The Bush Proposal on Undocumented Workers & Comparative Pending Legislation: An Analysis© - Part ICopyright © 2004 by West, a Thomson Business. Reprinted with permission of Interpreter Releases. President Bush galvanized debate on immigration when he proposed to create a new guest worker program covering undocumented workers as well as potential workers outside the country on January 7, 2004,1 and reiterated it in his State of the Union Address on January 20, 2004.2 His actions gave immediate relevance to immigration legislation designed to reform the immigration system along with affording relief to the undocumented. Bills already presented in Congress as of this date include Senator John Cornyn's (R-TX) "Border Security and Immigration Reform Act of 2003" (S. 1387 introduced on 7/10/03 and referred to the Committee on the Judiciary); the bipartisan "Agricultural Job Opportunity, Benefits, and Security Act of 2003" (introduced by Representatives Chris Cannon (R-UT) and Howard L. Berman (D-CA) in the House (HR 3142) and Senators Larry Craig (R-ID) and Ted Kennedy (D-MA) in the Senate (S. 1645) on 9/23/03 - the House bill was referred to the Subcommittee on Immigration, Border Security and Claims on 10/22/03 while the Senate bill was referred to the Committee on the Judiciary on 9/23/03); the Republican sponsored "Border Security and Immigration Improvement Act" (presented by Senator John McCain (R-AZ) and Representatives Jim Kolbe (R-AZ) and Jeff Flake (R-AZ) on 7/25/03 with the House bill (HR 2899) referred to the Subcommittee on Immigration, Border Security, and Claims on 9/4/03, and the Senate bill (S. 1461) referred to the Committee on the Judiciary on 7/25/03); the bipartisan "Immigration Reform Act of 2004", (S. 2010 introduced by Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD) on January 21, 2004 and referred to the Committee on the Judiciary); and the "Development, Relief, and Education for Alien Minors Act of 2003" (S. 1545 introduced by Senators Orrin Hatch (R-UT) and Richard Durbin (D-IL) on July 31, 2003 and passed out of the Senate Judiciary Committee in November 2003). This article will examine the background of the present illegal immigration numbers, the swirling debate over what to do with illegals, the president's proposal and the bills which are presently before Congress, and offer a perspective on future immigration reform through the prism of a set of criteria to judge the likelihood of success of each approach. 1. Background of the Illegal Immigration Numbers America has traditionally been a country with open borders, and its leaders only began taking the idea of closely monitoring our borders seriously with the 9/11 events. Previously passed legislation to toughen border inspections had been postponed after public outcry over anticipated delays to travel that such a system would cause.3 After 9/11, Congress voted more funds for border and interior enforcement of the immigration laws,4 and now with the anticipated completion of U.S.- VISIT (the new inspection system to record entries and exits including a biometric scan of facial features and taking of fingerprints at all points of entry) by the end of 2005,5 the ring against illegal entries and overstays has tightened. Illegal immigration in the future will still be a problem, but most likely not in the numbers that we have seen in the past. Even now, anecdotal evidence suggests the effectiveness of the new measures as many illegal Mexicans will not go home after their seasonal work is done for fear of not being able to return.6 Present estimates of the number of illegal aliens in the country range from 8-14 million7 with the variance due largely to fear by many undocumented workers of exposing themselves to expulsion if counted. How did the country come to such an impasse of having 8-14 million illegal aliens? The last amnesty, IRCA (Immigration Reform and Control Act of 1986),8 was supposed to take care of the problem once and for all by legalizing two classes of individuals: a.) all illegal aliens in the country before January 1, 1982 whether entering without inspection, overstaying a visa status or violating their statuses (so long as they could show that the violation was known to the government prior to 1/1/82);9 and b.) aliens employed as seasonal agricultural workers (SAWS) in the U.S. for least 90 days between 5/1/85-5/1/86, with SAWS who were able to document their employment in seasonal agriculture for 90 days during each of the years ending 5/1/84, 5/1/85, and 5/1/86, allowed to apply for permanent residence status (Stage 2) earlier than other SAWS.10 The IRCA legalized 2.7 million illegals over 4 years,11 and for the first time imposed escalating employer sanctions for those hiring illegal aliens after passage of the Act.12 Yet 18 years later, the number of illegal aliens has only grown much larger than in pre-IRCA days,13 and it can be seen that the main culprits were loose borders, jobs, the disparity of wages in America as opposed to those in their home countries, family ties to those already here as IRCA did not allow families of legalized aliens to use the follow to join provisions of the Immigration and Nationality Act (INA),14 failure of IRCA to cover many illegal aliens who were in the country by its implementation date of May 1987, and escape from oppression. These all combined to ensure continued attempts by many to enter the United States illegally or overstay visa statuses after IRCA. There is no argument that jobs and the desire for higher wages fuel most of the illegal immigration to this country. President Bush recognized this in stating somewhat simplistically that the United States should help the economies of other countries.15 But it seems apparent that this country cannot sustain the burden of propping up every other country's economy without suffering adverse effects on its own. Any solution to the immigration debate must take into account the long-term welfare of this nation. 2. The Immigration Debate The major question of the debate is whether increased immigration is good for the country. All other factors such as racism, xenophobia, compassion and criminality of some members of the immigrant population, should be ignored in the debate. What is the level of population and age content that is best for the country? Japan has shown that a high level of population in a stable industrialized society (127 million in a land size slightly smaller than California)16 can still have the highest standard of living in Asia.17 The United States as a whole has a population of 292 million across 50 states in a land mass slightly larger than China18 - which has a population over four times the size.19 However, Japan also serves as a warning because its working age population is in decline to the point that it will need 17 million new immigrants by 2050 with the consequences of failure being not only scarcity of workers and falling demand, but also a collapse of the pension system as the tax base shrinks and the elderly population booms.20 To stave off the decline of workers, major Japanese corporations have begun shutting down manufacturing operations and offshoring them to other countries.21 The United States is facing its own time bomb as its major working-class population, the baby boomers, will begin to retire en masse in the next years, and there are not enough workers in the next generation to replace them.22 It has been estimated that within 10 years, the number of baby boomers 55 and older will begin a growth trajectory outstripping that of the younger segments nearly fourfold and that the number of U.S. residents 55 and older will rise from 63 million today to 83.7 million by 2014 and 101.4 million by 2024.23 Federal Reserve Chairman Alan Greenspan has warned for years that an impending wave of retiring baby boomers will place a heavy strain on the government's legal obligation to pay retirement and health care benefits after approximately 2010, and he stated before Congress in February 2003, that "Short of a major increase in immigration, economic growth cannot be safely counted upon to eliminate deficits and the difficult choices that will be required to restore fiscal discipline."24 It must also, however, be recognized that the country is currently facing difficult economic times with a current unemployment rate of 5.7% for December 2003.25 2.7 million jobs have been lost since March 2001,26 and there are great concerns over the hiring of aliens instead of U.S. workers and the phenomenon of U.S. companies offshoring jobs to other countries. In this charged environment, many Americans feel insecure and are less able to adopt a generous view towards newcomers. A valid question to be asked is who will buy the goods which are being manufactured if the consumers are out of work? These are serious concerns that cannot be dismissed lightly. If American companies in their quest to obtain ever cheaper costs to compete with their counterparts in other countries in a global economy tell the American worker that he/she is no longer needed, will we then become a welfare nation buying cheap goods with government checks while being serviced by the peoples of other countries? But on the other hand, it has been perceived that there are many jobs that Americans will not take even now. This was one of the central tenets of the president's proposal27 and the bills which are presently before Congress. That perception is not strictly true as Americans will undoubtedly take any jobs that pay well, but what employer wants to pay the bathroom attendant, dishwasher, fruit picker, or teenager flipping burgers at McDonald's $20 an hour? The effect on the economy would be the raising of prices across the board for most goods and the rampant return of inflation. It seems apparent, however, that in the long run, there will be many more jobs available than U.S. workers to fill them. Over the next 10-20 years, skilled jobs will be on the rise proliferating in nursing, computer science, entertainment, financial services and entire fields that may now be just a gleam in the eyes of the innovative.28 Analysts are predicting a doubling of IT staff and scientists in the next decade, a rise in knowledge workers in diverse specialties that create, research, develop and maintain intangible capital, an explosion of new products triggering need for knowledge workers, and an army of greying baby boomers making staggering demands for an increasing amount of health care workers including physicians, RN's, nursing aides, orderlies and attendants.29 The need for new RN's has been estimated at nearly a million over the next five years alone.30 A recent article reported that 76 million baby boomers will be retiring this decade and next, but only 45 million Generation Xers are in the pipeline to take their places, citing statistics given by the Conference Board, a New York-based economic research group.31 The American Immigration Lawyers Association recently compiled statistics showing that over the next two decades, the country will need many more workers than U.S. manpower can fill.32 The paper quotes a Bureau of Labor Statistics (BLS) report that between 2000-2010, more than 33 million new job openings will be created that require only little or moderate training; a report by the National Association of Manufacturers and the accounting firm Deloitte and Touche that despite current difficulties in manufacturing, U.S. manufacturing will face significant problems in the future finding the workers needed to help America grow and prosper, and that there is a projected need for 10 million new skilled workers by 2020; and an Employment Policy Foundation warning that failure to close the labor supply gap will lower gross domestic product growth from its projected levels by least 3% in 10 years and at least 17% in 30 years.33 The Foundation also predicted a worker shortfall of 35.8 million in 30 years.34 In light of the above and barring unknown factors, it must be concluded that increased immigration, knowledge based, skilled and unskilled, is needed for the good of the country - and that the increased levels of immigration must be high. 3. President's Proposal and Bills before Congress A.) The President's Proposal In looking over the president's proposal and pending pieces of legislation, the final bill should pass tests of whether it can help solve our long term economic and illegal immigration problems, appeal to the illegal aliens to whom it would apply, not impose a significant burden to taxpayers, and be acceptable to the majority of congressional members. Although supposedly modeled closely upon the McCain/Kolbe-Flake legislation, the Bush proposal on examination is more akin to the Cornyn bill. Even Senator Cornyn on the unveiling of the Bush proposal stated that it largely mirrored the bill that he had introduced.35 From the available details, the Bush proposal is a guest worker program only, with the guest workers leaving at the end of their periods of legal stay.36 Under the proposal, workers in the program would be allowed three years with possible extensions, with the president emphasizing that the extensions will not be permanent; that there would be reasonable increases in quota for those attempting to apply for permanent residence, but that they would apply in the normal way and not given an unfair advantage over persons following legal procedures from the start; that they would return to their home countries and apply from there if the time was not enough under their working statuses to complete their permanent immigration; that central to the entire process would be recruitment in which employers would have to first make every reasonable effort to hire an American worker, and that the government was to develop a quick and simple system for the employer to search for American workers; that workers could join the program from abroad, and he implied that those who were undocumented in the U.S. would have to be here and working at this time through his phrase "undocumented workers now here"; that there would be a onetime fee for undocumented workers to register and none for those applying from abroad; that the temporary workers would be allowed to travel back-and-forth; that those who do not remain employed, do not follow program rules, or break the law, would be ineligible for continuation in the program; and that there would be special incentives for persons to return home including credit for time worked in America in their home country's retirement system, ease in contributing a portion of their earnings to tax preferred savings accounts collectible upon return to their home countries, and tougher employer sanctions for those hiring illegal aliens.37 Some of the topics not touched upon by the president in his proposal were what steps undocumented workers would take to participate in the program, the wage to be paid, right to bring families over, waiver of grounds of inadmissibility, deadline to apply for the program, and how long individuals could be without a job and continue in the program. (To be continued) © Interpreter Releases † The author is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His 1981 case with Ronald W. Freeman, Chavan v. Drysdale, 513 F.Supp.990 (NDNY 1981), encouraged the INS to change its 3 year maximum stay period for L-1 specialized knowledge personnel, and his 1992 correspondence with John Cummings, then Acting Assistant Commissioner for Refugees, Asylum and Parole, on the fate of asylees’ children who age out (69 Interpreter Releases, July 13, 1992), has been widely cited by others in the field. Readers may visit Mr. Lee’s website at www.alanleelaw.com. ‡ The following is the non-final edited version of the article. 1Nationally televised to the nation at 9pm EST on 1/7/04 outlining Presidential plan for increased immigration matching willing workers with willing employers. 2Mr. Bush devoted a small section of his State of the Union Message to his proposal saying that a temporary program would help protect the homeland – allowing border patrol & law enforcement to focus on true threats to the national security & that he opposed amnesty, because it would encourage further illegal immigration. 3The entry-exit system requirement was passed in §110 of IIRIRA (P.L. 104-208) & required the development of an automated entry-exit control system not later than two years after the enactment of IIRIRA in 1996 to create a record for every alien arriving & exiting the U.S. Congress, in P.L. 105-259, amended §110 of IIRIRA and required that the deadline for the implementation of the system be before October 15, 1998. Congress further amended §110 in the FY 1999 Omnibus Consolidated and Emergency Supplemental Appropriations act (P.L. 105-277) by extending the deadline for the implementation of the automated entry-exit system to March 30. 2001 for land border ports of entry and seaports (but otherwise leaving the October 15, 1998 deadline for air ports of entry) and by prohibiting significant disruption of trade, tourism, or other legitimate cross-border traffic once the entry-exit system was in place. In June of 2000, Congress substantially amended §110 of IIRIRA in the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA) (P.L. 106-215). This Act renamed the entry-exit system the “Integrated Entry and Exit Data System” and included provisions that: (1) rewrote §110 to require the development of a system using data collected with no new documentary requirements; (2) set staggered deadlines for the implementation of the system at air, sea, and land border ports of entry; (3) established a task force to evaluate the implementation of the system and other measures to improve legitimate cross-border traffic; and (4) expressed a sense of Congress that federal departments charged with border management should consult with foreign governments to improve cooperation. 4USA Patriot Act of 2001, Public Law No. 107-56, 10/26/01 5U.S.-VISIT was implemented on 1/5/04 at 115 airports and 14 major seaports for entry & 1 airport (Baltimore) & 1 seaport (Miami) for exit. All points of entry are to be covered by 12/31/05. §110 of IIRIRA, 8 U.S.C. §1365a, as amended. 6Los Angeles Times, “Migrants Need a Way to Go Home,” 1/15/04. 7New York Times, “Illegal Workers Would Get Broad Rights in Bush Plan,” 1/7/04. It should be noted that the Census Bureau report of 2000 pegged the number of illegals as 8,705,421 although there is no truly accurate number given the difficulties of counting an illegal underclass. 8Public Law No. 99-603, 11/6/86. 9Id at § 201 10Id at §302. Stage 1 allowed illegal aliens a fixed period of time to file an application for temporary resident status, while Stage 2 allowed the same for permanent residence applications. 11New York Times, “Plan May Lure More to Enter U.S. Illegally, Experts Say,” 1/9/04: This figure was much less than originally anticipated. Richard E. Norton, INS Associate Commission for Examinations, had stated on February 6, 1987, that the INS expected 3.9 million aliens to apply for amnesty (Interpreter Releases, February 9, 1987, at pg. 177). The lack of a more positive response can be seen as a major contributor (as will be later argued) to today’s illegal immigration problem. 12Supra, fn.8 at §101. 13The Democratic Study Group, U.S. House of Representatives Fact Sheet of 6/9/84 quoted census figures of between 2-6 million illegal aliens in the U.S., while the U.S. News & World Report article, “Immigration Reform: Weighing Cost of Failure,” 8/11/86, put the figure between 3-12 million. 14The follow-to-join provision at the time, §203(a)(8) of the INA, 8 U.S.C. §1153(a)(8), provided that a spouse or child as defined in section 101(b)(1)(A), (B), (C), (D), or (E) should, if not otherwise entitled to an immigrant status and the immediate issuance of a visa or to conditional entry under paragraphs (1) through (8), be entitled to the same status, and the same order of consideration provided in subsection (b), if accompanying, or following to join, his spouse or parent. 15Supra, fn.1, Mr. Bush stating that “the best way, in the long run, to reduce the pressures that create illegal immigration in the first place is to expand economic opportunity among the countries in our neighborhood.” 16CIA – The World Fact book – Japan at http://www.cia.gov/ciapublications/factbook/geos/ja.html. 17Standard of living at http://www.investorwords.com/4691/standard_of_living.html. 18Supra, fn.16, at http://www.cia.gov/ciapublications/factbook/geos/us.html. & U.S. & World Population Clocks – POP Clocks at http://www.census.gov/main/www/popclock.html. 19Supra, fn.16 at http://www-cia.gov/publications/factbook/geos/ch.html estimating population of China at 1,286,975,468 as of July 2003. 20New York Times, “Insular Japan Needs, but Resists, Immigration,” 7/24/03. 21The Wall Street Journal, “For Ailing Japan, Longevity Begins to Take Its Toll,” 2/11/03. Barrons, “Tomorrow’s Jobs,” 1/5/04. 22Barrons, “Tomorrow’s Jobs,” 1/5/04. 23Id. 24El Norte Digest. “USA: Greenspan Says ‘Major’ Increases in Immigration Could Aid Economy.” New California Media: 2/20/03. 25US Department of Labor Bureau of Labor
Statistics Data, “Labor Force Statistics from the Current
Population Survey” at http://data.bls.gov/cgi-bin/surveymost. 26Time, “Now Hiring,” Lisa Takeuchi Cullen, 11/24/03. 27Supra, fn.1. 28Supra, fn.22. 29Id. 30Id. 31Pioneer Press, “Labor Pains: Shortages Ahead,” 11/16/03. 32American Immigration Lawyers Association Report, “Economic Outlook Shows Vital Need for Immigrants in U.S. Economy,” 8/27/03. 33Id. 34Id. 35U.S. Senator John Cornyn News, “Cornyn Applauds President’s Call for Immigration Reform,” 1/7/04, at http://cornyn.senate.goc/news/index.cfm. 36Supra, fn.1. 37Id.
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