Adam Cox and Eric Posner have a great theory about when countries are likely to offer potential immigrants more security in their status. It has a lot of moving parts, but here’s the basic idea.
There are some circumstances where people have an easy time moving between countries. For instance, if you were a French citizen working in a cafe in Paris, you might be able to easily move to Brussels and start working in a cafe there. There is freedom of movement within the EU, there probably aren’t too many hurdles to getting hired as a barista, and you’d be fine getting by speaking French (at least if you stay in the capital).
But this kind of easy move is the exception, not the rule, when it comes to international migration. If you were instead an Indian lawyer living in Mumbai, for example, it might be extremely difficult for you to move to Brussels. You’d have to find a way to get a visa, getting licensed to practice law would likely be complicated, and, even though most Indian lawyers speak excellent english, language barriers may still make professional and social interactions difficult. (This last one might just be a me thing — I spent years taking French in high school and college, but I still struggled in professional meetings when I interned at the EU.)
Making that second, more common, kind of international move requires years of planning and considerable expense. If the move falls apart, those years of planning are wasted. You can’t just ask that your time planning a Brussels move be rolled over to a Sydney move, the way you might be able to with a hotel deposit. Or, as Adam and Eric put it, making that kind of move requires making a substantial “country-specific investment.”
Country-specific investments are the efforts that people expend migrating that are wasted if they lose the ability to migrate to, or remain within, a given country. And, like all investments, people don’t want to make risky country-specific investments when there are safer alternatives available. This is especially true of potential migrants that have many good options. If you have a promising career in front of you — as a doctor, scientist, lawyer, academic, computer programmer, musician, business executive, or really any other line of work — why waste years figuring out how to move to a country that’s fickle enough to erode the value of your investment?
I always liked this theory. I talk about it in my immigration law class to explain why we should never make the mistake of thinking that the potential host countries hold all the immigration cards (e.g. “there are a lot of people that want to live in the United States, so why can’t we jerk potential migrants around as much as we feel like?”). As the theory explains, even if your country is a great place to live, many people won’t want to spend years figuring out how to move to a place that will wipe out their investment.
Now, this is the kind of theory that’s tough to test empirically (I could give a bunch of boring reasons about endogeneity, cross-country comparisons, and measurement, but I’ll assume you’ll just trust me on this one). But when I agreed to write a symposium paper on the rights of non-citizens a few years ago, I asked Adam and Eric if they’d like to work with me to try to figure out a way to do it (Adam was over committed at the time, but Eric was characteristically down to start a new project). Eric and I collected data on proxies for country-specific investments and for the protections provided to migrants. We weren’t able to complete nail down all parts of empirical support for the theory, but what we could test was consistent with it: countries that require more country specific investments offer potential migrants more protections.[2]
Why am I bringing up this theory and obscure symposium paper today? Because last night President Trump issued a sweeping executive order that suspended the H-1B, H-2B, J, and L visas programs through at least the end of the year. The people affected by that order made the country-specific investments required to get those visas believing their investments were backed by the full faith and credit of the United States. But this order deeply eroded the value of those investments (and, for some people, totally wiped them out). This move is the immigration equivalent of a country defaulting on a bond. It only takes one reckless politician to decide not to pay their country’s debts because they think some other priority is more important, but a default always has ramifications far into the future as potential investors look for less risky options.
The order yesterday thus not only arbitrarily inflected needless pain on hundreds of thousands of families during a difficult time, it sent the signal to the world’s most talented potential migrants that the United States can’t be trusted to keep our immigration promises. Many Americans may forget about this stupid move in a few news cycles, but for years to come it will make anyone considering moving to the Untied States think twice before making the investment.
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[1] Adam B. Cox & Eric A. Posner, The Second Order Structure of Immigration Law, 59 STAN. L. REV. 809 (2010).
[2] Adam S. Chilton & Eric A. Posner, Country-Specific Investments and the Rights of Non-Citizens, 57 VA. J. INT’L L. 575 (2018).