The Great US Immigration Policy Debate

01 October 2006

Austin Fragomen, Fragomen Del Rey Bernsen & Loewy LLP

Whereas casual observers see the debate as simply pro- or anti- immigration, the issues are actually far more complex and require more in-depth analyses than the rhetoric heard through the news media. Moreover, because the US immigration policies often have humanitarian and economic ramifications, the debate tends to rely on the anecdotal replete with emotional arguments, as opposed to analytical data. This debate is expected to continue after the 2006 election in the United States and even during the new session of Congress which begins in 2007.

The discussion addresses some of the major issues that congress and the Bush administration must resolve in order to ‘reform’ the immigration system. These issues include: (i) whether and to what extent visa programmes should be expanded to legalise the presently undocumented workforce or admit additional low-skilled labour; (ii) how to reform the immigration system so that it supports national interests by encouraging the recruitment and retention of highly skilled professionals; (iii) what resources are needed to achieve border security and effective interior enforcement; and (iv) what role the executive branch should play in bringing about these reforms. The issues are familiar to countries with a significant population of undocumented immigrants.

Enforcement only Versus Comprehensive Reform

The central issue in the debate over immigration reform is whether it should take the form of stricter enforcement of laws to enhance the consequences of illegal activity, or whether reform must include steps to legalise the as-yet undocumented workforce and provide for a future influx of additional workers seeking employment that requires a low degree of skill. The House of Representatives and the Senate each passed a bill that reflects this ideological difference. On 16 December 2005, the House passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (HR 4437). HR 4437 represents the view that the United States must strictly enforce the law against undocumented immigrants, the smugglers who enable their entry into the United States and the employers who hire them before considering any guest worker or legalisation measures. On 25 May 2006, the senate passed the Comprehensive Immigration Reform Act of 2006 (S 2611). The senate version also contains enhanced border and interior enforcement provisions, but includes both a temporary guest worker programme that could lead to permanent residence for many immigrants, as well as a programme that could enable some undocumented workers to legalise their status.

One argument in favour of the Senate’s approach is that, in order for the estimated twelve million undocumented immigrants to come out of the ‘shadows’, there must be sufficient incentive in the legalisation programme for them to do so. Moreover, proponents of the Senate bill argue that it is simply impractical to deport twelve million people. Businesses that employ low-skilled workers argue that the economy needs a programme that supplies the necessary workforce for jobs that Americans would not do. Supporters of the House approach, on the other hand, point to the Immigration Reform and Control Act (IRCA) of 1986 and assert that not only did the IRCA’s amnesty provisions fail to stop further illegal entries, but the undocumented population has in fact quadrupled since its enactment.

A third approach, one that was not included in either the House or the Senate bills, is to strengthen enforcement and create a truly temporary guest worker programme without a path to permanent residence. Senate immigration subcommittee chairman John Cornyn of Texas and senator of Arizona Jon Kyl introduced a bill that grants temporary worker status to foreign nationals seeking to enter the United States upon certification of an unavailability of US workers. The worker would be allowed to remain for two-year segments with oneyear absences for a maximum of six years. Workers already present in the US would be required to leave the United States after a maximum of six years and apply for a visa abroad. Proponents of this proposal say that the Cornyn–Kyl approach is more ‘fair’ to those legal immigrants who must wait for several years to work legally in the US under present laws. Senators Cornyn and Kyl further argue that their bill promotes circular migration, thereby infusing capital into the sending countries’ economy. Opponents of the Cornyn-Kyl approach argue that a guest worker programme without a path to permanent residence is tantamount to ‘report to deport’, and that the undocumented workers would never participate. In addition, many businesses object to the Cornyn–Kyl approach because employers would have to bear the cost of having to train new workers on a regular basis.

During the summer of 2006, rather than meeting with Senate counterparts to iron out differences in the bills, the House leadership directed various committee chairmen to hold a total of 22 hearings across the country on immigration reform. In September of 2006, the House passed a number of smaller bills dealing with specific border security and interior enforcement issues but did not tackle the larger comprehensive legislation. The Senate in general has been willing to accept some of the House proposals to increase enforcement resources and create physical barriers at the border, but not the proposals to enhance penalties against undocumented immigrants outside the context of comprehensive reform.

Most observers believe that the ideological divide between the House and Senate is too wide to reconcile. Talks of a compromise, however, is expected to continue after the 2006 mid-term election. Among the possible compromises would be a trigger in the Senate bill where enforcement provisions would become effective first, and the guest worker and legalisation provisions would follow after certain enforcement goals were achieved. Another proposal, from Mike Pence, representative for Indiana, is for the undocumented workers to depart the United States, before being reprocessed for admission abroad in privately run ‘Ellis Island Centers’.

Recruitment and Retention of Top Talent

To understand the importance of recruiting and retaining highly educated foreign professionals, one must consider first the significant role that personnel mobility plays in our global economy. Its global nature has blurred national boundaries, allowing – or in some cases, forcing – companies to look beyond the talent pool in their respective home countries. Access to talent is a key component of corporate strategic planning, and the success of a company’s operations within any given country depends significantly on whether that country’s political policies foster or impede the mobility of personnel. Global competition for top talent is intense.

Visa quotas reserved for the highly skilled professionals are insufficient to fulfil America’s business needs. For example, the fiscal year 2007 quota for temporary entry visa of highly skilled professionals, or H-1B visas, was exhausted four months before the fiscal year even began (under regulatory procedures it is permissible to file H-1B petitions six months in advance of the commencement of the fiscal year). Furthermore, the permanent resident visa categories for employmentbased immigration, including categories for persons deemed to have extraordinary ability or whose presence is deemed to be in the national interest, have been severely backlogged.

Several lawmakers, as well as the White House, have recognised that the inability to either recruit or retain highly skilled professionals is a separate issue from the overall immigration reform that was addressed earlier in this discussion. In his 2006 state of the union address, President Bush introduced the American Competitiveness Initiative (ACI) to encourage innovation. Having access to the best and brightest talent globally is an integral part of the ACI. In addition, Senator John Cornyn of Texas and Representative John Shadegg of Arizona introduced identical bills to help American businesses recruit, as well as retain, highly skilled individuals from the global talent pool. The legislation, the Securing Knowledge, Innovation and Leadership (SKIL) Act, would inter alia exempt advanced degree holders from US institutions from the H-1B visa quota and allot advanced degree holders from universities abroad a separate H-1B quota. US advance degree holders and persons with graduate degrees in science, technology, engineering and mathematics would be exempt from the permanent resident visa quotas. These provisions are also included in the Senate passed bill, S 2611. The heated debate over guest workers has diverted much attention away from reforming these categories for highly educated workers. Those adversely impacted by the visa shortage in these categories would like to see the issue addressed in the context of economic growth and competitiveness, and not just a small piece of comprehensive immigration reform.

Committing Sufficient Resources to Enforcement

Amid the disagreements, both Congress and the Bush administration agree on enhancing border and interior enforcement. Both the House and Senate bills provide for enhanced technology, the construction of fences, additional border agents and greater penalties for assisting in the illegal crossing of borders. In addition, as part of the Senate- House agreement on the Department of Homeland Security Appropriations bill, Congress appropriated a total of US$21.3 billion dollars for fiscal year 2007 to enhance border security, interior enforcement, and employment eligibility verification. The administration has also responded to the problem of illegal crossings by pledging to add six thousand new US border patrol officers by 2008, and by deploying national guardsmen to assist border patrol in the interim.

The House and Senate bills also agree to increase enforcement at the worksite. In addition to increasing the number investigators and raising fine amounts, the house and senate bills require all employers to participate in an electronic eligibility verification system. In the first half of fiscal year 2006, there were just over six thousand employers actively participating in the pilot verification system, ‘basic pilot’. Once this system is mandatory, the number of participants would escalate to an estimated seven million, which is the approximate total number of employers in the United States. The anticipated surge in usage is a major cause of concern. A Government Accountability Office (GAO) study found that around 15 per cent of all basic pilot queries require human intervention to resolve. The expansion of the programme without vast improvements could exacerbate the extent of that inefficiency.

A recent study by the Society for Human Resource Management reveals that over 90 per cent of American employers surveyed would welcome an electronic verification system that is both accurate and efficient because it provides certainty. Experts familiar with electronic verification say that, to be efficient and accurate, the system must receive adequate funding, not only to expand the computer hardware so that it is able to process one thousand times the current participation, but also to ensure that all government databases are accurate so that the system does not provide erroneous responses. Furthermore, an accurate and efficient verification programme must have, as a necessary component, secure and machinereadable identification documents to curb identity fraud.

Governance: Leadership in Policy Making

Critics of the administration say that it has not provided sufficient guidance and leadership to immigration reform. They argue that the president should leverage his party’s control of the House, Senate and presidency to push through his immigration agenda. The president did outline broadly his comprehensive immigration agenda in May of this year. As part of that outline, the president identified five general principles as being central to his agenda: (i) securing America’s borders; (ii) a temporary worker programme; (iii) employment eligibility verification processes with biometric cards to foreign workers; (iv) a rational middle ground (though he did not specify where that middle ground was) between mass deportation and amnesty; and (v) assimilating new immigrants into American society.

On the enforcement front, the administration has been more precise in its agenda. One example is the aforementioned plan to enlist the aid of national guardsmen in securing United States borders. Another example is the increased efforts in cracking down on illegal employment and on employers who knowingly hire undocumented workers. The administration also supports the detention of undocumented migrants who are arrested at the border, and expanding the use of ‘expedited removal’ to streamline the deportation process for undocumented persons who either have no relief available or who had been deported previously. On more complex issues such as creating an ideal electronic verification system, however, the administration has not been as definitive and is placing responsibility over the issue’s details in the hands of Congress.

Likewise the administration has not been as clear on the comprehensive reform agenda. Aside from the five principles that the president has identified, the White House has not provided congress with any detailed outline regarding that agenda and has not offered an administration-backed bill. Instead, the White House is offering principles that are sufficiently flexible so that any number of legislative proposals could fit within its agenda. The result is not only a divided congress but also a divided Republican caucus on this issue. It has become apparent that the executive branch, with broad policy making authority and influence, must provide greater guidance to lawmakers.

Conclusion: The Right Direction

The debate over immigration will continue into the next year. Congress’s ability to reach a consensus will increase greatly if the administration takes the lead on key issues and drives the agenda. In the meantime, congress should take limited action to help American businesses and research institutions with better access to global talent by taking steps to remedy the visa shortage and backlog for highly educated professionals.

To have a truly workable guest worker or legalisation programme, the US government must improve its ability to stop illegal entry and employment. Adequate resources must go towards border enforcement. Further, the expansion of the electronic verification system could be one good way to achieve integrity in the immigration system. However, the US government must be willing to fund the expansion of the system’s capacity and to update all relevant government databases so that the system can respond to queries quickly and accurately. Finally, to stop identity fraud, there must be an eligibility verification system that integrates a machine-readable identification card with biometric identifiers for all workers.

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