Globusz^® Publishing 

History casts doubt over whether American immigration legislation will ever come to reflect a comprehensive understanding of the nature of transnational migrant flows and their counterpart social, economic, and security consequences. Beginning with the fortification of the southern border in the early 1900s and extending through to the 1960s, nativism and xenophobia dominated the political debate over immigration. More than any other legislation, the National Origins Quota Acts demonstrated the triumph and steadfastness of American racism. While a turn toward morality and an appeal to the fundamental equality of all human beings during the Civil Rights Era spelled hope for immigration policy, politicians could not yet fully understand how to deal with their newly globalized world. The enactment of IRCA in 1986 was another expansion of at least partially progressive American politics, but had the U.S. set out to construct a more dysfunctional policy, “it could hardly have done a better job.”²⁴³

Many Americans still have not learned the lessons of a history filled with invidious discrimination and unintended consequences. In pursuit of understanding, an equal consideration of interests from behind the “veil of ignorance” is of paramount importance.²⁴⁴ This Rawlsian conception of morality, as an extension of The Golden Rule, teaches us that all relevant interests should be considered during the process of policy formation. In terms of transnational migration, these interests include those of the host country, migrants, and the sending nation. Although the self-determining character of all sovereign countries dictates that liberal immigration policies fall into the realm of imperfect duties, all nations ought to reflect upon the ethic of reciprocity before adopting any law that impedes the free movement of people. After all, the privileges conferred by citizenship are not earned but “arbitrary from a moral point of view.” According to basic theories of morality and global distributive justice, wealthy nations owe lesser developed countries (LDC) a certain amount of economic aid. In this regard, liberal migration regimes can help LDCs to develop by facilitating the exchange of people, and subsequently capital, between nations.

Host countries are justifiably concerned with the economic consequences of migration. However, from an empirical standpoint, economists have yet to prove that immigration possesses negative macroeconomic or distributive consequences for receiving societies. Regardless, economics should not be the only, let alone the primary, factor a government utilizes to determine the character of its immigration laws. Rather, immigration policy should result from a calculus that adequately weighs the interests of all relevant actors–a calculation that upholds the notion of “justice as fairness.”²⁴⁵ Practically speaking, it is not unreasonable to lend greater import to the needs and desires of one’s own people, especially those pertaining to security and economic prosperity, but freedom of movement should not be inhibited simply because of xenophobic sentiments or because it presents an inconvenience to the receiving nation. In a way, politicians must act as unbiased arbitrators throughout the legislative process and, like blind Lady Justice, balance the competing claims of various groups.

The immigration debate should not be oversimplified or misconstrued. American politicians and the American people have a tendency to think in terms of extremes. Undocumented migration from Mexico is certainly not a “flood” of “illegal aliens” coming to “steal our jobs” and poison our way of life. On the contrary, unauthorized border crossers are mostly laborers from Mexico seeking a solution to the missing and failed markets of their developing nation.²⁴⁶ In this regard, most migrants simply desire to work in the U.S. temporarily and afterward return to their family and the well-established social life they have built in their homeland.

America has reacted to the influx of undocumented workers by militarizing the southwest border and enacting a system of employer sanctions. Despite the U.S. government’s expanding efforts to fortify the border, unauthorized migrants remain undeterred, continuing to trek northwards in droves. Expanding border enforcement has only succeeded in increasing the migrant death toll, levying a heavy burden on American taxpayers, and reducing the probability of Mexican return migration. In other words, the militarization of the border has done a better job of keeping unauthorized entrants in the country than forcing them out. The employer sanctions regime has fared no better. Employers can easily appear to be in compliance with IRCA while still deliberately employing undocumented workers. The government remains unwilling to enforce labor and employment laws equally amongst all workers in America, and DHS barely devotes any effort towards auditing firms. The result has been lowered wages and poorer working conditions for citizens and noncitizens alike, as well as an underground economy filled with fraud, unscrupulous employers, and discrimination.

After 9/11, politicians have misused immigration policy in the name of national security. The Bush administration seems to believe that fundamental negative duties are not equally owed to all people, irrespective of their country of origin. And while the President seems to be willing to work productively towards economic prosperity and regional security alongside Canadian leaders, his diplomatic relations with Mexico demonstrate a pitiable and superficial degree of coordination. Undoubtedly, facilitating free trade and regional security will require more than binational cooperation between the U.S. and Canada. America is ultimately an open society, and in order to combat terrorism effectively while allowing for the free movement of goods and people, the U.S. must improve its relationship with Mexico. In particular, this most notably involves more skillfully integrating the labor markets of the two countries and also establishing binational “smart border” policies that contain less “empty diplomacy” and more concrete projects for reform.

It is sad to think that prejudice and myopia have characterized the entire history of American immigration policy. In looking towards the future, comprehensive reform has once again returned to the political agenda. But unless the government enacts a series of policy prescriptions that form a cohesive and synergistic whole, America is doomed to experience yet another era of marginalized interests and unintended consequences. What follows is a proposal that delineates the basic tenets that any successful comprehensive reform policy ought to include. Some suggestions relating to how politicians might go about constructing pertinent, government programs are also proffered. Remove any one of these pillars and synergy could quickly turn to catastrophe.

The Blueprints of Tomorrow

1. The U.S. and Mexico must work together to create a temporary worker program for Mexican migrants.²⁴⁷

In considering this proposal, it is important that Congress and the President understand that most transnational migrants do not desire to permanently transplant their lives from one country to another. Development in Mexico has caused many Mexicans to migrate northward in search of better economic prospects. In order for the U.S. to remain committed to helping Mexico transition to the developed world, it must accept the labor market integration that arises from increased trade and economic development. The ideal guest worker program would make temporary worker visas generously available to Mexican nationals, say, in the order of 300,000 to 400,000 per year.²⁴⁸ These visas would last for a period of 2 years and would be renewable indefinitely, provided that the migrant first returned home for a period of time equal to the length of his or her stay in the U.S.²⁴⁹ The cost to obtain the visa should be in the range of $500 to $1000, providing a significant barrier to entry but a price not too dissimilar from what migrants today are willing to pay smugglers.

An issuance of 300,000, two-year visas at the rate of $500 per visa would provide the American government with $150 million in annual, added revenue. Furthermore, the program would provide 600,000 temporary workers to the U.S. labor market each year–a figure similar to the current, annual influx of undocumented workers from Mexico and only a small share of the total labor force. The new source of revenue could be used to cover the costs for a binational agency that administered the guest worker program. America, of course, has the right to manage any money it receives as a result of the new policy however it desires. Yet, it would be useful for the U.S. government to help set up a social security net for the temporary workers as well as Mexican businesses.

This binationally managed insurance plan could mitigate the risks that temporary laborers incur by traveling and working abroad. More importantly, it would help facilitate the restoration and growth of markets in Mexico, thereby targeting the central factor “pushing” migrants northward. Another potential source of revenue for the insurance program, or the U.S. government more generally, would be the federal taxes withheld from the paychecks of temporary workers.²⁵⁰ As Massey explains, “If we assume that 600,000 temporary migrants earned annual incomes of only $15,000, and had taxes withheld at a rate of just 15 percent (very conservative assumptions), the resulting revenue stream would be $1.35 billion per year.”²⁵¹

In addition, the issuance of temporary worker visas should not be tied to specific employers as under the current system. We have seen how unscrupulous managers have used the employer sanctions regime to exploit undocumented workers. Often, employers will knowingly hire unauthorized workers with the intention of paying them sub-minimum wage salaries. Moreover, since it is difficult for undocumented workers to unionize or assert their rights in any way, and since ICE rarely audits employers, businesses that utilize unauthorized migrant labor have little incentive to obey occupational, safety, and health regulations. As a result, the temporary worker visa should afford the holder the ability to live and move freely while in the U.S. In doing this, the wages and working conditions of all employees will improve.

As a disincentive to circumventing the bureaucratic and financial barriers to accessing the temporary worker visa, beginning with the institution of this policy, migrants caught attempting to enter the country illegally should be barred from participating in the program. Additionally, migrants found overstaying their lawful time in the country should also be precluded from future participation in the program, unless they successfully appeal their case to an administrative official of USCIS.

Immigration policy and international law both explicitly assert the fundamental importance of “family reunification.” In this vein, temporary workers ought to be allowed to bring their immediate family with them to the U.S. Even though few migrants would choose to bring their entire family,²⁵² humaneness dictates that the sacredness of kinship bonds should not be cast aside. Still, in accordance with what is expected of a “guest,” the entire family would be subject to the same temporary status as the primary visa holder, and each derivative beneficiary would have to pay a fee for entry.

Although not as important as familial ties, the social networks that migrants develop during their sojourns abroad may lead them to desire a permanent relationship with the U.S. Even though this would undoubtedly be an extremely contentious political issue, there seems to be no reason why a small portion of temporary workers, say, 20 percent (or 60,000 to 80,000), should not be allowed to apply for permanent residency at the end of their two-year stay. This would only add between 30,000 and 40,000 immigrants annually to Mexico’s current quota for legal immigration of 20,000, an extremely small number in light of Mexico’s historical and geopolitical ties with the U.S.²⁵³

2. Employer sanctions must be repealed; DHS and other government agencies must vigorously enforce employment and labor laws; and workers, regardless of their status, should be protected by the same, basic set of employment rights.

As has been discussed at length, the employer sanctions regime implemented by IRCA has resulted in only negative consequences. Not only have these policies lowered wages for all workers and given employers perverse incentives to exploit their employees, but they have failed to control undocumented migration. Importantly, the implementation of a guest worker program where visas are not tied to specific employers largely obviates the need to deter the practice of hiring unauthorized workers.²⁵⁴ Still, DHS should institute a more reliable mechanism for establishing an individual’s employment eligibility.

A modified version of the technologically sophisticated Basic Pilot Program, as discussed in chapter 3, could be invaluable in this pursuit. But regardless what form procedures for employment verification may take, the entire process should be moved outside the jurisdiction of employers. By franchising the process out to a third party, the number of incidents related to workplace discrimination based upon immigration status would likely plummet, and workers who presented fraudulent documents for verification would encounter a greater risk of being caught. Thus, not only would the demand for undocumented workers be further curtailed, but employers would be hard pressed to find workers who they could exploit with impunity.

In addition, the Supreme Court’s decision in Hoffman sets a dangerous precedent.²⁵⁵ Labor and immigration laws must be reconciled. As humans, citizens and foreigners alike ought to be able to lobby for better working conditions without fear of reprisal. DHS and other government agencies need to spend significantly more time and effort auditing the labor and employment practices of businesses. If IRCA has taught us anything, it is that the employer sanctions regime ended up targeting victims of exploitation to the satisfaction of unscrupulous employers. These monsters need to be penalized, and businesses must be held responsible for maintaining a working environment that meets or exceeds all applicable legal standards.

Financing for these projects should be appropriated from reductions to the border enforcement budget. As we have seen, in all likelihood, the U.S. government could have maintained a similar level of deterrence over the last decade with a border security budget at an early 1990s level. In other words, billions of dollars of taxpayer’s money is being wasted, inadvertently causing the migrant death toll at the border to skyrocket. Furthermore, after a temporary worker program is instituted, unauthorized migration will surely decline, leaving the border patrol with few individuals to apprehend. Therefore, a substantial portion of the multi-billion dollar border security budget should be reallocated to other government agencies, including USCIS and ones involved with enforcing occupational, safety, and health regulations. USCIS could also use the added revenue to expedite security checks on visas and reduce the number of immigration applications that are pending or backlogged.

3. The U.S. government must define a path towards earned legalization for most of the country’s undocumented population.

No comprehensive reform proposal will work unless the majority of the 11 or 12 million undocumented residents already in the country are provided a path to citizenship. For over a century, the American government’s myopic policies have been filled with conceptual misinterpretations, prejudice, and unintended consequences. While NAFTA has moved the U.S., Mexico, and Canada towards greater economic integration, the expansion of the border patrol directly contravenes the notion that the free trade of goods and the free movement of labor are intimately intertwined. Providing a path to citizenship for most of America’s undocumented would allow the government to conduct background checks on a substantial portion of the population that currently lives in the “shadows.” Moreover, rather than waste valuable resources chasing individuals who, for the most part, pose no threat to national security, DHS will be able to concentrate on investigating and capturing bona fide criminals.

Seeking to deport more than 11 million people with strong social and familial ties in America is both unrealistic and inhumane. Although some will view this as the start of a cycle of undocumented migration and “amnesty,” there is no slippery slope here to slide down. First, there is a very significant difference between “amnesty” and “earned legalization.” While the former involves an automatic path to citizenship, the latter would require undocumented immigrants to pay back taxes, learn English, and then proceed to “the back of the line”²⁵⁶ at USCIS. Secondly, the principal reason the U.S. has this large population of unauthorized residents is because the government has failed to incorporate the simple principles of trade economics and the unintended consequences of past reform into its legislative calculus. By pairing an earned legalization program with a large-scale temporary worker program, unauthorized labor migration will largely become a phenomenon of the past.

The Road of Tomorrow

The political process is fueled by much more than just good arguments. For one thing, campaign contributions greatly affect the policies a politician will support. But in one way or another, the successful reforms of tomorrow stem from the well-reasoned arguments of today. Some of the proposals advocated by this work would certainly be rejected at some point in the political process. Still, policy that adequately comports with the current state of national and world affairs can hardly be ignored. It will not, however, be fully recognized until government officials adequately come to terms with the consequences of past policy and the interests of all relevant actors. This will probably take a paradigmatic shift in public sentiment from the statism of old to the “new humanism” of “immigration pluralism.” Politicians and Americans can continue to fear foreigners and subsequently avoid change, even when that change ought to be considered “progress.” But unless America moves from the closed-door policies of today to the liberal immigration regime of tomorrow, we will remain as narrow-minded as our country’s forefathers.