The Bush Proposal on Undocumented Workers & Comparative Pending
Legislation: An Analysis© - Part I
By Alan Lee, Esq.†
‡
Copyright © 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
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