Republicans seem ready to play ball on immigration, if only to patch up their image with Hispanics. It would be a pity if this political moment -- which comes only once every few decades -- was squandered on minor and temporary fixes. U.S. immigration policy needs a fundamental rethinking.
This isnt as daunting as it appears. For inspiration, Americans need look no farther than Canada.
Canadas provincial-nominee program, while not perfect, avoids the economically meaningless distinctions between skilled and unskilled workers that bedevil the employment-based U.S. immigration laws. It also puts in place incentives to treat foreign workers not as foes but as friends whose labor and skills are vital to the economy.
Most reforms of the U.S. system under consideration wont put American employers in a position to make competitive bids to ensure the steady supply of foreigners they need.
There is talk about raising the cap on visas for skilled workers -- called H1-Bs -- and scrapping the limit on green cards so that applicants from some countries dont have to wait longer than others. Right now, no more than 7 percent of the roughly 140,000 employment-based green cards issued every year can go to residents of one country. (That creates a 10- to 15- year wait for immigrants from India and China, the biggest suppliers of graduates from high-demand STEM fields: science, technology, engineering and math.)
As for the unskilled, a guest-worker program for Mexican labor that would make it easier for migrants to get temporary visas for seasonal work is gaining traction.
Such changes might address the most egregious defects in immigration policies, yet the discussion shows how behind the curve the U.S. is compared with other countries. Canada and Australia, for example, skip the temporary work-visa step completely and offer fast-track permanent residencies to highly skilled workers and their spouses before they even arrive in the country. Australia offers almost as many employment-based green cards as the U.S., even though the American population is 14 times bigger.
Canadas provincial-nominee program is the best model for the U.S. Under this system, 13 provincial entities sponsor a total of 75,000 worker-based permanent residencies a year, and the federal government in Ottawa offers 55,000. Each province can pick whomever it wants for whatever reason -- in effect, to use its quota, which is based on population, to write its own immigration policy.
Provinces may pick applicants left over from the federal program. They can also solicit their own applicants from anywhere in the world. In a direct attempt to poach talent from the U.S., some provinces are sponsoring H1-B holders stuck in the American labyrinth.
The government in Ottawa cant question either the provinces criteria or their methods of recruitment. Its role is limited to conducting a security, criminal and health check on foreigners picked by the provinces, which has cut processing time for permanent residency to one or two years -- compared with a decade or more in the U.S.
Richard Kurland, a lawyer who is considered Canadas top immigration expert, notes that provinces use the program for diverse goals such as enhancing existing cultural or ethnic ties with other countries. Not surprisingly, the most popular reason is economic: to augment the local labor market.
The program gives British Columbia the same flexibility to sponsor, say, bricklayers as it gives Ontario to sponsor computer programmers. It doesnt treat the entire Canadian economy as monolithic and pretend that distant federal bureaucrats can effectively cater to local job markets. (Canadas federal program is a different story altogether.)
There is no built-in bias against the labor needs of any province. By contrast, thanks to the high skill-low skill distinction in the U.S., Californias economy is able to import foreign workers more easily than, say, Floridas agrarian one. Although some Canadian provinces, such as Saskatchewan, struggle with retention rates, by and large this hasnt been a huge problem as immigrants skills are matched to the availability of local jobs. All of this has made the program popular with provinces. Some of them are lobbying to have their quotas expanded or even eliminated.
Above all, the program is far more in tune with the spirit of true federalism than U.S. immigration policies are. Provinces have a natural interest in their economies and the federal government in national security. Canada divides the federal and provincial roles in accordance with their primary interests, ensuring a balancing of both.
Such an arrangement might seem untenable in the U.S., given that the Constitution gives the federal government the authority to set immigration policy whereas Canadas explicitly makes it a joint federal-provincial responsibility.
Nothing, however, prevents the U.S. government from giving states greater latitude in setting their own immigration policies. Last year, for example, the conservative Utah Legislature passed a compact asking Congress for a waiver to carry out a more compassionate and employer-friendly program, including a path to legalization for unauthorized immigrants.
Under such a system, states such as Arizona, where restrictionist fervor runs high, would certainly be free to spurn foreigners. Yet they would have to face the economic and political consequences as businesses relocate to where workers are plentiful.
Odds are, just as in Canada, most states would become friends rather than foes of immigrants.
This route would go some way toward facing the illegal issue -- which is wholly the result of the lack of legal avenues for low-skilled foreigners to work and gain permanent residency in the U.S. When these avenues were available under the bracero program, a guest-worker arrangement with Mexico that the U.S. scrapped in 1964 because of union opposition, there was no such problem.
States that need low-skilled workers would be able to obtain visas and permanent residencies on their behalf just like states that want high-skilled workers. Initially, the states could give these visas to current illegal residents, as Utah would most certainly do, although they wouldnt have to.
The bigger issue would be deciding how many immigrants each state can admit. Ideally, employers would alert state authorities to their needs. States would weigh those requests against their ability to provide public services and tell the federal government how many background checks they should need in a given year. Canada placed caps on each province, Kurland explained, because the federal government in Ottawa was unable to quickly process applicants and avoid backlogs.
