On October 9, the Willamette Week reportedthat Oregon Governor John Kitzhaber’s fiancée Cylvia Hayes confessed to entering a sham marriage to an Ethiopian man seventeen years ago for approximately 5000 dollars. Punditshave speculated about the effect this will have on Governor Kitzhaber’s reelection campaign against Dennis Richardson. I’d like to use it to ask another question: what does it say about the US’s immigration system that some people resort to marriage fraud to gain residence in the country?
A familiar refrain in debates over unauthorized immigration is “why don’t people come through legal channels?” Why do they insist in jumping the cue? The answer is that there are no legal channels for most of the people in the world. The US immigration system is very complex, but the legal ways of gaining entry to the country generally fall under the following categories:
1. Family Immigrants: People can gain permanent residence if a US citizen who is an immediate member of their family (spouse, parent, or child) sponsors them. There are also visas allotted for citizens to sponsor adult children or siblings and for permanent residents to sponsor spouses and children. Family-based immigration made up 65.6% of new permanent residents in 2013.
2. Economic Immigrants: Skilled workers have some opportunities to become permanent residents. There are a limited number of Permanent Resident visas available for “Persons of Extraordinary Ability,” people with advanced degrees, skilled workers, and people willing to invest $500,000 to $1,000,000 and to create jobs in the United States. There are also opportunities for people on temporary visas such as the H1-B visa for high skilled workers to adjust their status after a number of years to permanent residence. Employment-based preference made up 16.3%.
3. Refugees and Asylees: People may also claim asylum or be selected for resettlement to the United States. Refugees and Asylees made up 12.1%.
The remaining 6% consist in people who qualify under other categories such the Diversity Visa Program that allocates visas to countries that send fewer than 50,000 immigrants to the United States (4.6%). (I am summarizing The Immigrant Policy Center’s useful overview of US immigration. Statistics are from the Department of Homeland Security.)
What is notable about these categories is that an unskilled worker without a family member who is either a citizen or a permanent resident does not have a legal way of becoming a permanent resident unless she is a refugee (and even then developed countries make it difficult for people to claim asylum). Cylvia Hayes’ former husband could not have legally remained in the United States had she not agreed to marry him.
Leaving aside arguments for open borders, let’s assume that countries have a right to exercise broad discretion on whom they admit as permanent residents. Even if countries have broad discretion, this does not mean that there are no moral limits to discretion. Few people in the mainstream defend the “White Australia” policy and the overt use of ethnic or racial criteria is rejected in liberal democracies (whether ethnicity or race continue to have a hidden influence on admission and membership is a complex question I won’t tackle here).
How just are the United States’ immigration policies? Though there may be reasons to disputehow refugees are defined and how asylum seekers are in fact treated, a just state must have provisions to admit people fleeing persecution. Similarly, moral and political philosophers such as Matthew Lister and Joseph Carens have persuasively argued that people have a moral right to have at least their close family members join them (again, it is possible to quibble with the details of family immigration, especially given who counts as a close family member differs significantly around the world).
What about economic immigrants? The United States has relatively few opportunities even for skilled workers. Many countries have moved toward selecting more economic immigrants according to skills. Canada pioneered this approach with the system that allocates points based on knowledge of English and/or French, education, work experience, age (younger is better), a job offer in Canada, and “adaptability” (based on prior work experience or studies in Canada by the applicant and spouse, spouse’s language ability, and relatives present in Canada). Immigrants to Canada must also have sufficient funds (over $10,000) to support themselves and their family upon arrival.
Despite differences in opportunities for economic immigrants, people who do not have an advanced degree, significant skilled work experience, and/or sponsorship from an employer have few or no legal channels that allow for permanent residence in most of the developed world. Indeed, they usually do not even have access to temporary visas to work, study, or come as a tourist.
Though I will not try to argue this point here (here’s one attemptat making part of this argument), I think that this exclusion of much of the world’s population from any realistic opportunity to immigrate to the developed world is problematic. There are practical reasons such as economic gains and the dependenceof some US sectors such as agriculture on foreign workers for making more temporary visas available. If temporary visas are available, it makes senses to paths to allow people who establish themselves by working or studying in the country to gain permanent residences and eventually citizenship.
Hayes’ ex-husband (who may face deportation after the revelations about his marriage) earned a degree in mathematics and has lived and presumably worked in the US ever since. A fairer system would have given him a legal path seventeen years ago to continue his studies and eventually become a permanent resident.