Immigration reform rears its head again

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The recently enacted immigration law in Arizona has inflamed both sides in the apparently endless immigration reform debate. We know firsthand how tough it is to fashion a workable solution that appeases the hardcore activists on either side. Even so, the Arizona law, the latest of a number of recently proposed or adopted state laws related to immigration enforcement, highlights the need for reform at the federal level.

For there to be any chance of success, the federal government must take leadership of the immigration reform effort, which it has not always done. Where possible, the states can and should support these efforts, but in a coordinated fashion. That means no independent state efforts targeting undocumented aliens, but also no more sanctuary cities. The federal government should step up partnering arrangements, like Secure Communities, 287(g) and targeted grants, but these alone are inadequate.

Control of the U.S. border is a prerequisite to real immigration reform. An essential part of the 2007 bipartisan comprehensive immigration reform legislation required that increased resources for border security be in place before other elements of comprehensive reform could take place.  While that bill failed, the border security “triggers” were largely met or exceeded. But the American public wants more security, not less, and is as skeptical as ever that the Federal government is serious about gaining control of its borders.

Accordingly, new benchmarks need to be established and they must be achievable and effective.  The president’s decision to deploy up to 1,200 National Guard troops temporarily to the southwest border may be a useful start, but benchmarks like this and more border patrol agents and Immigration and Customs Enforcement agents must be sustained and will only be effective if backed by laws and policies allowing them to confront the range of issues they face daily.  Other benchmarks, such as knowing who enters and departs our ports of entry are equally important.  Estimates are that as much as 40% of the illegal population arrived here lawfully but overstayed their visas.  We cannot secure our borders until we establish an effective system to track and confirm the exits from the U.S. of all visitors, a notion echoed by the 9/11 Commission.

Border enforcement alone is not enough. We must “effectively” turn off the magnet of easily available U.S. jobs for unlawful workers. The current system to verify work eligibility is inadequate because the documents checked such as a driver’s license and social security card, are easily faked. The government’s currently voluntary verification system, E-Verify, does little now to counter identity theft and the use of stolen documents. A better system is needed.

The recently released Democratic proposal circulated by Sen. Schumer and others would drastically change the employment verification process by mandating biometric social security cards for all US workers, foreign and US citizens alike. Under this system, every US worker will have to obtain a biometric card and every employer will have to have the ability to read the information stored on the card.  The costs, burdens and implementation issues associated with this proposed system will be significant. It will also generate significant pushback from a wide-range of groups who will see this as a federally mandated national I.D. card. This proposal is too big and will fail.

Other options which build on improvements made over the past several years, include a mandatory and more advanced E-Verify which addresses identity theft, and reliance on existing and widely available secure documents such  as U.S. Passports to verify employment eligibility of US Citizens and secure DHS issued documents for non-US Citizens, make more sense.

With measurable improvements in border security and an effective employment verification system, we can focus on the approximately 11 million individuals illegally in the U.S. Whatever combination of fines, waiting period and eligibility requirements are established for legal status in the U.S., they must be clear and implementation manageable. We need to reconsider the practicality of requiring any touchback provisions that were previously included in draft legislation.  We need also to ensure that those illegal aliens with criminal records or otherwise deemed ineligible are deported swiftly.  The government agencies charged with handling the approximately 11 million illegal aliens in the U.S. must be able to quickly identify applicants, perform background and national security checks, and make timely and final eligibility decisions.

Through all the heated discussion by both sides over the issue, we must recognize the importance of immigration to our economic and national security. We need a system that encourages hard working and law abiding individuals.  Comprehensive reform needs to include a rational and sustainable allocation of visas for future immigrants.  Understanding that there are a finite number of new immigrants we can absorb yearly; this will require an honest review of the current system heavily weighted towards family-based, rather than skills-based immigration.  The new system should also create an effective temporary worker program to provide the workers a robust economy requires.

In order to build the political support needed for passage of a comprehensive legislative package, a bill must be linked to measurable progress in securing the border and drastically reducing the number of illegal workers in the US. Without these fundamental truths as cornerstones, immigration reform will fail. And the anti-government cynicism will continue.

Douglas Baker is Managing Director of Monument Capital Group, a private investment and advisory firm focused on opportunities in the Homeland Security and Defense market. He served as Special Assistant to the President and Senior Director for Border and Transportation Security Policy under President George W. Bush.

Michael Neifach practices immigration law in Washington, D.C., and is Principal at Cross Border Strategies, LLC, providing a range of Homeland Security consulting services. He served in a variety of senior policy positions at the Department of Homeland Security and the White House and was most recently the Principal Legal Advisor at Immigration and Customs Enforcement.