A year after the fall of the Berlin Wall, the United States has now begun removing some of the bricks in the legal walls constructed around our borders. An immigration policy based on Cold War and xenophobic fears is giving way to a more receptive and equitable approach that holds the promise of opening U.S. doors to persons who will add to the diversity and talents of the United States.
The Immigration Act of 1990, signed into law in November, increases by nearly 40 percent the number of persons able to immigrate to the United States annually. The number of visas based on job skills more than doubles from 54,000 per year to 140,000, while family-unity-based immigration continues to comprise well over half of the 700,000 immigration places allotted for each of the next three years.
Refugees are not included under immigration caps; numbersof refugee admissions will continue to be determined separately in annual consultations between Congress and the administration. As a result of those consultations, President Bush recently agreed to admit up to 131,000 refugees in the coming year.
The new law dismantles some of the more embarrassing provisions of the 1952 McCarren-Walter Act, a McCarthy-era relic that laid down 33 grounds for barring entry of immigrants or visitors to the United States. The law now states that immigrants cannot be barred entry based on "past, current, or expected beliefs, statements, or associations" if such beliefs and acts would be lawful in the United States.
Vestiges of the old law remain, however; membership in the Communist Party, for example, remains grounds for exclusion. And others have been added. A new section bars persons believed to be involved with terrorist activities; another excludes those who had left the United States to evade military conscription. And a last-minute change in the law specifies that representatives or spokespersons of the Palestine Liberation Organization are considered to "be engaged in a terrorist activity," and therefore excludable.
McCarren-Walter language barring "sexual deviants," which had been used to exclude homosexuals, has been expunged, though "polygamists" remain excludable. The specific listing of the HIV virus and AIDS, which had been added as grounds for exclusion in 1987, was removed from the law; though the Secretary of Health and Human Services is now authorized to exclude any immigrant found to "have a communicable disease of public health significance."
Other noteworthy provisions of the act include expanding the number of non-sponsored "diversity" immigrants from countries with relatively low U.S. immigration in recent years, such as Ireland, Poland, Italy, and some African countries. The previous 20,000 limit on immigration from a single country has been raised to about 25,000, which should allow more Mexican spouses and children to join their families in the United States.
The new law also cleans up some of the mess remaining from the Immigration Reform and Control Act (lRCA) of l986, the law that provided an amnesty for "undocu-mented aliens" present in the United States since before 1982 and established employer sanctions to keep jobs away from those who arrived thereafter. The new law gives IRCA temporary residents an additional year to adjust to permanent status. It also prevents the deportation of spouses and children of immigrants who were legalized under IRCA and allows them to work.
Also, asylees from Nicaragua, Poland, Hungary, and Panama will now be able to adjust to permanent status without having to re-establish that they are refugees following the changes of government in their homelands.
ONE OF THE MOST REMARKABLE and unexpected outcomes of the legislative process leading to final enactment of the bill was the inclusion of a temporary safe haven provision for Salvadorans in the United States.
After years of advocacy--including the sanctuary movement--and repeated protests of the 97 percent rejection rate of Salvadoran asylum seekers in the 1980s, Con-gress finally responded to the outcry and called a halt to the U.S. policy of deporting Salvadorans to their war-torn land. The Immigration Act of 1990 permits Salvadorans in the United States to remain here through June 1992 and to be permitted to work during that time.
Passage of the Salvadoran safe haven clause followed a long and tortuous path. Safe haven bills for Salvadorans, and other nationalities,have been pending in Congress in one form or another since a "sense of Congress" resolution passed in support of Salvadoran safe haven in 1984. In 1986, the House added Nicaraguans, along with Salvadorans, to its first major change in U.S. immigration law since 1965; but the safe haven provisions did not survive the final negotiations of the House-Senate conference committee that year.
This time a temporary safe haven bill for Salvadorans, Nicaraguans, and Chinese nationals passed the House. It established criteria for the attorney general to use in granting temporary protected status to nationalities based on ongoing armed conflicts, natural disasters, and other extraordinary conditions that make a safe return to the country unlikely.
But one of the leading architects of immigration legislation in the Senate, Alan K. Simpson (R-Wyo.), insisted that the danger in El Salvador was over and expressed vehement opposition to any protected status for Salvadorans.
A showdown occurred during the House-Senate conference committee, when Rep. Joe Moakley (D-Mass.) threatened to exercise his power as chair of the House Rules Committee to keep the final legislation from reaching the House floor if it did not include a moratorium on Salvadoran deportations. Moakley then gave his eyewitness account of the maimed Salvadorans and continuing bloodshed he had witnessed there.
Finally, Simpson agreed to a compromise that reduced the length of the moratorium from three years to 18 months and required Salvadorans to register for the program (and thereby become subject to deportation in June 1992, when the program is due to expire). Simpson also won a promise from Moakley and Sen. Dennis DeConcini (D-Ariz.)--the two major architects of the Salvadoran safe haven provision--not to reintroduce any measures to extend Salvadoran protection beyond June 1992.
Despite the bill's drawbacks and limitations, Congress has finally recognized disparities in the treatment of Salvadorans and determined that they need protection. The immigration act now compels the attorney general to exercise the authority he has had all along to stop deporting Salvadorans because of the ongoing armed conflict in their homeland. The 18-month moratorium on Salvadoran deportations is Congress' way of telling the administration that U.S. foreign policy support of El Salvador has indeed victimized Salvadoran asylum seekers here in the United States.
While safe haven for Salvadorans is an important short-term protection, the long-term effect of incorporating protected status in our immigration law will be to correct the narrowness of our present refugee and asylum law. Current law provides refuge only to those able to establish a "well-founded fear of persecution," a standard that has been so narrowly construed by immigration officials that many legitimate refugees fleeing the maelstrom of warfare and political violence in their home countries have been left unprotected in U.S. law.
WHILE IMMIGRANT AND REFUGEE rights groups promoted the safe haven provisions and loosening of bars to family unification, many conservative groups actively promoted the doubling of skilled immigrants and other provisions boosting INS (lmmigration and Naturalization Service) enforcement and taking a harder line on deportation, particularly of refugees convicted of felonies.
Some 10,000 visas per year are now reserved for a "millionaires club," which, for the first time, will make U.S. citizenship available to the highest bidder. At the other end of the scale, 10,000 visas will be made available to low-skilled workers.
The new law adds 1,000 personnel to the U.S. Border Patrol and grants INS officers wider arrest authority and permission to carry firearms. And while several provisions of the law will make it easier to deport refugees convicted of major crimes, some of the more draconian attempts to chip away at due process protection were thwarted.
And, at the eleventh hour, members of the Congressional Hispanic Caucus scuttled a pilot program intended to use drivers licenses as employment authorization cards, a move generally seen as a first step toward a national ID card. Even The Wall Street Journal weighed in against that provision, saying, "In South Africa, they call this sort of thing a "passcard.'"
Although a relative few will be disadvantaged by the new law--particularly refugees who fail to show at asylum or other immigration hearings or who are convicted of a criminal offense--many more will benefit Salvadorans who have been living in the shadows will be protected from deportation and allowed legitimate work opportunities--at least temporarily. And families from a number of countries will finally be reunited.--Bill Frelick
Bill Frelick was a senior policy analyst with U.S. Committee for Refugees, a private non-governmental organization defending the rights of refugees, asylum seekers and displaced persons worldwide when this article appeared. Frelick is co-editor of Refugee Reports and associate editor of The World Refugee Survey.
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