‘Conditional’ legalization: A way out of the current impasse?

Stewart Lawrence Stewart J. Lawrence is a Washington, D.C.-based public policy analyst who writes frequently on immigration and Latino affairs. He is also founder and managing director of Puentes & Associates, Inc., a bilingual survey research and communications firm.
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Democrats and Republicans continue to be at loggerheads over immigration policy. The central bone of contention is the insistence by Senate Democrats that the estimated 12 million illegal aliens currently residing in the U.S. be granted a path to citizenship. House Republicans decry the Democrats’ legalization plan as an “amnesty,” and want to see border and workplace enforcement systems strengthened. They don’t come right out and say that they want to see all illegal aliens deported en masse. It’s not politically popular and the government lacks the means to do it. But the idea is, once an effective workplace verification system is in place, those without legal papers would be identified quickly, fired, and then reported to immigration. Lacking access to work, and under threat of deportation, most would have no choice but to “voluntarily” return to their native land.

Democrats, of course, are appalled by this “enforcement only” or “enforcement first” approach. They rightly note that many illegal aliens are hard-working taxpayers with families and mortgages who add value to our economy by taking jobs that most native-born workers no longer want to do—at least not for such meager pay. In fact, even if you could raise wages or provide other incentives, it’s not clear how many native-born workers would accept the dirty and dangerous jobs that many illegal workers do. Most companies simply can’t afford to raise wages for these jobs—at least not by much—and still be competitive in a sector of the economy where profit margins are razor-thin.

In theory, we could agree to a partial amnesty, on the assumption that, rightly or wrongly, some illegal workers have acquired equity and put down durable roots in local communities. Uprooting them, while theoretically possible, would be a tremendous hardship, and also damaging to unskilled labor markets. But without a more foolproof workplace verification system in place to deter future illegal immigration, a legalization program would almost surely spur additional illegal flows. And we don’t have that foolproof verification system in place—at least not yet.

E-Verify, the system currently being tested and improved, is still being implemented on a voluntary basis with firms that receive federal contracts. This is only a small percentage of the firms operating in our economy. E-Verify needs to be expanded to include more sectors of the economy, especially those sectors like construction and food service that are especially prone to hire illegal immigrants; and business participation in E-Verify needs to be made absolutely mandatory, rather than voluntary.

Some Senate Democrats and their Republican allies believe we can combine legalization and enforcement into a single “comprehensive” bill, and our current immigration problems will be solved. Advocates want legalization, and opponents want airtight enforcement, so why not agree to do both together? Legalize the current stock of illegal workers, but then close the door behind them—and firmly lock it—so that no more illegals can enter.

It sounds good—on paper. But the problem is, legalization and enforcement are not equivalent measures. While verification is still a work-in-progress, requiring years of additional improvement, legalization, once enacted, would be irreversible, which means we’d have millions of legalized workers right away, but no airtight enforcement system to match it. And legalization advocates can be expected, as they have in years past, to delay and water down the workplace enforcement provisions as much as possible. We’ll end up with the same problem we had when “immigration reform” last passed Congress in 1986: a legalization program that worked, and an enforcement program—employer sanctions—that didn’t. Millions more illegal workers will enter the U.S. as a result.

There is an alternative to this impasse.

First, let’s not agree to legalize all of the illegal aliens currently living and working in the U.S.; let’s just legalize some. In 1986, Congress, in its general amnesty, required that illegal aliens demonstrate they had been residing in the U.S. for four years prior to the date of the bill (i.e. 1982). It was an arbitrary cut-off point. Its intent was to focus the legalization on those who had already put down some roots, rather than the most recently arrived immigrants who hadn’t yet done so. But why make the cut-off point four years? Why not make it eight or even 10 years? A longer period of established residency would ensure that any person legalized was firmly rooted here and had acquired functional English fluency. And a longer cut off period will also reduce the numbers: only about 45 percent of the current stock of illegal immigrants has resided in the U.S. for 10 years or more. This means under an amnesty, about 4 million illegal aliens will be legalized—assuming they pass other tests—rather than 12 million. It makes a difference.

Second, newly legalized undocumented immigrants should not be granted the same generous family sponsorship privileges that other immigrants who entered the U.S. legally have. Under current U.S. law, legal residents, and naturalized U.S. citizens, have a generous right to sponsor their spouses, parents, children, and siblings for green cards also. In fact, two-thirds to three-quarters of those admitted legally into the U.S. annual come as sponsored family members, not as immigrants with a job from a sponsoring firm. Conservatives are already appalled at this system, and want to see the family-based “preference” system scaled back. But even if legal immigrants continue to enjoy this privilege, why should workers who entered the U.S. illegally obtain this benefit? Conservatives will be far more willing to support a limited amnesty if illegal aliens are not permitted to sponsor additional family members—other than those already currently residing with them. After all, if illegal aliens want more of their family members to migrate, they can always go back home and re-enter the U.S. legally.

Third, and perhaps most importantly, why not condition the size and pace of legalization to successful implementation of a workplace verification system—or even tie legalization to verifiable reductions in the overall level or annual immigration flow? Immigration and Customs Enforcement (ICE) currently has the means to estimate illegal border entries annually with fairly good precision. So why not agree to give green cards initially to those who have lived and worked in the U.S. the longest, but only grant provisional visas to the rest?

For example, we might begin the legalization process with illegal immigrants who have been in the U.S. for 15 years or more and/or married immigrants with 10 or more years of residency who also have children. Allow these groups to achieve permanent residency, but then give the workplace enforcement system time to develop and become more widely implemented, and first verify reductions in the stock or flow of illegal immigrants before allowing those with provisional visas an opportunity to qualify for their green cards.

The provisional visas would function something like a temporary worker program, with a three-year, non-renewable visa (with exceptions). These temporarily legalized workers would be required to register with the U.S. government and with their national consulates, and could change jobs as needed, but could not sponsor additional family members. They would register as temporary workers with the explicit understanding that they might never get a permanent green card; and they would be required to leave at the conclusion of their visa period.

Who will verify that improvements in the workplace verification system or reductions in illegal immigration are occurring? The ICE, in concert with the U.S. Government Accountability Office, and private research contractors, could perform this work, and their findings should be presented publicly in congressionally mandated “certification” hearings to determine if the nation is actually making progress in bringing illegal immigration under control. If so, legalizations should proceed; if not, they should be suspended for a year, or revised in accordance with annual findings.

Conditional legalization has the added value of giving the executive leverage over Mexico, which has been anxious to see its citizens gain expanded access to the U.S. labor market. Under conditionality, the Executive would have a way of prodding Mexico to get involved in comprehensive border control, in conjunction with U.S. border forces, a form of bilateral cooperation that Mexico has long resisted. Knowing that the granting of permanent legal visas is contingent upon a verifiable reduction in illegal flows might end the “nod and a wink” approach Mexico has taken to illegal immigration and compel stronger, more pro-active measures to limit cross-border movements. In addition, Mexican illegal aliens seeking legalization would have to register with their own consulates, which would become responsible for assisting in the removal of aliens no longer deemed eligible for legalization.

In other words, the program envisioned here is no mere U.S. immigration plan. It is a bilateral approach that addresses the bilateral causes and dimensions of the problem. Mexico and the U.S. would likely have to sign an accord to make conditional legalization work. And well they should.

Some critics will contend that a conditional legalization program is inhuman or even discriminatory. However, our current immigration system is based on explicit selection criteria and there’s no reason not to use such explicit criteria, especially with those who aren’t here legally to begin with. Many illegal workers would be glad to register as temporary workers, with basic labor protections, and substantial freedom to move from employer to employer. And many would freely agree to return home, if the penalties for not doing so were severe, clearly spelled out, and agreed to in writing, and they had the opportunity to re-apply through the established legal immigration system.

A restricted, conditional legalization program of this kind certainly won’t solve all the problems in the U.S. immigration system. It’s chiefly designed to allow our economy and society to adapt to an enormous flow of foreign labor over several decades in a manner that is consistent with our national policy goals, which include economic, political, and humanitarian considerations. Considerations of equity and sheer feasibility demand that we recognize that millions of illegal workers are here, contributing to our economy, and cannot be effectively removed. But that doesn’t mean every illegal with a job is entitled to keep it, or to stay in the U.S. to live. If we agree to this principle, we will never achieve a fully effective border and workplace enforcement program, and illegal immigration will never be brought under control.

Stewart J. Lawrence is a Washington, DC-based public policy analyst who writes frequently on immigration and Latino affairs.  He is also founder and managing director of Puentes & Associates, Inc., a bilingual survey research and communications firm.