What an American Points System Would Look Like Written Into Law

Everybody is in favor of merit until you hand them the score sheet. Then the questions begin. How many points for a doctorate? What is a nurse worth against a welder? Does a thirty-year-old beat a forty-five-year-old, and if so, why? Slogans are free. Statutes have to say a number.

So let us do what the slogan-makers rarely do. Let us draft the thing. I will use as a blueprint the RAISE Act, a 2017 Senate proposal by Senators Tom Cotton and David Perdue, which stands for Reforming American Immigration for a Strong Economy. It did not become law. But it is the most fully worked-out American version of a points system, and the exercise of reading it teaches more than a hundred op-eds.

First, what the system is replacing

Before we add anything, we should know what exists. American permanent immigration, under the Immigration and Nationality Act as rewritten in 1965 and 1990, runs through a few channels.

• Immediate relatives of citizens, meaning spouses, unmarried minor children and parents of adult citizens, are admitted without a numerical limit.
• Family preference categories, F1 through F4, cover adult and married children and siblings, with a floor of 226,000 a year across the categories.
• Employment-based categories, EB-1 through EB-5, set a baseline of about 140,000 a year and cover people of extraordinary ability, advanced-degree professionals, skilled and unskilled workers, special groups and investors.
• The diversity visa, 50,000 a year, selected by lottery.
• Refugees and asylees, a separate stream.

Notice the proportions. Employment categories are a minority of the permanent flow, and within them, the visas go to workers' spouses and children too, so the number of principal workers is smaller still. The largest share of America's legal immigration is determined by who is related to whom, not by what a newcomer can contribute. That is a choice Congress made in 1965, and the argument for a points system begins by asking whether it was the right one. A related argument about which family ties deserve a visa is made in The Case for Nuclear-Family Immigration Over Extended Family Chains.

The design of a points system

A points system has four parts. A statute has to say each one.

1. The factors. What counts.
2. The scale. How many points each factor earns.
3. The threshold. How many points are needed to qualify.
4. The cap. How many people may be admitted per year, and how those above the threshold are ranked if there are too many.

The RAISE Act's factors were the ones most points systems use, and the ones Canada and Australia use:

• Age. More points for younger applicants than for older ones.
• Education. More points for higher degrees, with the top for doctorates and professional degrees, and more still for a degree in a field of national need.
• English. Points for proficiency in the language, tested.
• A job offer. Points for a firm offer of employment, scaled to the wage, with more for an offer well above the median.
• Extraordinary achievement. Points for awards of the first rank, such as a Nobel Prize or an Olympic medal.
• Investment. Points for a large investment in a new commercial enterprise that creates jobs. The RAISE Act set this as a fixed dollar amount, which I will not quote because I am not certain of the figure.

A qualifying total, set in the bill at thirty points, determined eligibility. Applicants were then ranked, highest first, until the annual number was filled.

Let me show how a score might add up, as a labelled hypothetical. Take a thirty-year-old with a master's degree in engineering and a job offer well above the area median, who passes an English test. He earns top or near-top points for age, a high mark for education, points for English and a high mark for the job offer. He clears the threshold comfortably. Now take a fifty-five-year-old with no degree, little English and no job offer. He earns almost nothing. Neither of these people is the problem. The question is only what the nation wants. A person may be admirable and still not be a good fit for a program designed to select for economic contribution.

What Congress would have to repeal

This is the part the op-eds skip. To write a points system into law, Congress has to amend or repeal specific provisions, and the repeal is where the politics lives.

The RAISE Act's key moves were these:

1. Eliminate the family preference categories for adult children and siblings of citizens and permanent residents, and keep family admission for spouses and minor children. In the INA, that means repealing or rewriting the family preference provisions in section 203(a) and the numerical limits tied to them in section 201.
2. End the diversity visa by repealing section 203(c).
3. Create the points-based employment category in place of the current employment preferences in section 203(b), with an annual number.
4. Cap refugee admissions at a fixed annual number rather than leaving it to the president's yearly determination under the Refugee Act of 1980. The bill proposed 50,000.

You will notice that the first item is the most consequential. The family categories supply the largest part of the permanent flow. Removing the adult-child and sibling categories, with a plan for the existing backlog, is the real change. The points system is the attractive wrapper. A conservative who wants to be honest with the public has to say this out loud: a points system is not an add-on. It is a replacement of the current mix.

The comparison with the current employment categories

How does the proposal differ from the INA's employment categories? Three ways.

First, the current system requires an employer to sponsor. In most employment categories, a specific employer files a petition for a specific worker, and for most of them the employer must show, through the labor certification process, that qualified American workers are not available. A points system, at least in the Canadian model, lets the applicant apply on his own and then be chosen. In the RAISE design, a job offer was one of several factors, not a prerequisite.

Second, the current system's numbers are fixed by category and by country. The INA limits any one country to seven percent of the total in the family and employment categories combined. That per-country rule has produced very long waits for natives of the most populous countries, because the same cap applies to a huge applicant pool and a small one. A points system with no country limit would end that, which is a point in its favor that its critics rarely credit. It would also remove a feature that some conservatives like, which is that the per-country cap diversifies the flow.

Third, the current system rewards patience, not points. In the family categories, the controlling variable is the filing date and the line one stands in. In the points system, the controlling variable is the score. The first system is cruel to those who wait. The second is cruel to those who score low. Which cruelty is more defensible is the heart of the matter.

The trade-offs, stated honestly

A conservative case for a points system should not pretend there is no price.

Family reunification. Family unity is a conservative value, and I mean that without irony. A system that ends the adult-sibling and adult-child categories asks families to make a choice they currently do not have to make. The answer is that the nuclear family, a married couple and their minor children, would be protected, and that adult siblings, who are a separate household with their own lives, would no longer have a claim on a visa by relationship alone. Reasonable people will weigh that differently. What I would ask critics to remember is that a family-based system without limits is also a system with a very long line, and a line of twenty years is not family unity either.

Labor needs. A points system scores human capital in the abstract. It does not know that a particular county needs a particular welder next month. The Canadian system added employer and provincial nomination streams for exactly this reason. A good American version would do the same, and might let states nominate a number of applicants for local needs. That is federalism put to use, which is the sort of thing a conservative should like.

Gaming and error. Points can be gamed. A point for a degree creates a market in degrees, and a point for a job offer creates a market in job offers, including fake ones. The rules need verification. Which, as readers of The 1986 Law's Real Failure Was the Fake Document Industry It Created will recognize, is the lesson of every immigration program that relied on paper.

Temporary becomes permanent. The system does not touch the temporary visas, such as the H-1B, which is discussed in Should the H-1B Lottery Give Way to Picking the Highest-Paid Offers First. A points system for permanent residence will not matter much if the real entry route remains a revolving door of temporary status.

Answering the charge that points systems are cold

The objection comes in a familiar form: that to reduce a person to a score is to treat him as a commodity. It is a good line. It does not survive the first follow-up question.

The question is: compared to what? Today's system does not treat people as persons. It treats them as members of categories. A brother is a brother. A lottery winner is a number. A relative who has waited since the 1990s is a place in a queue. Nobody in that system is asked who he is or what he will do. A points system at least asks.

Second, every nation that admits immigrants selects among applicants, and the selection is always on some ground. Ours is selection by relationship, by luck and by employer need. The alternative is selection by what the person can contribute to a country that has to feed, house and educate its people. That is not coldness. It is the obligation of a government to put its own citizens' interests first, which every other government does as a matter of course.

Third, the real warmth in an immigration system lies in how it treats those it admits, and the history is encouraging. The country that wrote the Naturalization Act of 1790 limited it to "free white person[s]," a shameful limit that was repealed over the following two centuries. The goal of a modern, colorblind selection system, whatever else you think of it, is the opposite of that: no one is excluded for who he is, and everyone is measured against the same published scale. Compare it, if you like, to the example of the 1924 national-origins quotas, which gave visas by ancestry. A points system is a step away from that, not toward it.

Self-government and the point of a score

There is a constitutional dimension that deserves a sentence. Article I, section 8, gives Congress the power "To establish an uniform Rule of Naturalization." A points system is an exercise of that power in its plainest form: a published rule, applied uniformly, written by the people's representatives and open to amendment. It is more consistent with the idea of self-government than a system of categories nobody chose and a lottery nobody can explain.

The Declaration of Independence complained that the King had endeavored "to prevent the population of these States" by obstructing the laws for naturalization of foreigners, and I take that as the reminder that the colonists wanted to control the rules of entry themselves and to make them generous in their own way. We should want to control them, too. That is the deeper point of drafting the thing: a nation that can say what it wants is a nation that governs itself. For the history of self-sufficiency as an early test, see Self-Sufficiency Was the First Immigration Rule, the Public Charge Story.

The case in brief

1. American permanent immigration is dominated by family categories and a lottery; the employment categories, at roughly 140,000 a year, are a minority.
2. A points system needs four parts in statute: factors, scale, threshold and cap, and the RAISE Act of 2017 scored age, education, English, a job offer, extraordinary achievement and investment against a thirty-point threshold.
3. Writing it into law means repealing the adult-child and sibling family preferences and the diversity visa, so it replaces the current mix rather than adding to it.
4. The honest trade-offs are family reunification, local labor needs, gaming of the scores and the temporary visas that would remain outside the system, and each can be addressed in drafting.
5. The charge that scoring is cold fails because today's categories also select, only by relationship and luck, and a published, uniform rule is more consistent with self-government.

What you can do: Read section 203 of the Immigration and Nationality Act on Congress.gov, find the family and employment numbers, and write your senators asking which preference categories they would keep, which they would change and why.