What Makes the Family Special?

It is tempting when considering an optimal admissions policy to focus on labor markets. After all, from the nation’s perspective, an optimal immigration system will facilitate underperforming labor markets without artificially depressing wages. But any institutional design approach to immigration law must also take account of the existence of family-based immigration. Indeed, the United States currently has one of the most generous approaches to family-based immigration in the world. In 2011, four out of five immigrants given green cards established their eligibility as family members of US citizens or lawful permanent residents. Scholars and policy analysts rarely think about familybased immigration as a potential gain for the nation. Those in favor of expansive family-based immigration generally speak in the language of rights—the rights of immigrants to be with their families, the rights of citizens who live here to bring them in. Family reunification, they argue, is enshrined as a key principle in international human rights law, and it is a right that should be recognized by the United States in the immigration law context through expansive admissions categories, generous cancellation-of-removal provisions, and the recognition of nontraditional and functional families. The claim made by these scholars is emphatically not that family-based immigration brings economic benefits to the country; to the contrary, family based immigration is understood as “the soft side” of immigration while employment-based immigration is “more about being tough and strategic.”

In contrast, those opposed to family-based immigration often speak in the language of fairness, efficiency, and national interests. Family immigration, they claim, steals spots from the immigrants we most want—those who possess desirable skills and those who would bring diversity to US culture because immigration from their home country is underrepresented. Thus, family-based immigration is grounded in rights, and employment-based immigration is grounded in economic rationality, a reprisal of the old family/market dichotomy that family law scholars have been deconstructing for decades. 

But what if family immigration is actually beneficial to the nation? This Article engages in a thought experiment. It asks: For what reasons might a nation like the United States decide to give an overwhelming number of its admission slots to family members of citizens and permanent residents? In considering this question, it not only looks to the (rather slim) evidence of what Congress actually did consider when enacting these provisions but also speculates more broadly about what the advantages of family-based immigration might be. The Article develops a taxonomy of reasons a nation might choose to privilege family-based immigration over other types. There is no normative agenda here: This Article is not an argument that the family is special, and therefore deserves the current number of slots, or more, or less. Rather, this is the first step in helping all of us—scholars, lawmakers, citizens, immigrants—to think more clearly about the system we have and the system we could have. And although this Article brackets the issue of human rights justifications for family reunification, no nation could make decisions about these issues without considering human rights as a part of the calculus. Here, however, the goal is only to better articulate what the non-rights-based considerations for familybased immigration might be and to provisionally think about their role in the design of our immigration system.