Wednesday, February 8, 2012

True Immigration Reform: Bringing Immigration Law in Synch with the U.S. Labor Market

In the presidential primaries and state legislatures across the country, immigration reform once again has proven to be the proverbial hot potato. Republican presidential candidate Mitt Romney now champions policy measures facilitating “self-deportation.” Others, including President Obama, advocate a “path to legalization” for undocumented immigrants. The gulf between these two divergent reform proposals is vast, with passions running high on both sides.

Unfortunately, few policy-makers advocate addressing the basic problem with the U.S. immigration laws – that they long have been out of synch with the nation’s labor needs. Until the nation reforms its immigration laws to address the needs of the U.S labor market – and the demand of employers for workers, we will not adequately reform an immigration system that many have characterized as “broken.”

In the middle of the Cold War, Congress passed the comprehensive U.S. immigration and nationality law, the Immigration and Nationality Act of 1952 (INA). The law was a product of the times and almost annual reforms in the last 50+ years have failed to change it much. Focused on the communist threat, the INA was founded on a deep and enduring suspicion of foreigners and built a plethora of roadblocks to keep prospective immigrants out of the country, including political, economic, and other litmus tests. In the formulation of the INA, labor market and employment considerations were not at the center, or the periphery. Congress never amended the INA to, at a fundamental level, ensure that the laws comport with the nation’s need for workers. Today, the U.S. immigration laws provide many more avenues for family-based than employment-based immigration.

As the social science research makes clear, undocumented immigrants come and remain in this country because of the availability of jobs. Employers often demand low- and medium-skilled labor. That labor is in abundance in other nations, including in our southern neighbor Mexico.

The problem is that the U.S. immigration laws make it much easier for highly skilled, such as Nobel Prize winners, professional athletes, and many of those with advanced degrees, to secure an employment visa, but offer few legal avenues for immigration to low- and medium-skilled workers. Absent a family member in the United States, most workers do not have a way to come legally to this country. Thus, to say that “they should wait in line like everyone else” exhibits a fundamental misunderstanding of the U.S. immigration laws: the law provides no line for many, perhaps most, would-be immigrants seeking jobs to wait in.

Moreover, some skilled immigrants often face impediments to legal immigration. Bill Gates has testified before Congress on the need to increase the numbers of high-skilled immigrants – engineers are what he had in mind -- coming to the United States. This, he claims, is necessary to ensure U.S. competitiveness in the global economy.

The lack of legal avenues for many workers to come to the United States is an incentive for foreign citizens who want jobs and access to the U.S. economy to circumvent the immigration laws to come to this country. At least in good economic times, jobs are available, especially in agriculture, restaurant and hotel, the domestic service industry, and other sectors of the economy. Valued in these job markets, undocumented immigrants get these jobs. There just is not the legal avenue for many foreigners to come to the United States and take those jobs.

There obviously are other important contributors to undocumented immigration. The operation of annual limits on migration from high-migration countries, such as Mexico, the Philippines, India, and China, can mean that a noncitizen may be required to wait many years – even decades -- to rejoin family in the United States. Foreign citizens come to this country because they have suffered, or fear, political, religious, or other persecution in their homelands. Nonetheless, jobs are the predominant reason that many immigrants, legal and not, come to the United States.

As a direct result of the limited avenues for workers to come lawfully to the United States, the nation currently has an estimated undocumented population in the neighborhood of 10-12 million. The population appears to have decreased somewhat, which probably should be attributed more to the tightness of the current job market rather than any border enforcement measures. This logic seems evident once one considers that the undocumented population doubled from around 5-6 million in the early 1990s to around 10-12 million in 2008. This occurred despite unprecedented immigration enforcement efforts, such as military-style border operations – with tens of thousands more “boots on the ground” -- in the U.S./Mexico border region, record-levels of deportations and detentions of noncitizens, and a plethora of security measures directed at noncitizens after the tragedy of September 11.

The truth of the matter is that, when the U.S. economy was good, the undocumented population grew. When the economy tanked, it decreased. The reason for the difference was the relative availability of jobs.

Unfortunately, virtually all of the immigration reform proposals fail to address the labor market phenomenon at the core of immigration. The Mitt Romney “self-deportation” plan (as well as many of the state immigration enforcement laws) champions policies that make the lives of undocumented immigrants – and many others, including U.S. citizens who are Latino – as difficult as possible so that they will “self-deport.” However, the quest for jobs and a better life for one’s family are unlikely to be deterred by, for example, increasing the numbers of immigrants deported for petty crimes (or no crimes but simply arrested and deported). It intuitively seems unlikely that migrants who were undeterred by border enforcement efforts and risked their lives to cross the United States/Mexico border, would “self-deport” because their lives here were merely being made uncomfortable.

Similarly, it is true that a “path to legalization” might ease some of the difficulties faced by a “shadow population” of undocumented immigrants in the United States. One of the many versions of the DREAM Act would be savior to undocumented college students. While I support both measures in principle, we need to make forth deeper and more fundamental changes to the U.S. immigration laws to truly address the causes of undocumented immigration.

Valuable lessons may be learned from the nation’s experience with the Immigration Reform and Control Act (IRCA), which President Reagan signed into law in 1986. Some might see IRCA as the 1980s equivalent to today’s proposed “comprehensive immigration reform.” IRCA provided for increased enforcement measures, including provisions for the sanctioning of the employers of undocumented immigrants (known as employer sanctions), an “amnesty” program for undocumented immigrants, and guest worker programs. Supporters proclaimed at the time that IRCA was the solution to the nation’s immigration woes, including undocumented immigration. The reform, however, did not include any fundamental changes to the employment provisions for legal immigration.

The result of the 1986 reforms was that, while enforcement was increased and hundreds of thousands of undocumented immigrants regularized their immigration status, the incentives for undocumented immigration did not change under the law. As described above, many would-be immigrants found it difficult to lawfully come to the United States to work and, in the last 25 five years, millions have circumvented the laws to do so.

Some critics claim that the U.S. government has failed to enforce the immigration laws, including employer sanctions under IRCA. However, sanctions have proven difficult to implement, with employers unhappy about the paperwork and prospective employees concerned with discrimination against perceived undocumented workers. Despite monumental efforts, the nation over many years has sought, but ultimately failed, to come up with a computer database, including the federal E-Verify system, with a sufficiently low error rate that would make it easier for employers to check the employment authorization for workers and applicants. Construction of a system that does not have a high error rate does not appear to be on the horizon.

The nation’s experience with IRCA suggests that piling on enforcement provisions in hopes of encouraging “self-deportation,” or granting relief to today’s undocumented immigrants, will not solve the nation’s immigration concerns. Any reform proposal that does not address the pull of jobs and the needs of the American labor market is likely to fail in the long run. As with the IRCA experience, eliminating an undocumented population, without more, will not prevent the emergence of a new undocumented population.

What the United States needs is an immigration system that recognizes that hard-working people want to come to the United States for jobs and makes it easier for hard-working people to lawfully come to the United States for jobs. The laws should recognize the labor needs of employers and the global thirst for work in the American economy. Making it easier for larger numbers of low-, medium- , and high skilled workers to immigrate would be a good start. This would represent a much-needed move away from the dark suspicion of foreigners embedded in the Immigration and Nationality Act.

If I am right, the immigration enforcement laws like those passed in Arizona, Alabama, Georgia, South Carolina, and other stated will result in great cost to immigrants and the state economies but will not ultimately address the issues contributing to undocumented immigration. It also means that a reform measure providing a path to legalization for undocumented workers, or the DREAM Act for undocumented college students, will have limited – even if positive -- impacts. The nation needs more fundamental change in the immigration laws.


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