TABLE 2.2

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.

9918

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.

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

plus any visas not required for the first preference);

Third preference: members of the professions and scientists and artists of exceptional ability and their spouses and children (10 percent);

Fourth preference: married sons and daughters of United States citizens and their spouses and children (10 percent plus any visas not required for the first three preferences);

Fifth preference: brothers and sisters of United States citizens and their spouses and children (24 percent plus any visas not required for the first four preferences); and

Sixth preference: skilled and unskilled workers in occupations for which labor is in short supply in this country, and their spouses and children (10) percent);

This would enable all prospective immigrants to obtain visas based strictly on their priority date, firstcome, first-served, without consideration of their country of origin. Although the elimination of these numerical limitations would initially allow certain countries to obtain more than the 20,000 visas currently available because of their already extensive waiting lists, this system, as demonstrated in the appendix to this report, would allow all American citizens and residents an equal opportunity to be reunited with their close relatives abroad, whether they come from Mexico or Hong Kong or Ireland. Thus, the country of origin of intending immigrants and their United States relatives would no longer be considered in determining the length of the waiting period for visas.