Tag Archives: Paul Graham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paul Graham on US immigration policy and high-tech programmers

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

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

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

Paul Graham and others at FWD.us event

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

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

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

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