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Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013).

In asking What Makes the Family Special? Kerry Abrams posits an alternative approach to family-based immigration policy, eschewing “the old family/market dichotomy that family law scholars have been deconstructing for decades.” Family-based and employment-based immigration are, of course, the two largest classes of admission to the United States and each one seeks to elicit different, and, at times, conflicting policy goals. Abrams sees a clear dividing line between the two approaches. On one side stand proponents of expansive, family-based immigration who, in Abrams’ view, tend to rely on “soft,” rights-based arguments about human dignity and autonomy. On the other side stand those who view immigration, above all else, as a tool for optimizing labor markets. They tend to rely on “hard” economic arguments to make that case.

Abrams proposes a third way that considers how family-based immigration might benefit American society as a whole. This approach combines features from both sides of the family/market divide, embracing family-based immigration (though not necessarily a functional definition of family) while also relying on somewhat “harder” policy considerations than the ones that typically underpin pure rights-based approaches. Even so, Abrams acknowledges the role of human rights considerations in setting immigration policy: “no nation could make decisions about these issues without considering human rights as part of the calculus.” Although her article is a wide-ranging “thought experiment,” full of big ideas, Abrams is careful to limit herself to identifying potential policy rationales favoring family-based immigration rather than passing judgment on their ultimate plausibility or propriety.

As a first step, Abrams explains that family connections are the dominant means—to an overwhelming degree—by which immigrants enter the United States. She calculates that about eighty percent of green card recipients in 2011 were family members of U.S. citizens or legal permanent residents. This group includes not only those individuals who belong to explicitly family-based classes of admission, but also relatives of employment-based immigrants, diversity-lottery winners, refugees, and asylum-seekers. Abrams’ statistical analysis makes clear that “family-ness” is so central to U.S. immigration policy that it is worth examining the concept directly, rather than only through the lenses of human rights and market forces.

As a second step, Abrams very helpfully situates her project within the context of Congress’ approach (or maybe more accurately lack thereof) to family-based immigration throughout the nineteenth and twentieth centuries. Her historical survey is complicated by somewhat incoherent statutory development and a sparse legislative history that reveals little about how Congress eventually shifted from a quota regime to the preference-based system that we know today. As Abrams notes, early American notions of family-based immigration were rooted in the tacit gender-role assumptions that also underpin coverture, with a husband’s citizenship status and domicile determining his wife’s. Driving home this point, she references the Expatriation Act of 1907, under which a woman actually forfeited her U.S. citizenship by marrying an “alien,” on the ground that she took on his domicile and nationality upon marriage.

Against this backdrop, Abrams examines the role and evolution of early family-based immigration rules in the context of the national-origins quota system that developed during the 1920s. She traces how, at first, preference categories reflected the long-standing assumptions about determinative powers wielded by male heads of households, but then gradually coalesced into a structure that privileged an immigrant’s nuclear family (the members of which were not subject to the quota). Although preference categories were expanded during the early 1950s to encompass certain extended family relationships, these more distant relations were still subject to quota restrictions, limiting the impact of these facially pro-family-immigration reforms. National quotas so dominated early immigration policy that Abrams surmises (in the absence of a clear legislative record) that family preference categories were an afterthought rather than a calculated effort at policymaking.

The repeal of the quota regime in 1964 was a watershed moment in the history of family-based immigration, and the Hart-Cellar Act serves as the foundation for our current immigration system. Abrams explores how ostensibly pro-family immigration policies in this context might have been motivated by unrelated, ulterior motives. She explores how the Hart Cellar Act’s new family preference categories may have served as a subtle means of preserving the quota regime rather than encouraging family-based immigration. That is, many in Congress may have presumed that those nationalities that had contributed most to the inflow of immigrants under the old quota regime would disproportionately serve as sponsors of relatives under the new preference system, helping to maintain the status quo. However, if such social engineering were the goal, Congress’s approach backfired. As Abrams puts it: “Recent immigrants from, say, China had a great incentive to sponsor their family members. A sixth-generation American whose ancestors came from England had no family in England left to sponsor.” Abrams’ historical analysis suggests that pro-family immigration policy rationales likely played a very limited role in the development of U.S. immigration law—notwithstanding the fact that family-based immigration now dominates. Even when Congress has engaged explicitly in family-definition it has done so mostly to perpetuate traditionalist views of family life (traditional gender roles, privileging the nuclear family) or to disguise unsavory efforts at social engineering (national quotas).

In the rest of the article, Abrams steps into this vast legislative void and describes three broad categories of policy rationales that might justify family-based immigration: integration, labor and social engineering. In a more progressive take on the pro-family ideas underlying coverture, Abrams proposes that family-based immigration might hasten and strengthen integration into American society by enhancing stability and aligning individual self-interest with the interests of the nation as a whole. Such integration might then, she suggests, encourage interaction with and contribution to the broader society. However, Abrams is careful to acknowledge that the family’s role in an individual’s integration might depend heavily on the circumstances. Family life could offer a comfort level that makes integration with the larger community a more natural process, but too much comfort could easily lead to insularity.

Employment-based immigration has a family component (whenever close family members accompany those with employer sponsorship). But Abrams points out that the opposite is also true: Family-based immigration typically has a labor component. Even those who have not been granted entry to the United States on the basis of skills that are particularly desirable to major domestic employers are still likely to participate in the labor force in some way once here. In the labor context, Abrams suggests that family ties might, in the end, lead to greater on-the-job stability and success for newcomers: “Although employment-based immigration (including unauthorized migration for a particular job) often results from immigration networks, family-sponsored immigration provides a surer base for the new immigrant to operate from than a friendship or employment network.” For instance, a U.S. resident or citizen wishing to sponsor a close relative might have more intimate knowledge than an employer regarding her suitability for immigration, and the affidavit of support requirement creates a significant incentive for careful decision-making and active participation in the process of social integration.

Once here, non-employment-based immigrants, Abrams suggests, might also fill a need for less skilled labor (child care, housework, manual labor, etc.), either on behalf of a sponsor or in the context of a private, informal employment arrangements for which employer sponsorship is less likely to be available. Abrams also points to the disproportionate use of family-based immigration by women who might be more likely to participate in some sectors of the informal economy. Family-based immigration may therefore serve as a “proxy” for unskilled laborers needed to satisfy demand that is not being met through labor-based immigration.

Perhaps the most interesting—but, potentially, the most troubling—pro-family policy rationale that Abrams proposes involves legislative social engineering. She proceeds from the oft-asserted claim that state law dominates the regulation of key family institutions—marriage and divorce, procreation, child care and custody—and that immigration policy may afford Congress a means of acting “obliquely” to further pro-federal policy in these areas. Along those lines, diminished federal judicial scrutiny in the immigration context may lead Congress to view this as particularly fertile ground for unfettered policymaking. For example, Congress might seek to “subtly encourage some kinds of families over others….” Family-based immigration policies—depending on how “family” is defined—could express a preference for married couples based on an assumption that these relationships might tend to be more stable or are likely to help the nation compensate for a declining domestic birthrate. Again in this context, Abrams views family-based immigration as a possible proxy by which women can be targeted to compensate for male-dominated labor-based immigration: “Given that women disproportionately use family categories to immigrate, and for all the reasons discussed above that family-sponsored immigration may provide a more flexible labor force, we might want to maximize this kind of immigration so that there will be a large, young, female population of potential care workers for the elderly.”

Although her proposed framework is a comprehensive one, Abrams is not suggesting that it supplant the traditional rights/labor dichotomy. She acknowledges, for instance, that the moral heft of rights-based rationales might, in the end, force lawmakers to follow a particular course, notwithstanding competing pro-family or pro-labor interests. She also concedes that the three broad policy aims she describes—integration, labor and social engineering—might themselves conflict with each other in any given context. But all policy frameworks have their unique limitations. Abrams’ article has the potential to play an important role in exposing certain policy motivations that might not be made explicit in the legislative history or in family-based immigration scholarship.

In the end, where Abrams’ family-based framework leads depends on the assumptions one makes about the nature of family-ness. In the hands of a proponent of maximizing employment-based immigration or someone holding a very traditionalist notion of family, the framework could be used to justify an approach to family-definition that would no doubt outrage a proponent of a rights-based, functional approach to family. Conversely, starting from a functional approach to family, the framework would point the way to a completely open immigration policy without quotas or preferences of any kind—an outcome that might horrify many in favor of pure, employment-based immigration.

At the same time, those on each side of the family/labor divide can employ the framework in a manner that critiques the other side’s approach, exposing possible shortcomings or, at least, casting them in a clearer light. This may be the context in which this new and different way of looking at family-based immigration may yield the greatest benefits.

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Cite as: Shani King, A New and Different Way of Looking at Family-Based Immigration Policy, JOTWELL (October 7, 2014) (reviewing Kerry Abrams, What Makes the Family Special, 80 U. Chi. L. Rev. 7 (2013)), http://family.jotwell.com/a-new-and-different-way-of-looking-at-family-based-immigration-policy/.