1 A PROPOSAL FOR IMMIGRATION REFORM
WE WRITE THIS BOOK TO add our voices to the call for systemic immigration reform. First and foremost, we want to draw attention to the urgency of the need for such reform. Americans often view the immigration debate in one-dimensional terms: either immigration as a matter of social justice, or immigration (especially illegal immigration) as a scourge. That contributes to the intense divisiveness surrounding immigration as an issue, which at times makes it a “third rail” in American politics. Politicians on both sides of the partisan divide duck for cover rather than confront an issue whose resolution is vital to our nation’s future.
The issue is indeed urgent. Immigration is a major driver of the American economy, an answer to tremendous demographic challenges, and a remedy for an inadequate K–12 educational system. At the same time, immigration that takes place outside the bounds of law weakens our institutions and threatens legal immigration. We believe that our nation’s immigration policy is a disaster, but one that can be successfully fixed through a combination of political leadership, bipartisan consensus, and—as with most of the difficult issues facing our nation—recourse to basic American values.
When immigration policy is working right, it is like a hydroelectric dam: a sturdy wall whose valves allow torrents of water to pour through, creating massive amounts of dynamic energy. The reservoir that supplies the power is full and constantly replenishing. The valves can be adjusted against the wall of water on the outside, easing the pressure or holding it back as necessary, but always allowing ample flow to meet the nation’s energy needs.
But today the dam is decrepit and crudely cemented over, with constant leaks that have to be patched. Its flow has been altered so many times that the dam’s structure has lost all integrity. Its valves are clogged, its spigot is broken, its energy generation is sporadic and unreliable. Water comes over the dam and through
its cracks, and every effort to stanch the flow creates new fissures. Worst of all, the reservoir behind the dam—on which the nation’s energy supply depends—is drying up, and because the dam provides inadequate outlets for what remains, others are diverting it to competing uses.
The prognosis is all too clear: we need to replace the dam.
On that proposition, that we need to fundamentally repair our current immigration policy, a majority of Americans and their elected officials in both parties seem to agree. And yet, comprehensive immigration reform stalls repeatedly. It stalled in 2007 and 2008 even when President George W. Bush and congressional leadership from both parties made a major effort to enact bipartisan immigration reform. It never got off the ground following the 2008 election of President Barack Obama, despite Democratic majorities in both congressional chambers and the fact that Obama had promised to enact comprehensive immigration reform in his first year in office.
Even though immigration reform is one of the few major issues on which the potential for bipartisan consensus clearly exists, that consensus is constantly undermined, obviously by strident opposition at the extremes of both parties but also by a lack of political courage. All too often, elected officials who possess ample
political capital to make comprehensive immigration reform a reality wither instead, in the face of hostile opposition from extreme elements of their respective partisan bases. That is the case even though those who stand on principle on immigration issues rarely suffer significant political consequences for doing so. The combination of ideological rancor, demagoguery, and political cowardice is lethal, with the result that we remain saddled with an immigration regime that nearly everyone agrees is profoundly dysfunctional.
Both sides are responsible for the impasse.
On the left, some push for open borders as a matter of justice. They excuse those who came here illegally and decry efforts to enforce the rule of law. Labor unions, which for much of the past century were the most vehement opponents of immigration, now sometimes pay lip service to immigration reform but still look out for their own parochial interests first and foremost. Although some Democrats have worked across the aisle to find bipartisan consensus on immigration reform, others wield immigration as a political wedge issue, preferring polarization to solutions. In his first term, as noted above, President Obama broke his campaign promise to enact immigration reform during his first year—which
he easily could have accomplished given commanding Democratic majorities in Congress—and did nothing until the erosion of Hispanic support threatened his reelection chances.
On the right, immigration opponents see hordes of illegal immigrants taking jobs away from Americans who desperately need them and consuming social services whose costs are borne by overburdened taxpayers. They see immigrants, both legal and illegal, refusing to shed their culture or to adopt American customs and speak English. They believe that illegal immigrants contribute heavily to crime, and they agonize over the inexplicable inability of the American government to secure our borders. They see immigrants voting in large numbers for Democrats who constantly expand the scope and cost of the welfare state. And they are profoundly skeptical, given past broken promises, that any grand compromise on immigration will ever result in stopping the flow of illegal immigrants.
As a result, they insist that the borders must be secured before any other immigration reforms are considered. They oppose anything characterized as “comprehensive” immigration reform and denounce as “amnesty” any proposal that falls short of the deportation of all illegal immigrants.
It may very well be impossible to satisfy the extremes on each end of the ideological spectrum. But there is a broad middle ground on immigration that commands the support of a large majority of Americans. Moreover, after the 2012 elections, there seems to be more resolve than at any time in many decades to reach bipartisan accord on immigration reform.
We write this book in the hope that we as a nation will not let this moment pass.
We believe comprehensive reform should be constructed upon two core, essential values: first, that immigration is essential to our nation, and second, that immigration policy must be governed by the rule of law.
Those who expound only one of those values to the exclusion of the other do violence to both, because the two values are inseparable. We believe that our nation’s immigration policy must always trace back to those two primary values, not just as a matter of rhetoric but as a matter of reality.
Because the proposals we sketch below reflect those core values, we believe that a majority of Americans will support them. Public opinion surveys show that about two-thirds of Americans support a process by which illegal immigrants can obtain lawful
status so long as they learn to speak English, pass background checks, and pay restitution.1
A large majority (63 percent) say that immigrants cost too much in terms of social services, but 79 percent say they take low-paying jobs that Americans don’t want. Majorities of two-thirds or more support strong employer sanctions for hiring illegal immigrants, doubling the number of Border Patrol officers, creating a guest-worker program, and keeping illegal immigrants ineligible for nonessential social services. By contrast, only one-third or fewer support in-state tuition for children of illegal immigrants, or driver’s licenses or Medicaid access for illegal immigrants.2
A 2012 survey by North Star Opinion Research also produced insightful results.3
It found that 55 percent of Americans view immigration as an economic benefit, while only 33 percent believe it is an economic threat. A fifty-two percent majority think creation of a guest-worker program would do more than law enforcement (35 percent) to strengthen our border. In fact, 73 percent agreed with the statement that “it is not possible to have absolute border control without a better system for handling guest workers,” while only 16 percent disagreed.
In terms of support for the DREAM Act, which would allow
children of illegal aliens to remain in the country under specified conditions, 74 percent supported the idea while only 20 percent opposed it.
The upshot of public opinion surveys is this: Americans consistently support pro-immigration policies so long as the law is enforced. That gives policymakers a great deal of latitude in designing fundamental immigration reform.
One very significant boundary appears to exist, however: most people believe the overall number of immigrants should not be increased. Polls repeatedly show that support for increased numbers of immigrants is in the single digits, while most Americans either favor reducing the number or keeping it the same.4
Although that sentiment is strong, we think it needs to be challenged, for several reasons. Left to its own devices and without increased immigration, America’s population is shrinking and aging. We need more immigrants to stem that debilitating demographic tide. We believe there will be much less opposition to increased immigration if Americans perceive the need for and the value of immigration—which will happen if we fix our system so that most who enter our country add tangible value. The six proposals we outline below are intended to do just that.
Politicians should not fear taking bold, principled action on
immigration. Regardless of what opinions most Americans hold on immigration, few people vote on the basis of that issue. Even in the Tea Party wave of 2008, only 4 percent of voters considered immigration the nation’s most important issue.5
Few political races have turned on the issue of immigration, and most immigration-based attacks on candidates have failed. Indeed, the recall of Arizona state senator Russell Pearce, the architect of S.B. 1070—as well as his failed comeback bid in the subsequent Republican primary in 2012—suggests that candidates for whom opposition to illegal immigration is the signal issue do not fare well. Elected officials have a great deal of room to maneuver on immigration issues so long as they advance policies that maximize the benefits of immigration and subject the system to the rule of law.
Likewise, we believe that proposals based on the core values we advocate can bridge the partisan divide. But that is not why we support them. Rather, we do so because it is crucial to our nation’s future that we set immigration policy on a sound course. Any such action will take courageous, committed political leadership. But we believe that the leaders willing to step forward to achieve such reform will be rewarded both by history and a more prosperous and diverse nation that continues to celebrate and advance its most essential principles.
We present six general proposals that we believe would strengthen America’s immigration policy and advance the important national goals that immigration policy is supposed to achieve.
1. FUNDAMENTAL REFORM
Because comprehensive immigration reform failed legislatively in the past decade, many are reluctant to try again. Indeed, some commentators believe that “comprehensive immigration reform” is a code word for inaction, especially given that President Obama promised such reform in his first year in office yet quickly abandoned it despite decisive Democratic majorities in both chambers of Congress. Others urge reform on a piecemeal basis—a DREAM Act here, a fix to visas for high-skilled workers there. “For all the storm and stress of our national immigration debate, there has been remarkably little inclination to go beyond treating symptoms,” writes columnist Jeff Jacoby. “But the basic architecture of the U.S. immigration policy itself—with its strangulating confusion of quotas and regulations, and its core assumption that immigration must be strictly limited and regulated—nearly always goes unchallenged.”6
We favor a comprehensive approach for two main reasons.
First, the system as a whole is broken, and the various parts of the immigration puzzle are interrelated. For instance, a goal of sealing the border is hopeless without creating an immigration pipeline that provides a viable alternative to illegal immigration. Expanding work-based visas without modifying the family preference system could increase immigration levels to politically unsustainable levels. Finding a way for illegal immigrants to remain in the United States is a nonstarter if our borders are not secure against future illegal immigration.
Second, comprehensive reform is necessary to achieve bipartisan consensus. Proposals that appeal to one side but not the other will continue to polarize the debate. But a comprehensive proposal that addresses concerns on both sides of the partisan divide could command broad support, which is essential at a time when control of the federal government is divided between Republicans and Democrats. Such bipartisan consensus was achieved in the 1980s and ’90s. Our nation is growing weary of partisan division, and immigration is one important issue on which bipartisan cooperation should be possible.
We believe recent attempts at comprehensive immigration reform did not go far enough. They built on existing structures that themselves are outdated. Instead of further modifying the
immigration policy behemoth, we should start from scratch. Our nation’s immigration laws have been amended so many times that they have grown amazingly complex, incoherent, and sometimes self-contradictory. The only people who benefit from the law’s complexity are immigration lawyers. A much more simplified, straightforward immigration policy would work wonders for the many people, businesses, and government officials who are subject to or affected by it.
Immigration historically has been shuttled among various agencies, each of whose missions touch upon immigration yet are not primarily focused on it. The administration of immigration started off as part of the Department of Commerce, then it was shifted to the Department of Justice, and more recently it has been divided among multiple agencies. Over the past decade, primary authority over immigration was given to the new Department of Homeland Security (DHS). Yet the departments of State, Labor, Justice, and Health and Human Services remain involved in immigration selection and processing. “A more rational reorganization,” writes immigration historian Roger Daniels, “would have created a separate cabinet department for immigration and placed the Washington officials dealing with immigration in one building under unified leadership instead of parceling them out all over
town and inserting them into an organization in which immigration is, at best, a stepchild.”7
Placing immigration under DHS control made sense in the aftermath of 9/11, given that most of the Al Qaeda terrorists passed through our immigration system. But maintaining DHS’s hegemony over immigration policy does not make sense over the longer term. While security concerns must be a central part of any workable immigration system, other important national concerns involving immigration will suffer if those concerns are paramount. As Edward Alden observes in The Closing of the American Border, in the years since 9/11, “it is much harder for a terrorist to enter the United States than it used to be. It is also much harder for everyone else.”8
Travel, student, and worker visas have become backlogged even when security concerns about specific entrants are minimal, all to the great detriment of U.S. commerce.
Similarly, placing immigration under the hegemony of DHS diverts from that agency’s vital national security concerns. As Alden recounts, with the “decision to make tough immigration enforcement the priority of the Department of Homeland Security, the original goal of stopping terrorists faded further and further from the center of DHS activities.”9
Its stepped-up immigration
enforcement efforts led to charges against 814,000 people in the agency’s first three years; yet in only a dozen of those cases did DHS make charges of terrorism or support for terrorism.10
Although it makes abundant sense for border security to remain a core function of DHS, immigration and naturalization functions are important enough—and distinct enough—to be placed either in a stand-alone agency or within an existing department (such as the Department of Commerce) whose mission is consistent with a national policy of promoting immigration. That should be part of a complete overhaul of the national immigration laws. The existing system simply is not repairable. The law itself is an obstacle to needed reform.
Out of cacophony we should aim to create harmony, both in terms of the law and the agency that implements and enforces it.
2. A DEMAND-DRIVEN IMMIGRATION SYSTEM
For centuries, American immigration policy has been based on the conceit that America is inherently a desirable place to live and work. While we hope the underlying premise always remains
true, we need our immigration system to reflect the reality that the American economy is not always vibrant and that we are locked in stiff global competition for immigrants.
Like any other valuable good or service, immigration operates according to supply and demand. If the demand for immigrants exceeds supply, it will lead to a black market, as we have witnessed for the past several decades. Inefficiencies imposed by government likewise will create market distortions, such as shortages or excess supply. Our current immigration policy seeks to stifle supply and demand through a series of government preferences and quotas. Moving toward a demand-based immigration system would aid greatly in meeting our nation’s pressing economic challenges.
“[T]he problem with America’s immigration system,” observes Jeff Jacoby, “isn’t that too many people are breaking the rules. It’s that the rules themselves are irrational, illiberal, and counterproductive.”11
Some people are allowed to become legal residents automatically, even if they do not work and will consume enormous social services. (Indeed, some immigrants are forbidden from working!) Others who would contribute a great deal have to wait decades for a visa, if they can get one at all.
Of the many serious and legitimate criticisms that can be leveled against our current immigration system, two in particular stand out in terms of hugely detrimental impact:
• We are not bringing in highly skilled immigrants in sufficient numbers to meet our needs and to maximize future American prosperity.
• There is no realistic pathway for most people who simply wish to become American citizens.
There is a single major explanation for both problems: our immigration policy is driven by an overriding preference for family reunification, which in turn is very broadly defined. Unlike every other country, in America family members of existing immigrants account for a large majority of new lawful entrants into our country, crowding out most others, including immigrants who would contribute greatly to economic growth.
It was not always that way. In 1970, work-based immigration accounted for 70 percent of all newcomers in the United States.12
But since federal law was changed to make extended family preferences the paramount immigration priority, the numbers have flipped. By 2011, about one million immigrants were granted permanent
legal residence in the States—about average for the past decade.13
Of that number, 453,000—nearly half—were immediate family members, either spouses, minor children, or parents of U.S. citizens, mostly prior immigrants. Another 235,000 were other relatives, including adult children, grandchildren, and siblings. In other words, nearly 65 percent—almost two-thirds—of all new permanent residents obtained that status by virtue of their family status.
By contrast, only 139,000—roughly 13 percent—were admitted for work purposes. Another 113,000 were refugees, and 50,000 came in through the “diversity lottery.” That lottery was created so that specific countries would not completely dominate immigration—indeed, it is thought to have been a nod to the Irish immigrant lobby. The diversity lottery illustrates vividly the pent-up demand for American immigration: in 2008, 13.6 million foreigners competed for the 50,000 diversity slots, or approximately 250 applicants for every visa.14
Yet aside from relatives of existing immigrants, workers, refugees, and a handful of other highly specialized visa categories, the tremendously oversubscribed diversity lottery is the only means for most people to lawfully enter the United States.
We cannot get a handle on our immigration system until we
deal seriously with the family preference policy. Family reunification encompasses two categories. The first includes “immediate” relatives, defined as spouses, unmarried minor children, and parents of U.S. citizens. Those relatives have no numerical limits. The second category is preferential admissions, which extends to unmarried adult children of U.S. citizens, immediate family members of permanent legal residents, adult married children of U.S. citizens, and siblings of U.S. citizens. The second category is capped at around 226,000 per year. The total number of family reunification immigrants is far greater than the numbers forecast by proponents of the current immigration law.
When parents and siblings are given immigration preference, their entry in turn creates an entitlement to vast numbers of other extended family members to gain preference as well—a phenomenon called “chain immigration.” Indeed, the numbers are so great that even with family members accounting for nearly two-thirds of all legal immigrants, there still are large backlogs of eligible family members waiting for admission.
In terms of cost/benefit analysis, extended family members typically do not produce the economic benefits that work-based immigrants do, and they impose far greater costs. Many extended family immigrants are children, elderly people, or others who do
not work yet often consume a disproportionate share of social services such as schooling and health care.
If we want to increase the number of work-based immigrants without substantially increasing the overall number of immigrants, we must reduce family-based immigration. To do so requires narrowing the definition of “family” for purposes of admission preferences. The United States is an outlier in that regard. The European Union, for instance, limits family reunification to spouses and minor children.15
We propose limiting guaranteed admissions to spouses and minor children of U.S. citizens. Reuniting married couples and their children is the essence of family reunification. By contrast, siblings and parents cause substantial chain immigration because their children, siblings, and parents then receive guaranteed admission preference as well. We would further modify the policy in two ways. First, we would “grandfather” relatives who have applied for family reunification at the time the new policy is adopted, so that they do not have to start the process over again. Second, we would add to the guaranteed admission category the spouses and unmarried minor children of legal permanent residents. Because they are currently relegated to the second tier of the preferential admissions policy, many husbands, wives, and children of permanent
legal residents are separated for many years—which creates pressure for the legal permanent residents to leave or to bring in their families illegally.
Critics object that defining family as a nuclear family reflects Western values rather than the cultural values of many current immigrants. Well, yes. We are a Western nation, and our immigration policies should reflect our values. But Americans also accord significant value to extended families, and we certainly do not propose to exclude them. Extended family relatives should be allowed to pursue a path to American immigration—but in our view, through normal (though expanded) immigration channels rather than by the preference given to other types of immigrants.
Narrowing the scope of family preferences would open hundreds of thousands of opportunities for immigrants even without expanding the current numbers of legal immigrants who come to the U.S. each year. Given the urgency of bringing in highly skilled immigrants and giving them a path to citizenship, it is imperative to do just that.
We propose to create four general categories of immigration:
1. Family immigration, defined as spouses and minor children of U.S. citizens and legal permanent residents.
2. Work-based visas, vastly expanded beyond current numbers. We will discuss below the parameters of how this system would work.
3. A system of regular immigration. This system would replace the diversity lottery and increase its numbers. Anyone sponsored by a U.S. citizen who does not have a criminal record and who will not be dependent on social services could seek admission through this process—including extended family members of current U.S. citizens and legal permanent residents—on a nonpreferential, first-come, first-served basis.
4. Refugee and asylum immigration.
Based on current numbers, we estimate that under this new policy, family preference admissions would comprise about 350,000 immigrants annually and refugees would continue to amount to 100,000 annually. Even without an increase in current immigration numbers, that would leave about 550,000 spots for regular and work-based immigrants. If those were divided fifty-fifty, that would double the current number of opportunities for work-based immigrants while still providing ample opportunities for family-based immigration and for others who wish to come to the United States.
Creating a “normal” path to citizenship would be a very important step in meaningful immigration reform. This is what most people think of as the traditional process of immigration. Most Americans probably don’t realize that the traditional avenue of immigration is all but foreclosed by our current system. While past immigrants “waited their turn in line,” there is no line in which most of those aspiring to become Americans can wait with any realistic hope of gaining admission. By resurrecting that vital process, and increasing work-based immigration, we would greatly reduce the pressure for illegal immigration.
An example of people who could take advantage of a normal immigration path is members of the Chinese middle class, hundreds of thousands of whom leave China every year.16
They tend to be professionals and have some savings; but if they are not students or wealthy investors, don’t have special skills, or don’t have relatives in the United States, there is little prospect for them to emigrate to the States. Typical among them is Wang Ruijin, a secretary at a Beijing media company, who lamented that to “get along here [in China] you have to be corrupt or have connections; we prefer a stable life.” She and her husband plan to send their daughter to school in New Zealand, in the hope that it will open the door for the entire family to leave. Because the United States
does not have an option for such immigrants, we are losing out on many hardworking people who would enrich our country.
The overall immigration process would be further enhanced if the immigration agency could project an estimated waiting time, assigning numbers and personal representatives so that aspirant immigrants can make plans and stay informed on the status of their applications. That would be especially helpful for work-based visa holders who are often in immigration limbo, not allowed to change jobs and having no idea when or whether they will be able to obtain green cards. A reformed immigration process should embody the two essential elements of an efficient, functioning system that promotes the rule of law: certainty and predictability.
We would divide the increased number of work-based visas between highly skilled workers and a guest-worker program for less-skilled workers. For both types of workers, we should create a clear path for citizenship.
One major flaw in our current system is that foreign students gain valuable postsecondary education in the United States and then are not able to obtain work visas. Likewise, highly skilled workers obtain work visas but then cannot obtain green cards. Two important changes would be enormously helpful in increasing
the supply of skilled immigrants. First, students who obtain advanced degrees in the STEM fields—science, technology, engineering, and mathematics—should automatically be entitled to work visas if they obtain jobs in those fields following graduation. That employment should not solely be tied to large companies, but should include small companies and start-ups that are such dynamic forces in our economy. Second, workers in especially important occupations requiring specialized skills should be given green cards after a specified time, and they should know that up front.
Some countries are using point systems to determine entry priorities for immigrant workers with special skills. We believe the immigration agency should be able to establish priorities based on objective criteria including skills that are in particular demand and unemployment rates in specific occupations. In that way, our immigration system will enable us to meet our most urgent needs while not exacerbating unemployment.
Reform also should encompass entrepreneurs. Current law provides for a small number of short-term EB-5 visas for foreigners who invest $500,000 in distressed areas. If the investment creates at least ten new jobs, the visa converts automatically to a green card. In 2008, 945 immigrants invested $400 million under
the program. Similarly, a proposed StartUp Visa Act has bipartisan support. It would give two-year visas to foreigners who are able to attract $250,000 in capital from American investors. If they create five or more jobs and exceed $1 million in revenues or new capital, the visa is converted to a green card.17
We favor all of the above, in unlimited numbers. We cannot have enough new investors. But we are mindful of the fact that the vast majority of the founders of immigrant-created start-up businesses came not as investors or entrepreneurs but as students or workers. Student visas should be plentiful and readily accessible, not only for the talent that many foreign students bring as possible future Americans, but for the goodwill toward America they engender if they return to their native countries. In this regard, private universities provide an excellent screening mechanism to bring in the most talented students, eliminating the need for government to make such determinations.18
Similarly, a guest-worker program linked to market demand is an essential part of fundamental immigration reform. The temporary guest-worker visa should be renewable on an annual basis so long as the work relationship continues. If jobs disappear, the number of guest-worker visas will decline as well.
The Krieble Foundation advocates a “red card” program, in
which temporary foreign workers would be matched in a computer database with prospective employers. The employees would then be issued a red card with a microchip that allows immigration authorities to monitor entry and exit, and can be used by the employer to verify eligibility. Guest workers would be subject to all applicable laws such as minimum wage and payroll taxes. Such a policy would ensure an adequate but not excessive flow of temporary workers for the many jobs that cannot easily be filled by native-born workers—and again allows the market, rather than the government, to determine which skills are needed and which workers are best suited to provide them.
A temporary guest-worker process also allows us to “test-drive” future American citizens. Current law requires temporary workers to declare their intent not to immigrate to the United States.19
That makes no sense given that the guest-worker program provides a chance for visitors to demonstrate the qualities we desire for American citizenship. We believe that after five years of working pursuant to renewable temporary work visas, guest workers should be entitled to green cards if they have obeyed the law and paid taxes. Many guest workers intend to perform only seasonal work in the United States, so this will not necessarily provide an incentive for them. But by establishing a path to citizenship
for those who follow the rules and benefit our country, we remove yet another perverse incentive for illegal immigration for those who would like to remain in the United States permanently.
One more reform is absolutely essential: numbers for work-based visas should be automatically adjusted, using similar objective criteria, on an annual basis to reflect changes in market needs. Most countries’ immigration numbers adjust to changed conditions; ours, by contrast, are cast in stone.20
The recent experience with the expiration of increased numbers for high-skilled work visas—which shrunk the number by nearly two-thirds—caused severe shortages of skilled workers. Yet at the time the numbers expired, Congress was politically paralyzed on immigration issues and unable to act. We cannot afford to risk future supply of skilled workers on ever-shifting political vagaries. By establishing objective criteria pursuant to which automatic numerical adjustments are made, we create a demand-based immigration system that we might call the Goldilocks system: never too hot, never too cold, and always just about right. Any future Congress could, of course, adjust the formula. But the point is that appropriate shifts in immigration numbers would not require congressional action and thus would not be subject to the vicissitudes of politics.
Increasing legal outlets for work-based immigration should
eliminate any excuse for employers to hire illegal immigrants. As a result, existing employer sanction laws should be aggressively enforced. Employers who disobey the law have an unfair advantage over competitors who comply. The immigration agency should be empowered to use whatever technology it deems appropriate to maximize adherence to the law, such as E-Verify, which checks identification against federal databases. Currently, only a tiny fraction of employers voluntarily participate21
and just one in eight prospective employees are checked through E-Verify, even though 92 percent of requested ID checks are dealt with instantly. That system has the potential to be improved sufficiently that it could be made mandatory.22
At the same time, employers must be offered a safe harbor to ensure that if they cooperate with whatever system is in place, they will not be penalized if the system fails. A comprehensive immigration reform law should allow administrative flexibility to reflect technological advances in employee status verification, while at the same time requiring the federal government to extend a safe harbor to employers who comply in good faith.
For all forms of immigration, the current restrictions on government benefits should remain in effect. Indeed, as we will discuss below, we believe states should be given greater latitude in setting rules for government benefits. It is vitally important to the
success of our immigration system, and to sustain public support for that system, that immigrants come to the United States for the right reasons: for freedom and opportunity, not welfare.
Making these changes will transform our immigration system into one that serves America’s needs and interests and that proclaims to the world that we remain a land of opportunity. They will enable us to compete more effectively with countries that already have made important changes to their immigration system, and will harness the energy of immigrants to grow our economy. They also will remove the incentives to immigrate illegally.
This is the type of immigration policy we need to sustain our status as the greatest nation in the world.
3. AN INCREASED ROLE FOR THE STATES
Many histories of American immigration policy largely overlook the fact that for most of America’s first century, immigration policy was almost entirely the exclusive domain of state authorities.23
The Constitution assigns authority to Congress over naturalization, which is quite distinct from immigration. Of course, the federal government has exclusive constitutional domain over foreign policy and commerce, and it would not do us very well to
have fifty different immigration policies. It makes little sense even to contemplate such a scenario given that the U.S. Supreme Court repeatedly has recognized the federal government’s hegemony over immigration.
Acknowledging that the federal government should and does have primary authority over immigration policy does not mean, however, that it cannot or should not elect to share that authority with the states in ways that make sense. It does so to a limited extent already. Were Congress to expressly authorize the states to play a larger role, in our view it not only would improve our nation’s immigration policy but also could greatly increase the odds for broader political buy-in for positive comprehensive immigration reform.
Our federalist system envisions policy differences among the states, reflecting different needs and priorities and fostering innovation and competition. In particular, states have varying needs, interests, and priorities when it comes to immigration. An agricultural state, for instance, might have a greater need for seasonal workers. States with high-tech industries might want to boost the number of visas for highly skilled workers. States that have generous welfare systems might have an interest in limiting immigrant access to those services—or they might choose as a matter
of policy to make those benefits even more widely available. Still others might want to minimize the impact of immigrants on their economies. Allowing some variance among the states to reflect their respective priorities would mark an important innovation in immigration policy that builds upon the strength and vitality of our federalist system.
Above all, the relationship between states and the federal government in enforcing immigration policy should be as partners, not as adversaries. Unfortunately, the reverse has been true over the last several years. Perhaps nothing could do more to improve immigration policy than strengthening expanding state autonomy and the cooperative relationship between states and the federal government when it comes to immigration.
We think such flexibility makes sense in two principal areas.
The first is social services. The notion that immigrants should come to America for opportunity, not for welfare, has been a cornerstone of national immigration policy from the beginning—indeed, long before we developed an extensive network of social benefits. The concept that newcomers should earn their own keep must remain a vitally important baseline principle of American immigration policy—not only to generate public support for immigration but to ensure that the long-term economic consequences
of immigration remain positive. Under federal law, illegal immigrants are entitled only to K–12 education and emergency medical services, and even legal immigrants are not immediately eligible for most social welfare programs. Children born in the United States, however, are citizens and therefore entitled to social services.
Despite limited eligibility, costs are substantial. Thirty-seven percent of immigrants receive some welfare benefits, compared to 22.5 percent among the native population. The percentage of immigrants receiving welfare assistance varies dramatically among the states—in Virginia, welfare beneficiaries represent only 20.2 percent of the immigrant population, compared to 48.1 percent in Minnesota.24
States already have a significant amount of flexibility when it comes to providing benefits to illegal immigrants and setting requirements for legal immigrants to secure benefits.25
Because states bear the major cost of most social welfare benefits—especially education and health care—they should be given even greater flexibility.
This is why the Obama administration’s attempt to coerce states to adopt a major Medicaid expansion as part of its national health-care program had the effect of inflaming anti-immigration sentiment. Although the administration assured the states that illegal
immigrants would not be eligible for Medicaid benefits, their children who are born in the United States are eligible because they are citizens. Moreover, if illegal immigrants are offered a path to citizenship or permanent legal residency, eventually they will become eligible as well. Fortunately, the U.S. Supreme Court struck down the Medicaid expansion by a 7–2 vote as unduly coercive and therefore contrary to constitutional principles of federalism. The proposal should not be resurrected.
Instead, Congress should confer express authority on states to determine which services should be provided to immigrants, both illegal and those who have not yet acquired permanent legal residency or citizenship, and under what terms and conditions they may receive those services. States should be allowed to determine reasonable durational requirements and/or user fees for services, that is, require that immigrants contribute to tax revenues for a minimum period of time before becoming eligible to receive social services, or require that they contribute to the cost. In particular, as to emergency medical services—which must be made available to everyone under current federal law—states should be allowed to define which services are covered, so that emergency rooms are no longer used to obtain nonemergency care at great taxpayer expense.
If the opportunity to immigrate is decoupled from welfare entitlements, and if states are given broad latitude to determine eligibility for or offset the costs of such programs, it likely will increase public support for immigration reform while at the same time encouraging immigrants who are coming to work. Ultimately, those who contribute to public coffers should be eligible on an equal basis for social services. But the more we expand eligibility, the greater the burden we place on those resources and those who pay for them. As the entities that shoulder most of the burden, states should have maximum flexibility to decide who qualifies for their services and under what circumstances.
The second area in which the states should be given more flexibility is law enforcement. Policing immigration is a big job—one that we believe will shrink considerably if we fix our overall immigration policy, but a challenging job nonetheless. Illegal immigrants who commit crimes should represent a top law enforcement priority both nationally and locally. Indeed, it is an evasion of federal responsibility to allow illegal immigrants to prey on people and property. Likewise, immigrants who are here lawfully but engage in crimes should be removed.
Indeed, illegal immigrants who commit crimes and are not removed are highly likely to commit additional crimes. The Judiciary
Committee of the U.S. House of Representatives found that 7,283 illegal immigrants who were not detained after a first arrest went on to be arrested on 16,226 charges, including 1,800 serious offenses such as murders and sex crimes.26
The combination of illegal status and the commission of a crime automatically should be enough for deportation; even those who are in our country legally should be deported if they commit serious offenses.
Since 1996, the federal government has been authorized to enter into agreements with state and local police to help enforce immigration laws.27
Federal authorities have deputized law enforcement authorities in more than half the states to check the immigration status of people arrested for serious crimes.28
Those programs should be available, along with adequate training, to every state or local entity that desires such an arrangement. Federal authorities should be obligated to initiate and prosecute deportation proceedings against any noncitizen immigrant, whether that person is here illegally or on a temporary visa, who has committed any violent crime, a serious property crime, or a serious crime involving fraud. Local governments and their residents bear the financial and human costs of such crimes. If the federal government is to have authority over immigration policy, it also must have the responsibility and obligation to enforce it. Greater
coordination between local and national agencies is essential to effective law enforcement.
States that share borders with other countries also should have the latitude to deploy National Guard units as necessary to enhance border security. Of course, any such state and local efforts must be subordinate to federal supervision and control. But if states and local governments believe that federal resources are inadequate to police their borders, they should be allowed to supplement those resources with their own.
Finally, states should be allowed to protect the integrity of the franchise with voter identification laws, which are supported by a large majority of Americans, including Hispanics.I
So long as states make it simple for citizens to obtain such forms of identification,
they should have the latitude to require such identification for voting or to secure welfare benefits. Again, some states will not create such requirements; but others will, and they have very strong justifications to do so. The U.S. Court of Appeals for the Ninth Circuit struck down Arizona’s voter ID law on the grounds that states may not add requirements to federal voting laws.29
The U.S. Supreme Court granted review in that case and likely will issue a ruling around the time this book goes to print. Regardless of the outcome, Congress can and should authorize states to create such identification requirements. Rather than bringing the weight of the federal government down on them for exercising the most basic attributes of state sovereignty, our federal immigration law should expressly recognize that central prerogative.
Although much of the attention on state-based immigration action has focused on Arizona and other states that have attempted to restrict benefits and ratchet up enforcement, Utah illustrates a different direction that some states might choose if given greater autonomy. In 2011, Utah enacted a package of laws calling for stricter enforcement of immigration laws, a guest-worker program to meet the state’s labor needs, and fines or work permits for unauthorized workers.30
Some of the measures are probably illegal under current federal law and U.S. Supreme Court precedents. But
Utah’s desire to travel a different road than the state to its south illustrates the desirability of giving states some flexibility in making adjustments to a one-size-fits-all immigration system.
We believe that giving states greater autonomy over immigration-related policies—not as an afterthought but as a core component of comprehensive immigration reform—could mark a significant breakthrough in the impasse over immigration policy. Likewise, replacing the adversarial relationship between the federal government and the states with a genuine partnership would make for far more effective immigration policy.
4. DEALING WITH CURRENT ILLEGAL IMMIGRANTS
No comprehensive immigration plan can ignore the many millions of people living illegally in the United States. This is the issue on which the core values we discussed in the last chapter intersect most sharply: we need to treat those who have settled in our country illegally with compassion and sensitivity, yet without sacrificing the rule of law that is vital to our national fabric. The wholesale amnesty granted in the 1980s promoted the first of those values while abandoning the second, with the
all-too-predictable result that millions more illegal immigrants came into the country.
This time, we need to vindicate both core values. On one hand, we should try to put ourselves in the shoes of people who have entered the country illegally: they often faced impossible economic circumstances in their native countries, with a bleak future for themselves and their families, yet had no realistic process of immigrating lawfully to this country. On the other hand, allowing people to immigrate illegally without consequence while millions of others wait to enter through lawful means is manifestly unfair. Moreover, it creates a strong incentive for illegal immigration while sending a signal that we do not really value the rule of law.
The challenge regarding people who are here illegally has two very different components: those who illegally entered as adults, and those who came as children. We believe that under our Constitution, children born within the boundaries of the United States are citizens, so we do not address that issue, because that status can be changed only by constitutional amendment.
Many illegal immigrants who entered as adults are well-established, hardworking members of their communities. By definition, though, they live in the shadows of society. “Although they live among us, pay sales taxes and property taxes like us and
even perform labor for us, laws mandate that they must be ‘apart’ from us,” writes W. Randall Stroud, a North Carolina immigration lawyer. “It is illegal for them to work alongside us in most of our jobs, to drive cars in almost all states and in some states to go to universities with the same friends who were in their high school classes.”31
When the recession hit in the last decade and efforts to identify and deport illegal immigrants were stepped up, many immigrants literally disappeared from their homes in the dead of night. Much of the information about them is anecdotal. It appears that many families had both legal and illegal members. Some moved from one state to another; others returned to their native countries. In many instances, their departures exacerbated the economic crisis when immigrants abandoned their homes and stopped paying taxes.
It is in no one’s interest for illegal immigrants and their families to live in the shadows. We need everyone to participate in the mainstream economy, to pay taxes, to participate openly in their communities, to be willing to report crimes—that is to say, to be accountable, responsible members of society. That cannot occur when people fear they will be arrested if their immigration status is known.
We propose a path to permanent legal resident status for
those who entered our country illegally as adults and who have committed no additional crimes of significance. The first step in obtaining that status would be to plead guilty to having committed the crime of illegal entry, and to receive an appropriate punishment consisting of fines and/or community service. Anyone who does not come forward under this process will be subject to automatic deportation, unless they choose to return voluntarily to their native countries.
Once immigrants who entered illegally as adults plead guilty and pay the applicable fines or perform community service, they will become eligible to start the process to earn permanent legal residency. Such earned residency should entail paying taxes, learning English, and committing no substantial crimes.
Permanent residency in this context, however, should not lead to citizenship. It is absolutely vital to the integrity of our immigration system that actions have consequences—in this case, that those who violated the laws can remain but cannot obtain the cherished fruits of citizenship. To do otherwise would signal once again that people who circumvent the system can still obtain the full benefits of American citizenship. It must be a basic prerequisite for citizenship to respect the rule of law. But those who entered illegally, despite compelling reasons to do so in many
instances, did so knowing that they were violating the law of the land. A grant of citizenship is an undeserving reward for conduct that we cannot afford to encourage. However, illegal immigrants who do wish to become citizens should have the choice of returning to their native countries and applying through normal immigration processes that now would be much more open than before.
This proposal combines the two features necessary for successful immigration policy: it provides an option that is sufficiently certain and attractive that illegal immigrants will pursue it, while also imposing sufficient penalties as to uphold the rule of law. This proposal is not amnesty by any ordinary meaning of that term. Amnesty allows people to escape consequences for unlawful conduct. Our proposal imposes two penalties for illegally entry: fines and/or community service, and ineligibility for citizenship. Yet it allows for illegal immigrants who have proven themselves to be otherwise law-abiding members of the community to remain in our country. It preserves families and communities, and it provides security and permanency. It brings sunlight to the shadows.
Illegal immigrants who were brought to this country as children present a very different situation. Entering the country illegally requires an intent that we cannot ascribe to children when
they were under the control of adults. They are not responsible for the wrongdoing of their parents. Most children and young adults who have been here a long time speak English as their primary language, their friends and many of their relatives are here, and they know no other country. They are Americans in every way except legal status.
Most efforts to deal with this issue have revolved around the DREAM Act, which if Congress had enacted would have granted permanent residency status to young people who were brought into the country illegally, resided here for at least five years, and earned admission to a postsecondary institution. Rather than leading the charge for legislative action, President Obama dressed up a quasi–DREAM Act in the guise of discretionary law enforcement policy. Unfortunately, that executive action leaves those who take advantage of the policy in a continuing state of uncertainty by conferring no definite or permanent legal status.
We believe the ideas encompassed in the DREAM Act and President Obama’s executive order should be made part of fundamental immigration reform. We especially like one aspect of the President Obama’s policy: encouraging the completion of high school or a GED by providing legal immigration status. Many Hispanic-American children are doing poorly in school, and
roughly half drop out before graduation. Since Obama announced his policy, many young Hispanics who were brought illegally into the United States have been working to qualify for GEDs to avoid deportation, which obviously is a positive development both for the kids and the country.32
Given the educational challenges facing many Hispanics, we think that predicating legal immigration status on earning a high school diploma or its equivalent is an inspired idea.
Indeed, we would go further than President Obama’s policy by creating a clear and definite path to citizenship. As an overall policy, we propose that those who were brought illegally into the United States under the age of eighteen, who have resided in the United States for at least five years, and who have committed no significant crimes also should be entitled to permanent legal residency, without having to plead guilty to a crime or suffer legal consequences. We do not intend such a policy to provide refuge to young people who come to the United States on their own volition and want to step in front of the line. Rather, the policy should extend to those young people who have been here long enough to consider themselves Americans.
Beyond that, those young people who graduate from high school or its equivalent, or who enter military service, should
thereafter receive a green card. By residing in America since they were children, committing no crimes, and earning a high school degree or volunteering for military service, those young people will have demonstrated the qualities we want in American citizens. Such a plan provides certainty and stability for young people who have done nothing wrong and who fully deserve the benefits of American citizenship.
Dealing on an ad hoc basis with immigrants who entered the country illegally does not provide a permanent solution for the immigrants nor for the nation as a whole. We need to address this problem in a fair, firm, and comprehensive way, while at the same time fixing our immigration processes so that in the future, millions of people do not feel the need to enter our country illegally because there are no viable means for them to do so lawfully.
5. BORDER SECURITY
Unfortunately, there is only one method to prevent illegal immigration that repeatedly has proven itself effective, and it is a “cure” that is worse than the disease: a bad U.S. economy. Immigration is tremendously sensitive to market forces. A long and deep economic recession has accomplished what the erection
of border fences and massive increases in U.S. Border Patrol resources could not: reducing net migration from Mexico to zero or less.
Many on the right say that we must secure the border before we do anything to reform our immigration system. The fact is that we can’t do one without the other. Although border security is an essential component of broader immigration reform, broader immigration reform also is an essential component of border security.
Demanding border security as a prerequisite to broader immigration reform is a good slogan but elusive on the details and measurements. What do advocates of such an approach mean by “operational control” of the border? That not a single immigrant will cross illegally? That no illegal drugs will cross the border? That no terrorists will enter our country? What exactly is the magic moment we must wait for before we can fix the broken immigration system?
We have already taken greater efforts to stem illegal border crossings than ever before. The number of Border Patrol agents increased from 11,000 in 2006 to more than 17,000 in 2009, which is five times the number of agents in place twenty years ago.33
We have built hundreds of miles of fence supplemented by high-tech
surveillance. Deportations of illegal immigrants increased to a record level of 319,000 in 2011.34
Those efforts, combined with greater enforcement of immigration laws against those residing in the United States, a deep and lingering American economic recession, and improved economic conditions in Mexico, have significantly stemmed the flow of illegal immigrant border crossings. Unfortunately, they also have had the effect of changing the way that migrants come to the United States—instead of crossing the border and returning to their families on a regular basis, increased numbers have remained in the United States and brought their families here.35
Nor are illegal crossings the sole source of illegal immigration. The Pew Hispanic Center found that nearly half of illegal immigrants initially crossed the border legally and overstayed their visas.36
We need to swiftly deport individuals who overstay their visas rather than allowing them to stay indefinitely or to pursue multiple appeals. Our failure to enforce visa requirements is one of the major causes of large numbers of illegal immigrants residing in the United States for substantial periods of time.
For that same reason, true border control requires not only detection of illegal crossings but also an effective system to monitor those who enter lawfully. And that requires immigration policy
reform that goes beyond fencing the border and placing more boots on the ground. Still, the bottom line is that today there is no avalanche of illegal immigration. To emphasize halting illegal immigration as a cornerstone of immigration reform is fighting yesterday’s war.
None of this is to say that we do not have a border security problem. Quite the contrary. But the nature of the probl