TABLE 2.1

tion to the United States, although the number of Mexican immigrants entering the United States in the 1960s did not even approximate the number of Canadian immigrants who had entered in the 1920s (see table 2.1).

The per-country limits imposed by the new system were intended to correct the discriminatory immigration policies inherent in the national origins quota system by providing that all intending immigrants be treated equally regardless of their place of origin. The numerical limits on each country officially were intended only to "prevent an unreasonable allocation of visa numbers to any one foreign state." By imposing per-country quotas on the number of immigrants rather than allowing unrestricted migration within the hemispheric limitation (and within the worldwide ceiling after 1978), the new system has perpetuated the distinctions drawn by previous immigration laws between intending immigrants on the basis of their country of origin. Where a United States citizen, the intended beneficiary of the immigration laws, seeks to immigrate members of his or her family who are not able to enter the United States for long periods of time because of the quotas, that citizen correspondingly also suffers because of his or her national origin.

severely restricted under the national origins system, as there were few Asians already present in the United States to serve as the base population for computing quotas. To minimize in part the racially discriminatory effects of the national origins system, Congress allowed a greater number of Asians to enter the United States than would otherwise have entered under the quotas imposed by law. For example, because the 1952 act limited immigration from any country to one-sixth of 1 percent of that country's population present in America according to the 1920 census," the annual quota of Chinese immigrants who could enter the United States would have been less than the guaranteed minimum quota of 105.

The result of the national origins system was to deny the opportunity to immigrate to those persons from countries whose base populations in the United States were sparse because of prior restrictions on their immigration. On the other hand, those countries in northern and western Europe that had previously enjoyed unrestricted immigration to the United States had large base populations and therefore were entitled to substantial quotas under the national origins formula. Ireland, for example, had a quota of 17,756 and Germany had a quota of 25,814, while quotas for countries such as China (100), Japan (185), the Philippines (100), and the Pacific Islands (100) were negligible." Immigration statistics demonstrate that, in the decades immediately following enactment of the national origins quotas, the

demand for visas in Germany and Ireland did not reach the allowable ceiling."

Enactment of the per-country limitations of 20,000 in 1965 to replace the national origins quotas was intended in part to provide some relief for countries with long waiting lists but also served to protect those countries that had benefited under the previous system.

Due to the existence of backlogs of applicants in those nations discriminated against by the national origin system, an annual limitation per country of 20,000 quota immigrants is established, so that in the short run, no one nation will be able to receive an unduly disproportionate share of the quota numbers. 10

While this new system for selecting immigrants purports to abolish prior discriminatory policies and to treat immigrants from every country equally, the imposition of a uniform quota has a demonstrably disproportionate impact based upon an immigrant's country of origin. Analysis of statistical data on immigration shows that the 20,000 per-country limit far exceeds the demand for visas from northern European countries, while Asian countries consistently utilize all their available visas and still have long waiting lists, composed primarily of close relatives of United States citizens seeking visas to enter the country.

Table 2.2 demonstrates the recent decline in the number of European immigrants as contrasted with the increase in the number of Asian immigrants. Between 1975 and 1976, for example, Asian immigration increased by 9 percent while European immigration decreased by 4 percent." In 1976 no European country reached the per-country limit of 20,000 visas; Portugal came closest by sending 9,309 of its citizens to America, while at the other end of the spectrum only 162 Austrians immigrated to the United States. In Asia, on the other hand, both Korea and the Philippines reached the ceiling of 20,000, while immigrants from India and China numbered 16,642 and 14,402, respectively. 12 In 1974

• During the decade 1931-40, immigration from Ireland only reached 13,167 (the Irish quota was 170,000) and German immigration was only 114,058 (its quota was 250,000), while during 1941-50 Irish immigration only reached 26,967 and German immigration was only 226,578. U.S., Immigration and Naturalization Service, Annual Report 1976, p. 87. 10 111 Cong. Rec. 24226 (1965) (remarks of Senator Edward Kennedy). 11 INS, Annual Report 1976, p. 7.

12 Ibid., p. 44. These statistics have been extracted from table 6.

13 U.S., Department of State, Bureau of Security and Consular Affairs, Report of the Visa Office (1974), pp. 8-9. These numbers represent those immigrants subject to numerical limitations.

the Visa Office reported that, under the numerically limited classes, "58% of the Eastern Hemisphere numbers were used by natives of six countriesKorea (19,831), Philippines (19,675), China (18,901), India (12,575), Italy (13,925), and Portugal (10,679)."13 From these statistics, it is apparent that persons from countries that had been excluded by past immigration laws are adversely affected by the per-country limitations, and because of the large number of backlogged petitions, they are now required to wait for visas.

Passage of the 1976 amendments imposing the percountry limits upon Western Hemisphere countries had a similarly restrictive effect upon immigration from Mexico. The avowed intent of this legislation was to prevent the unequal treatment of intending immigrants on the basis of national origin by imposing a uniform limitation of 20,000 on immigration from every country in both Eastern and Western Hemispheres. As expressed in a May 1976 joint statement of the Departments of Justice and State delivered before the House Judiciary Commit

tee:

Based on a review of existing data, a uniform ceiling for each country. . .would be preferable. This would permit an equitable distribution of immigration from throughout the hemisphere and from throughout the world. Problems with illegal immigration will exist whether immigration from Mexico is limited to 20,000 or 35,000 per year or not at all. While permitting 35,000 immigrants a year from Mexico would ease their demand slightly, this would only increase the waiting lists and the demand throughout the rest of the hemisphere (1976 Hearings, pp. 362363).14

The immediate effect of this act was to cut Mexican immigration, which was measured at 39,45915 for fiscal year 1976,16 in half by imposing the 20,000 limit, thereby creating an immediate shortage of immigrant visas and a long waiting list for those visas that are available. Other Western Hemisphere countries were not similarly affected, as their dePrior to the passage of Pub. L. No. 95-412, 92 Stat. 907 (1978), which established a worldwide ceiling on immigration to the United States, visa numbers were allocated within two hemispheric ceilings. Countries whose visa numbers were counted against the Western Hemisphere ceiling included the independent nations of North and South America. Visas for all other countries were counted against the Eastern Hemisphere total.

14 H. R. Rep. No. 94-1553, 94th Cong., 2d sess. 9, reprinted in [1976] U.S. Code Cong & Adm. News 6081.

15 INS, Annual Report 1976, p. 44. This number represents those immigrants subject to numerical limitations.

16 The act's provisions were to take effect on Jan. 1, 1977.

TABLE 2.2

All countries Europe

Asia

Africa

Oceania

North America

1967 1968 1969 361,972 454,448 358,579 137,301 137,754 118,028 61,446 58,989 75,679 4,236 5,078 5,876 2,328 2,588 2,639 228,060 132,426

140,114

South America Others

16,517 6

21,976 3

23,928 3

21,973

20,700

*Years ending June 30.

mands were easily satisfied by the 20,000 per-country limit. 17

Colonial Quotas

The quotas imposed by the McCarran-Walter Act of 1952 limited immigration into the United States from any colony to 100 persons each year, chargeable to the mother country's limit, unless a separate quota was established. Of the very few separate quotas created, none exceeded the limit of 100 immigrants otherwise provided. The stated intent for imposing these quotas was to "prevent undue absorption of a governing country's quota by a colony or dependency and [to] preclude colonies or dependencies from having greater preferences than the independent countries which are entitled to minimum quotas."18

From the time of their enactment, these quotas were perceived as operating in a racially discriminatory manner, primarily against intending immigrants from the British West Indies. In its 1953 report, the President's Commission on Immigration found that enactment of these colonial quotas "has generally been regarded as discriminatory against the colored people of the Caribbean area,"19 and the Secretary of State noted that the British West Indies would, in fact, be adversely affected.

In the colonial and other dependent areas, an even less satisfactory situation has come into being. The new Act provides that colonies shall have quotas of 100 each, instead of unlimited use of the quota of the governing country. The

"INS, Annual Report 1976, p. 44. During fiscal year 1976, demands for visas in all other Western Hemisphere countries were well under 20,000 except in Cuba; a large number of Cubans were able to immigrate under the Cuban Refugee Act of Nov. 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161(1966). Ibid., p. 12.

1 H.R. Rep. No. 1365, 82d Cong., 2d sess., reprinted in [1952] U.S. Code Cong. & Adm. News 1689, 1690-91.

difficulties are most clearly evident in the important strategic area of the Caribbean. The fact that this area has been the only part of the Western Hemisphere subject to quotas has always been an unpleasant irritant to these colonial peoples. In the case of the British West Indies, the large and always undersubscribed British quota was open to them. They have not, therefore, felt the practical effects of the discrimination implicit in their unique status in the Hemisphere. No more than 2,500 immigrants have entered the United States from the British West Indies in any one year. Henceforth, however, no more than 800 (100 for each of the 8 British territories) may enter each year.20

Foreshadowing the consequences of the enactment of the per-country limits, imposition of these quotas cut colonial immigration by two-thirds in the British Indies and created long waiting lists for U.S. immigrant visas.

Since 1952, however, changes in the immigration laws have left these quotas virtually undisturbed. The 1965 amendments increased the colonial allotments to 1 percent (or 200) of the per-country limits in the Eastern Hemisphere, while the 1976 laws increased the quotas to 600 for all dependencies. While the 1976 increase was intended to alleviate the large backlogs of applicants in Hong Kong and other Eastern Hemisphere dependencies, which totaled 23,510 as of January 1, 1976,21 long waiting lists for immigrant visas still exist in some colonial areas, most notably Hong Kong.

19 U.S., President's Commission on Immigration and Naturalization, Whom Shall We Welcome (1953), p. 88.

20 Ibid.

21 H. R. Rep. No. 94-1553, 94th Cong. 2d sess. 9, reprinted in [1976] U.S. Code Cong. & Adm News 6081.

TABLE 2.3

Present Effects of the Per-
Country Limits and Colonial
Quotas

To the extent that they operate to exclude persons from certain countries while admitting persons with identical preference status from other countries solely on the basis of the country of origin, the current per-country limits and colonial quotas have a discriminatory impact. Many countries or dependencies, such as the Philippines or Hong Kong, with large backlogs caused by the previous restrictive immigration laws, quickly fill their annual quotas. Their waiting lists continue to grow because the number of applicants greatly exceeds the numerical ceiling allowed by law, while the demand for visas in other countries, such as Great Britain, does not even approach the 20,000 ceiling. The effect of this inequality, as shown in table 2.3, is to subject intending immigrants from certain countries and dependent territories to long waits for visas while immigrants from other countries can immediately obtain them.

As of February 1979, visas were available in every preference category except the fifth preference to all applicants from Europe and other countries not specifically listed in table 2.3, while countries such as Mexico and the Philippines and dependencies such as Hong Kong were oversubscribed in most of their preference categories. Under this system a sixth preference applicant from England, who might be merely an immigrant worker, would be able to enter the United States immediately, while the families of legal residents must wait 9 years in Mexico, and the married children of United States residents must wait 7 years in the Philippines. The primary purpose of the immigration law, the reunification of families, is not fully met where families of United States residents and citizens must wait nine times as long to enter the United States as persons who merely wish to work in America.

The law's stated intent of providing equal access to the United States without regard to place of birth is also not fulfilled through the operation of the percountry limits and colonial quotas. As table 2.3 demonstrates, applicants are, in fact, treated differ

ently on the basis of their place of origin. Brothers and sisters of United States citizens who wish to immigrate from England need wait only 6 months, while brothers and sisters who wish to immigrate from Hong Kong must wait 12 years, a period 24 times as long (as of February 1979).

Finding and Recommendation Finding 2.1: The immigrant selection system under the current Immigration and Nationality Act has a discriminatory impact on prospective immigrants from certain countries or dependencies and thus results in the denial or delayed receipt of benefits under that statute for American citizens and resident aliens.

The effect of the per-country limits and colonial quotas under the Immigration and Nationality Act has been to subject intending immigrants from certain countries or dependencies, particularly those countries or dependencies that had previously been disfavored by United States immigration laws, to delays of up to 12 years (as of February 1979) for visas while immigrants from other countries can obtain visas immediately. Repeal of the national origins quota system and the enactment of the 1965 amendments to the McCarran-Walter Act were designed to afford all intending immigrants an equal opportunity to enter the United States on a firstcome, first-served basis without regard to their race or national origin. But instead of eliminating the discrimination caused by the national origins system, these numerical limitations operate to maintain a proportional representation of immigrants from various countries similar to that which existed in the United States prior to 1965.

The colonial quotas have had the effect of limiting the immigration of natives of colonial areas on the basis of their race. Although they have been denounced as discriminatory both in intent and in operation, these quotas still exist and are enforced today. The imposition of per-country limitations on the number of immigrants rather than allowing unrestricted migration within the worldwide ceiling has perpetuated the built-in discriminatory effects of previous immigration laws that distinguished among intending immigrants on the basis of their country of origin. Where the intended beneficiary of a relative preference is a United States citizen or resident alien, that American resident correspondingly suffers discrimination on the basis of national origin.

The purpose and intent of the immigration laws are being frustrated by the present annual percountry limitations of 20,000 immigrant visas and colonial quotas of 600 immigrant visas. First, it is apparent that applicants are not being given priority strictly according to their date of filing and "without regard to their place of birth." Persons from certain countries must wait 8 to 10 years to obtain visas, while persons within the same preference category but from other countries can obtain visas immediately. Second, the variance in waiting periods frustrates the Immigration and Nationality Act's primary purpose the reunification of families. For example, the brothers of United States citizens who seek to immigrate from the Philippines must wait many years, whereas brothers of United States citizens who wish to migrate from Britain can obtain visas after waiting only 6 months. Recommendation 2.1: Congress should amend the Immigration and Nationality Act to eliminate the per-country numerical limitations and the colonial quotas and provide for admission within the annual worldwide ceiling of 270,000 on a first-come, firstserved basis in accord with the existing six preference categories.

The decision as to the number of visas to be granted annually is a political decision to be made by Congress. The Commission's concern is only with the nondiscriminatory application of that visa policy once the number of visas is decided by Congress. If United States immigration laws are to be successful in providing an equal opportunity to all intending immigrants, regardless of their ancestry or place of birth, and in promoting the reunification of families, the current discriminatory system of numerical quotas on the number of immigrants from each country and dependent territory must be abolished.

Abolition of the per-country limitations and colonial quotas would ensure that all persons are treated equally under the laws and would only subject applicants to the worldwide ceiling of 270,000 immigrant visas and the existing six category preference system which allocates visas in the following

manner:

First preference: unmarried sons and daughters of United States citizens (20 percent of the annual worldwide ceiling);

Second preference: spouses and unmarried sons and daughters of lawful resident aliens (26 percent