back home.
  • Family complications: It could be argued that the act of returning home could be a sign that the person is planning to get more family to move with him or her to the US. For instance, a person on a student visa may return home to get married, and then want the spouse to move to the US too (there are visas for spouses of students). It could be that the return home means the student’s family is facing some problems, such as illness, and that this makes the student’s finances more precarious, and therefore makes the student more of a risk to the welfare state.
  • Saving greenhouse gases: Okay, this is a little fancy, but you could argue that insofar as visa complications discourage travel, they save greenhouse gases and help the environment. But then there are also people who make additional trips to renew their visas. I don’t know how the two balance each other out.

Recommendations

I don’t think any of the reasons above, even if they explain the status quo, really justify it. Here are my proposals for progressively ambitious changes:

  1. Allow people to renew their visa in the United States as long as they are in authorized status, without having to go through another visa interview. That saves time and money for the applicant and reduces the workload of consulates, so that they can spend more time on new applicants. This was the goal of the White House petition I linked at the beginning of the post.
  2. Eliminate the do not intend to permanently immigrate to the United States check that in any case seems to be subject to a very wide range of interpretations and creates a great degree of consular discretion. Just restrict the question under consideration to whether the authorization issued is legitimate, and whether the applicant committed application fraud or has a criminal record. Incidentally, as Chiappari and Paparelli note, the SKIL bill, that didn’t make much progress, aimed to do this for student visas. Chiappari and Paparelli:

    The Securing Knowledge, Innovation, and Leadership Act or SKIL Act, which was never enacted, included a proposed extension of F-1 OPT to 24 months and would have relaxed for STEM students the statutory restriction prohibiting F-1 foreign students from in tending, at the time they enter the United States or apply for a visa, to stay in the United States indefinitely.

  3. In the longer term, get rid of the visa interview entirely except for cases where there are problems with the paperwork or the consular officers have reasonable grounds to believe the applicant poses a threat of some sort. As long as the authorization documents are in order (something that does not require an interview to verify) just issue the visa. In the even longer term, move to something like the Red Card scheme: private providers of visas who are held liable for any fraudulent visas they issue.

Of course, I ideally want open borders for the whole world, which, as Joel says, is fairer and simpler. In the short term, however, the (progressively more ambitious) changes I propose seem like they will reduce unnecessary queueing and crowding at consular offices, and reduce travel optimization that students and temporary workers need to engage in in order to not get locked out of the United States.

Restrictionists might make similar observations about the status quo but come up with different recommendations. For instance, a restrictionist reading this might want to eviscerate the distinction between visa and authorized stay by requiring people to leave the country as soon as their visa expires, and requiring them to leave the country and re-apply for a visa whenever there is a change of status (say, from student to temporary worker status). This restrictionist solution would be more intellectually consistent and less confusing, but it would make life worse for everybody (restrictionists might further retort that we should just do away with many visa categories or reduce quotas significantly, thereby saving people the bureaucratic pain). I should say that confusing and contradictory as the status quo is, I prefer it to this restrictionist solution. And this sort of reasoning is perhaps why the status quo exists as it does: even if it doesn’t make logical sense, different interest groups prevent it from moving too far in the direction of greater consistency.

As this post, and hopefully many others, will repeatedly drive home, the system of immigration and travel laws as it currently exists is not intended to serve the interests and goals of prospective immigrants. Rather, its goal is to protect the national interest, i.e., to be citizenist. But since the citizens these laws are intended to serve aren’t really affected by the laws, and in most cases don’t understand them at all, it’s usually not the case that the laws come even close to optimizing citizen welfare. First off, they are often based on flawed economic and social science reasoning that gives more weight to concerns about protecting jobs, reducing the “welfare magnet” nature of immigration, and minimizing terrorist attacks, than somebody with a clear understanding of the issues would give. Second, the bureaucratic codifications of the laws have since been modified by various pressure groups (including some pressure groups that have the visa applicants’ interests at heart, some that seek to protect natives from competition, some that seek to benefit employers who want to hire from abroad, some that seek to protect the jobs of those involved in immigration enforcement). What we get is a hodgepodge that somehow seems to work, but doesn’t really have a rational basis.

PS: An early version of my thoughts on the subject, and the responses of some others, can be seen in this Open Borders Action Group post.

Featured image credit: University of Chicago page on visa vs status

StatesThatFiledLawsuit

Which states oppose DAPA?

Earlier this year the Obama administration announced the expansion of the 2012 Deferred Action for Childhood Arrival (DACA) program, creation of the new Deferred Action for Parental Accountability (DAPA) program, and several other executive changes to the US immigration system.  In response twenty four states, led by Texas, have filed suit against the Obama administration.

Their alleged concern is that the policy change will cause them to extend benefits to illegal aliens. This claim is not without warrant. Deferred Action not only grants recipients work permits, but also ‘legal presence’ which might make DAPA recipients eligible for some welfare programs depending on the state in question. I sympathize greatly with open border critics whose concern is over the fiscal cost of migrants. Indeed, if the states involved in the lawsuit were acting  solely with the goal of addressing the fiscal cost of illegal aliens I would wish them the best of luck.

However once you start looking at the data it becomes clear that the fiscal cost of illegal aliens is not the reason why these states have elected to file their lawsuit.  If the fiscal cost was so great we would expect those states with the largest share of the illegal alien population to be leading the fight. Yet California, housing 22% of all illegal aliens in the US, is notably absent from the lawsuit.

Indeed most of the states involved in the lawsuit have a tiny portion of the nation’s illegal aliens. At time of writing the following states have joined the lawsuit: Alabama (1%), Arizona (4%), Arkansas (0%), Florida (7%), Georgia (4%), Idaho (0%), Indiana (1%), Kansas (1%), Louisiana (1%), Maine (0%), Michigan (1%), Mississippi (0%), Montana (0%), Nebraska (0%), North Carolina (3%), South Carolina (0%), North Dakota (0%), Ohio (1%), Oklahoma (1%), South Dakota (0%), Texas (14%), Utah (1%), West Virginia (0%), and Wisconsin (1%).

I have constructed and included below a linear probability model, and probit model, where I find the probability of a state having filed lawsuit given its illegal alien population as a percentage of its total state population. If fiscal cost is a significant motive then we should expect a positive correlation, with those states with a large illegal alien population being more likely to have signed onto the lawsuit.

My findings? There is negative, albeit very weak, correlation. That is to say that states with a larger portion of their population as illegal aliens are less likely to have filed the lawsuit.

Probability of Lawsuit

None of this should be taken to mean that the fiscal cost of providing welfare to migrants should be ignored. Migrants are already disqualified from most federal welfare benefits, but several states could reform their local welfare benefits nonetheless. If excluding migrants from welfare benefits is not politically feasible then they should at least be made to pay state taxes in order to allow states and other local governments to recoup some of their loses.

LinearProbabilityModel

ProbitModel


 

Estimates of illegal alien counts come from the Pew Research Center (Table A3).  Data set modified from John Lee’s earlier post on comparing US states by their illegal alien population.

Further Reading:

Open Borders: The Case page on Political Externalities.

Zachary Gochenour and Alex Nowrasteh on the Political Exernalities of Immigration.

Paul Graham

Paul Graham on US immigration policy and high-tech programmers

I’m a great fan of Paul Graham, essayist, entrepreneur, and co-founder of startup accelerator Y Combinator (along with his wife Jessica Livingston, whom I also admire greatly). Through Y Combinator, Graham has changed the startup and tech company landscape and profoundly affected the world. (Some Y Combinator-funded companies you’ve probably heard of are Reddit, Airbnb, Dropbox, Scribd, Disqus, and Stripe). Graham also started Hacker News, a Reddit-of-sorts for the programmer/startup crowd. In the world of letters, Graham is better known for his long-form essays that include incisive social commentary. If you haven’t yet read his pieces, I encourage you to check them all out (I particularly like this one, that might be somewhat relevant here). He’s done more for the world than most people, including me, could dream of. And he knows a lot more about how the world works than I do.

Recently, while investigating the reasons for a surge of traffic to the site from Hacker News, I came across Paul Graham’s essay Let the Other 95% of Great Programmers In. Though I was in broad agreement with Graham’s premises and conclusions (which broadly agree with the innovation case for open borders), I found some of the argumentation weak. In many ways, I thought that Graham both overstated and understated his case. He conceded too much to citizenism and to flawed framings of the issue, even if he didn’t directly endorse them.

A warning at the outset: it is quite possible that I am mistaken. In fact, given Graham’s substantially greater knowledge of the issues, your Bayesian prior, as you start reading this, should be that I am mistaken and Graham is right. But also consider another possibility. As Graham himself said, there are some things he can’t say. Graham is a contributor to high-tech immigration advocacy group FWD.us (see Nathan’s post on them). In that capacity as well as in his capacity as Y Combinator partner, he is keen to see high-tech immigration reform actually achieved. Even if he is broadly sympathetic to freer migration for all, coming out in favor of that might be a risk he’s not willing to take if it jeopardizes high-tech reform (relatedly, see my post on the dearth of moderates’ critiques of open borders). Thus, it could well be that my criticisms of Graham are epistemically correct but that his apparent results are a reflection of political savvy rather than intellectual sloppiness.

Paul Graham and others at FWD.us event

Paul Graham, Congressman Mike Honda, and founders of some leading Y Combinator-funded companies at a FWD.us event on high-skilled immigration to the United States. Source: FWD.us

Here’s my “list of N things” of criticisms, followed by elaboration of each:

  1. The 95% statistic is a gross exaggeration: Graham’s framing, and his choice of title, radically overstate his case. His actual text, if read carefully, is less misleading.
  2. Graham overstates the need for reform specifically targeted at exceptional workers: He overstates the case for letting them in, and the difficulties they face.
  3. Graham understates and undermines the importance of letting in the merely competent: The merely competent include many who may go on to become exceptional. They support the exceptional through division of labor and comparative advantage. And their children may go on to become exceptional.
  4. Graham concedes too much to the flawed jobs-and-wages-focused economic framework: He tacitly endorses the view that it’s somehow bad for companies to let in workers for the purpose of cutting costs. But cutting costs (holding the quality of service constant) is critical to economic and social efficiency.
  5. Graham couches things too much in the language of American competitiveness: He is right that there is a chance that the global hub could move out of Silicon Valley due to poor policy choices (including immigration policy and local land use policy). But the sad thing about this cost isn’t so much that America loses out, it’s the huge social and global costs of the transition.

Continue reading “Paul Graham on US immigration policy and high-tech programmers” »

Popcorn

Movies About Open Borders, Family, and Cannoli

We’ve reached that part of the year where most of the western world is simply resting. The exact traditions may vary, but chances are that your home currently houses a good portion of your extended family. Even those who might wish to return to work can only manage to escape for a few minutes before being dragged into a game of twister or having a plate of food placed in front of them.

In recognition of this allow me to offer the following family-friendly movie recommendations. Although these films center around migration they don’t attempt to shove political messages down your throat so don’t worry about getting into fights with relatives.


Name: Under the Same Moon (2007)

Language: English & Spanish

Summary: The film tells the story of Carlitos, an unaccompanied child, as he makes his journey to reunite with his mother in Los Angeles. Especially topical given this past summer’s events.

One of the things I love about this film is that it was released seven years ago during the Bush administration well before DACA had been announced or Obama was even a household name.


 

Name:  Lee Daniels’ The Butler (2013)

Language: English

Summary: Follows the life of Cecil Gaines, a butler who served in the White House through the 20th century. Cecil was born in the south but migrates northward, eventually finding himself in DC, in search of better economic opportunity. The film is rare is being one of the few to address the Great Migration, the mass migration of blacks from the south to the north, midwest, and western US.

The later half of the film deals with Cecil’s struggle with his son. His son believes that blacks must confront institutional racism in the south through direct action. Cecil on the other hand seems to think that the best course of action is to migrate out of the south.


 

Name: An American Tail (1986)

Language: English

Summary: Follows a group of Russian mice who have migrated to New York City. During their journey across the Atlantic their youngest son, Fievel, gets lost and must find his family in the new country.

Although the film depicts fictional cartoon mice, it is inspired by the real experiences of migrants entering the United States during the turn of the century.


 

Name: Instructions Not Included (2013)

Language: English & Spanish

Summary: Dead-beat Valentin wakes up one day to find a baby on his porch along with a note stating that he is the father. The film follows Valentin and his daughter’s (Maggie) lives as they migrate to America in search of a better life.

The film breaks stereotypes at every turn and it pays off well.

Maggie might have entered the United States illegally but she has white skin, blue eyes, and blond hair. Her mother had been an American tourist.

Valentin spends well over a decade in the United States and can’t speak English, but the film goes out of its way to make it clear this is because Valentin is a dead beat. In an early scene Valentin is shocked when he tries to speak with others he assumes to be fellow Mexican migrants only to discover they aren’t fluent in Spanish.


 

Name: The Godfather Trilogy (1972, 1974, and 1990)

Language: English

Summary:  A generational epic that follows the Corleone family beginning with the patriarch Vito’s migration from Sicily to the New York City, continuing with Micheal, and ending with the third generation.

The Godfather Trilogy is one of those films everyone knows about, but which few people have sat down long enough to fully enjoy. For example, one of the prevailing themes of the film is assimilation and I don’t think many people get that.

In the opening scene of the trilogy we are greeted by the ‘I believed in America‘ speech delivered by an Italian migrant. The migrant tells us how he put his trust in the American dream, raised his children as good Americans, and followed the American law but was still met with injustice. So to wrong that justice he went to Don Corleone on the day of his daughter’s wedding…

I believe in America. America has made my fortune. And I raised my daughter in the American fashion…

Don Vito himself makes it clear that he knows he is looked down upon as a petty criminal, but he doesn’t feel the need to apologize for his actions since all he has done was with the hope that his children could be full Americans. He looked forward to the day when one of his descendants would be ‘Senator Corleone’.


 

Name: My Family (1995)

Language: English and Spanish

Summary: Another generational epic in the same vein as the Godfather trilogy. My Family depicts the Sanchez, a Mexican-American family that settles down in East Los Angeles.

As readers must have noted by now, quite a bit of recent films depicting migrants focus on hispanics. This should be no surprise given that hispanics have dominated migration waves in the past decades. My Family is unique among Hispanic-migrant oriented films in that it doesn’t really deal with illegal immigration.

The film does deal with the Chicano movement, the Bracero program, the Mexican-American War, the Salvadoran Civil War, and other events crucial to understanding American Hispanic culture but its clear that its catering towards those American Hispanics who are already at the end of the assimilation cycle.

The film begins with the family patriach moving to Los Angeles to live with an uncle. The uncle, nicknamed El Californio, makes it clear that he isn’t a Mexican-American. He was born in California before it was lost to transferred over to the US following the Mexican-American War. El Californio was born in Mexico and as far as he’s concerned he still lives in Mexico.

His relatives on the other hand are less nationalistic and you note this by the language the characters speak in. Early on Spanish dominates the film but around midway the use of Spanish becomes less frequent. At the end of the film the use of Spanish is rare.

Why the Cuba “wet feet, dry feet” policy should continue

The United States has historically had a wet feet, dry feet policy for Cuba, that basically says that people from Cuba who arrive at and stay for a nontrivial length in the United States would be allowed to stay in the United States and qualified for expedited “legal permanent resident” status. Historically, this measure was intended to undermine the communist regime in Cuba (for more background on US-Cuba relations, see Wikipedia and the Council on Foreign Relations). The recent thawing of relations between Cuba and the United States has led people to question the wisdom of continuing with the policy. When Cuba announced that it would be more relaxed in allowing people to leave the country for travel, Alex Nowrasteh wrote that this would be good for the US. Recently, US President Barack Obama, and his Cuban counterpart, Raul Castro, announced a new chapter of cooperation in US-Cuba relations. Is the “wet feet, dry feet” policy still relevant?

How the wet feet, dry feet policy is discriminatory

Image credit: Batista’s Cuba Still Hurts U. S. Image. A Little Girl Shows Us How Much from Cuban Insider

Jason Dzubow, author of the Asylumist, a thoughtful blog on asylum and refugee issues, thinks it’s time to end the policy. He writes:

It seems to me that the CAA and our over-all Cuba policy exists because of our government’s decision that this was the best way to isolate the Castro regime and force democratic change on our island neighbor. More specifically, anti-Castro Cubans in Miami pushed our nation’s Cuba policy towards the all-stick, no-carrot approach that—50 years later—has accomplished nothing. Now, it seems attitudes among the Cuban American community have shifted. To be sure, many still oppose normalization, but—so far at least—we have not seen the type of angry, in-the-streets reaction that characterized the Elian Gonzales affair during the Clinton Presidency. Perhaps there is more widespread recognition that the old policy hasn’t worked, and that we need to try something new.

So now that we are moving towards a new phase in our relationship with Cuba, it makes sense to end the CAA. The situation in Cuba is less dangerous than in many other countries, and so there is no longer any justification for the CAA based on humanitarian reasons (though I believe there really never was a valid justification for the law based on humanitarian reasons). The only logical reason for the CAA was as a propaganda tool against the Castro regime. I doubt this ever really worked (except maybe in the minds of some in the anti-Castro Cuban community), and—given that we are moving towards normalized relations—it certainly makes no sense at all any more.

All of this is not to say that the Cuban regime respects human rights or allows political dissent. It’s clear that the government represses the political opposition, and that it detains and persecutes perceived opponents. But that type of behavior is, unfortunately, all too common in many countries, and it does not justify a blanket asylum for everyone who comes from a country with a poor human rights record. Indeed, it is exactly why we have an asylum system in the first place.

Dzubow makes a number of valid points. I don’t think the “wet feet, dry feet” policy is sufficiently important that it is worth maintaining at high political and diplomatic cost. However, I think that proactively trying to get rid of it to engineer a fairer system is misguided. I describe three reasons below:

  1. True fairness requires open borders, not equitable miserly treatment of refugees from all countries
  2. Shortening the queue: special treatment for Cubans means less backlog for other countries
  3. The value of precedent

Continue reading “Why the Cuba “wet feet, dry feet” policy should continue” »

The Efficient, Egalitarian, Libertarian, Utilitarian Way to Double World GDP — Bryan Caplan

Creative Commons License How Did We Get Here? Chinese Exclusion Act — Implementation (1882-1910) is licensed by Vipul Naik under a Creative Commons Attribution 3.0 Unported License.