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Although United States federal law has provisions against national origin discrimination, why does the immigration system still discriminate against people by national origin?

Each country has a 7% quota, which might seem superficially fair except for the fact that the population of countries is highly variable.

Currently, Chinese and Indian immigrants have to wait 5-10 years for a greencard, whereas immigrants from some 100+ other countries can get a greencard almost immediately.

For example: Suppose immigrants born in China, India, and Sweden are sponsored for an employment-based greencard for the same position. The Swedes will get it within 6 months while the Chinese will have to wait for roughly 5 years and the Indians will likely wait 10 years.

If discrimination based on national origin is illegal in employment, then how is it legal to discriminate on that characteristic in employment-based immigration systems?

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    Vague links don't support the premise of a question. Quote the phrases that you think are saying what you believe and why they should be interpreted that way. As it stands, nothing you refer to is doing so. – Nij Dec 25 '16 at 10:43
  • I have elaborated the question. – Null Dec 26 '16 at 18:36
  • Could you elaborate why they are policy questions and not legal questions? Also, if a policy is discriminates based on national origin, isn't that illegal? – Null Dec 26 '16 at 18:43
  • It's a fair question as immigration law which does consider national origin is an exception to the general rule that the law in the U.S. does not consider national origin. – ohwilleke Dec 26 '16 at 21:16
  • If this form of discrimination is the case, part of the reason is likely that the population of India is over 1.1 billion (and a sizable chunk of these hopes to get to some western country such as US) while the population of Sweden is about 9 million (most of which probably hope to stay where they are). – coderworks Dec 27 '16 at 0:58
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In fact, the immigration quotas do not discriminate. The described limit is that "No more than 7 percent of the visas may be issued to natives of any one independent country in a fiscal year; no more than 2 percent may issued to any one dependency of any independent country". All countries get the same upper limit. Additionally, anti-discrimination laws are subject matter specific: they exist because Congress passed a law that prohibits using race as a basis for employing a person (which Congress can do because of the Commerce Clause). Congress has not passed any such law pertaining to granting of visas.

There is a path of reasoning that could lead to concluding that national quotas violate anti-discrimination laws, based on an "effects test" (disparate impact). It appears to be a fact that an applicant for a visa has a much higher probability of being denied a visa is their country of origin is China or India, as opposed to Sweden, which one could spin into a disparate impact argument. In order for this argument to become the law, there would have to be a case brought to the federal courts to the effect that national quotas are illegal, and as far as I know there has never been such a case. There are no provisions in anti-discrimination legislation that support a disparate impact doctrine in immigration, and pretty clear evidence that it was not congressionally intended since Title 8 Ch. 12 clearly calls for nation-based quotas.

A final point: "national origin discrimination" is based on "an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group". A Swedish citizen of "Chinese national origin" is subject to the Swedish quota, not the Chinese quota, thus the discrimination is based on country of citizenship, not national origin.

  • I need clarification around visa denial. I am not questioning granting or denial of a greencard. I am pointing out that in my example all 3 nationals of different countries are eligible for a greencard (Form I-140 approved). However, the Chinese and Indian are prevented from filing the last stage (Form I-485) since a visa number is not immediately available. This creates a huge negative impact on their lives - viz. job mobility, accepting promotions, starting businesses and furthering their career, etc. This is for 10+ years although technically they are legal immigrants according to law. – Null Dec 26 '16 at 23:13
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    I understand that: the point is, this is legal. – user6726 Dec 26 '16 at 23:39
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    What is or is not the USAs problem to solve is irrelevant to what the law actually is. – ohwilleke Dec 27 '16 at 1:55
  • See the comments on ohwilleke's answer: some discrimination in immigration law is on the basis of country of birth rather than country of citizenship. The Swede with Chinese ancestry in your example only counts as a Swede for the calculation of immigration quotas if born in Sweden. – phoog May 30 '18 at 6:37
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Neither the U.S. Constitution, nor any law prohibits discrimination based upon national origin in immigration laws. Indeed, U.S. immigration laws and treaties require discrimination based upon national origin in many cases. The equal protection clause of the 14th Amendment has not been interpreted to prohibit discrimination on this basis in immigration laws.

State laws that discriminate based upon citizenship or national origin are on much more fragile ground under the 14th Amendment, because immigration is exclusively a federal government function under the United States Constitution.

The Civil Rights Acts, which do prohibit discrimination based upon national origin, apply to public accommodations in the United States, employment of people who are legally permitted to work under immigration laws, and a variety of other matters, but a person who is not a U.S. citizen does not have a right to a visa, and immigration laws (which have been upheld as constitutional repeatedly), have always discriminated based upon national origin. The circumstances under which national origin discrimination are prohibited are listed at the link in the original post as:

  • Education
  • Employment
  • Housing
  • Lending
  • Public Accommodations
  • Law Enforcement / Police Misconduct
  • Voting

Immigration laws have almost always historically made distinctions between nationals of different countries that seem unfair and will continue to do so. Similarly, citizens of some countries can visit the U.S. for short periods without a visitors visa, and others may not.

These issues are within the sole discretion of Congress and the President, and even immigration courts are Article I courts rather than Article III courts until the U.S. Court of Appeals provides a second layer of appeal from immigration decisions. The Supreme Court has called their authority in this area "plenary" (see Cole 2003 starting at page 384 citing e.g., Piallo v. Bell, 430 U.S. 787, 796 (1977) (quoting Mathews, 426 U.S. at 81-82); The Chinese Exclusion Case, 130 U.S. at 603-06.). As Cole (2003) states at 386 (footnotes replaced with inline citations):

[An] argument commonly heard as a rationale for affording noncitizens less robust rights protection maintains that because noncitizens are only "guests", Mathews, 426 U.S. at 80, who have "come at the Nation's invitation,' Carlson, 342 U.S. at 534; Foley, 435 U.S. at 294, their admission and continuing presence may be conditioned on whatever constraints the government chooses to impose. As the Supreme Court once put it, deportation "is simply a refusal by the Government to harbor persons whom it does not want. Bugajewitz v. Adams, 228 U.S. 585, 592 (1913). If you don't like it, the argument goes, either don't come, or get out. This argument seeks to transform what we generally think of as inalienable rights into discretionary privileges that can be granted or denied at will.

As Cole (2003) explains, not everyone agrees that this is how the law should be or what the constitution should protect, but it is a reasonably fair statement of the state of constitutional law regarding immigration, especially in the 20th century and before.

Almost all rights to persons who are not U.S. citizens to immigrate or visit the U.S. arise from federal immigration statutes, rather than any other source, and even then, for the most part, immigration officials have some residual authority to deny admission to the U.S. to people who otherwise have valid visas allowing them to enter the U.S.

UPDATED:

Also, it is worth recalling that sometimes U.S. immigration law discriminates based upon "nationality" or "citizenship" rather than "national origin" per se. But, often a person is "chargeable" for visa purposes under U.S. law to the county where they were born rather than the country they are currently a citizen or national of (leading to true "national origin" discrimination), although exceptions apply when an immigrant is married to someone born in another country, and U.S. law doesn't generally look back to where your parents were born if you were born in a different country than your parents.

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    I am not sure what you mean by - U.S. immigration law discriminates based upon "nationality" or "citizenship" rather than "national origin". U.S. Immigration law discriminates on the basis of country of birth. For example, a person who was born in India and thus acquired Indian citizenship but later immigrates to Canada and acquires Canadian citizenship is still treated as "Indian" as far as U.S. Immigration benefits go. For example, his country of chargeability will still be India rather than Canada. – Null Dec 26 '16 at 23:04
  • @Null – That sounds surprising. If you have any authoritative support for the assertion at comment I suggest you add/highlight the reference in your question. – feetwet Dec 27 '16 at 1:52
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    @Null You have apparently stated the general rule although there is an exception if you marry someone of another nationality. I stand corrected. eb5investors.com/qa/how-country-of-origin-determined-eb5-visa – ohwilleke Dec 27 '16 at 2:01
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    @Null Further confirmation in a more general sense. greencardapply.com/question/question16/… Thanks for the tip. Clearly sometimes there is national origin discrimination rather than nationality discrimination in U.S. law (although not always in spouse or second generation immigrant cases). – ohwilleke Dec 27 '16 at 2:18
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    @Null an Indian citizen who naturalizes in Canada enjoys many privileges that the US extends to Canadian citizens: the ability to enter as a visitor without a visa, the ability to enter in TN status without a visa, and the ability to enter in many other statuses without a visa (including, I believe, H-1B). – phoog Dec 27 '16 at 4:13

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