In immigration debate, what constitutes 'merit'?

When President Trump talks about immigration in his first State of The Union speech tonight, people are likely to hear him use one phrase in particular: “merit-based immigration.”

As part of his offer to put 1.8 million young, unauthorized immigrant “Dreamers” on a path to citizenship, Mr. Trump also wants to shift legal immigration away from prioritizing family reunification to a system based on individual qualifications. It would be a significant change – if lawmakers could agree on what constitutes “merit.”

The president and his supporters in Congress appear to be defining merit as highly skilled, well-educated immigrants who speak English and can support themselves. But what about strawberry pickers or hotel workers? Those jobs are commonly performed by low-skilled immigrants. And then there’s the brother or sister of a legal resident who comes to America and starts a business, whose family helps him or her adjust to a new culture.

“Nobody has a set definition of ‘merit.’ Everyone uses it for his own purpose,” says Theresa Cardinal Brown, the director of immigration policy at the Bipartisan Policy Center in Washington. The term sounds positive, she says, while a phrase like “chain migration” – or family-based immigration, which the president wants to stop – sounds negative, like a weight.

These terms – and their political shadings – are meant to sway public opinion, Ms. Brown says. And they hide a legitimate question: “When you are talking about a merit-based system in the US context, are you looking to decrease the overall number of immigrants, or are you looking to adjust the criteria of who comes in?”

Today, America’s legal immigration is demand-oriented – it relies on the demand of families in the US to sponsor relatives and American employers to sponsor foreign workers. It also includes a relatively small visa diversity program to allot slots to underrepresented countries (the “visa lottery,” which the president wants to end) and a humanitarian component for refugees and asylum seekers, which the administration is radically scaling back.

The system heavily favors families, which advocates describe as consistent with American values. About two-thirds of the slightly more than 1 million people granted legal status (known as green cards) in 2015 were family-based, according to the Department of Homeland Security (DHS). Only 14 percent were employer-sponsored.

This is a problem, the administration and many Republicans in Congress maintain. Low-skilled immigrants are low taxpayers – a burden on public services, oversaturating the job market, and stagnating wages, in their view. And family-based immigration poses a security threat, says Attorney General Jeff Sessions. In an opinion piece published Jan. 21 in The Washington Times, he cites a report from the Department of Justice and DHS that since Sept. 11, 2001, Immigration and Customs Enforcement has removed more than 1,700 unauthorized immigrants with “national security concerns.”

“The American people have known for more than 30 years that our immigration system is broken. It’s intentionally designed to be blind to merit,” Mr. Sessions said in a speech Friday. “It doesn’t favor education or skills. It just favors anybody who has a relative in America – and not necessarily a close relative.”

Sessions and others in the administration point to countries such as Canada and Australia that have supply-oriented policies. These countries have long used point systems to qualify applicants, assigning them points for education, working age, employment, language, and other skills that determine their likelihood of assimilation and contribution to the economy.

As a result, these countries’ intake is the reverse of the US: About two-thirds of their legal immigrants are employment-based, rather than family-based, writes immigration expert Daniel Griswold in a recent op-ed in The Hill.

But these countries also have family components, and they adjusted their programs when they saw that their criteria did not automatically mean immigrants could easily adjust or work in their fields. Their systems are also more flexible to changing economies, while immigration policy in the US is heavily dependent on a gridlock-plagued Congress.

'Green cards just for computer engineers'

“I don’t want green cards just for computer engineers,” Sen. Lindsey Graham (R) of South Carolina told reporters during the recent three-day government shutdown. Senator Graham has been in the thick of working on a bipartisan deal for Dreamers. “If you are out there working in the fields, if you are a construction worker, I want some of those people to have a way to stay here. If you are running a business, I want them to have a chance to get a green card.”

He blasted the president’s immigration policy expert, Stephen Miller, for wanting to restrict legal immigration at a time of a worker shortage. Demographers also point to an aging US population and warn about turning into a Russia or Japan without enough immigrants to support their seniors.

Indeed, the president’s immigration framework, released last week, echoes a bill by Sens. Tom Cotton (R) of Arkansas and David Perdue (R) of Georgia that would end “extended-family chain migration” and only sponsor spouses and minor children. The bill would cut in half the number of legal immigrants by eliminating many family-sponsored categories and significantly cutting the cap on such family-based visas.

Evelyn Huron, the director of Caritas Legal Services with Catholic Charities in San Antonio, Texas, says the president’s one-page immigration policy framework is vague. But the apparent emphasis on a merit-based system that rewards high-skilled and more affluent immigrants has her worried.

Even if the path to legal residency in the US narrows for poorer and less-skilled workers, Huron doubts that those workers will stop coming into the country looking for work.

“There are always going to be jobs for unskilled workers,” she says. “Are you going to have less people come? No. More people leave? No. You are just going to have less applying” for legal status.

Getting in the harvest

Take Dixondale Farms in Carrizo Springs, Texas, the largest and oldest onion plant farm in the country.

Bruce Frasier, the fourth-generation president of the family farm about 45 minutes from the US-Mexico border, has seen his workforce shrink by half in his time running the farm. He has been calling for the government to streamline the H-2A visa program – the main tool for foreign agricultural workers to gain seasonal access to the country – for years to supplement his dwindling workforce of legal residents.

“The number of [farm owner H-2A] applications are going up each year because more and more people are realizing they can’t get local [legal] workers, or even illegal workers, to do this,” says Mr. Frasier.

Last summer, with relatively little fanfare, the US Department of Homeland Security raised the cap on H-2B visas for foreign guest workers, a program favored by the hospitality industry, but not on H-2A and H-1B visas, programs favored by the agriculture and technology industries, respectively.

With fewer US residents looking for agricultural work, and an unreliable foreign guest worker program, many farmers – particularly in the interior of the country – turn to illegal workers to make sure they harvest their whole crop in time, Frasier continues.

The US food supply “is going to be harvested eventually by more foreign workers,” he says, because so few US residents want to do the work. “It’s whether you want to grow it in Mexico or want to grow it in the United States.”

Congress has grappled with the merit issue before. The bipartisan 2013 immigration reform bill that passed the Senate and wilted for lack of interest in the GOP-controlled House included a point-based merit system. It also eliminated the diversity visa lottery and restricted family-based immigration.

But that was part of a comprehensive immigration reform bill that not only had a path to citizenship for Dreamers, but also for millions of other unauthorized immigrants who arrived in the US before 2011. What Trump is offering is not this grand bargain, and has drawn many critics on the left – and on the right, including those who object to Dreamer "amnesty," and his costly $25 billion trust fund for a border wall and other enhancements.

“I am forever looking for that thing that can break through the noise and make progress on a deal,” says Brown. At the end of the day, she says, everybody – but most especially the Dreamers – have to figure out how important it is to get their protections back.

“What is the price that everyone is willing to pay for them to feel safe? That debate is ongoing.”