Comparing the Proposals of 2013 Reform of the United States on Illegal Immigration

Undocumented immigration in the USA has historically been one of the hottest topics in the US politics, and has become one of the main pillars of election debates in the last four presidential elections. While each presidential administration has outlined various mechanisms to combat illegal migration, the pace of family reunifications and the new demands for low-skilled labor force have created unprecedented high volumes of undocumented population in the USA, that today accounts for estimated 11 mln. undocumented migrants — roughly 3.5% of the US total population.

Two immigration reform proposals were put into public debate in early February, 2013 in the USA– one by a bi-partisan group of democrat and republican senators, and the other by President Obama. Both proposals offer four components: (a) improvement of border control, (b) control on employers hiring illegal migrants, (c) earned citizenship to those migrants already in the country, and (d) promoting a legal migration policy (White House 2013; Bipartisan Framework 2013). Let’s compare both proposals.

Border Control: Despite doubling the number of border control guards, the US border crossings by illegal immigrants are still a vital problem. During 2009-2012 annually in each fiscal year law enforcement officers have removed around 47,000 migrants illegally crossing the border, whereas this number was up to around 70,000 persons for the fiscal year 2012. And in 2012 this was just 17% of the total of 400,000 removals due violations of law by immigrants. (Immigration and Customs Enforcement n.d.).

The bipartisan proposal takes a hard stance and sees part of the solution of border control in increased surveillance and higher number of aerial unmanned vehicles to guard the border. Both the President Obama’s and the bipartisan proposals offer to strengthen the border control infrastructure, improve the partnership between the law enforcement and border communities by increasing the funding and border control personnel, giving more training on civil rights and liberties to the staff of the Department of Homeland Security. Obama also aims to create new criminal penalties to combat trafficking and criminal networks on passport and visa fraud, increase the number of immigration court judges and their staff, and to deport criminals when their sentences end with no possibility to re-enter (White House 2013).

The bipartisan proposal also offers to track temporary entries in the USA by fostering the entry-exit registration–to identify whether migrants have left the country or not, something that perhaps sounds better on paper that is effective in practice.

One is left to wonder to what extent intensive investment in the border control will have tangible impact on undocumented migration. The 17% percent due to border violations, as stated earlier, can indicate that the border control does not have sufficient capacity to capture those who cross the US border illegally, which on its turn may explain the low percentage of border violators among those apprehended. Yet, a more plausible explanation is that most migrants enter the US legally, and then overstay their visas. This is especially true for those migrants who arrive not from Mexico, but from countries that do not share a border with the USA– such as illegal migrants from Asia, such as China, Vietnam, or Eastern Europe, the post-Soviet states, Middle East, etc. This also means that the stricter border control would have only limited impact. This is already evident in the same 2012 fiscal year statistics of immigration removals: the proportion of those who re-enter illegally is larger than those caught at the border– 21% of those removed were persons who were deported and then re-entered and were caught in the USA. Thus, the migration reform should be directed at finding flexible visa regimes that could regulate mobility of persons and prevent them from seeking an illegal entry or a stay in the destination country.

Employment of Undocumented Migrants: The Immigration Reform and Control Act (ICRA) of 1986, one of the achievements of President Regan administration, made it illegal for companies to knowingly hire migrants who were in the country illegally (Immigration and Customs Enforcement 2012a). Since then employers are subject to a monetary penalty of $375 to $16,000 for per violation (Immigration and Customs Enforcement 2012a). However, as illegal immigration has expanded in the USA since then, it became clear that employment documents were easily falsifiable, and the mechanisms to punish employers were inefficient. Until 2006 no employer was punished for hiring an undocumented migrant (Immigration and Customs Enforcement cited in Washington Post 2013), whereas during Obama Presidency only in fiscal year 2012 more than 370 businesses were sanctioned for violations of illegal hiring (Immigration and Customs Enforcement 2012b).

Today there are estimated 11 million. To fight against employers who hire illegal migrants, both proposals offer to introduce a mandatory electronic system for employers –connected to the federal database– to verify whether the migrant is allowed to work in the USA. Obama will fight against illegal hirings through a “labor law enforcement fund” he suggests to create. Moreover, both proposals offer to create a fraud and tamper resistant social security card for employment authorization, and increase the penalties for hiring illegal migrants.

Citizenship and Permanent Residency: Since deporting 11 million illegal migrants is not realistic, both proposals offer very similar mechanisms for the integration of undocumented migrant. Moreover, the US citizenship or permanent residency statuses are made pre-conditional on a probationary status before an immigrant can be eligible to apply. These provisions sounds attractive to undocumented migrants in the USA as these changes will finally create a legal platform for rights and civic citizenship of migrants, and create prospects for their social mobility in the society. Namely, naturalization, or what Obama has called in his proposal “pathway to earned citizenship”, is pre-conditional for immigrants first giving up their undocumented status and registering, submitting biometric data, going through a criminal background check and paying penalties and dues they owe to the USA. This will give migrants no more than a provisional legal status. Those wishing to be considered for permanent residency, must also pay taxes, learn English language and only after five years, consistent with the current procedure, they will be eligible to apply for citizenship. Funding will be provided to appropriate agencies to conduct regular audits for fraud prevention. In the bipartisan proposal, these immigrants on probationary status (that were previously undocumented migrants) will not be eligible for federal public benefits, have to also show history of work and current employment before they become eligible to apply for permanent residency.

In Obama’s proposal children of undocumented migrants will be eligible for earned citizenship by either going to college or serving in the Army for 2 years.

The bi-partisan proposal calls for preferential treatment of undocumented migrants in the agriculture sector. Given the high demand for labour force in the agriculture and due to the delays in getting a guest-worker status, majority of workers in the US agriculture sector are undocumented. The report by the American Farm Bureau Federation (2006) stated that the “[US] agriculture is the most dependent on migrant labor”, and the production of up to 5-9 billion US dollars of import-sensitive commodities “would be lost”, and 10-20 percent of fruits and vegetables would have to be imported from other countries. Given these considerations, undocumented migrant-workers in the agriculture “will be treated differently than the rest of the undocumented population… and earn a path to citizenship through a different process under our new agricultural worker program”– states the bipartisan proposal.

Family Re-Unification and High-Skilled Labor: Both President Obama’s and the bipartisan proposals offer several facilitated mechanisms for family or employment-sponsored immigration. To get rid of the backlog visas that hinder family reunification, Obama offers to temporarily increase annual visa quotas and to double the annual country caps for family sponsored immigration; and create additional visas for employment-sponsored immigration system. This is in addition to encouraging permanent residency visas for foreign entrepreneurs and investors. Both proposals acknowledge that graduate students educated in the USA in science, technology, engineering, and mathematics (STEM programs) should be eligible for automatic green card: in Obama’s terms a green card should be “stapled” to the diplomas if persons have found an employment in the USA. This latter clause is a big change from the past practice when only jobs in the academia qualified for a green card application without a quota, otherwise, the recent Ph.D. or Master’s graduates were subject to a quota system on green card if their post-graduate job was outside of the academic sector.

What to Conclude? The most important achievement of both proposals is that finally both the liberal and conservative policy-makers have offered similar mechanisms to solving migration policy gaps in the United States. While the bi-partisan proposal lays out the major principles around which the immigration reform should be designed, the Obama proposal is somewhat more concrete and offers specific steps to four issues mentioned above. As a shortcoming, both proposals rely on an even increased public spending and expanded bureaucracy to combat migration (primarily on tracking entry-exit of temporary migrants, border control and surveillance, document fraud, etc). Yet the only real solution to undocumented migration is the improvement of the visa system and the reduction of paperwork and bureaucracy on obtaining a family reunification or guest worker visas– the two main sources of US illegal migration.

Both proposals also stop short of mentioning any further steps for migrant integration. In both proposals the target seems to be only at the entry points– entry into the US border, entry into the US labour market legally, entry into the US citizenship body. Yet, none of the proposals mentions how to ensure that migrants not only obtain a legal/documented status at entry stage, but also be able to retain their membership to the US society and not become marginalized. When only 17% of immigration removals from the US are due border violations for fiscal year 2012, another appalling 55% comprise aliens caught for committing criminal offences in the USA– i.e. felons or repeat offenders (Immigration and Customs Enforcement n.d.). Can there be a stronger indicator that more policies should focus on marginalized migrants and aim to create opportunities for their integration into the US society?

Yet the US immigration reform remains unbalanced: Ironically, neither proposals mention any simplification for obtaining permanent residency or citizenship for already legal migrants in the USA who have lived in the USA for many years as lawful nor tax-paying citizens, some have even been educated in the USA. Despite their contribution and investment in the US society these persons and their families, by following the established procedure, may get permanent residency or citizenship even later than the undocumented migrants who have lived in the shadow of the US society and economy. The bureaucratic rules and procedures will remain unchanged for these already legal migrants.

What Lessons Can European Policy-Makers Learn? Border control reforms are not sufficient for combating undocumented migration. Migrants will always find alternative ways to enter the country. Moreover, if visa policies are not harmonized with labour-market demands, such as the timely issuance of work visas or work-permits, the labour demand will continue to encourage undocumented migration. And finally, as number of migrants increases globally, family reunification more than ever becomes an important factor for migrants. Thus, all migration policy reforms in Europe should pair stricter border controls with creating facilitated travel and mobility regimes for migrants to prevent migrants from seeking illegal alternatives of travel. Visa facilitation initiatives are a good starting point, but not enough. Integration of migrants at destination countries andat sending countries is as important as creating flexible visa regimes for travel. Integrated migrants are more likely to contribute to social institutions both in home countries and in destination countries. Integration in home countries reduces the chances of a migrant to overstay their visas in the host country. Integrated migrants who obey laws also socialize about migrant culture future potential migrants, such as their children and future generations. These steps can achieve larger positive systemic outcomes than any “dry” border control policy ever will.

Shushanik Makaryan, Research Assistant to CARIM-East

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The EUI, RSCAS and MPC are not responsible for the opinion expressed by the author(s). Furthermore, the views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union.

References:

American Farm Bureau Federation. 2006. Impact of Migrant Labor Restrictions on the Agricultural Sector, February, 2006.

Bipartisan Framework for Comprehensive Immigration Reform. 2013. Authors: Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake.

Immigration and Customs Enforcement (n.d.) Removal Statistics: Factsheet, February 6, 2013

Immigration and Customs Enforcement. 2012a. Form I-9 Inspection Overview: Fact Sheet, August 1, 2012. Downloaded on February 6, 2013.

Immigration and Customs Enforcement. 2012b. Worksite Enforcement: Fact Sheet. May 23, 2012. Downloaded on February 6, 2013.

Washington Post. 2013. Why Immigration Reform in 1986 Fell Short?, February 3, 2013, by Karen Tumulti, Feb. 4, 2013

White House (The). Office of the Press Secretary. Factsheet. Fixing our Broken Immigration System so that Everyone Plays by the Rules. January 29, 2013.