by Josh T. Smith, Research Manager
Posted November 27, 2019 In Scholar Commentary

The border wall in Tijuana, Mexico.

This article was originally posted on the Medium publication The Benchmark

Extensive attention is given to proposals to build a wall along the United States’ southern border. By the end of 2020, for example, at least 450 miles of wall is expected to be built.

In a way, a physical barrier would add a second wall around the US. Immigration scholars call the existing legal rules and processes for legal entry to be an “invisible wall.” Limits on the number of immigrants have the same effect of keeping people out of the country as a physical wall. The processes for becoming a legal citizen, receiving asylum, or obtaining a work visa all limit and control how people come into the US or what they can do while they are here. And there are avenues for administrations to make those policies more or less restrictive both by adding more rules or by enforcing them more intensely on migrants.

The result of the invisible wall is twofold. First, the invisible wall’s growth predictably contributes to court backlogs, visa denials, or increased processing times for legal entry into the US. A clear example is the immigration court backlog, which reached one million pending cases in September of 2019. This means there are about 2,000 cases for each immigration judge to resolve.

While these administrative hangups are inconvenient for the migrants caught up in them, it also creates an incentive system driving our current challenges around illegal immigration. More immigrants seek visas than there are visas available. Industries are also facing shortages of workers at every education level, from skilled programmers to agricultural work, that could be filled by immigrants.

In the case of agriculture, a shortage of legal workers means that many farmers must choose between letting crops rot in the fields or hiring unauthorized workers. This is also a problem in the tech field. Many tech companies are investing outside of the US because of the difficulties involved with hiring workers from outside the US. Both the technology and agriculture sectors represent opportunities for reforming the invisible wall that keeps qualified workers out.

The fundamental takeaway here is simple. We’re building a physical wall because of how immigrants respond to the invisible wall. Fix the invisible one, and the other takes care of itself.

The invisible wall is unscalable for many

For a sense of the size and scope of the invisible wall, consider that the current wait time for an Indian immigrant with an advanced degree pursuing a green card is 150 years. That’s an obvious barrier for those who want to migrate and a particularly significant obstacle for those who want to come through legal avenues.

This 150-year wait is only one example of the wall. The Huffington Post reported that “In the two years after Trump took office, denials for H1Bs, the most common form of visa for skilled workers, more than doubled.” At the same time, the wait time for citizenship doubled.

Anecdotal evidence from immigration lawyers has hinted at other challenges that are the result of a policy change from 2018. Attorneys have reported having visas denied because of small issues with the application paperwork. In the past, these sorts of hiccups would mean a delay while the missing documents, pages, or information were collected and added to the application. Today, these omissions result in a denial and a return to the back of the line where applicants have to pay filing fees again.

Another example of the invisible wall is the complexity of the process. Take the process to receive a green card, for example. The Immigration Road, a nongovernmental information center for immigrants, has a flowchart of the route to a green card for a potential migrant that looks more like a bowl of spaghetti than meaningful directions. In this way, the invisible wall is not just a barrier, but a maze for would-be immigrants.

Green Card Flowchart, Immigration Road.

President Trump’s administration is also actively seeking out ways to make that maze more complicated. The administration’s proposed rules create more reasons for immigrants to be denied entry to the US. The public charge rule is just one such case. It requires much stricter standards for immigrants who may be eligible for public programs to be allowed into the US. At its broadest description, a public charge is an individual who relies on government programs in some way. Although immigrants are broadly ineligible for most public support, the public charge rule would introduce a more expansive definition of public charge that, in effect, would prevent the entry of many immigrants and even deny visa renewal to some who are in the US already.

The invisible wall and the efforts to reinforce it have gummed up the legal side of the immigration infrastructure. The immigration system hasn’t ground to a stop by any means. Still, there are growing concerns of longer wait times and questions about how to process immigrants through the court system in deciding cases of asylum. Ultimately, being unable to scale the invisible wall pushes many migrants to come without authorization. So what can be done?

New and expanded visa programs are the best solution

The first step should be increasing the supply of visas. For example, current green card caps could be eliminated. This would resolve issues like the more than century-long waits that immigrants from some countries face and allow more immigrants to come legally. If eliminating the cap is too controversial, then a smaller step forward could be expanding the green card supply for countries with larger populations by indexing it to the country’s population.

One limit of expanding existing visa programs is that current immigration programs do not fit all the needs of US companies or states well. This is why creating new visa programs may be an effective pairing or a separate alternative to expanding access to green cards.

One promising opportunity is often called a heartland visa or a place-based visa. In short, the policy would empower state governments to bring in more immigrants if they want to accept them. These flexible programs would give immigrants the legal authorization to work in the areas that opt-in to the program.

In 2011, Utah passed a policy similar to the heartland visa. It would allow undocumented immigrants in the state to work legally if they paid a fine, went through a background check, and showed proficiency in English. The experiment never really happened since the federal government failed to pass legislation that would give Utah the authority to operate the program.

Still, a heartland visa is far from a dead idea in Utah. Utah Representative John Curtis proposed a federal bill to create state-sponsored visas. Utah’s Governor Herbert wrote a letter to President Trump in the same vein as the state’s past policy that asked for more refugees to be sent to Utah. And other groups have proposed place-based visas as a way to reverse the shrinking populations in some counties and states. Utah’s experiment is waiting on the shelf to be tried out.

Eliminating the need for a border wall

Expanding legal pathways into the US through new visa programs or offering more visas will both shrink the invisible wall. Yet their primary result will be reducing the need for a physical border wall to keep people out. With more opportunities to hire immigrants legally, US businesses and potential migrants won’t be incentivized to skirt rules or expand their companies outside of the country in order to staff their companies and harvest crops.

The invisible wall of policies and procedures that hold immigrants back is doing more harm than good for the US. In the end, the invisible wall creates the problem that supporters of both the invisible and the physical walls point to as the case for stiffer immigration restrictions. Instead of making immigration more difficult, policymakers have an opportunity to promote economic prosperity by making legal immigration simpler.

CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.