The Fundamentals of Immigration Reform

To begin fixing America’s broken system, we must be guided by both our highest values and our economic needs.

March 12, 2013

4:00 AM

Immigration Graphic

The United States, with more than 40 million foreign-born, a number that includes the estimated 11 million illegal residents, is not just the largest immigration player in the world; it's larger than the next four largest players combined. Because immigration amounts to social engineering, how well we do it has profound consequences for huge swaths of our society, from education to health care to economic growth to foreign relations. Most important, how a country treats its immigrants is a powerful statement to the world about its values and the principles by which it stands.

Politics: From Oblivion to Prime Time in No Time at All

It is unusual for a divisive issue to jump from the near oblivion of repeated legislative failures to the center of the political and policy stage as quickly as immigration reform has done since the beginning of the year. This is even more unusual because the presidential election (unlike the Republican-nomination gauntlet) raised immigration reform only in the most perfunctory fashion.

Most commentators, correctly, point to the relentless demographic ascendance of Latinos (now 15 percent of the population) and their overwhelming support for President Barack Obama (he received more than 70 percent of their votes) as the reasons the issue has risen to the top of the political agenda. Asians, who make up 5.6 percent of the population, supported the president just as strongly. Conversely, commentators point to the mortal threat to the Republican Party's national fortunes²2. House districts have become so gerrymandered over the past two decades that most Republican members are immune to pressure to accommodate immigrant, especially Latino, priorities. In fact, many are more concerned about being "primaried" by a Tea Party challenger than losing their seat to the other party. unless the party changes its stance and tones down its rhetoric on issues of greatest interest to Latinos, which include jobs, health-care reform, and, of course, immigration.

But the reasons this attempt at immigration reform may gain traction go beyond the existential threat to the Republican Party. The enormous and growing political influence of the pro-immigrant coalitions on the White House and the president is nothing less than astonishing. In recent years, many of these groups have built up their organizing capacity and communications savvy; they are now well poised not only to check but possibly even overwhelm those opposing reform.

The country also seems ready to move beyond the political slogans that have served for so long as conversation stoppers. A brief sample includes: one should not "reward lawbreakers" or "queue jumpers"; "we tried all this in 1986 and it didn't work," and, by the way, didn't we promise the American people that the 1986 amnesty was "one time only"; and, of course, the vacuous suggestion that immigrants who reside here illegally would somehow "self-deport,"³3. Anti-(illegal) immigration activists have been using the term for several years. The only substantial return migration that has occurred in recent years has been in response to the terrible job losses in the U.S. and the brighter economic conditions in countries that have been major sources of unauthorized immigrants, most notably Mexico and Brazil. By contrast, there is little evidence of return migration to Central America, India, and other significant contributors to illegal immigration. a phrase Mitt Romney popularized to his great disadvantage.

Politics alone, though, cannot explain how swiftly immigration reform has become Washington's preoccupation and a near consensus bet for enactment. Many policy reasons make it more likely reform will cross the finish line in this season of Congress than in any of the past five. Most significantly, illegal immigration has decreased dramatically. The net number of immigrants from Mexico, legal and illegal, has been estimated to be at or near zero since 2010; net illegal immigration from Mexico has been at or near zero since 2007. By contrast, between 1995 and 2006, illegal immigration from Mexico grew by approximately 4.3 million.

Further proof of the decline is that border apprehensions (admittedly an imperfect metric) have been at the lowest level in nearly 40 years: about 365,000 people in fiscal year 2012. The massive and sustained investments in immigration law enforcement in the country's interior have removed roughly 400,000 illegally resident and criminal foreigners annually for the past five years. The Migration Policy Institute, the organization I lead, estimated that with a budget of about $18 billion, immigration enforcement writ large (that is, Customs and Border Protection, Immigration and Customs Enforcement, and the country's primary immigration-enforcement technology initiative, the US-VISIT program) had a budget 24 percent larger in fiscal year 2012 than the combined budget of all other principal federal law-enforcement agencies (the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service, and Bureau of Alcohol, Tobacco, Firearms and Explosives).

Other issues also seem to be aligning in favor of reform. Two deserve special mention: the collective recoiling in much of the country from the punitive anti–illegal immigration measures several states have adopted (most prominently, Arizona and Alabama) and the increasing sense of urgency to change the legal immigration system to enhance the country's entrepreneurial and technological edge. Large majorities of legislators favor amending the legal system, making the need to resolve the status of the illegally resident population overwhelming.

The Proposals

The broad policy prescription on which both a bipartisan group of eight senators and the president appear to agree is nothing short of audacious. In fact, a mere few months ago, virtually all congressional Republicans and a fair number of Democrats would have pronounced the plan dead on arrival.

On the surface, the proposal looks not all that different from the many previous efforts that went nowhere between 2004 and 2007. It offers a "path to citizenship" to illegally resident immigrants. (This is one of many Washingtonisms that confuses rather than elucidates. To be precise, the plan offers a path to a green card; once a person has a green card, whether to seek citizenship is a personal decision.) It commits to reforms that "will help build the American economy and strengthen American families." It promises a system, which all employers will be required to use, that will reliably identify those who are authorized to work in the United States and that will "prevent identity theft and end the hiring of future unauthorized workers." And it pledges to find a way to admit more foreign workers when they are needed "while protecting all workers." (To be accurate, this provision is barely present in the president's outline, which reflects the influence of organized labor and its allies who are skeptical about temporary-worker programs.)

But on closer examination this aspirational outline reveals that some important, if highly nuanced, political progress has been made. The path to citizenship, for instance, will be "contingent" on securing the border and addressing visa overstays. The explanatory language, however, suggests that the word has taken on several important new meanings. "Contingent" apparently does not meet the demand of many legislators that the borders be secured before they participate in a conversation about legalization (often expressed as an "enforcement first" stance). Indeed, the eight senators propose granting probationary legal status and work authorization to the unauthorized population simultaneously with the bill's other provisions. Only the path to permanent status would be dependent upon securing the border further and, presumably, making substantial progress on visa overstays. Significantly, the White House's chief spokesperson on immigration and highest-ranking Latino in the administration, Domestic Policy Council Director Cecilia Muñoz, has insisted that the president will not support any such linkage when it comes to the path to a green card for those who meet the law's requirements.

The proposals also call for the holders of the probationary legal status to meet numerous requirements, pay additional fees and fines, and go to "the back of the line." That queue is made up of prospective immigrants who have an approved petition to come to the United States but can't do so legally until a visa becomes available in their category. (Notably, those who entered the United States as minor children or as agricultural workers will probably be fast-tracked.)

More than 4.4 million people⁴4. The two major categories through which more than 80 percent of all U.S. green cards are allocated annually are the family and employment streams. In the family stream, U.S. citizens may be joined by their spouses, minor children, and parents without numerical limits. U.S. citizens can also be joined by their unmarried adult children and married adult children (each subcategory receiving 23,400 visas), as well as siblings (65,000 visas). Green-card holders can only reunify with their spouses, minor children, and unmarried adult children. The employment stream allocates visas primarily through three subcategories (about 40,000 each), all of which are strongly biased toward higher skills. are waiting in such lines and more are joining them every day. As a result, to say the holders of the probationary status must "wait their turn" is meaningless unless much harder questions are answered. The two most obvious are: Should we increase the number of legal admissions, and should we rethink the family-admission rules?

Increasing legal admissions likely would be a hard sell during this period of slow growth and high un- and underemployment, particularly since most of these admissions belong to the family (re)unification part of the system. Many have gotten much older while waiting for a U.S. green card, and the skills of immigrants in the family stream are decidedly on the side of lower rather than higher. This has to be taken into account if immigration policy is to contribute more directly to economic growth.

Rethinking the family-admission rules to provide more visas to a narrower range of relatives will also be difficult for many to accept. Reuniting the immediate families of green-card holders would comport with the fundamental principle of keeping the closest family members together. But it would be strongly opposed by some immigrant advocates, who argue that a promise has been made to those who have been waiting in line. Recent immigrant groups, especially Asians, also argue that they deserve the same access to their families as Europeans have enjoyed.

At this level of the debate, the senators' reform proposals are unsurprising. They proffer other ideas that have appeared in legislation in recent years. These include: reducing backlogs in both family and employment visas and introducing disincentives to lessen the temptation of illegal entries and stays; attracting and retaining more-qualified immigrants (the "best and the brightest" in the hyperbole that lobbyists are so good at) who will contribute to innovation and economic growth; creating a new visa category for foreign-born entrepreneurs who have little or no capital of their own but who could attract start-up capital from U.S. sources; and awarding a green card to foreign students who graduate with a master's degree or doctorate in science, technology, engineering, or mathematics (STEMs,⁵5. The entrepreneurship and STEM visas have gained enormous support in the past two years and reflect an intense and well-funded campaign by a number of high-profile public and private-sector individuals, most notably New York Mayor Michael Bloomberg, who argue for "stapling a green card to the diplomas" of STEM graduates. The president also uses the expression. The shorthand leaves out that all such graduates already enjoy the right to work for 29 months under the "optional practical training" provisions of the law. Only if an employer requires their services beyond 29 months do these graduates need a green card. in the nomenclature of immigration reform) from an American university as long as a U.S. employer requires their services. None of these provisions is controversial, and the support each enjoys among key constituencies helps the prospects of passing broader reform.

Are We Addressing the Essential Issues and Reaching Agreement on Fundamentals?

It is commonplace in Washington to say that in most legislative matters, "the devil is in the details." This dictum becomes exponentially more relevant the more complex a piece of legislation is. Complexity on immigration has many aspects. The most obvious is the difficulty in passing massive pieces of legislation (expect a thousand-page bill), in which the politics of each piece must be reconciled with that of all the other pieces. For instance, those insisting on legalization must agree to vigorous enforcement of immigration laws.

Still, "comprehensive immigration reform," a label that many activists had been running away from the past two years, has been rehabilitated with a passion. There are good reasons for this turnabout. If done right, the whole becomes much larger than the sum of its parts as long as the policy logic behind one piece reinforces that of another. The political logic is similar: Each constituency the bill speaks to, even those who have been historically at odds with one another, has an investment in the successful outcome of the entire enterprise.

But the comprehensive approach also has disadvantages. Its very nature makes it a huge target for those who oppose reform, and the inevitable compromises that politically complex legislation requires typically produce the opposite of policy coherence. Moreover, the bill's inevitable complexity requires having a trusted general with exquisite political skills, rather than a group of eight senators whose agreement will become more tenuous the closer they get to actual legislation. One should not forget that the last time a group of senators attempted to hold one another to what might be called the Three Musketeers principle of "all for one, and one for all" was in 2007. That immigration bill went up in flames despite the efforts of the Senate's consummate dealmaker and strategist, Ted Kennedy.

The challenge this legislation will face, however, goes much deeper than who will steer it through Congress. Many of the ultimate bill's provisions will likely overpromise in policy areas that have long gestation periods and uncertain outcomes. Can there be agreement on what constitutes success in immigration control? Or on a single work-authorizing document that, over time, everyone will be required to have in order to get a job? Or on extending the employment-verification requirements to the small businesses that hire most unauthorized workers? Can the bill overcome the objections of civil libertarians in both parties who fear that it will lead to national identity cards? Can the administration agree to provisions (greater enforcement, say, or more temporary workers or fewer family visas) that constituencies it considers natural allies-and to which it is deeply indebted-oppose?

Lessons from Not-So-Recent History: The 1986 Immigration Law

The last time Congress attempted broad reform of immigration policy, with the Immigration Reform and Control Act (IRCA), was in 1986. Then, as now, it took many years for all the political compromises to be struck and the various interests to learn to live with an imperfect bill. By the time the bill became law, exhaustion, rather than elation, was the prevalent emotion. Keep in mind, this was when immigration was an issue for only a handful of states, the Senate immigration subcommittee⁶6. Illegal immigration preoccupied both the Ford and Carter White Houses. Gerald Ford asked his Domestic Policy Council to study the issue, and Jimmy Carter impaneled the Select Commission on Immigration and Refugee Policy in 1979. Chaired by Theodore Hesburgh, president of Notre Dame, and composed of cabinet secretaries and Democratic and Republican legislators, the commission produced an extraordinary body of work, much of which was reflected in IRCA. had just five members, the chairmanship rotated between Senators Kennedy and Alan Simpson, and most senators were content to follow the lead of their colleagues on the subcommittee. In the House, Judiciary Committee Chairman Peter Rodino and Immigration Subcommittee Chairman Ron Mazzoli, working with such now well-known figures as Charles Schumer and Barney Frank and a group of inexperienced but politically savvy Californians-Leon Panetta, Howard Berman, Pete Wilson, and Dan Lungren-did most of the heavy lifting that allowed the bill to become law. They cut the deal that permitted agricultural interests to have access to additional workers for a three-year period following legalization, should legalization lead to an exodus from the fields. With the exception of Kennedy, who co-authored the 1965 act and served as its floor manager, and Rodino, who had been agitating and holding hearings on illegal immigration since the early 1970s at the behest of organized labor, the other legislators were neophytes to both the substance and the politics of the issue. Those were simpler days in another way. Few members had the staff or stamina to read massive technical bills that kept changing as last-minute deals were being made to gain the support of yet another special interest.

From a "good government" perspective, what did IRCA do, what didn't it do, and how does it relate to today's policy challenges and political arguments? In the simplest terms, the act assembled a three-legged stool: It legalized long-term illegally resident foreigners; sanctioned employers for hiring workers not authorized to work in the United States; and committed to stronger border controls to prevent illegal entry. The first two were a sharp break with the past and consumed most of the attention. The third was of ongoing interest only to a slice of the country, some parts of the administration (primarily the Justice and Labor departments), and some border legislators.

The item on most radar screens, at least until job growth picked up in the second half of the decade, was preventing access to the workplace by illegally resident foreigners. The resulting emphasis on employer sanctions reversed a long-established practice, enshrined in law in 1952, whereby illegal entry and harboring an illegally present person were criminal acts (the latter being a felony) but employing an illegally resident person was not. The economic and political rationale behind this statute is easiest to understand by its informal name: the Texas proviso.

IRCA also got two things wrong. It failed to provide a framework for the admission of more foreign workers when the economy improved, and it was shortsighted in offering legal status only to those who had been "continually present" in the United States since January 1, 1982, five years before the law passed.

The omission proved to be extremely consequential. By ignoring economic cycles, the law failed to anticipate that, when substantial job growth returned, the meager number of foreign-worker visas allowed would prove inadequate. Such lack of foresight, which was repeated in the 1990 immigration law, sowed the seeds for massive growth in illegal immigration. Between 1994 and 2006, when the United States experienced historic low unemployment, unauthorized entries dipped below 500,000 people only twice: in 2002, following a mild recession, and in 2003, after the tightening of security post-9/11.

Context explains the omission. The law's basic architecture was conceived in an era of extraordinary limits-the stagflation of much of the 1970s and the two recessions of 1979–1980 and 1981–1982. At that time, the furthest thing from anyone's mind was the need for more immigrant workers. But as that period gave way to economic expansion and tighter labor markets, the bill's basic architecture did not adapt. Simply put, too much political capital was already invested, and any attempt to introduce a new, and highly controversial, provision would have been met with bewilderment, if not outright hostility. The lesson? Bills devised in one era should not become law in another without Congress re-examining the continuing validity of their key assumptions and provisions.

IRCA's cutoff date for the legalization program was an error of commission. It eventually offered legal status to approximately three million people but excluded another 1.6 million who did not meet the legislation's time requirements. This latter population served as a core that attracted successive waves of new illegal entrants. It also further marginalized these workers by making them even more susceptible to exploitation and to violations of their rights. As is often the case, deciding the cutoff date would be five years before the bill was enacted had a practical and political logic. The practical logic addressed the legitimate concern that in the absence of credible border controls, large numbers of immigrants had entered the United States illegally in anticipation of a legalization program. The political and good-government logic was that these opportunistic newcomers should not be rewarded with legal status, especially given the likelihood that many had not developed roots in either the community or the labor market.

The country truly fell down, however, in implementing this imperfect legislation. The border-control effort did not start until fiscal year 1994-eight years after the bill was signed into law. It did not reach a critical mass of agents, barriers, and technology, not to mention a coherent, multifaceted strategy, until the past few years. Twenty--seven years after employer sanctions were enacted, the system is still cumbersome: too many work-authorizing documents, no certain way to verify a worker's identity. More egregious, the government has enforced the law only intermittently.

Tackling the Hard Stuff

If we are to pass legislation that can justify the enormous political effort it will require, the bill must tackle a number of thorny issues. They include such unexciting but critical items as building and funding properly the country's capacity to deliver programs effectively; mandating policies that don't set up government agencies for failure; and enticing enforcement agencies to use technology to distinguish employers who play by the rules from those who don't and should be investigated.

Here is a list of challenges Congress must face head-on:

Giving probationary status to all illegally resident immigrants who are not outright ineligible because they have committed crimes other than violating immigration laws. This is one of the central lessons from IRCA.

Maintaining border controls and the enforcement of immigration laws in order to reassure the public and emphasize the government's commitment to safeguarding the integrity of the new system. But controls for the sake of controls, or, even worse, inserted to persuade a few more legislators to vote for the bill, should be eschewed in favor of smart controls that identify and fill enforcement gaps. The visa overstay⁷7. Visa overstays account for about 40 percent of the illegally resident population, but their ethnic and, more important, class makeup are typically different from that of most illegal border crossers. As a result, they attract much less attention and elicit more sympathy or, at least, relative indifference. Think of the young Irish professional or even bartender, or the European or Asian graduate from an American university, who is working illegally in professional or para-professional jobs, versus an indigenous Mexican or Central American who does not speak English and works in a menial-although no less essential-job. issue is one such gap. A robust system that verifies when people leave (an "exit control" system) is essential. But it won't be effective unless the information it gathers is used to create risk-management models that, over time, supplement the visa judgments of U.S. consular officers and thus lead to better decisions about who should be admitted to the country in an expedited way and whose application merits closer examination.

Accounting for "future flows" of immigrants. With unemployment and underemployment at about 22 million people and everyone's attention on job growth, devoting thought and political capital to admitting more immigrant workers when the circumstances warrant may sound preposterous. Yet this is exactly what the legislation must do if it is to prepare for a time when such workers will be needed. Even in bad economic times, jobs go begging because of locational and skill mismatches or, even more frequently, because there are jobs, many of them seasonal, that U.S. workers have long abandoned. Indeed, certain jobs in agriculture, fishing (such as crab picking), food services, and hospitality fit the latter category, and only some of those are seasonal. Then there's health care (from dentists to nurses to technicians) and elder and child care, sectors that have a great, if geographically uneven, need for workers. As new sectors grow (the gas industry, for example) and some older manufacturing industries revive, increasing numbers of workers will likely be required in jobs for which U.S. workers will not be available. If the legislation is not to be irrelevant the day it becomes law, it must include a process for admitting temporary foreign workers across the skills continuum, rather than only at the highest and lowest ends.

The deep mistrust⁸8. The importance of trust cannot be emphasized enough. It was the trust across the aisle, particularly between Senators Kennedy and Simpson, that made the 1986 bill a triumph of bipartisanship. It is the absence of trust that will be the most difficult obstacle immigration reform will need to overcome if it is to become law. between labor and business should not be allowed to obscure a natural compromise that would meet core requirements for each side. Temporary foreign workers should have the same rights and protections U.S. workers enjoy; they should be able to change employers after a reasonable period of time (such as a year) or if the terms and conditions of the contract are violated, and they should be allowed to apply for green cards. This meets a fundamental demand of organized labor. On the other hand, business should have the stronger say in determining which workers it needs and when.

It is also time to invest in better understanding how labor markets that employ many foreign workers operate and begin to establish profiles of good (and bad) employment practices that can relieve the government from trying to micromanage the foreign-worker provisions of the immigration system. Good practices will certainly include: ongoing advertising of job openings and hiring of U.S. workers; prevailing wages and benefits (those a petitioning firm's competitors pay for similar jobs); working conditions that meet industry standards; and labor rights equal to those of U.S. workers. Gradually, and as we understand these labor markets better, more data points can be added. In return, employers that observe these practices can move into a new class of "trusted" or "precleared" employers whose access to foreign workers becomes routine, and compliance can take the form of electronic audits based on complaints and standard sampling methodologies.

Congress should focus on how to legislate with the frequency a dynamic economy demands. To do so will require an independent analytical body to advise it on employment-based immigration matters. The Congressional Budget Office (CBO) might be a partial model in this regard but so might executive agencies, such as the United States Sentencing Commission and the Defense Base Closure and Realignment Commission. For this entity to succeed, it must be a nonpartisan body whose methodology and proposals are transparent; it could even be attached to Congress if it makes it easier to adopt. Staffed by a relatively small group of demographers and labor-market specialists selected in a competitive process (not activists masquerading as experts and subject to politics), directed by a researcher of unimpeachable reputation (think of the director of the CBO or the Census Bureau) proposed by the president but subject to an up-or-down vote by both chambers of Congress, and armed with data not now available in a timely way to researchers, the group can gradually develop the deep expertise that will make it a trusted source of evidence and informed advice. In doing so, the United States can develop an immigration system that learns from the effects of its policies on the labor market and the broader economy and adjusts those policies as an ordinary function of good government. The new entity's advice should generate public hearings, as with other similar bodies, guaranteeing that key constituencies will have their say and that Congress will have the last word.

Thinking hard about integration. Immigration systems succeed or fail to an extraordinary degree on the basis of how well newcomers and their children integrate into labor markets and communities. Virtually all countries that engage in immigration understand this and are trying to do something about it, though not always well. (Think of the mostly unproductive ways in which so many European countries have responded to their Muslim immigrant and immigrant-origin populations.) This is the issue that almost no one wants to address because they fear that the cost of the economic and social integration of those who earn legal status may scuttle the entire bill. One way to manage the costs for integration services is to earmark the substantial fines that legalization applicants will surely have to pay. States would access the resulting fund⁹9. The Social Security Administration's Earnings Suspense File (ESF) could be another source of funds from which states could draw. As of 2011, the ESF had $993 billion of wages for which Social Security taxes had been withheld but had not been credited to valid Social Security accounts. (Unauthorized workers often use invalid Social Security numbers.) Although many of these discrepancies are cleared up over time, the most conservative estimates would put the amount contributed by unauthorized workers in excess of $50 billion. to assist those on the legalization queue in meeting the requirements the legislation demands (such as language and civics knowledge) and to reimburse human-service and emergency health costs. To prevent states from treating such funds as general revenue, a tendency that is all too common, an intergovernmental group should review requests. The first step, however, must be to resist the pressure to use applicants' fines for more border protection and associated law enforcement.

Trying not to legislate for the next 20 or 30 years. Most countries that focus on managing immigration well, and to their economic advantage, regularly re-engineer their systems to make them more responsive to changing economic conditions. Canada and Australia are leaders in this regard, but a number of other countries have learned from them and at times appear to be even better at adapting their systems. At the heart of the best-managed systems is a simple idea: A smart immigration policy adjusts selection formulas to ensure that each major component of an immigration program meets the nation's strategic priorities. The United States doesn't do this, and the result is predictable: The parts of the overall system that are supposed to respond and contribute to economic growth are inadequate. Considering that we have proved incapable of revamping our education and workforce training systems to meet the challenges of international competition, the need for skilled and talented foreign workers will only grow stronger, while the international competition for such workers will become more intense.

The country cannot go through such gut-wrenching arguments every time it tries to revamp the immigration laws to correct failures or otherwise address changing contexts. Nor should employers, workers, citizens, and communities have to face the choice between never-ending inaction by Congress and breaking the law. Still, it is important to acknowledge that we won't get everything right this time either and that no perfect answer exists to some of the immigration problems we face. So why not seize the opportunity that the political winds seem to be giving us, experiment with some of the solutions technology offers, consider ideas that other countries have tried with much success in order to address one of the biggest social, moral, and economic challenges of our time? Maybe we will get it more right than wrong. For the things we get wrong, as we surely will, how about if we commit to a mechanism that can take some of the pressure off Congress and allow the administration to propose changes regularly before small problems become large ones? Unless Congress rejected such proposals, they would go forward.

The rest of the advanced world and many emerging economies have been making major strides when it comes to education reforms, accumulation of talent, commitment to innovation, and opportunity. We can remember that the United States developed the formula for success for more than a century and that immigration was at its core, or we can continue to argue and succumb to the paralysis that ensues. When successful, immigration systems choose who should be admitted rather than ratifying the decisions of immigrants, their families, and their employers. The latter has been the U.S.'s main experience with immigration for nearly 50 years. It is time for legality, orderliness, and values to be again at the heart of our immigration policy.