DRI-166 for week of 4-19-15: What’s Wrong With the Immigration Laws?

An Access Advertising EconBrief:

What’s Wrong With the Immigration Laws?

One of the perennial items on Washington’s reform agenda is “comprehensive immigration reform.” Everybody claims to favor it, although the two major parties differ radically on the content they assign to the term. Indeed, there is vast intra-party difference as well, particularly among Republicans. And yet economists – the people who supposedly can’t agree among themselves about anything – align very closely on the subject of immigration.

Why does the subject of immigration trigger this startling role reversal? It should come as no surprise that economic logic and theory play a starring role in the explanation. But the co-star is the existing corpus of immigration law, which is a leading contender for the title “worst existing body of law.”

The Four Paths to Legal Immigration

Prior to the 20th century, there were almost no barriers to immigration into the United States of America. The sole exception was the anti-Chinese laws passed to placate fears over the “yellow peril” in the 19th century. But beginning in the 1920s, organizations like the Ku Klux Klan successfully agitated for laws broadly restricting immigration into the country. Thus began a gradual accretion of immigration law that has worked its way into the fiber of American society.

Today, restrictions on immigration are so severe that it is easier to talk about the relaxation of barriers to entry than it is to talk about restrictions on entry. The question isn’t “Is immigration restricted?”; it’s “How can anybody get in legally?” There are basically four paths to legal immigration into the U.S. today. We will discuss each in turn, together with the economic logic (or lack of it) underlying each.

Legal Path #1: The Visa Lottery

Foreigners who reside in the U.S. legally are called aliens. In order to obtain legal status, an alien must be issued a visa, a document that attests to the alien’s fulfillment of one of the conditions for valid entry. Every year, a certain number of visas are issued to applicants on a random basis by means of a visa lottery. This lottery is sometimes referred to colloquially as the “green-card lottery” because the green card is the document attesting to an alien’s status as a permanent resident of the United States. The green card is sometimes mistakenly viewed as a document permitting an alien to enter the country, but it is the stamp affixed to the card by the Bureau of Customs and Border Protection (CBP) at the port of entry that accords this privilege.

The official name of the visa lottery is the “Diversity Immigrant Visa Program.” It is held annually by the State Department in accordance with Section 203c of the Immigration and Nationality Act, as amended by Section 131 of the Immigration Act of 1990. This created a quota of 55,000 visas open to foreign nationals from countries “deemed to have low rates of immigration to the U.S.” in the 5 years previous to the lottery. The purpose of the program is to “diversify the immigrant population” of the U.S.

Residents of countries whose total number of legal immigrants to the U.S. in the preceding 5 years exceed 50,000 are ineligible to apply for participation in the lottery. Among the countries whose residents have recently been ineligible are included Mexico, Canada, the Dominican Republic, El Salvador, India, South Korea, the United Kingdom (but not Northern Ireland) and Vietnam, among many others. The entry period for the 2015 lottery lasted from October 1 to November 3, 2014.

Typically, there are millions of applicants – over 13 million in 2008, for example. Despite the selectivity involved – and the fact that eventual lottery winners withstand scrutiny from various government agencies – at least one notorious terrorist is known to have entered the country legally via the lottery. (One minor technical note: Excluded from the 50,000 five-year exclusion threshold are refugees admitted as legal immigrants, about whom more will be said later.)

Economic evaluation of the visa lottery: The visa lottery illuminates the central significance of the immigration laws; namely, that their purposes are entirely political rather than economic. And since politics all too often runs counter to the logic of economics, we can expect the immigration laws to be economically perverse. So they are.

First, the visa lottery imposes a quota upon visa awards and stringent conditions upon applicants. In contrast, economic logic imposes no quota upon the mobility of individuals in response to economic conditions. Just the opposite, in fact – economic efficiency demands either that people move in response to geographic price and cost differentials or that goods and services move. Sometimes it will be more economic for people to move; sometimes it is more efficient for the goods to move. (Sometimes services can move, too – particularly financial services – but this is less common.)

These days, we are implored to seek “diversity” in all things, particularly in the makeup of populations. But there is no economic reason to “diversify the immigrant population.” In practice, economics will almost surely argue against it. All other things equal, geographic distance should be inversely related to the propensity to emigrate, so we should expect to see more immigration from countries closer to the U.S. But the visa lottery actively discourages this with its five-year/50,000 immigrant disqualifier. Indeed, any factor favorable to immigration – distance, language, cultural congruity, education qualification, et al – will tend to put a country above the 50,000 threshold over time and thereby disqualify its citizens from the lottery. And, as we will see, each of the other three paths to legal immigration has its own limiting factors. So the visa lottery clearly violates the precepts of economic logic.

Why does the quota exist, then? Why, to thwart economic efficiency and protect domestic workers particularly vulnerable to foreign competition. This anti-competitive effect comes at the expense of – well, just about everybody else in the two countries involved. Because it is particularly obvious to the import-competing workers that they gain from the restrictive quota and much less obvious to the rest of the world that they are harmed, the government is not called to account for this egregious behavior. Imagine New York State devising a lottery to determine how many people it will accept from the other states and excluding people in Pennsylvania, New Jersey and New England from participating!

Legal Path #2: Refugee Status Visa

The second means of obtaining a legal immigrant visa is by applying for status as a refugee from harm in the resident country. This protected status is known as “asylum.” Each year, roughly 10% of legal immigrants fall under this rubric. Since 1980, over two million aliens have taken refuge in the United States. That would average out to somewhat fewer than 70,000 per year, but the variance around this average has been substantial. The current system of granting visas to refugees establishes quotas by dividing the world into regions and setting a quota for each one, then including a small additional quota for an “unallocated reserve.” The 5 regions (and their quotas as of 2009) are: Africa (12,000), East Asia (19,000), Europe and Central Asia (3,500), Latin America and the Caribbean (4,500) and the Near East and South Asia (37,000). The unallocated reserve quota is 5,000, bringing the total refugee quota to 80,000. Total refugee admissions in 2010 were 73,293; this is the only case we discuss where a quota was not completely filled.

From the applicant’s perspective, the problem with the application for asylum status is that acceptance is not automatic. There is a veritable laundry list of possible reasons for the denial of that application. This is the official list:

  1. Possession of a communicable disease of public-health significance.
  2. Possession of a serious physical or mental disorder.
  3. Status as a drug abuser or addict.
  4. Status as a former U.S. citizen who renounced citizenship for tax purposes.
  5. Status as a criminal guilty of “moral turpitude.”
  6. Violation of laws pertaining to controlled substances.
  7. Status as a criminal twice convicted of felony crimes.
  8. Having been convicted of prostitution within the previous 10 years.
  9. Having gained immunity from criminal prosecution to avoid penalty.
  10. Having the intention to practice polygamy in the U.S.
  11. Having the intention to violate (or abet the violation of) the immigration laws.
  12. Having been involved in international child abduction in any way.
  13. Having the intention to commit a crime.
  14. Status as someone whose admission would have adverse foreign-policy consequences for the U.S.

By far the most important element of an application for asylum, though, is the showing of a need for protection. There are 3 elements of this need:

  1. The applicant must demonstrate a fear of persecution.
  2. Government must be either the cause of the persecution or shown to be ineffectual in counteracting it.
  3. The basis of the persecution must be race, religion, nationality, political opinion or social group.

Economic evaluation of the refugee status visa: Once again, the particular of this section of the law betray its political intent. While some of the disqualifiers make sense, such as the communicable disease, criminal conviction and child abduction provisions, others seem obviously designed as pretexts for exclusion. The latter include the provision denouncing tax exiles and those referring to the intentions of applicants rather than their past deeds. In the criminal law, the principle of mens rea (literally, a “bad mind” or evil intent) plays a key role. This makes sense because proving commission of a crime will ordinarily involve a showing of intent. But in this case it is not clear exactly how the United States Customs and Immigration Service (USCIS) are to go about determining intent on the part of would-be immigrants. Equally dubious are provisions putting the finger on those with “mental disorders” and those guilty of “moral turpitude.”Then there is the provision excluding would-be refugee polygamists, which inserts a much-needed note of comic relief into the proceedings.


The easiest way to visualize the significance of this list would be to apply it to the passenger list of the Mayflower and the other pioneering voyages to the American colonies in the early 1600s. How many would-be colonists in early Virginia and Massachusetts could have passed this test? How many people who settled the American West could have run the above gauntlet unscathed? Throughout mankind’s history, immigration has been the leading means of making a new start in life, getting a second chance. Today, the U.S. immigration laws seem determined to foreclose this option. Just as the age-old saying holds that the best time to apply for a loan is when you don’t need one, the U.S. government apparently holds that people who are already successful are the only people who are genuinely welcome to come to the U.S. But if they’re already successful, what is their motivation to pick up stakes and move to a new country?

The persecution provision of the refugee provision is further proof of the political nature of the immigration laws. It is one thing to say (or imply) that the very nature of “asylum” implies protection from a threat, and that simple economic necessity is not a threat posed by human beings against other humans but rather a fact of nature and scarcity. That much is true enough. But this attitude implies that the immigration laws will have a section – somewhere – specifically devoted to legal immigrants who come to the U.S. solely to make a better life for themselves and their families. Well, this obviously isn’t the lottery visa or the refugee visa. Later, we will see that it doesn’t apply to the H1-b visa or the immediate-relative visa, either. In other words, the motivation spelled out on the Statue of Liberty, the one that impelled most new arrivals to America and made this country what it is today… is now absent from the immigration laws. Is it any wonder that illegal immigration swelled to epidemic proportions until dampened by the onset of the Great Recession?

Legal Path #3: The H1-B “High Skills” Visa

For at least two decades, U.S. employers have complained about the shortage of job-seekers with polished science, technology, engineering and math (STEM) skills. Congress responded to these complaints by creating a category of visa catering to applicants with those specific job-related skills. And once again there is a quota attached to this visa category. There is annual quota of 85,000 visas for this H1-b category, which has a minimum education requirement of a bachelor’s degree or the equivalent in a STEM subject.

Each year, this “high skills visa” attracts an oversupply of applicants. In 2013, there were 124,000 applicants for the 85,000 vacancies. In 2014, the oversupply increased again. And for 2015, some 233,000 applicants have applied. Given this burgeoning response to a crying longtime demand, the question arises: Why not at least bump up the quota? A bit of legislative history suggests that the answer lies exactly where an economist would expect to find it – with politics.

In 2012, a bill sponsored by House of Representatives Lamar Smith proposed increasing the quota by 55,000. But it also proposed to abolish the visa lottery, which many widely view as arbitrary and unfair – indeed, that was precisely how the 55,000 figure was arrived at. At the same time, Democrat Representative Zoe Lofgren has a bill to extend the quota by exactly the same number, 55,000 – but without abolishing the visa lottery. One would expect these bills to be reconciled, given only that single discrepancy. But it wasn’t – and nothing was done. In early 2013, a Senate bill was developed to raise the quota to 300,000. But various Republicans outside Congress, notably Jeb Bush, rejected its provisions in favor of “comprehensive immigration reform.” Either alternative would have had the virtue of doing something to promote legal immigration – but nothing was done. Later in the year, the Senate put together a comprehensive bill in response to the earlier demand for comprehensive reform. Now, though, House Republicans rejected this bill in favor of piecemeal immigration reform, claiming that comprehensive reform was bound to include objectionable features that would compromise security and play politics with the issue. And, predictably, nothing was done.

It is now obvious that the H1-b visa is the economic bait allowing politicians to switch away from action on immigration to politically inspired inaction. If politicians and legislators were really serious about aiding economic efficiency by encouraging immigration of skilled migrants, why have a quota at all? Just allow anybody with the skills to apply for a visa and accept applicants who can demonstrate the relevant skills, either in the form of academic credentials or work experience.

As it now stands, the H1-b visa is merely a blind permitting members of both parties to pretend to narrow – or rather, pretend to be always on the verge of narrowing without ever actually doing it – the yawning gap between the demand for skilled labor and its supply.

Legal Path #4: The K (Immediate Relative) Visa

U.S. citizens may petition the U.S.C.I.S. for a temporary immigrant visa (K visa) for spouse, fiancées and unmarried dependent children of those spouses and fiancées who are currently foreign nationals. (This is done via an I-130 form.) This temporary visa gives the recipient a maximum of 1 year to transform their status into that of a permanent legal resident. For example, fiancées have 90 days to marry the petitioner and apply for adjustment of status to that of legal permanent resident. Failure to comply will “subject them to removal proceedings;” e.g., deportation. (By the way, there are limits on the number of K-visa applications a petitioner can file without seeking a waiver of limitation.)

To obtain a V visa, signifying legal permanent status, a spouse filed an I-485 application for adjustment of status to that of legal permanent resident (LPR). This is accompanied by an I-693 (Medical Examination of an Alien) andG-325A (Biographic Information). These forms verify that the alien relative has not acquired undesirable medical conditions or bad habits (idleness or shiftlessness) since arrival. A date is set for fingerprinting, photographing and signature-gathering by the FBI, which runs a background check on the petitioner. All personal information is introduced into the U.S.C.I.S. database. The final step is an interview with a U.S.C.I.S. officer.

Economic evaluation of the immediate relative (K) visa: If there is anything at the opposite pole from economics, it is emotion – and that is the foundation of this section of immigration law. It exists to counter the specter of families and loved ones torn apart by the exigencies of economic necessity and the toils of bureaucracy. “See?” The K visa is supposed to whisper in the public’s ear. “The government does have a heart after all. When the husband has to labor in foreign vineyards, his wife and children are not left to pine away at home.”

The first thing to notice is that only U.S. citizens can petition for a would-be K visa holder. Thus, illegal immigrants cannot use this section to summon their relatives or loved ones to the U.S. Second, to the degree that the petitioner is an immigrant, this will reinforce the geographic patterns established by the other sections of the immigration laws. Wives, fiancées and children of permanent resident aliens will be predominantly nationals of the same country. Since the other sections of the law are inimical to economic efficiency, this one will be, too. Third, a close reading of the provisions banishes any notion of government as a sympathetic matchmaker who is reuniting spouses and lovers torn apart by cruel circumstance.

The minute the spouse or fiancée steps down from the gangplank or jetway, the government starts the clock ticking on the time available to them. Fiancées have 90 days to get married – or else get moving back where they came from. Wives have a year to get started on the road to full citizenship – or else. And for five years everybody is watched like inmates on parole. Then they get an examination worthy of an astronaut – or an applicant for a top-secret security clearance. And the rewards for enduring this endurance test include membership in one of our great involuntary clubs, a national database chock full of your own personal data. Doesn’t all this just call up strains of “Isn’t It Romantic?”

The Economic Purpose and Value of Immigration

The first thing that college students usually learn in an economics course is that “cost” is a real economic variable, not merely a monetary one, and that it is represented by the highest-valued foregone alternative in any human decision. The second thing is that resources (or inputs, or factors of production) should flow to their highest-valued uses. When economists say this, they do not qualify it by saying, “but this applies only when the resources exist within a household, or a neighborhood, or a city, or a region, or a state, or a country.” The statement is global in scope; it applies worldwide.

How important is it? Well, suppose we applied it in a limited way – only to global labor markets. According to Alex Nowrasteh, the Cato Institute’s specialist in international trade: “What would happen… if we took a radical policy – global open borders – and introduced it tomorrow? What would happen, in other words, if anybody could move to any other country and work legally? The estimate is that global GDP would increase between 50 and 150 percent, which is 35 to 105 trillion dollars in annual extra growth per year.” Nowrasteh estimates the present value to the U.S. specifically over the next 20 years at about 800 trillion dollars.

Ho hum. To paraphrase the late Everett Dirksen: A hundred trillion here, a hundred trillion there. Pretty soon you’re talking about some real money.

The upshot is that we want people to move between countries in response to the signals provided by money prices and costs. These signals are stand-ins for the underlying real tradeoffs in production and consumption. In particular, money wages are a stand-in for real wages, or wages relative to productivity. They affect the production decisions made by firms and the actions of workers – both domestic and foreign. It is vital that workers be allowed to move in response to wage differentials favorable to their interests, because this allows firms to take advantage of potential productivity enhancements. In turn, this enables the productivity enhancement to be passed along to consumers. That is what has happened in America ever since colonial days, when global-high wages first began attracting a steady stream of immigrants. Over time, the burgeoning supply of labor was more-than-counterbalanced by an increasing supply of productive capital goods that made existing labor more productive and kept wages high.

In the U.S. today, people routinely move from one neighborhood to another in search of a better job. People who live near a state line think nothing of crossing it to go to work. They will relocate within a country if the new job is sufficiently remunerative.

So why shouldn’t we cross international boundaries to pursue job opportunities? As a matter of fact, Americans take jobs abroad fairly often. Nobody thinks anything about that, other than to speculate on how much they will miss living here. But when an immigrant crosses the border to take a better job – or look for one – that is somehow… different. The same people who take American emigration completely for granted start looking for reasons to object to foreign immigration into America.

There is a standard list of those objections in every textbook on international economics. All of them are bogus – or rather, they apply with equal force to immigration within a country, just as objections to free international trade in goods and services are exposed as bogus when they are applied to intranational trade within countries. We would be crazy to restrict immigration between Missouri and Kansas, or between Kansas City, MO and Independence, MO, or between different neighborhoods in Kansas City. And it’s just as crazy to restrict immigration between the U.S. and foreign countries.

If anything, it’s crazier. Natural barriers to trade always exist. These include geographic distance, geographic obstacles such as mountains, oceans and climate, and language and culture. On net balance, these natural barriers loom larger between countries than within countries. Such barriers can allow very large productivity differences to arise and temporarily persist between nations. This makes it even more important to allow the natural corrective forces of free markets to overcome them.

When we factor in the artificial barriers created by quotas like those embedded in U.S. immigration law, the inducement to illegal immigration can become irresistible. At various times, estimates have appeared (in The Wall Street Journal and elsewhere) suggesting that low-skilled Mexican labor was worth five times more in the U.S. than in Mexico – that is, its productivity was five times greater here than in its native country. It is no wonder, then, than when economists Stephen Moore and Julian Simon surveyed a roster of economists, almost all of them said that the benefits of illegal immigration were the same as those of legal immigration.

This speaks inferential volumes about the value economists place on the U.S. immigration laws. In Charles Dickens’ Oliver Twist, the character of Mr. Bumble is accused of stealing jewelry belonging to Oliver’s mother. Bumble denies guilt, placing the blame on Mrs. Bumble. He is informed that this would actually increase his liability, “for the law supposes that your wife acts under your direction.” Indignant, Bumble responds that “If the law supposes that, then the law is a ass, a idiot!”

When it comes to the U.S. immigration laws, economists are prone to agree with Mr. Bumble that “the law is a ass.”