The Future of U.S. Immigration Law

David A. Super - Georgetown University Law Center
Vol. 53
November 2019
Page 509

President Trump has exposed the longstanding inadequacy in the accepted model of immigration law. This model assumes that preferences range linearly from strongly pro-immigrant to strongly anti-immigrant, with “centrist” business groups holding the balance of power. This linear model ignores fundamental differences among family-based, humanitarian, and employment-based immigrants as well as the very different reactions many people have to different groups.

This linear model has allowed business interests to leverage anti-immigrant agitation to expand the number of employment-driven immigrants at the expense of family-based and humanitarian entrants. Employment-based immigration subsidizes businesses by driving down their labor costs.

The linear model has produced “comprehensive immigration reform” bills that would slash family-based and humanitarian admissions. It also has transformed immigration enforcement and access to subsistence benefits while spawning state and local anti-immigrant laws, all disadvantaging family immigrants.

President Trump’s initiatives against immigrant families and refugees culminate this long trend of immigrant-employing businesses — like his — extorting concessions from those immigrants’ allies.

Both the moral benefits of family-based and humanitarian immigration and strong economic arguments suggest a multi-dimensional model is politically feasible and normatively desirable. Employment-based admissions distort targeted labor markets. By contrast, family-based and humanitarian immigrants’ effects are spread over many labor markets. Refugees are often people whose skills made them targets for repression. Families efficiently organize economic activity and relieve hardship. Family-based immigrants work as much as those admitted on work visas. Family ties and the refugee resettlement program reduce the vulnerability that causes many of the harms critics commonly attribute to immigration.
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