All posts by Vipul Naik

High-skilled hacks: a (very) brief overview of H-1Bs (more to follow)

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.

My primary purpose here is to provide information rather than push a viewpoint. Nonetheless, I do not claim to hide my perspective. Rather, the purpose here is to present information as seen from a particular viewpoint (something akin to historical revisionism). Later posts in this series may include more focused discussion of my viewpoint, as I delve deeper into the regulations.

In this respect, my writing here differs from the many Wikipedia pages related to the H-1B that I have created, where I strive to stick to facts and avoid revealing viewpoints. These pages include: Labor Condition Application, Form I-129, Premium Processing Service, H-1B-dependent employer, public access file, American Competitiveness and Workforce Improvement Act (ACWIA), American Competitiveness in the 21st Century Act, H-1B Visa Reform Act of 2004, and Employ American Workers Act. For full disclosure, I also paid for the creation of the pages on H-1A visa and H-1C visa.

The following topics related to the H-1B visa are covered in this post.

  • Steps to getting started in H-1B status. (more)
  • Relationship, similarity and differences between the H-1B and permanent immigration. (more)
  • Key stages in the legislative history of the H-1B. (more)
  • The H-1B annual cycle and cap. This is a very brief overview of the mechanics of the status. Workarounds, such as the use of Optional Practical Training and the use of other work visas as a temporary measure, are discussed. (more)
  • Comparing the stated purpose and real use of the H-1B program. Once again, this is a brief summary that will be elaborated on in future posts. (more)
  • How the H-1B compares with other options: L-1, TN-1, O-1, and H-2B (to name the most salient alternatives). (more)

The following are not covered in this post and will be the subject of future posts.

  • The role of H-1B1 and E-3, and their effects on the market of technology workers from Singapore, Chile, and Australia in the United States.
  • A deeper look at the different occupations, intended employment areas, and countries of origin for users of the H-1B program.
  • A full analysis of the educational credentialism in the H-1B system, contrasted with other temporary and permanent immigration categories. I discussed some of these points in an Open Borders Action Group post, that Bryan Capan reblogged on EconLog. But I intend to cover it in more depth.
  • A better overview of exactly how the H-1B lottery works. Basically, understanding what your chances are based on whether you have or don’t have a master’s degree.
  • The role of the H-4, the status for dependents of H-1B holders, and how the two H statuses interact.
  • Comparison with analogous statuses in other countries, i.e., with other generic temporary skilled work visa categories.
  • What the whole H-1B application process means for people who aspire to having a job (temporarily or permanently) in the United States, particularly people who are not from any of the treaty countries (Canada, Mexico, Australia, Singapore, and Chile). Note that the current post touches only briefly on the issue from the perspective of a job-seeker.
  • A detailed discussion of the Labor Condition Application and U.S. Department of Labor investigative authority. This will included discussion of H-1B-dependence, its current and past prevalence, and its implications for the mid-level tech workers who account for about 50% of H-1B use.
  • A full discussion of various criticisms leveled at the H-1B program, by people such as Norm Matloff, Michelle Malkin and John Miano in their book Sold Out, and labor unions and labor-advocacy think tanks such as the Economic Policy Institute (see for instance here). Either in the same post or in a different one, I will also look at the pro-H-1B rhetoric used by different groups ranging from immigration lawyers to liberal think tanks and advocacy centers to libertarian think tanks.

The list of things I don’t cover here also includes other stuff I haven’t yet even realized is important enough to be discussed! But the above list is already pretty daunting.

The H-1B: the most important work visa

One of the most important sources of high-skilled migration to the United States is the H-1B visa. The H-1B is significant in at least a few ways:

  • For many high-skilled workers who enter the United States for work, the H-1B is how they are able to first enter.
  • Even those who enter for work in other ways (such as the TN-visa, L-visa, or OPT on F student status) often transition to the H-1B when they get the opportunity.
  • While many who come to the US on H-1B status eventually leave, many others settle permanently in the United States. Some do so by applying for permanent residency through one of the EB visas (which has a long wait time, and the H-1B allows them to work as they wait for it to come through). Others find true love among US citizens and permanent residents, marry them, and transition to lawful permanent residency through the Immediate Relative or Family based quotas.
  • Those on the H-1B who do go back to their home countries often play a key role in facilitating technology transfer and outsourcing and the international spread of technology.

Later, we’ll talk more about why so many people want or need to switch from other temporary work statuses to the H-1B.

There are two other close cousins of the H-1B: the H-1B1 (for Singapore and Chile) and the E-3 (for Australia). We will not discuss these variants in the current post, but will review them later.

Steps to getting into H-1B status

The following is the sequence of steps for getting H-1B status.

  • First, the employer files a Labor Condition Application with the U. S. Department of Labor, showing that the worker to be hired will be paid the same wage (or a higher wage) compared to U.S. workers within the company doing the same job, as well as others in the geographic area. The LCA has other stipulations regarding working conditions, strikes and lockouts (most of which are irrelevant for most employers). Note that (with the exception of the case of H-1B-dependent employers or employers who have been found to be willful violators) the LCA does not need to assert that no qualified United States worker is available! UPDATE: David Bier has a blog post on the Congressional discussions around whether to impose the requirement, and the ultimate decision not to do so.
  • With an approved LCA and other supporting documentation, the employer files Form I-129 with the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security. Approval of this form gives the employee permission to start employment under the employer at or after the start date of employment, and until the end date of employment. The employee must be with the employer for the entire duration of H-1B: even a day of unemployment nullifies H-1B status. The Form I-129 can be filed at most six months in advance. For cap-subject applications, prior to considering a H-1B application, USCIS makes sure that it has space in its annual quota. Since the quotas start every fiscal year (October 1), most H-1B applications occur in the beginning of April and set a start date of October 1.
  • With an approved Form I-129, the employee can start work with the employer if present in the United States already (in other words, Form I-129 also allows for change of non-immigrant status; there is no need to file a separate Form I-539). However, if not present in the United States, the employee needs to obtain a H-1B visa from a consular officer at a United States consulate. Consulates are under the U.S. Department of State. After obtaining a visa, the person may enter the United States at most 10 days in advance of the start date of the job. At the port of entry (the airport for people flying in), the person receives a Form I-94 from the U.S. Customs and Border Protection Office of Field Operations officer (CBP is under the Department of Homeland Security).

H-1B and “permanent” immigration

There is a lot of confusion about the role played by the H-1B and its relation to Lawful Permanent Resident status (getting a Green Card). H-1B status is a dual-intent non-immigrant status. Let’s unpack that. Here, “non-immigrant” means that the status is a temporary status to be in the United States (in this case, for work) and does not provide any automatic path to permanent residency. The “dual-intent” part says that it is okay for a person on H-1B to also be trying to transition to a Lawful Permanent Resident (LPR) status.

There are two main routes to LPR status (aka “immigrant” status): Employment-based (EB) and family-based (this includes Immediate Relative (IR) and Family (F) statuses). The initial USCIS form for EB(-1,2,3) statuses (the analogue of Form I-129) is Form I-140 and that for F and IR statuses is Form I-130. (These are not the only routes; there are Diversity Immigrant Visas, refugees and various special immigrant categories, and the EB-5 category for investors and entrepreneurs; but let’s set all those aside since most of them aren’t very relevant to the sort of person who’s doing or considering a H-1B).

One key difference between LPR status and temporary statuses like H-1B is that, once LPR status is obtained, it is no longer necessary to maintain the connection (whether employment-based or family-based) that was the basis of getting the status.

In other words, once you have a green card, you can quit the job or divorce the spouse that helped you get the green card. LPR status can be revoked for various reasons (such as committing crimes or aggravated felonies, or being outside the United States for too long), but maintaining the original reason for acquiring the status is not required. LPR statuses also offer a path to citizenship: somebody who has been a LPR for five or more years can file Form N-400 for naturalization.

Another key difference between LPR status and temporary statuses is the complexity and time taken for the application process. There are actually two aspects to the time taken for this status, that operate in parallel (so the longer of these is the constraining factor). These are:

  • The processing time for applications: Processing times for Form I-140 applications can be quite long, varying from 5 months to a year. In addition, some EB categories require a separate process called PERM labor certification prior to filing Form I-140. PERM labor certification is similar to the LCA, but with much more onerous requirements, and can take several months to obtain. Essentially, the goal of PERM labor certification is to establish that the worker has truly unique skills and the company is unable to hire a qualified United States worker with those skills.
  • Independent of this processing time is the time taken for a visa number to be available. Permanent immigration is controlled by a complicated system of quotas introduced by the Immigration and Nationality Act of 1965, that controls the number of permanent immigration slots that are released every year by the preference category as well as the country of chargeability. The queues for these are managed by the Visa Reporting and Control Division and published in the Visa Bulletin. Particularly for large countries like India, China, and Mexico, these categories can be backlogged by over a decade. Note that the potentially indefinite backlogs for “permanent” migration are consistent with its meaning: whereas with temporary worker needs, it does not make sense to have the application queued for several years, this might make sense for a permanent worker or a family member.

The reason the total time taken is the maximum rather than the sum of these two wait times is that the priority date (that determines an application’s position in queue) is taken as the date the Form I-140 was received (and for applications with labor certification, the date the labor certification petition was received). (Note that the way the caps operate for EB status is different from the way they operate for H-1B: the H-1B quota is reset annually, and applied at the time Form I-129 is adjudicated, whereas the quota for EB status can extend indefinitely and therefore there is no upper limit on how far the backlog can grow).

In addition to the max of these two, there could be some processing time for the Form I-485 (Adjustment of Status application) if the employee is already in the United States in H-1B or another status, or to get an immigrant visa, if the employee is outside the United States. Generally, the processing for the Form I-485 or immigrant visa begins a little before the applicant’s priority date becomes current, so that the two finish in parallel.

The upshot of this is that getting an employee on an immigrant status is a process that can take somewhere between several months (if the employee happens to be from a country that doesn’t have huge backlogs) to decades (if the employee is from a country with huge backlogs). Regardless of how brilliant the employee is, therefore, this is not a very effective solution for most employers, who are operating at much shorter timescales with respect to their hiring needs. For this reason, even employers who are interested in sponsoring employees for a green card may initially hire them on a H-1B so that the employee can start working for them while the steps to transition to immigrant status are ongoing. This relationship has been implicitly acknowledged with the American Competitiveness in the 21st Century Act (AC21), where people with long-pending Form I-140 or Form I-485 applications can extend their H-1B while waiting for it to go through.

When the EB category and the current incarnation of H-1B were first introduced in 1990, the EB category started off without backlogs. Hence, those employers who sought workers on a more permanent basis went the EB route, and those who wanted temporary work went the H-1B route. As the EB category started developing backlogs, and demand for high-tech workers increased overall, the pressure on the H-1B status increased. Since it is extremely difficult to adjust the overall rate of permanent immigration (since that involves fundamental changes to the Immigration and Nationality Act), the EB category will likely continue to be severely limited, and the H-1B will continue to be the first step for many workers, including those who qualify for EB status.

Key pieces of legislation that have shaped the H-1B

H visas were originally introduced with the Immigration and Nationality Act of 1952, with a H-1 for skilled workers and a H-2 for unskilled workers. The Immigration Nursing Relief Act of 1989 (text) created a separate H-1A visa for nurses, and renamed the existing H-1 program to the H-1B program; however, the substantive structural changes to H-1B would occur with the Immigration Act of 1990 (described below). The H-1A would later be replaced by a H-1C visa, a status that was retired in 2009 and is no longer granted.

For more on the early history of the H-1 visa, prior to its splitting into the H-1A and H-1B, see the post A Legislative History of H-1B and Other Immigrant Work Visas by a blogger critical of the H-1B program.

Below are the key legislations affecting the H-1B:

  • Immigration Act of 1990 (IMMACT), passed by the 101st United States Congress and signed into law by President George H. W. Bush, introduced the basic rules of the H-1B: a three-year visa that could be extended another three years, an annual cap of 65,000, a Labor Condition Application with rules regarding prevailing wages, and a concept of Specialty Occupation. Surprisingly, every phrase of the preceding sentence continues to describe the H-1B regime today, even though, in practice, a number of hacks have led to far more H-1Bs effectively being available. But more on that later. Note that since this Act made it through the first stages of its legislative process in 1989, it is sometimes said that the H-1B was introduced in 1989, but its actual implementation (“going live”) happened only in 1990.
  • American Competitiveness and Workforce Improvement Act (ACWIA), passed by the 105th United States Congress and signed into law by President Bill Clinton on October 21, 1998, offered temporary reprieves from the caps, but otherwise was a victory for restrictionists and advocates of labor. Specifically, it introduced the concept of H-1B-dependence and imposed additional LCA attestation requirements (around displacement, secondary displacement, and recruitment and hiring) for H-1B-dependent employers and willful violators. With that said, there were discussions of imposing the requirement on all employers, but these were successfully defeated. For more, see Alex Nowrasteh’s post.
  • American Competitiveness in the 21st Century Act (AC21), passed by the 106th United States Congress and signed into law by President Bill Clinton on October 17, 2000, extended some temporary reprieves and introduced a number of hacks that effectively expanded H-1B availability, while offering some minor sops to the other side. These hacks will be discussed later in the piece.
  • H-1B Visa Reform Act of 2004, part of the Consolidated Appropriations Act, 2005. The main relevant provision here was to add 20,000 slots for people with graduate degrees every year. There were also some changes (in the direction of tightening, but also toward more standardization) to the process for the LCA.
  • The H-1B1 (for Singapore and Chile) and E-3 (for Australia) were created as a result of free trade agreements that happened between 2003 and 2005: Singapore–United States Free Trade Agreement (ratified 2003, effective January 1, 2004), Chile-United States Free Trade Agreement (ratified 2003, effective January 1, 2004), and Australia–United States Free Trade Agreement (ratified 2004, effective Janaury 1, 2005).

Since 2004, there does not appear to have been any new legislation regarding H-1Bs, with a few minor exceptions related to additional fees and attestations:

  • Employ American Workers Act (signed into law in February 2009 with a two-year sunset provision, not renewed): This basically treated any company that was a recipient of TARP and Federal Reserve Act Section 13 funds as a H-1B-dependent employer for the purposes of the LCA. These employers needed to make the additional attestations required. Once a company had paid back all the funds they were no longer subject to these requirements.
  • Public Law 111-230, that imposed an additional fee of $2,000 for H-1B petitions (Form I-129) between August 14, 2010 and September 30, 2014 (extended by Public Law 111-347 to September 30, 2015), in cases where employers had more than 50 H-1B workers and more than 50% of their workforce was H-1B workers. These filters were stricter than those for classifying an employer as H-1B-dependent. The fee has expired.
  • Public Law 114-113, that imposes an additional fee of $4,000 for H-1B petitions (Form I-129) filed between December 18, 2015 and September 30, 2025. This effectively doubled the Public Law 111-230 fees.

Loosely speaking, of the 1990-2015 H-1B regime, the latter half has been legislation-free. Changes have happened, but mostly at an administrative and executive level, with the United States Citizenship and Immigration Services (USCIS) issuing additional guidance on changing interpretations of existing provisions. This extreme stability is not indicative of anybody being satisfied with the status quo — there is general consensus within the Beltway that some liberalization in H-1Bs would be desirable. Rather, as I discussed in my introductory post, it’s a phenomenon of gridlock: high-skilled immigration is treated as a deal-sweetener that different sides want to tack on to their preferred bills to make them more palatable, but isn’t important enough or urgent enough for anybody to pass immediately.

The history of temporary migration of skilled workers prior to the H-1B is important to understand, and we’ll probably cover it in our origins of immigration restrictions series. However, for reasons of space and focus, we’ll restrict discussion here to the H-1B as it started in 1990.

The H-1B annual cycle, lottery, and workarounds

My overview here is not really intended as either a definitive description of law or an action guide. For a more definitive and legally accurate description, see the USCIS page about the H-1B cap season for Fiscal Year 2017. For something geared more to potential applicants, see the RedBus2US “All about H1B Visa Cap” guide.

There are two aspects of the H-1B that make it a fickle tool for employers, over and above the legal fees and administrative overhead involved.

First, the annual cycle. The H-1B cap is applied separately for each fiscal year. The cap applies only for the worker’s first H-1B at an institution that is not a nonprofit research institution (in other words, it doesn’t affect H-1Bs issued to professors and postdocs in academia). It also does not apply to workers transferring jobs, or extending beyond the first three years to another three years (or possibly more if the worker has a pending I-140 or I-485). It does apply for workers who leave after a H-1B is over and then return for a new H-1B.

The annual cap is set to 65,000 (of which 6,800 are set aside for the H-1B1, but unused H-1B1s are returned to the general pool the next year, so effectively the annual number of slots is pretty close). There are an additional 20,000 slots for people holding master’s degrees from accredited United States universities. That’s a total of 85,000. There are approximately 50,000 successful applications from nonprofit research institutions. A total of about 135,000 new H-1B Form I-129s are approved annually, 85,000 of them cap-subject.

The year for which the H-1B caps apply annually is the Fiscal Year (FY) and it starts October 1 of the preceding calendar year (for instance, FY 2017 starts October 1, 2016). Form I-129 petitions can be submitted at most six months in advance of the start date of employment. Thus, all cap-subject applications need to be made around April 1, with a start date of around October 1. The USCIS generally stops accepting applications after the first week of April. Note: While rereading, I realized that there have been many years, particularly those in the aftermath of the 2007–08 recession, when the quota has taken much longer than one week to be filled. However, it now appears to fairly consistently get exhausted in the first week. My guess is that the only thing that would make the quota extend out much further would be either a significant U.S. recession or other significant changes to the world economy. If you’re interested in data on what the cap was in different years and when it was reached, check out these two links on RedBus2US: H1B Visa Total Cap Stats from 1990 to 2017, Trend Plot until 2017 (information on the size of the cap and how it has varied) and H1B Visa Cap Reach Dates History 2000 to 2017 – Graph – USCIS Data (information on the date the cap was reached). The information in the links is all based on data available on the USCIS website but presented in an easier-to-digest format.

Of the 200,000 or so applications received, it runs two lotteries: one lottery picks 20,000 of the master’s degree applicants, and the second picks 65,000 from everybody in the pool who failed to make it to the first 20,000 (so master’s degree holders get effectively two shots, others get only one). [Slight note: USCIS conducts the lottery before adjudicating the petitions. So it actually gets slightly more petitions through the lottery than the annual cap. Essentially, it budgets how many to select in the lottery based on its estimated rejection rate. If it undershoots, it will announce that there are slots remaining, and accept more applications.]

There are some obvious problems with practical usability of this sort of system. An employer who realizes in December the need to hire a worker needs to wait until April to apply, and wait until October for the worker to start. Even worse, an employer who finds a worker to hire in June needs to wait till October of next year to have the worker actually start. And that’s ignoring the issue of the low chances in the lottery. For workers without master’s degrees from the United States, the lottery chances are less than 50% (more precise number-crunching in a later post, though naive estimates, such as those used in this San Francisco Chronicle piece, place the number at 25%). So in expectation the employer may have to wait till October of the year after next.

Admittedly, this isn’t as bad as the long wait times (both processing times and the queue wait times on account of visa number availability) for the EB category. However, it’s still not a very practical time horizon except for large companies that can afford to wait, or multinationals that have carefully built a business model to cope with the regulations. Multinationals (whether it’s high-tech companies like Google or mid-level companies like Infosys) that are already employing the person in another country and want to move the person to the US office can afford to wait: the person stays employed in the office abroad, and at the appropriate time, moves to the US. Note that multinationals that do this may also be able to use L visas in some cases, thereby avoiding the H-1B’s annual cycle. Small companies that are based only in the US, on the other hand, often find it harder to afford these time horizons.

One workaround is the use of other more temporary statuses to start employment and then transition to H-1B when one makes it through the lottery. One example I previously discussed was the use of Optional Practical Training. A just-graduated student can start working for an employer on OPT, and then transition to the H-1B status next year. The OPT is 12 months long, which is sometimes not enough to meet the H-1B’s annual cycle (for instance, for somebody who starts work in July) so the OPT has a cap gap extension for people with pending Form I-129 applications in cap-subject categories. There is also a 24-month STEM extension that can be used by a person with a STEM degree. With this STEM extension, plus the H-1B cap gap extension, it is possible to get three shots at the H-1B lottery while working using the OPT. For those with master’s or Ph.D. STEM degrees from United States universities, therefore, the combination of the STEM extension and the H-1B masters quota makes it quite likely that the person will be able to eventually secure the H-1B if the person gets an employer willing to sponsor him or her.

Other temporary and more restrictive visas people might use include the TN-1 (Canada), TN-2 (Mexico), and O-1 (all countries). These are discussed as full-fledged alternatives to the H-1B in a later section, but they are also useful as complements. The TN-1, in particular, is useful because it can be extended indefinitely in three-year increments, allowing a person to keep trying his or her chances at the H-1B lottery while continuing to work. An initial O-1 visa is granted for up to three years, also giving enough time to get a few shots at the H-1B lottery while working.

Note that the role OPT plays with relation to H-1B is similar to the role H-1B plays with respect to EB: as a potential temporary stop-gap while the other, slower status is still in process.

Interestingly, one of the ways that smaller companies end up hiring H-1B workers (in addition to the OPT route) is people who change jobs from big companies. Essentially, you start your H-1B at a big company, then subsequently move to a startup. The American Competitiveness in the 21st Century Act (AC21) exempts such cases from the H-1B cap, therefore avoiding both the lottery and waiting for the annual cycle (note, however, that the person does not get the full six years for the new H-1B but only whatever is still remaining of it). As it is, many people start out at a big company to make some money and get some experience before moving to a smaller company. For foreign workers, H-1B regulations offer yet another reason for this kind of trajectory.

The stated purpose, and real uses, of the H-1B

The stated goal of the H-1B is to temporarily employ foreigners when the supply of skilled workers in the United States falls short of employer needs. In other words, the H-1B is intended as a stop-gap measure to address temporary labor shortages for skilled workers. It is not intended to be a path to permanent migration (for that, there is the EB category, discussed earlier). It is also not meant to be restricted to cases of truly outstanding people (for whom, in addition to the EB-1 category, there is the O-1 category for temporary workers). It is also not intended as a means for technology transfer, i.e., the goal of the H-1B is not to train people for a few years in the United States so that they can return to their home country with increased productivity and better practices. Rather, it is meant to address cases where employers have a temporary need for additional workers and can’t find people in the United States fast enough, so they hire people from abroad briefly, and then once the supply of workers in the U.S. catches up, they replace the foreign workers with the now-appropriately-qualified U.S. workers. This stated goal of the H-1B is the justification for a fee on H-1B applications (of $750 or $1500 depending on the employer’s size) whose funds are used for improving science education and workforce training in the United States.

In the real world, employers don’t use the H-1B in that way. They do not “diligently search for a US worker and only reluctantly hire a foreigner.” Rather, the significant legal fees and loopholes around the H-1B lead to two broad kinds of use cases: multinationals that have built a business around arbitraging different strength profiles, income differences, and skillset differences between countries, as well as companies with enough deep need for specific skilled workers that they are willing to incur additional legal fees and the tyranny of the H-1B’s annual cycle to get a particular worker that they want.

Let’s examine these two use cases in a little more detail:

  • The most quantitatively significant (accounting for about half of H-1B use) is mid-level technology employees by large multinational technology/software firms to which other firms outsource their work. The Economic Policy Institute (a think tank that advocates the interests of labor, stereotypically construed) notes that the top ten users of the H-1B program, that account for half of H-1B use in the United States, all fit in this framework: Cognizant, Tata, Infosys, Wipro, Accenture, HCL America, Tech Mahindra SATYAM, IBM & IBM India, Larsen & Toubro, and Deloitte. Many of these have either their roots or significant operations in India, and that is a big part of how half of new H-1Bs are granted to people from India. Most of these workers don’t go on to transition to LPR status. Partly, this is because they don’t qualify for the higher bar set for EB status. Their short-term employment in the US office allows them to take back relevant technology and skills to their home countries, and, of course, to save money for their personal use. (For more information on the distribution of H-1B visas and approvals by country, industry, and employer, see the Wikipedia page section).
  • The other use case is high-skilled technology firms in sectors (programming, banking, quantitative finance) that need to hire workers. There are two main ways that these companies connect with the H-1B workers to fill these positions: some of the workers completed higher education in the United States and get on the job market at the end of their higher education. Others may be hired by the company at an office in another country and then transferred to the United States office (for instance, Google or Microsoft might hire a worker in Bangalore or Hyderabad, and when the worker later gets promoted or moved to a division in the company that is only at the company’s main headquarters in Mountain View or Redmond, sponsors a H-1B for the worker). The business model of the hiring companies is not built around the workers returning to their home countries; in fact, the hope is that the workers will be able to stay in the United States for as long as necessary. Many of these employees may later be sponsored for EB status if they are considered sufficiently valuable to the company. A good summary of this use case, in contrast with the preceding one, can be found on LinkedIn.

While the first use case has been decried (by the EPI as linked above, and by others) for the way technology transfer contributes to more offshoring of jobs, the second use case has been decried for creating more permanent competition in the market for skilled labor, leading to lower wages and reduced incentives for Americans to enter these sectors. With that said, not all critics of H-1B programs are critical of both kinds of use cases. Some people, like current U.S. Republican Presidential primary leader Donald Trump as well as Y Combinator co-founder Paul Graham, are critical of the first use case of the H-1B but supportive of the second. UPDATE: At the time I wrote this post, Trump hadn’t put out a formal set of immigration policies, so I was mostly going by remarks he had made. The most recent policies he has put out seem to suggest that he is opposed to both types of uses of the H-1B. For more, see David Bier’s post on the subject.

How does the H-1B compare with other options?

There are a number of alternatives to the H-1B, but none of them are good enough to render the H-1B unimportant. What the alternatives do help with is, in many cases, reducing the “pressure” on H-1B somewhat. So if you’re a H-1B applicant, you might want to thank the many other alternative visas for taking some of the competition out. A good place to check out the set of available work visas that make sense for each occupation is US Work Visas: Which One Shoud I Apply For? on VisaPro.

  • The L visas are visas available to multinationals that allow them to transfer people working for the same company but in another country.

    Advantages: Fewer restrictions on the type of occupation and educational qualifications, longer period (7 for the L-1A and 5 for the L-1B, as opposed to 3 + 3 for the H-1B.

    Disadvantages: Only available to multinational companies, which excludes many technology companies, particularly the smaller ones.

    Microsoft has been known to use L visas creatively: it first gets people to Canada on a work visa, whereby they can visit the Redmond office (in the United States, close to Seattle, Washington close to the Canadian border) with relative ease, and eventually transfers them over to the Redmond office.

    You can see more detailed comparisons here and here.

  • The TN-1 status for Canadians, and a similar but somewhat more restrictive TN-2 status for Mexicans, allows people from these countries to work in the US in renewable 3-year increments.

    Advantages: The TN-1 for Canadians is uncapped, and can in principle be renewed many many times.

    Disadvantages: The set of occupations that are eligible for TN-1 is narrower than for H-1B. For instance, Computer Systems Analysts are TN-eligible, but mere computer programmers aren’t. The application and renewal process for TN-1 is also less standardized, and even though multiple renewals are possible in principle, renewals are often rejected for unclear reasons.

    You can see more detailed comparisons here and here.

  • O (“Outstanding”) visas are available to “aliens of extraordinary ability in the sciences, arts (including television and motion pictures), business or athletics.”

    Advantages: No caps, unlike the annual 65,000 visa cap for H-1B. Also, students and exchange visitors who came to the United States on J status can get an O-1 visa but cannot apply for the H or L visa without completing the 2-year foreign residence requirement.

    Disadvantages: More documentation and proof needed of extraordinary ability, with a particular focus on credentialism and formal academic accomplishment. This makes many people ineligible. Many star programmers, who might command several hundred thousand dollars in salary, may not be able to qualify for this visa.

    You can see more detailed comparisons here and here.

  • H-2B visas: The H-2B is a temporary visa for low-skilled work. As best as I can understand the law, there is no restriction on using the H-2B for high-skilled work. However, also as best as I can make out, it is quite rare to use the H-2B for any job where the H-1B could be used. An example of a case where there may be genuine ambiguity regarding whether the H-1B or H-2B is most appropriate is the case of a chef or cook. Specialty chefs may be able to get H-1Bs, but “food preparation worker” is a typical H-2B occupation.

    Advantages: No need to file a Labor Condition Application. Suitable in cases where wages are lower. No need to demonstrate educational qualifications. Lower filing fees, and savings can be significant if hiring large numbers of workers together. Also, instead of an annual cap, there is a twice-a-year cap.

    Disadvantages: Additional work is needed to obtain a H-2B Temporary Labor Certification, which in turn requires posting a job order publicly with a State Workforce Agency. The application process can be initiated at most 75 days in advance, making it harder to plan ahead. Premium Processing is currently disabled. The H-2B is made initially available for at most one year, and can be extended in increments of at most a year, to a maximum duration of three years. This is less than the 3 + 3 for the H-1B. Also, whereas the H-1B can be extended while employment-based applications for lawful permanent resident (either the Form I-140 or the Adjustment of Status) are pending, there is no such provision for H-2B.

For better or worse, the majority of high-skilled immigrant workers and companies sponsoring them use the H-1B despite the uncertainty of the application process, largely because it has a relatively large quota, relatively low burdens of proof, and accessibility to people who don’t have a lot of bureaucratically determined academic credentials as well as to companies that aren’t multinationals with deep pockets.

PS: After drafting an initial version of this post, I Googled around for lists of common misconceptions related to the H-1B, and came across this article. I was pleased to see that the draft I had covered about half the myths directly, and alluded to the relevant material that addresses the remaining half. I also made some edits to add in more explicit mention of the material related to the myths I didn’t explicitly cover.

Full disclosure

  • I am currently working in H-1B status in the United States. I started work on this post while I was still in student status.
  • See the note at the beginning of the article on Wikipedia pages I created while researching for this post.

How did we get here? Chinese Exclusion Act buildup (1848-1872)

When co-blogger Chris Hendrix started off a series a couple of years ago on the origins of immigration restrictions, he fittingly began with the Chinese Exclusion Act (1882), looking at the arguments made for the act at the time. He examined them both the evidence available at the time and the evidence that has emerged since then. In a subsequent post in the series, I briefly examined the early years of the implementation of the Chinese Exclusion Act (1882-1910). While both these posts examined some aspects of the Chinese Exclusion Act in some detail, there is a lot about the history and aftermath of the Act that went unexplored.

Recently, I had the opportunity to create a number of Wikipedia pages on topics related to the Chinese Exclusion Act: Chae Chan Ping v. United States, Angell Treaty of 1880, Chy Lung v. Freeman, Fong Yue Ting v. United States, and others. As I worked on these pages, I familiarized myself more with the situation surrounding the Chinese Exclusion Act. I became more convinced that a more in-depth look at the Chinese Exclusion Act would help shed light on the modern border control regime.

I therefore intend to do at least three more posts on the subject. The current post will focus on the key developments and tug-of-wars that occurred until about 1872 (with passing mentions of trends that would continue into the late 1870s). A later post will discuss the more eventful years starting 1873. The year 1873 was marked by the Panic of 1873, the beginning of an economic downturn in the United States. The economic downturn was likely a contributing factor to increased anti-Chinese sentiment over the coming years, and key legislative and judicial developments related to immigration happened beginning 1875.

This post looks at the “keyhole solutions” used by state and local law enforcement in California before the federal government got on board with significantly restricting immigration.

Table of contents

Limitations of my analysis

Perhaps the biggest limiting factor to the quality of my analysis is the fact that such little data is maintained about that time period; in particular, about how ordinary people (both Chinese and the others in California) perceived the situation at the time. There is no Twitter, Tumblr, or Instagram to gauge public sentiment. There was no equivalent of Gallup polls. There were few newspapers and even those that existed don’t have all their archives available to peruse. Therefore, apart from actual legislative or judicial records, the main guidance present is various summaries provided by historians, who are in turn relying on observations penned by a few people, who may in turn have their own biases.

The lack of good resolution on who was thinking what leads to broad-brush generalizations in many parts of the text. I talk about the “Chinese” and “whites” but both groups were probably quite heterogeneous in terms of their habits, attitudes, beliefs about the other group, legislation they supported, etc. A more able historian with more time to research the issue and more space to devote to describing it would be able to pick nuances better. As such, please take any general statements I make about ethnic groups below with a large grain of salt: they are a third-hand summary of very incomplete data examined through possibly biased lenses.

How my thinking has evolved

Writing this post has led to some minor updates in my thinking. Here is a summary, that you can read without having to read the whole post.

  • As I had previously noted in “Why was immigration freer in 19th century USA?”, there were no restrictions on immigration till the late 19th century (the Page Act of 1875 being the first federal regulation, and the Chinese Exclusion Act was passed in 1882). Even then, the first restrictions applied only to Chinese immigration. But I now see that the sentiment to oppose and restrict migration existed far in advance of actual restrictions, and the reason that it took so long to restrict immigration was mostly the federal structure of governance combined with the poor connectivity of California with the rest of the United States.
  • This post also makes me more confident of observations I had made in my post on South-South migration and the natural state: despite the virulent and hostile response to Chinese immigration in California, migration remained freer and arguably closer to a state-of-nature than it does in the modern world.
  • My feelings on “keyhole solutions”, and in particular, on the question of their feasibility and stability, have evolved a bit. I am now more convinced that they are not a stable equilibrium that placates those favoring restrictions. One reason is that some keyhole solutions, particularly those involving taxes and tariffs, can hurt migrants so much that their subsequent impoverishment makes them look even worse on social indicators to the rest of the population (a point related to what co-blogger Nathan alluded to in his post the dark side of DRITI). Another is that keyhole solutions need to be extremely punitive (at risk of impoverishing migrants and making them look worse) to make a significant dent in migration trends, to the level that would satisfy those who seek restrictions. Keyhole solutions at an intermediate level can generate revenue for government and can address rationally calibrated concerns about immigration, but they can’t really solve the public’s general aversion to migration. Keyhole solutions might work better in quasi-democratic settings. In quasi-democratic settings, not every individual policy choice is debated. Rather, as long as the quasi-democratically elected leaders’ overall performance meets natives’ expectations, they buy into the policy package despite not liking parts of it. A country like Singapore might be an example.
  • Seeing the effects of migration isn’t guaranteed to drive one in favor of migration. In the case of events prior to the Chinese Exclusion Act, in fact, exposure to Chinese migrants led people to oppose it. California, which experienced the Chinese first, turned anti-migration first. Later, when the Chinese arrived in the Eastern cities, anti-Chinese sentiment also spread there. This does not mean that exposure to migrants always leads to anti-migration sentiment, nor does it mean that such anti-migration sentiment is factually grounded. Rather, we have to keep in mind existing narratives and biases that have been developed, in addition to the characteristics of migrants and natives, and results on sentiment towards migration could go in either direction. I don’t think nativist backlash is inevitable, but writing this post has led me to somewhat increase the importance I place on it as a force to reckon with.

First, they came for the Chinese

John’s post on tearing down Chesterton’s fence offers a good bird’s eye view of how immigration restrictions originated worldwide. While researching the subject, I noticed that in at least two other English-descended countries (Canada and Australia) the first significant immigration regulations appear to have been explicitly targeted at the Chinese, as I noted in an Open Borders Action Group post.

The situation in Australia closely paralleled the situation in California. In both cases, large numbers of Chinese moved to the area around 1850 in search of gold. In both cases, resistance to Chinese started off with native miners and labor unions of “natives” (i.e., whites, rather than the indigenous population), but gradually spread to the rest of society. Continue reading “How did we get here? Chinese Exclusion Act buildup (1848-1872)” »

The bait-and-switch from fiscally realistic to humane, or, the weakness of the mainstream moderate case against deportations

This post is going to critique some arguments against deportation that start out from concerns of fiscal responsibility. I’m going to argue that, even while correct, these arguments often don’t prove as much as their proponents think they do, both in theory and in terms of their practical effects.

Note what I am not arguing here. I am not claiming that anybody who opposes deportations must therefore support open borders. The relationship between opposing deportations and supporting open borders will be the topic of another post (I do believe they are linked, but taking a no-deportation position without endorsing open borders is not inconsistent per se). Second, I am not arguing against immigrant rights groups and civil rights groups who advocate stronger due process protections for migrants facing detention and deportation, without categorically opposing deportation. That perspective is internally consistent and has value, so even though I have disagreements with it I don’t think it’s fundamentally confused.

I’m critiquing some flawed arguments whose core is characterized by concerns about fiscal realism and practicality surrounding deportations. I believe these flawed arguments, that might have evolved in an attempt to build a broader coalition around reducing deportations, offer a fragile case against deportations. I also think that many of the people who make these arguments aren’t offering their true reasons for not wanting there to be deportations, and some of the surprise and shock they express when policies turn out differently than they hoped could have been avoided with more clarity.

Now, it is possible that I am factually right about the inconsistency, but deploying these flawed arguments has actually been the most realistic path for immigration moderates to achieve some gains against deportations. I don’t understand politics very well and I won’t rule out that possibility. If so, the pushback from people like me can probably help them bolster the case that they are not extremists of the sort that people at Open Borders: The Case are. So even if I’m wrong I don’t expect what I say to hurt moderates’ chances.

This post of mine will focus on arguments deployed in the United States. Interestingly, many of these arguments are specific to the United States, because the mass deportation versus amnesty debate is one that has been much more prominent in the United States. In an Open Borders Action Group post, I asked people about whether similar rhetoric was found in other countries, and got interesting responses, some of which I reference in the post.

Some examples

A while back, co-blogger Nathan responded to a post by Victor Reppert, highlighting the contradictions in Reppert’s apparent moderate stance on migration. Here’s Reppert’s overall stance:

I seriously doubt that 1070 is going to result in very many deportations. The cost in ill will between the Hispanic community and the rest of us, to my mind, far outweighs the improvement in will provide in law enforcement, which I suspect will be minimal.
So, without actually having done a full cost-benefit analysis on all of this, I would say start with security at the border, make the process of immigration more rational but don’t just throw it wide open, and then provide some path to citizenship that involves a serious penalty and isn’t just simple amnesty.

Below are some excerpts from a recent Los Angeles Times op-ed:

No matter how you parse it, all those people are here in violation of federal law, and are thus subject to deportation. Yet the size of that population is precisely what makes deportation on a grand scale impractical.

[…]

The bottom line: It’s easy to say, “deport them all,” but to do so would be prohibitively expensive, not to mention disruptive for employers and, of course, wrenchingly hard on those who would be swept up.

[…]

The solution: a congressional fix to make the system more humane — by granting relief to many who have lived and worked in the country for years — and also more tailored to the nation’s needs, including making accommodations for agricultural workers and others whose labors are desired here. It’s a new year, and a new Congress, so who knows, maybe a legislative miracle can happen. Regardless, the answer is not “deport them all.”

Or, consider CNN’s coverage of then-President Barack Obama’s November 2014 deferred action announcement:

A key element of Obama’s plan is to instruct immigration authorities to target those undocumented immigrants who are dangerous rather than law-abiding undocumented parents of U.S. citizens and residents and others.

[…]

He said they will go after “felons, not families. Criminals, not children. Gang members, not a Mom who’s working hard to provide for her kids.”

“We’ll prioritize, just like law enforcement does every day,” he said.

[…]

The President argued that ordering a mass amnesty would be unfair but mass deportation would “be both impossible and contrary to our character.”

The Immigration Policy Center says:

Many political pundits, GOP presidential aspirants, and Members of Congress want to have it both ways when it comes to federal spending on immigration. On the one hand, there is much talk about the need for fiscal austerity, and a Congressional “super-committee” is currently working on slashing federal spending in order to reduce the deficit. On the other hand, even though the Department of Homeland Security (DHS) just announced a record high number of deportations, some still want to increase federal spending on immigration enforcement; putting more Border Patrol boots on the ground, completing the border fence, and deploying an array of high-tech gadgetry. However, they miss one very important fact: piling on more immigration enforcement without immigration reform is a practical and fiscal dead-end.

Over the past decade, the federal government has spent tens of billions of dollars trying to keep unauthorized immigrants out of the United States, or trying to get them out of the country if they are already here. The end result? Roughly 11 million unauthorized immigrants now call the United States home, the majority have been here for more than 10 years, and many have U.S.-born children. In short, the “enforcement only” approach to unauthorized immigration has proven to be costly and ineffective.

But many political candidates and Members of Congress have yet to get the news that the enforcement-only approach has been tried and failed. They seek to forge ahead with expensive new immigration-enforcement measures, such as a mandatory employment-verification system (E-Verify) for all businesses and workers in the country—and a dramatic expansion of the nation’s system for long-term detention of unauthorized immigrants. At a time when the federal government is looking for fiscal restraint, anti-immigrant hawks are proposing that we spend billions of dollars more in an endless quest to remove 11 million unauthorized men, women, and children from the United States.

Yet there is a fiscally sound alternative to the enforcement-only approach: immigration reform which includes the creation of a pathway to legal status for unauthorized immigrants already living in the United States, as well as flexible mechanisms for regulating future immigration. Research indicates that unauthorized workers who attain legal status will earn higher wages, spend more in U.S. businesses, and pay more in taxes. Moreover, if unauthorized immigrants living in the United States could acquire legal status, the federal government would no longer waste billions of dollars every year trying to capture and deport them. Enforcement dollars that are now used to track down unauthorized dishwashers and gardeners could be used to find criminals and terrorists. In other words, bringing immigration policy in line with reality is good for the public treasury, good for public safety, and good for national security

Perhaps the best summary of the mainstream moderate view that I wish to critique is provided in a Center for American Progress report, whose summary reads:

That legislative battle for immigration reform now looms again on the horizon. There are three options for restoring order to our immigration system:

  • Live with the dysfunctional status quo, pouring billions of dollars into immigration enforcement programs at the worksite, in communities, and on the border without reducing the numbers of undocumented immigrants in the country
  • Double down on this failed enforcement strategy in an attempt to apprehend and remove all current undocumented immigrants
  • Combine a strict enforcement strategy with a program that would require undocumented workers to register, pass background checks, pay their full share of taxes, and earn the privilege of citizenship while creating legal channels for future migration flows

The first alternative would leave in place policies that have allowed 5 percent of our nation’s workforce—approximately 8.3 million workers in March 2008—to remain undocumented in our country. This is clearly an unsustainable position in a democratic society—permitting a class of workers to operate in a shadow economy subject to exploitation and undermining all workers’ rights and opportunities.

The second option, mass deportation of undocumented immigrants, is essentially the enforcement-only status quo on steroids. As this paper demonstrates, this option would be prohibitively expensive and trigger profound collateral consequences.4 Our analysis is comprised of a detailed review of all federal spending to prevent unauthorized immigration and deport undocumented immigrants in FY 2008, the last fiscal year (ending in October 2008) for which there is complete data (see box on page 5). It shows that the total cost of mass deportation and continuing border interdiction and interior enforcement efforts would be $285 billion (in 2008 dollars) over five years.

Specifically, this report calculates a price tag of $200 billion to enforce a federal dragnet that would snare the estimated 10.8 million undocumented immigrants in the United States over five years. That amount, however, does not include the annual recurring border and interior enforcement spending that will necessarily have to occur. It would cost taxpayers at least another $17 billion annually (in 2008 dollars) to maintain the status quo at the border and in the interior, or a total of nearly $85 billion over five years. That means the total five-year immigration enforcement cost under a mass deportation strategy would be approximately $285 billion.

When viewed through this most narrow but most telling fiscal lens, it should be clear that a deportation-only strategy is highly irresponsible. In these challenging economic times, spending a king’s ransom to tackle a symptom of our immigration crisis without addressing root causes would be a massive waste of taxpayer dollars. Spending $285 billion would require $922 in new taxes for every man, woman, and child in this country. If this kind of money were raised, it could provide every public and private school student from prekindergarten to the 12th grade an extra $5,100 for their education. Or more frivolously, that $285 billion would pay for about 26,146 trips in the private space travel rocket, Falcon 1e.

The worst economic downturn since the Great Depression has clearly diminished the number of people attempting to enter the country illegally–the absence of jobs eliminates the predominant incentive to migrate. And yet, even with diminished pressure at the border, the dramatic increases in spending on immigration enforcement have not significantly altered the net number of undocumented immigrants in the country. In fact, the U.S. Department of Homeland Security, or DHS, reports that the undocumented immigrant population as of January 2009 stood at 10.8 million, or 300,000 more than it was in 20052 In other words, the massive outlays in enforcement resources are barely making a dent in the current population.

That leaves the third course, comprehensive immigration reform, as the only rational alternative. The solution to our broken immigration system must combine tough border and workplace enforcement with practical reforms that promote economic growth, protect all workers, and reunite immediate family members. Among other things, that means we must establish a realistic program to require undocumented immigrants to register with the government while creating legal immigration channels that are flexible, serve the national interest, and curtail future illegal immigration.

A few threads emerge in these arguments, that I wish to critique.

  1. The all-or-nothing argument, that because it’s hard to deport everybody, deportation is not a sensible solution at the margin.
  2. The priority argument, that immigration enforcement should be applied only to high-priority cases because enforcement resources are limited.
  3. The numbers game, where amnesty and deportation are viewed as two solutions to the same problem: bringing the number of people in unauthorized status down to zero.

#1, the all-or-nothing argument. Objection: the impossibility of deporting everybody is not an argument against deportation at the margin

One of the strands of argumentation that appears frequently, often in the form of a fait accompli, is:

The number of people eligible for deportation is very large (estimates range between 10 and 20 million). At a cost of a few thousand dollars per deportation, the total cost of using deportation to completely solve the problem of illegal immigration is prohibitive. Therefore, we need to think of better, more creative, more humane solutions.

My problem with this “all-or-nothing” line of thinking is that it places too much importance on what might be called an ideal state: a state where there are no illegal immigrants. And rather than acknowledging partial steps to that end state, it treats the end state as a binary: either you’re completely free of illegal immigrants, or you have them, and if you can’t solve the problem completely, then it’s hopeless to even try.

I believe that when (some) immigration moderates reason in this way, they believe they are accurately describing not just their own views but also the views and desires of more outspoken restrictionists and other critical of illegal immigration. However, my impression is that most fervent critics of illegal immigration don’t think of it this way. While these critics definitely want to see an end state where illegal immigration is a negligible phenomenon, they value partial progress in that direction. That’s why they favor deportations and enforcement measures at the current margin while knowing that those measures won’t free the world of illegal immigration.

The “all-or-nothing” type calculus also doesn’t make sense in many other contexts: when we think of charity, we don’t (or at any rate shouldn’t) think that an individual act of charity will make only a marginal fractional dent in the problems it’s trying to solve, and therefore it’s not worth doing. Rather, the relevant metric is to look at the absolute good that can be accomplished for a given quantity of resources. This idea is neatly demonstrated in the story of The Girl and the Starfish (quote from Everything2.com):

Once there was a great, great storm. Waves high as mountains, winds strong as giants.

But that’s not important

What is important is the next day, when Old Man Acha comes walking down the beach, looking for bodies and treasure, the last remnants of ships gone to sleep in the storm. He has to pick his way carefully, ’cause the beach is littered in starfish, castaways from the deep. The storm plucked them from their watery beds and deposited the poor souls on the sandy shore. Acha steps around them – many still alive. He keeps ambling up the beach, minding his own business, when he spies a youngling. She’s throwing starfish into the ocean, many as she can, but still not makin’ a dent in the piles. The Old Man, he wonders at this and says:

“Why bother to throw back any? How can it matter when there are so many? You throw back one, you still left with a ton? You never save them all.”

That little girl she doesn’t even pause to glance his way. She just keeps on flinging those ‘fish back in the sea. She stops only long enough to say:

“It matters to this one”

as she flings it into the ocean.

To take an opposite example, when we think of enforcing crimes, a high crime rate is no reason to give up on the idea of law enforcement. Rather, the relevant question is how much crime reduction can be accomplished with a given amount of law enforcement resources.

Now, one could argue that the larger the population of illegal immigrants, the harder it is to hunt them down and deport any at the margin. But this seems unlikely — if anything, the size of the population means that there should be particularly low-hanging fruit for deportation.

To be clear, I don’t endorse deportations. But this position has nothing to do with the size of the illegal immigrant population. The size of the population is definitely relevant to determining the size of the issue at stake. If, for instance, like most of the bloggers on this site, you believe that deportations are (presumptively) morally wrong, the size of the population affected by this moral wrong is relevant to determining how important it is to spend resources opposing this moral wrong. But that step comes only after you have decided on the moral legitimacy of deportation.

If, on the other hand, you grant the legitimacy of the end goal of successfully enforced immigration restrictions, and also of deportation as a means to achieve that goal, then size should not be a barrier. Rather, the question becomes: given that only a small fraction of the affected population can be deported, how can the deportations be selected to achieve the maximum bang for the buck? And here we turn to the next flawed argument.

It’s interesting to compare this size-based argument made in the United States with the rhetoric opposing deportation in other countries. Australia and Japan, for instance, have very small “illegal immigrant” populations, and most of these are people who overstay visas after entering with authorization. When the size of the illegal immigrant populations is small enough, however, we don’t generally see immigration moderates jumping in and saying “there are so few illegal immigrants, it’s actually feasible to round them all up and deport them, let’s do that!” I suspect that instead the reaction would be “there are so few of them, let’s just legalize them and move on!” Assuming I’m right about this (and I may not be) I think the all-or-nothing size-based resistance to deportation is a bit of a red herring (for more, see the Open Borders Action Group post comments).

#2, the priority argument. Objection: limited resources for deportation necessitate prioritization, but this does not mean that only the “worst” people should be deported

The United States Immigration and Customs Enforcement (ICE) claims that it has resources to deport 400,000 people a year, or a little over 30,000 a month. Given limited deportation resources, it makes sense to give higher priority to the deportation of people who pose more of a public safety threat. I’ve previously argued that it is not wise to use deportation as a key crime-fighting strategy. But, many people, perhaps even those who support open borders, might agree that if you had to choose between a criminal and a non-criminal to deport, it’s better to deport the criminal. Hence, the Obama administration has repeatedly issued internal memos (starting with the 2011 Morton memos) urging the CBP and ICE to prioritize the deportation of people with criminal records and those who have committed aggravated felonies.

There are a couple of mistakes that people make when thinking about such prioritization. The first is that such prioritization recognizes or affirms the rights of non-criminals to stay in the United States. It does not. It simply says, “in an ideal world, we [the government] would deport you, but we’re currently too busy deporting others.” Obama himself has contributed to (and perhaps also been confused by) the ambiguity. In an article for Vox, Dara Lind explains:

The irony here is that the new policy is in line with what ICE agents have long claimed they’re under orders to do — and management’s long denied. Chris Crane, head of the National ICE Council, testified under oath in 2011 that his agents were being given secret, unwritten instructions not to arrest unauthorized immigrants except in very limited circumstances. When pressed by Democrats in Congress, Crane said he couldn’t offer any documentation to support his claims, and that no other agents would be willing to corroborate them out of fear — so his claims of a super-secret unwritten policy started seeming a lot like the West Wing’s “secret plan to fight inflation,” and were generally ignored by Democrats and the press. (So while the new guidance is being described as “catch and release 2.0,” it’s not clear whether the agents believe catch and release 1.0 ever went away.)

But for all that agents complain, ICE field offices have demonstrated — especially during Obama’s first term — that they didn’t have much of a problem deporting immigrants who were supposed to be “low priorities” anyway. This was actually the entire reason the initial deferred-action program was developed in 2012 to begin with. There were already memos asking ICE agents not to deport unauthorized immigrant students who’d been in the US for years. And on the basis of those memos, President Obama and senior officials said confidently that they weren’t “rounding up students.” But those memos weren’t actually sufficient to keep students from getting deported. So the administration had to develop a way for immigrants to apply themselves, proactively, for protection from deportation — rather than relying on ICE and CBP agents to follow guidance.

Obama himself has clarified that not being a priority does not mean legal status, and a person who’s not a priority now can become a priority any time:

“Deferred action is not a pathway to citizenship. It is not legal status. It simply says that for three years, you are not a law enforcement priority and are not going to go after you,” said one senior official. “It is temporary and it is revocable.”

The second mistake is the belief that, just because limited deportation resources mean that particular kinds of deportations need to be prioritized, that implies that the optimal quantity of other deportations is zero. In addition to directly removing people, deportations also serve a deterrent goal: they deter future immigration of people who are at risk of being deported (in this case, illegal immigration). And they may also encourage some others to “self-deport” (i.e., they could be part of a broader strategy of attrition through enforcement that in general makes life harder for the affected set of immigrants). If the goal with deportation is not merely to remove people but also to deter migration and encourage attrition, then it makes sense to deport people who would not otherwise be deportation priorities. Why? The idea is that if a few such people are deported, then that sends a message to everybody that they could be deported, and therefore serves the deterrent effect. If, on the other hand, the administration only carries out high-priority deportations, those who know they won’t qualify as high-priority feel (relatively) safer migrating and staying on. Again, this is similar to how a law enforcement agency might handle a mix of crime types: while the focus would be largely on the most serious crimes, action would be taken for at least some of the less serious crimes. It’s probably not optimal to spend all law enforcement resources investigating murders and effectively saying that cold burglaries won’t be investigated at all.

Would focusing only on high-priority deportations be a feature or a bug? From an open borders perspective, it’s clearly a feature if large numbers of people can carry out their lives with little fear of deportation. It heightens the contradictions between the stated objective of immigration enforcement and the reality on the ground. For the same reason, however, from the perspective of somebody interested in enforcing immigration laws, focusing entirely on high-priority deportations is a suboptimal way of using limited enforcement resources.

The problem here is that people who oppose deportations have latched on to some reasons for doing so that, while true, offer only partial justification for it and not exactly in the desired direction. It’s true that deportation costs money and resources, and it’s true that prioritization makes sense. But it does not follow from these that the optimal enforcement strategy would involve zero deportations of low-priority people. If you think that even one deportation of a person in a low-priority category is a moral travesty, then that belief does not stem from arguments typically provided about deportation costs and the need for enforcement priorities.

#3, The numbers game. Objection: It doesn’t make logical sense from most perspectives, including the open borders and restrictionist perspectives

One of the most puzzling attitudes I’ve seen to the phenomenon of illegal immigration is that people view it as a numbers game: adopt a mix of strategies to somehow or the other bring down to near-zero the number of people classified as not being in lawful status in the United States. It is because of this numbers game approach that people can view both amnesty and mass deportation as two alternative solutions to the same problem — despite their diametrically opposite goals and their diametrically opposite effects on the ground.

The view that reducing the number of people currently classified as not being in authorized status can be an end goal in itself can be justified based on a twisted territorialist perspective. Why twisted? The typical territorialist perspective is concerned with protecting the rights and interests of all who are currently present in the geographical territory of the nation-state. But if we adopted a strictly territorialist perspective, we’d be opposed to deportations.

The twisted territorialist perspective I’m describing here is one that gives importance not so much to the welfare of all those currently in the geographical territory, but to achieving an end state at which point the rights and interests of everybody in the geographical territory are protected. Getting to that point might involve deportation or legalization or whatever it takes. But once everybody in the territory is in legal status, law enforcement and civil society can flourish without the problem of people having to worry about getting deported and therefore having to live in the shadows.

While this perspective has some merit, the numbers approach to illegal immigration (that treats deportation and amnesty as competing solutions to the same problem) does not make sense from the several other perspectives that are more common:

  • The pure territorialist perspective is opposed to deportation, because of its effect on the people currently in the territory.
  • The right-to-migrate (open borders) perspective is opposed to deportation. From this perspective, the fundamental problem is that the state’s definition of authorized status is at odds with the morality of freedom of migration, so that the state deems as unlawful the presence of persons who had a right to be present.
  • From the restrictionist viewpoint,the people currently classified as being in unlawful status should not be here at all (with perhaps a few exceptions). If they could be here legally, they wouldn’t need to enter illegally. So legalizing their status only makes the problem worse because it legitimizes the presence of people who should not be here.
  • From the law-and-order viewpoint, even if the people involved might have been allowed to come under a different regime, the fact that they migrated illegally makes them worthy of punishment.

What I find interesting about rhetoric that seems to treat illegal immigration as a numbers game is that, even though it can be justified based on the twisted territorialist perspective, that perspective is rarely articulated or justified. Thus, I’m not sure if people actually subscribe to that perspective or just made a careless logical error. Either way, probably a lot more people subscribe to one of the four perspectives I discussed, or something close, and in none of those perspectives can deportation and amnesty be treated as substitutes.

Treating illegal immigration as a numbers game is somewhat similar conceptually to treating balanced budgets as a numbers game. Crudely put, there are two ways of trying to reduce the budget deficit (or increase the budget surplus): increase revenues, or decrease spending. Revenues for governments generally come from taxes. So budgets can be balanced by increasing taxes or decreasing spending. These two actions can therefore be presented as alternate “solutions” to the “problem” of a budget deficit. From a perspective of minimizing budget deficits (or maximizing budget surpluses) high taxes and low spending is the best combination. Note that this perspective is at odds both with the fiscally conservative perspective (low taxes, low spending) and the progressive perspective (high taxes, high spending). That said, I believe that reducing illegal immigration to a numbers game is less well-grounded than using budget surplus maximization as a driving goal for taxation and spending decisions.

True rejection of deportations

I think that many immigration moderates who adopt the arguments I discussed above are not articulating their true rejection of deportations. I don’t quite know what their true reasons are — I suspect it’s mostly a visceral feeling that deportation is presumptively morally wrong, a view that could be influenced by ordinary human decency, with a dash of territorialism thrown in. The moral basis for opposing deportations, and how it ties in with open borders, will be the subject of a separate and long post. But just as a thought experiment, let’s review the typical lines of argumentation:

  1. The all-or-nothing view that since there are so many illegal immigrants, deportation isn’t a feasible solution: Would advocates of this view enthusiastically support deportation if the number of illegal immigrants were comparable to the number that could be deported over a year? This doesn’t even have to be a purely theoretical question: the size of the illegal immigrant population population, as well as legalization policies, vary heavily by country, so looking at the differences in rhetoric employed by moderates would be interesting. My impression is that mainstream liberal moderates rarely support deportation whether the numbers are small or big, suggesting that size isn’t the real reason — it’s just deployed as an add-on argument when it fits.
  2. The priority argument: Again, it’s not clear that moderates who argue that enforcement resources should be prioritized for criminals actually believe that once all the criminals are rounded up, it will be time to start deporting the others. Crime rates of immigrants (and natives) vary heavily by country, but I haven’t seen examples where moderates say, “Okay, now that we’ve managed to deport most of the criminals and have the deportation resources to spare, it’s time to start deporting law-abiding and honest illegal immigrants.”
  3. The numbers game: I believe many of those who use that framing don’t actually treat it as a numbers game, because they generally come down heavily on the side of one solution (deportation or amnesty) while rhetorically claiming that they are substitutes. Perhaps a better model is that a lot of people think that others treat it as a numbers game, and therefore tailor their argumentation accordingly.

A recent Open Borders Action Group post by me asked for thoughts on moderates’ emphasis on the fiscal costs, and whether other things that were later regarded as moral travesties were initially opposed for fiscal reasons. The ensuing discussion was informative, and included examples such as laws against the death penalty, killing horses, and war. A comment by John Lee is particularly illuminating, and I quote it here:

Well, I think [moderates’ invocation of fiscal costs are] also a form of intellectual gymnastics where you’re trying not to appear to be a raving open borders dreamer. If you admit that undocumented immigrants have done nothing wrong, if you say that deportations are categorically immoral, then you’re basically advocating open borders. Which makes your position verboten given where the Overton window currently is.

So your best bet is to try to sound “reasonable” on the issue by crafting some argument contoured around the particular issue you want to address (the existing stock of undocumented immigrants, child asylum-seekers, etc.) and limiting the scope of your premises to only issues that have bearing on this narrowly-focused area of immigration policy.

That way, you don’t have to admit to yourself you’re being hypocritical — hey, it is true that it is fiscally wasteful to spend money treating families and workers as if they’re drug lords — and you don’t have to worry about defending a much broader claim — that all deportations and/or border controls are unjustifiable — which you don’t feel prepared to make.

Conclusion

I’ve looked at three different styles of argument used by immigration moderates to articulate and justify their dislike for deportations, while also staying within the framework of accepting the legitimacy of mainstream immigration enforcement. I think many of these don’t reflect their true reasons for being uncomfortable with deportations. When such arguments are made, and conflated with the true reasons, it gets in the way of clear thinking of the consequences of such policies. It can give people a false sense of security that a right to stay has been established, when nothing of the sort has happened.

Related reading

The image featured in the header of this post is of anti-deportation graffiti in Vienna, Austria. Photo by Herzi Pinki licensed under the Creative Commons Attribution-Share Alike licence.

Bernie Sanders and open borders: OBAG highlights

United States 2016 Democratic Presidential primary candidate Bernie Sanders was recently interviewed by wonk-cum-journalist Ezra Klein for Vox, a publication whose writers include open borders advocate Dylan Matthews and fellow-traveler Matt Yglesias. Matthews has frequently linked to Open Borders: The Case and did a lengthy open borders write-up based on an interview with Bryan Caplan. Klein, not himself an open borders supporter (to my knowledge) has likely been influenced by his colleagues to treat the position with more seriousness than most journalists do. So he asked Sanders about open borders. Below is the relevant excerpt from Ezra Klein’s interview of Bernie Sanders:

Ezra Klein

You said being a democratic socialist means a more international view. I think if you take global poverty that seriously, it leads you to conclusions that in the US are considered out of political bounds. Things like sharply raising the level of immigration we permit, even up to a level of open borders. About sharply increasing …
Bernie Sanders

Open borders? No, that’s a Koch brothers proposal.
Ezra Klein

Really?
Bernie Sanders

Of course. That’s a right-wing proposal, which says essentially there is no United States. …
Ezra Klein

But it would make …
Bernie Sanders

Excuse me …
Ezra Klein

It would make a lot of global poor richer, wouldn’t it?
Bernie Sanders

It would make everybody in America poorer —you’re doing away with the concept of a nation state, and I don’t think there’s any country in the world that believes in that. If you believe in a nation state or in a country called the United States or UK or Denmark or any other country, you have an obligation in my view to do everything we can to help poor people. What right-wing people in this country would love is an open-border policy. Bring in all kinds of people, work for $2 or $3 an hour, that would be great for them. I don’t believe in that. I think we have to raise wages in this country, I think we have to do everything we can to create millions of jobs.

You know what youth unemployment is in the United States of America today? If you’re a white high school graduate, it’s 33 percent, Hispanic 36 percent, African American 51 percent. You think we should open the borders and bring in a lot of low-wage workers, or do you think maybe we should try to get jobs for those kids?

I think from a moral responsibility we’ve got to work with the rest of the industrialized world to address the problems of international poverty, but you don’t do that by making people in this country even poorer.
Ezra Klein

Then what are the responsibilities that we have? Someone who is poor by US standards is quite well off by, say, Malaysian standards, so if the calculation goes so easily to the benefit of the person in the US, how do we think about that responsibility?

We have a nation-state structure. I agree on that. But philosophically, the question is how do you weight it? How do you think about what the foreign aid budget should be? How do you think about poverty abroad?
Bernie Sanders

I do weigh it. As a United States senator in Vermont, my first obligation is to make certain kids in my state and kids all over this country have the ability to go to college, which is why I am supporting tuition-free public colleges and universities. I believe we should create millions of jobs rebuilding our crumbling infrastructure and ask the wealthiest people in this country to start paying their fair share of taxes. I believe we should raise the minimum wage to at least 15 bucks an hour so people in this county are not living in poverty. I think we end the disgrace of some 20 percent of our kids living in poverty in America. Now, how do you do that?

What you do is understand there’s been a huge redistribution of wealth in the last 30 years from the middle class to the top tenth of 1 percent. The other thing that you understand globally is a horrendous imbalance in terms of wealth in the world. As I mentioned earlier, the top 1 percent will own more than the bottom 99 percent in a year or so. That’s absurd. That takes you to programs like the IMF and so forth and so on.

But I think what we need to be doing as a global economy is making sure that people in poor countries have decent-paying jobs, have education, have health care, have nutrition for their people. That is a moral responsibility, but you don’t do that, as some would suggest, by lowering the standard of American workers, which has already gone down very significantly.

Although Open Borders: The Case the website played a very small role in the ensuing debate (it got linked to by Dylan Matthews for the double world GDP page and then by an unsympathetic AlterNet writer as a “Libertarian” website), the fact that this discussion happened at all, and the attention it got, reveals the increased recognition of “open borders” as a position worth considering and responding to. If the open borders movement didn’t exist, Matthews may not have been referencing “open borders” that frequently in his writing (even if he believed in it). And without Matthews constantly harping on it, Klein may not have chosen to bring up “open borders” — he might simply have asked a question about migration policy without positing open borders as an end state. Insofar as influencing politics goes, this is a small step that rounds down to zero. The biggest gains will happen when global public opinion turns to favoring open borders. But it’s a proof of concept that the fringe “open borders” movement can create ripples, however temporary, in mainstream political discourse.

Rather than review the details or go into my own opinions, I’m going to lay out the chronology by linking to and quoting comments form posts about the subject in the Open Borders Action Group.

First post by Nathan Goodman about the Vox interview

Nathan Goodman posted about Ezra Klein’s interview of Bernie Sanders on July 28, the day it was published. Goodman excerpted the part of the post that interested him most and offered his own summary:

“Open borders? No, that’s a Koch brothers proposal… That’s a right-wing proposal, that says essentially there is no United States.” –Bernie Sanders

He then follows this with a bunch of economic ignorance, claiming open borders would make Americans drastically poorer.

The post was one of the most liked and commented, with 37 likes and 36 comments. Most liked (21 likes) was my own comment, that made a simple but important point:

I’m glad political candidates are being asked for their views on open borders!

This is an important accomplishment, because as Fabio Rojas wrote:

This may sound like a modest, even trivial, proposal. The opposite is true. Currently, the public has no idea that there are other people who even believe in the concept of open borders. Political debate focuses on whether a few lucky persons might get amnesty, not whether we should make our borders open. That indicates to me that the average person doesn’t appreciate that open borders is even a position that one might consider. That has to change.

Another popular comment was by John Lee, that noted the incongruity of Bernie Sanders viewing open borders as a right-wing position:

“That’s a right-wing proposal, that says essentially there is no United States.”

Apparently “imagine there’s no countries” is a right wing idea today.

After seeing the favorable response, John tweeted this from the @OpenBordersInfo Twitter account, where it was also well received:

A number of commenters noted that Sanders’ opposition to open borders was driven by his support from labor unions that represented the interests of organized labor, to whom immigration was a (real or perceived) threat. Another point noted was that the kind of welfare state that Sanders envisioned would not be feasible under open borders, and so his opposition to open borders was rational. Anthony Gregory:

I don’t think he would support [open borders] in any case. You can’t have open borders and the type of economic policies he wants.

Jameson Graber:

It is amusing that he calls open borders a “right wing” idea, because the right wing is overwhelmingly against it in almost every developed nation. Still, I think he’s being perfectly consistent, here. As a socialist he believes his first responsibility is to take care of the middle class “here at home,” where “home” is defined as the nation state. Socialism and open borders are fundamentally incompatible.

David Kraft:

Can’t say I’m surprised that someone who describes himself as socialist – and by implication seeking support from trade unions – advocates artificially restricting the supply of new labour in order to artificially strengthen the position of the representatives of the existing labour force.

Ben Smith noted that Sanders might be better than many other candidates:

In fairness, when it comes to political candidates, when working on radical reform like open borders, you have to pick the candidate that comes closest, and Bernie Sanders endorses policies closer to open borders more than any Republican candidate.

Second post by Carl Shulman on Sanders’ immigration views and the relation with territorialism

Carl Shulman posted a link to Bernie Sanders doesn’t easily fit either side of the immigration debate. Here’s why. by Dara Lind for Vox. He connected it to the idea of territorialism (the idea that the interests of those already present in the country matter, even if their presence is unauthorized, but those outside the country don’t matter). He also quoted two excerpt from the article:

“Sanders is specifically worried about guest-worker programs…For most politicians, what to do with the unauthorized is the trickiest part of the immigration debate. But for labor and business groups, the most important question is whether, and how, the immigration system should be changed for future legal immigration — what’s called “future flow.” Of course, labor and business have very different answers to that question.

Sanders also sees unauthorized immigrants and future flow as different issues, as he made clear to Jose Antonio Vargas during his town hall at Netroots Nation earlier this month…

Sanders is clearly worried that more immigration to the US is going to drive down wages for the native-born. In that respect, he is drawing a clear line: He cares a lot about the treatment of workers in the United States, whatever their legal status, and is not equally concerned with workers who aren’t yet living in the US.”

“If Bernie Sanders is going to be a viable candidate for the Democratic nomination, he’s going to have to do better than the single-digit support he’s currently attracting from Latino voters. And his immigration position isn’t a deal breaker. But it is a liability.

Latino voters are personally invested in immigration reform — but they’re especially invested in the fate of the unauthorized. While future flows matter to Latinos — many of whom have relatives stuck in years-long immigration backlogs — they’ll be affected much more by preserving and expanding family-based immigration than by what happens with employment-based immigration.

Sanders certainly isn’t winning over any Latino voters by talking about how more immigrants would drive down wages, and the rhetoric alone could be a turn-off. But there’s no reason it would have to be a deal breaker on its own. When it comes to the most important immigration issues to Latino voters, Sanders is saying all the right things.”

Andy Hallman responded with a perceptive comment:

Moderate pro-immigrant groups typically believe states have the right to control their border, unlike OB advocates and many libertarians. That means Bernie Sanders can appear pro-immigrant by saying things like “immigrants helped build this country” while also wanting to keep out those “helpful” immigrants.

I read Jorge Ramos’s book “La Otra Cara de America” (The Other Face of America), which is largely about Hispanics in the United States. Ramos, a journalist for Univision, said he didn’t mind immigration controls, he just thought a lot of anti-immigrant sentiment was racially motivated. I think that is the most common attitude among moderate pro-immigration voices.

Third post by Kirien Eyma on AlterNet’s defense of Sanders

Kirien Eyma posted a link to an AlterNet piece by Zaid Jilani titled How the Latest Smear Campaign Against Bernie Sanders Collapsed Before It Started. The Vermont senator’s words were completely twisted. Here’s what he actually said.

John Lee comments with a criticism of Sanders’ proposal:

So the article says it’s twisting Sanders’s words to say he opposes open borders and therefore actively disregards the interests of billions of lower-income people.

But then the article says Sanders does oppose open borders, he just supports slightly less-closed borders than most politicians. And its discussion of how his immigration proposals will help lower-income people focuses entirely on the ~12 million undocumented immigrants already present in the US, ignoring completely how his active opposition to looser immigration controls actively harms billions of lower-income people around the world.

To the extent that the article critiques the claim that looser immigration controls will empower low-income people outside the US, it predicates this on the outlandish assumption that the only reason people would ever want to migrate to the US is because free trade ruined their countries’ economies.

John Lee’s post on Ryan Cooper’s critique of open borders in The Week

John Lee posted a link to Why a massive wave of immigration is not a magic fix for the economy by Ryan Cooper in The Week, which cited nativist backlash as a reason to be skeptical of open borders. John excerpted and commented on it thus:

“What air-dropping a billion random foreigners into the country would do, of course, is create the mother of all nativist backlashes.”

You know what else creates the mother of all bigoted backlashes? Freeing slaves, giving women equal rights, letting black people move into white neighbourhoods…

The most liked comment was by Charles W. Johnson:

Who in the world suggests “air-dropping a billion random foreigners into the country”? I advocate removing all barriers to individual migration. But of course, migrants don’t move *randomly*; they move with a purpose of their own and generally respond to economic incentives at least as well as anybody else does in dispersing towards or converging on available economic opportunities. I suppose if you just dumped a huge pile of random university graduates from around the U.S. on Silicon Valley, that wouldn’t do much to keep the tech industry running from day to day; but fortunately that’s not how mobile labor markets work in a rational society.

However, there was some pushback from others. Jameson Graber:

As much as I would like to just trash this article because of its conclusion, I think the author makes a fair point about the nation state: it really is the most reliable institution develop thus far for allowing large markets to exist. In Hayekian terms, I think this is a major victory in cultural evolution. Whereas ancient people were loyal mainly to their own tribe, modern people are capable of holding onto rather abstract notions of “nation,” and this allows for an amazing level of trust among large numbers of people who would be otherwise totally unrelated. However, moving beyond this to simply eliminating the nation state altogether is, I think, a utopian ideal. Perhaps one day (a long time from now) we might have some sort of global federation uniting all the peoples of the world….

In the meantime, I don’t think the author makes the case that open borders is actually a bad idea. But I do think that making the open borders case based on anti-statism is a bad idea. Better to make an argument rooted in the very traditions which have made great nation states great.

Omar Benmegdoul:

Sure, under open borders immigrants wouldn’t be randomly selected, but there would certainly be a lot more of them than there are now, which is really all there needs to be for a backlash. And I don’t think pointing out that the abolition of slavery and other such forms of progress also created backlash is going to be very convincing, even though it’s a good argument from our perspective.

As it stands, the Harms (theoretical) > “Nativist backlash” and “Culture clash” are pretty weak on counterarguments. We should probably have a keyhole solution at least (“increase immigration by 1% each year until all hell is about to break loose”).

Paul Crider’s post about Bernie Sanders’ response on his website

Paul Crider linked to “Open Borders”: A Gimmick, Not a Solution by Richard Eskow on Bernie Sanders’ official website. Crider wrote:

If only I had time to do a point-by-point response essay to this, it could provide for some interesting engagement …

Andy Hallman:

From the article:

“Open borders is a recipe for the further commodification of human beings. It treats people as economic inputs to be moved about the globe at the whim of global capital.”

If only the refugees knew that we were turning their boats back for their own good, to save them from a life of exploitation.

I’ve been reading about the Khmer Rouge lately, and this is the kind of thing its leaders believed, that nearly any sacrifice of human beings could be justified on the grounds you were saving them from the horrors of materialism.

Carl Shulman:

“Bier fails to consider a fundamental principle of economics: when the supply of labor increases, wages go down. A massive influx of foreign workers would lead to a steep plunge in those multiples. What’s more, there are often significant cost-of-living differences between the United States and these workers’ countries of origin.”

The paper DOES adjust for cost-of-living differences. Although it’s true that wages for migrants (who are substitutes for each other even if they complement natives) would fall with massive migration, and Clemens nods to that when estimating total benefits of open borders (at a lot less than ‘double world GDP’ though).

One fair complaint from the Sanders camp: why single out Sanders vs Clinton, who is probably no better or worse on the issue?

Admittedly, the questioning by Klein was opportunistic, but will Clinton manage to avoid answering any such question? Getting such questions into town halls or any other opportunity to bypass Clinton’s media screening might be helpful for furthering this conversation.

Nathan Goodman’s response:

The other issue is that people willing to adopt radical views look up to Bernie Sanders. If he successfully demonizes open borders for them, that’s a real harm.

Nathan Smith:

I wonder whether Bernie Sanders is sincere. It would almost certainly hurt any presidential candidate openly to support open borders. That’s a downside of asking presidential candidates about their position on this: if they secretly agree with us, we may be forcing them to lie.

Lant Pritchett:

Sanders just clarified that while he is a socialist he is a national socialist.

Other news and opinion pieces on Sanders’ remarks

The following pieces didn’t get directly discussed in OBAG, but received some attention and some of them were referenced in the pieces that got discussed on OBAG.

Related reading

The following material from our archives might be relevant:

The featured image is a public domain image of Bernie Sanders from the United States Congress photos. It was retrieved via Wikipedia.

Can deportation be a key crime-fighting strategy?

This post expands on some points I made in a post to the Open Borders Action Group on Facebook. There, I expressed puzzlement at the emphasis people pay to using deportation of criminal non-citizens (and in particular those in violation of authorized immigration status) as a crime-fighting tool. That Facebook post, and this blog post, will focus on the United States, though many of the points made are general.

To many people, the idea that there exist foreign-born non-citizens, particularly illegal immigrants, who have criminal records and still roam the streets safely is an indicator that United States immigration enforcement is dysfunctional and broken. Thus, Donald Trump’s remarks about illegal immigrants and crime struck a chord with a lot of his audience. And the killing of Kate Steinle by illegal immigrant and repeat felon Juan Francisco Lopez-Sanchez (who has admitted to firing the killing shots but claims they were accidental) was viewed as evidence of a breakdown of law enforcement. The killing has led to a proposal for a new law called “Kate’s Law” that has led to a lot of discussion, see for instance here and here.

This post has two main goals:

  1. Critiquing the high-level view that deportation can be a key strategy for reducing crime, particularly in the United States. I don’t claim that deportation can never reduce crime, just that it’s not a proven strategy to do so and most of the data suggest its effect is negligible in magnitude, ambiguous in sign, and swamped by the other side-effects.
  2. Emphasizing the importance on the open borders side of not carelessly conceding too much to restrictionists regarding how to deal with criminals, due to concerns about slippery slopes, ratchet effects, and logical inconsistency. I don’t claim that it’s inappropriate to make any exceptions for criminals, just that some exceptions should be made after careful consideration of all the angles rather than as a generous carte blanche of “do what you want with the criminals.”

A couple of notes here. Since this post is largely conceptual, I’m going to conflate a few fairly different notions. There is a notion of birthplace (native-born versus foreign-born), a notion of citizenship (citizen versus non-citizen), and a notion of authorization for status (legal versus illegal immigrant). Also, in the United States, many non-citizens are on non-immigrant visas, i.e., their visa does not specify immigrant intent, although many of them later transition to a long-term immigrant status. A detailed analysis of the empirics of crime patterns would need to avoid conflating these issues, but since the purpose of this post is rather different I’ll be a little careless.

Table of contents

1.1. How does the law treat people convicted of crimes based on immigration status?

The short answer here is that, as far as the law goes, non-citizens convicted of crimes are no more a hazard to public safety than citizens convicted of the same crimes. First off, anybody who is not a US citizen, lawful permanent resident, or conditional permanent resident, and who has been convicted of an aggravated felony, a category of crime that includes both violent and non-violent crimes (some of the latter being victimless crimes) can be subject to a speedy removal process called administrative removal for aggravated felons, which means that the person can be removed simply through some paperwork and without getting a hearing before an immigration judge (more here).

Even so, as immigration.procon.org notes, in the United States, those convicted of violent crimes need to first finish their prison terms, and after that they may be deported to their home country. And the way administrative removal works, they are deported straight out of prison, so they don’t spend a single day free in the streets of the United States: it’s prison in the US and then back to freedom in their home country.

In contrast, citizens are required to finish their sentence in prison, and after that they are free — to roam around in the United States. Even if the deportation of criminal non-citizens is a flawed process with many people failing to get deported, or returning to the United States, it’s at worst as bad (from the public safety perspective within the United States) as the treatment of criminal citizens.

For those convicted of non-violent crimes, the person may be deported before the completion of his or her sentence. Since re-entering the United States seems a task of comparable or greater hardness to having one’s prison term shortened or getting out on parole as a U.S. citizen, it’s again unclear that non-citizens pose a greater risk to public safety than citizens. Of course, there’s a big question mark regarding whether people convicted of non-violent crimes are threats to public safety to begin with.

The United States is also a participant in the International Prisoner Transfer Program. A prisoner who is a citizen of another participating country may transfer from a United States prison to a prison in the home country, subject to approval by both countries. However, such transfer must be initiated through a request by the prisoner, and therefore does not concern us here.

A bit more about re-entering after having been deported for crimes. The United States has a summary removal procedure called reinstatement of removal. What this says is that somebody who re-enters the United States without authorization after having previously been deported, removed, or excluded can be removed again without any kind of hearing or process, simply by “reinstating” the previous order. This in particular applies to those who were subject to administrative removal for aggravated felonies, or otherwise deported or excluded based on criminal history. Of course, after the person gets re-deported, the person may re-enter yet again, and get deported yet again, and so on. But two things to note: first, insofar as this isn’t enough to keep the streets of the United States safe, the problem can’t really be solved by more deportations, but by more imprisonment (which is sort of what Kate’s Law was pointing to). Second, the same public safety challenge applies to citizens as well, except that in the case of citizens, there isn’t even an option to deport people, however temporarily.

The upshot of all this is that, for a citizen and a non-citizen who commit the same crime, the law enforcement response in the case of the non-citizen is equally or more protective of public safety (in the US) compared to the response in the case of the citizen. If the law enforcement apparatus of the United States is lenient enough that criminal non-citizens can roam the streets freely and with impunity, then the same is even more true of criminal citizens.

An old post by Nathan, titled Answer to Vipul’s question about enforcement, has some interesting thoughts on deportation that are relevant to this discussion. Basically, Nathan argues that deportation is rarely the appropriate response, even if there are cases where it is not an unjust response:

I’m not absolutely wedded to the idea that deportation is never permissible. However, I can’t think of any situations where it would be appropriate. There are certainly crimes for which deportation would not be an excessive punishment; but for those crimes it’s usually either inapt or insufficient. A man guilty of rape or murder shouldn’t be deported, but imprisoned. Maybe there are scenarios where deportation would be the right thing to do, but I can’t think of them. I have some sympathy for the Nicene council which banished Arius the heresiarch for his views when they temporarily had the emperor on their side– they had suffered much at the hands of the pagans, and would yet suffer much at the hands of the Arians, and mere banishment is impressively moderate under the circumstances– but it’s not a precedent to imitate today, when the principle of free thought has been firmly established.

1.2. Immigrant crime rates appear lower than, and definitely aren’t significantly higher than, native crime rates

In the United States, one of the main concerns surrounding crime is that of crime by Hispanic illegal immigrants. We have a page on the subject that links to many literature reviews, and you should also read Alex Nowrasteh’s recent summary of the research and my co-blogger Joel’s take on immigrants and crime.

The broad consensus of these reviews appears to be that the foreign-born are considerably less likely to engage in crime than the native-born, and that this effect holds in aggregate, within each ethnicity, and for every combination of ethnicity and high school graduation status. Admittedly, the threat of deportation for crime is believed to be one contributing factor to the lower crime rate, but scholars who have studied the issue believe it to only be a partial explanation. The a priori selection for greater future orientation is believed to be another driving factor in the lower crime rates, and this applies to both legal and illegal immigration, and to both the status quo and substantially more liberal migration policy.

On the other hand, Hispanics have crime rates somewhere between non-Hispanic whites and blacks, which is a contributing factor to the perception of high Hispanic crime. But a lot of this higher Hispanic crime doesn’t come from foreign-born Hispanics.

In addition to comparing overall crime rates, we can also look at specific research on the effect of deportation on crime rates. Alex’s recent summary of the research includes a discussion of two relevant pieces of research:

The phased rollout of the Secure Communities (S-COMM) immigration enforcement program provided a natural experiment. A recent paper by Thomas J. Miles and Adam B. Cox used the phased rollout to see how S-COMM affected crime rates per county. If immigrants were disproportionately criminal, then S-COMM would decrease the crime rates. They found that S-COMM “led to no meaningful reduction in the FBI index crime rate” including violent crimes. Relying on similar data with different specifications, Treyger et al. found that S-COMM did not decrease crime rates nor did it lead to an increase in discriminatory policing that some critics were worried about. According to both reports, the population of immigrants is either not correlated, or negatively correlated, with crime rates.

As far as long-run immigration policy is concerned, one could plausibly argue that, even if the foreign-born have lower crime rates than the native-born, allowing more immigration can still raise crime if the children of these foreign-born have higher criminal propensity. This line of reasoning is partly supported by evidence, both with respect to Hispanics in the United States, and with respect to other immigrant groups historically; this phenomenon has been discussed under the name of second-generation crime.

For the purposes of deportation policy, however, this doesn’t apply, because we are specifically talking about deporting non-citizens for crimes they have committed, rather than crimes we expect their children might commit. And native-born people in the United States are United States citizens (by birthright citizenship) so there are no official grounds for deporting them.

1.3. In absolute terms, crime by immigrants is a small fraction of overall crime

In the United States, the foreign-born constitute about 13% of the population. Given that their crime rates are somewhat lower than those of the native-born, they account for less than 13% of the overall crime in the United States. Targeting crime by immigrants therefore won’t make a huge dent in the overall crime problem.

Concretely, what this means is that if you believe the criminal justice system is too lenient against the foreign-born, and that this creates a significant crime risk for natives, then you should be far more concerned about the criminal justice system being too lenient overall. For every case of a criminal foreign-born non-citizen individual who was either acquitted or released after serving a prison term and then committed more crimes, you’ll probably find many more native-born citizens who do the same thing. Perhaps the relevant remedy here is to make prison terms longer for particular types of offenses, or to better identify those who may be repeat offenders. What the optimal remedy is, and how to balance the rights of former criminals with public safety needs, is not the topic of this post. But it behooves those concerned about crime levels to consider the problem in generality rather than find solutions for a subset of the population that contributes little to the overall problem.

Note that this definitely won’t hold under open borders: under open borders, the foreign-born will be a much larger share of the population, and are likely to contribute a significant share of overall crime. The question of what crime rates would be under open borders is open. It is plausible that the currently observed phenomenon of lower immigrant crime rates than native crime rates will break down under open borders, though I still don’t expect a massive overall increase in crime rate. I considered these questions in an earlier post, and we’ll hopefully have more coverage of the issue.

1.4. Are there unique challenges associated with domestic criminal law enforcement when applied to non-citizens?

One plausible argument for choosing deportation as a crime-fighting strategy for non-citizens is that domestic criminal law enforcement becomes particularly hard for these people. Is that true?

Ironically, it is, but largely because of immigration enforcement. Law enforcement officers have difficulty carrying out their job in immigrant communities partly because of the distrust in these communities of law enforcement, given their fear of deportation and harassment. This leads to a dynamic where police officers tend to avoid the area, leaving the policing of these areas to those prone to corruption and bullying, further worsening the interaction between police and residents. A similar phenomenon been observed for many black communities in the United States, where the relevant form of enforcement is not immigration enforcement but other laws such as drug enforcement and Broken Windows policing.

It is partly for this reason that many “sanctuary cities” have adopted explicit policies surrounding non-enforcement of federal immigration laws. In other words, police are instructed to focus on the goal of fighting crime, leaving the enforcement of federal immigration law to federal authorities. In other words, to the extent that unique challenges apply to domestic law enforcement for non-citizens, they point in the direction of separating law enforcement from immigration enforcement.

A small note here about crime in border towns specifically as a result of illicit border activity. Organized crime plays an important role in facilitating drug smuggling and migrant smuggling, and the clashes between different organized crime groups, and between them and law enforcement agencies, can be responsible for higher-than-usual violence levels in border towns. That being said, as an empirical matter, it appears that overall crime rates are lower in border towns than in comparably sized interior towns. One of the lowest-crime areas, El Paso, is a border town in Texas whose low crime rate has even been called a miracle. The oft-noted point that border towns account for a disproportionate rate of federal crimes (which include crimes related to smuggling) does not impugn their overall safety record.

2.0. Is this worth making an issue of? Can’t the treatment of violent criminals be a small concession that makes the open borders position much more widely palatable?

Criminals are one of the few categories for which many open borders advocates are willing to make exceptions to their general view that borders should be open to all. Thus, for instance, Bryan Caplan writes:

Hey Mr. Caplan,Do you think Israel should open their borders?

Thanks, Jack

Yes. But I wouldn’t strongly object if they excluded people with violent criminal records or denied new-comers the vote. (Same goes for countries other than Israel, too).

It’s not clear to me if making a clear exclusion for criminals is philosophically consistent, but the argument for public safety being a valid concern in immigration law does carry some weight. In an earlier post in December 2012, I considered in detail the question of whether blanket denial of the right to migrate based on a criminal record is just (and also linked to many other people who had conceded an exception to open borders for violent criminals).

My purpose when I wrote that post, way back in 2012, was to simply explore the space of possibilities regarding how to trade off the right to migrate with public safety concerns in receiving countries. However, as I’ve thought more about this and looked more at the types of disputes and debates that arise in practice, a few other concerns have emerged in my mind.

2.1. Scope creep with criminality and immigration

The idea of keeping criminals out, and deporting those who commit crimes, is subject to significant scope creep. Once we start seeing immigration policy as a way to select and shape a better society, why stop at merely excluding violent criminals? Why not also aim to exclude people who have a 50%+ probability of being net fiscal drains, or who are more likely than not to vote the wrong way? And even within the realm of crime, why stop merely at those crimes that actually merit prison terms? Why not expand the scope to everything ranging from playing loud music to running a gambling house to downloading music in violation of copyright law?

In fact, this particular slippery slope is not merely hypothetical. It’s already happened. As already mentioned, United States immigration law can exclude and deport people for aggravated felonies, many of which are neither aggravated nor felonies. The Immigration Policy Center, an immigrant rights and legal advocacy group, has a good overview. Here’s how the IPC’s overview puts it:

As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. Even offenses that sound serious, such as “sexual abuse of a minor,” can encompass conduct that some states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 17-year-old and a 16-year-old.

While aggravated felonies are considered serious enough to allow for administrative removal for those who are not US citizens or permanent residents, there are also other, lesser, “crimes” that can be used to both exclude and deport people, albeit with more of a semblance of due process (i.e., they cannot be used as a basis for administrative removal, but they can still be used as evidence against the alien in a hearing before an immigration judge). Crimes that can be used to exclude and deport people are called crimes involving moral turpitude (aka crimes of moral turpitude, and abbreviated as CMT). This category includes aggravated felonies but also includes other crimes. NOLO has a good review.

The United States has also historically passed many laws restricting immigration based on one’s speech and political views, including the Immigration Act of 1903 (also known as the Anarchist Exclusion Act) and the Alien and Sedition Acts of 1798. This, despite the fact that freedom of speech is protected by the First Amendment to the United States Constitution. Once we grant that the public safety interest justifies special punishments for non-citizens (over and above the usual fines and prison terms), keeping the domain of application restricted to crime would be hard.

My co-blogger John Lee has done a great post linking to Pulitzer Prize-winning journalist Linda Greenhouse’s discussion of how migrants could be deported for minor offenses (also read John’s follow-up post discussing the resolution of one of the discussed cases).

2.2. Who has responsibility for shaping a criminal?

Personally, I reject the notion that state or national governments are morally responsible for the criminal actions of particular individuals who were born there or raised there. There could be exceptions where state propaganda or state action facilitates criminal activity, but state complicity in private crime needs to be positively established — not merely assumed. Therefore, I don’t believe, for instance, that just because a Chinese citizen came to the United States and committed crimes, the Chinese government, the Chinese nation, or the Chinese people as a whole are “responsible” for that crime and “deserve” to have the person back (this argument is a variant of the state responsibility thesis that has been cited by some philosophers as an argument against open borders).

Even if you believed in high-level national responsibility for the criminal actions of individuals, it’s not clear what nation gets the blame for immigrant crime. Is it the nation the person holds official citizenship of? Is it the nation the person grew up in? Is it the nation where the person first started on the path to crime? In the United States, DREAMers are likely to have had many of their formative experiences in the United States. Thus, we could reasonably argue in the case of DREAMers who commit crimes, any national responsibility for the crimes falls on the United States, rather than their birthplace. Even for those who migrate as adults and then commit crimes, their path of crime may well have begun in the United States. At best, the logic of responsibility can be used to deport criminals who committed their first deportation-worthy crime in their country of origin, in the same way as it could be used to deny initial entry.

2.3. Criminals can commit crimes elsewhere too

From a universalist perspective, deporting those with criminal proclivities, whom we believe could be repeat offenders, doesn’t really solve the problem: the person could commit crimes elsewhere too. There could be some cases where deportation might reduce criminality, for instance, deporting members of a gang could break up the criminal activity of the gang, and individual deported gang members may be unlikely to continue to engage in the relevant crimes (on the other hand, they may start new gangs). It’s unclear that the countries the criminals are being deported to would be more capable of dealing with the criminal activity — they may well be less able to handle it. Perhaps a cost-benefit analysis would still show that deportation reduces overall expected global crime, but such a claim needs careful argumentation.

Of course, citizenists and territorialists in any country would consider the reduction of crime within the country (and/or directed at citizens of the country) to be more important than reducing global crime. So it’s understandable that they accept deportation as a possible crime reduction strategy. But those of a more universalist bent should push back against this reasoning.

Co-blogger Joel pointed me to an article in The Atlantic that made the interesting claim that deporting gang members from the U.S. had actually increased organized criminal actiity both in the U.S. and in the countries the people were deported to. Here’s a key excerpt from the article:

MS-13 formed in the Rampart area of Los Angeles in 1988 or 1989. A civil war in El Salvador had displaced a fifth of that country’s population, and a small number of the roughly 300,000 Salvadorans living in L.A. banded together to form the gang. But MS-13 didn’t really take off until several years later, in El Salvador, after the U.S. adopted a get-tough policy on crime and immigration and began deporting first thousands, and then tens of thousands, of Central Americans each year, including many gang members.

Introduced into war-ravaged El Salvador, the gang spread quickly among demobilized soldiers and a younger generation accustomed to violence. Many deportees who had been only loosely affiliated with MS-13 in the U.S. became hard-core members after being stranded in a country they did not know, with only other gang members to rely on. As the gang proliferated and El Salvador tried to crack down on it, some deportees began finding their way back into the U.S.—in many cases bringing other, newly recruited gangsters with them. Deportation, incubation, and return: it’s a cycle we’ve been caught in ever since.

Today, MS-13 has perhaps 6,000 to 10,000 members in the United States. It has grown moderately in recent years and now has a presence in 43 states (up from 32 in 2003 and 15 in 1996). Most members of the gang are foreign-born. Since 2005, ICE has arrested about 2,000 of them; 13 percent have been deported before.

Salvadoran police report that 90 percent of deported gang members return to the U.S. After several spins through the deportation-and-return cycle, MS-13 members now control many of the “coyote” services that bring aliens up from Central America. Deportation—a free trip south—can be quite profitable for those gang members who bring others back with them upon their return.

While I don’t know enoughabout the specifics to endorse the claim of the article, this is the sort of ripple effect that people concerned about the long-run effects on global crime would have to account for. These kinds of effects are hard to predict, but a reasonable rule of thumb is that they’re likely to be less positive overall than the naive view of deportation as “taking criminals off the streets” suggests.

3. Conclusion

Much of the current discussion on immigration and crime comes from two angles: the use of anecdotes to justify strong immigration restriction and deportation policies against non-citizens accused of crimes, and the use of empirical data to study the relationship between migration status and crime. In addition, the defense of the civil and procedural rights of non-citizens accused of crimes is also a perspective that gets some airing. My post looks at the issue from a few slightly different angles. It focuses on whether deportation can or should be an important part of a crime-fighting strategy, and highlights some other relevant considerations about moral responsibility and effects that often get sidelined by the tug-of-war between the citizenist and due process-defending perspectives.

In addition to the many inline links in the post, the following might be of interest to readers:

The photograph featured at the top of this post depicts police personnel at a 2006 march for immigrant rights in Los Angeles, California. Photograph by Jonathan McIntosh and licensed under the Creative Commons Attribution licence.