Since President Obama’s re-election, Congress—especially Republicans—have had increased political incentive to reform our immigration system, including support for the 11 million unauthorized immigrants living in the U.S. to gain legal status. But the biggest stumbling block remains twofold: how to support a legalization program without appearing to reward past illegal immigration or encourage it in the future.
To surmount the first hurdle, politicians are focusing on the requirements that unauthorized immigrants would need to meet in order to qualify for legal status. Those wishing to legalize would need to register, pass a background check, and pay fees in order to gain a probationary legal status before moving through the other steps to permanent legal status: paying taxes, waiting in “line” behind other prospective immigrants, and learning English. In other words, politicians are advocating a “tough but fair” approach whereby immigrants would earn their new status, not get a free pass.
To surmount the second hurdle—preventing future illegal immigration—some politicians, including the Senate’s “Gang of Eight,” propose that immigrants’ adjustment to permanent legal status be predicated on the achievement of better enforcement, including a tracking system to make sure those admitted legally on temporary visas do not overstay and increased deployment of high tech tools to reduce border crossings. A commission of leaders from the Southwest border—in consultation with the secretary of Homeland Security—would monitor progress and recommend when the goal has been met in order to “trigger” those immigrants in a probationary status to move forward in the process of obtaining a green card.
While this idea has the veneer of being tough, it fails to address the factors creating the demand for illegal workers: employers willing to hire them and an outdated immigration system that does not provide legal pathways for needed workers. In other words, we’re focusing on the “fence” rather than the more powerful “magnet.”
We must learn from our past mistakes. The Immigration Reform and Control Act of 1986 (which included a large-scale legalization program and new employer sanctions for hiring unauthorized workers) failed to prevent future illegal immigration for three main reasons: 1) It didn’t provide a reliable means for employers to verify worker’s statuses; 2) it did not include strong, enforceable penalties for employers who hired workers illegally; and 3) it did not provide sufficient legal pathways for the workers that our economy came to demand.
Certainly, preventing unlawful entries at the border is important, and we’ve made great strides in reducing illegal crossings. And the fact that half of unauthorized residents in the U.S. are estimated to have entered the country legally demonstrates that we must do more to detect and prevent visa overstays. But by greatly reducing the force of the jobs magnet, the pressure on the border will ease, and we will likely spend fewer resources there.
To reduce the demand for illegal labor, we must do two things. First, we must come up with an efficient and effective way to verify someone’s authorization to work in this country so that employers cannot continue to hire people illegally. The E-Verify system was introduced in 1996 as a tool for employers to electronically verify work authorization. Initially fraught with high error rates, the program’s accuracy has improved over time. Concurrently, its use has expanded so that 19 states require it to some degree but still less than 10 percent of U.S. employers use the system. In Tuesday’s House hearing on the program, it received mixed reviews, but was generally accepted as a system to mend not end. One proposed improvement is to require workers to use a more fraud-resistant form of identification, but a biometric ID has raised concerns about privacy and cost.
Second, we must re-align our visa system with our current economic need for workers—whether they are temporary or permanent, highly educated or not—so that the jobs magnet can work through legal means. But because our economy is dynamic, we can’t stop there. We must also include mechanisms for more flexibly adjusting immigration levels as economic conditions change. Given that it has been almost 25 years since the last major immigration overhaul, our current system is sorely outdated, and it’s unrealistic to expect Congress to make frequent adjustments in the future. Rather, we need a real-time, data-driven method—whether it comes in the form of a commission or a federal bureau—to address our changing labor market needs and protect US workers. We must also do some soul searching about what else we value—family unity and humanitarian assistance, for example—in order to determine levels and priorities for family-based, refugee, and other non-employment visa categories. The best remedy for illegal immigration is a workable legal immigration system.
In the immigration debates, there’s a fence and there’s a magnet. Congress must not fall prey to tough rhetoric about the fence at the expense of taking more pragmatic action to address the magnet.
It seems like the stars are aligning and that this is best chance that we've seen in years [for immigration reform]. In particular, the signaling comes from people and places where there has been resistance before: Top Republican leaders are talking about legalization for people who are in the United States without status for the first time. Many businesses, labor, religious, and political leaders are voicing their concerns about not fixing our immigration and the harm that would do. I see this as a very ripe time.