Immigration Policy in Flux

September 25, 2007

When Presidents Vicente Fox and George W. Bush got together last February at Fox’s Guanajuato hacienda, the two let it be known that an important shift was in the works in U.S.-Mexico relations—immigration policy in particular. Several months later, during Fox’s September state visit to Washington, the two presidents set forth principles from which further negotiations might proceed; they have suggested that they hoped to reach an agreement by the end of the year. While the details of the negotiations are unclear, both sides have suggested that they are considering plans to "regularize" the status of undocumented Mexican workers currently living in the United States and bring additional Mexican guestworkers to the United States to fill labor shortages in the service sector. Their proposal envisions immigration issues within the broader landscape of foreign policy, recognizing the responsibilities for migration flows in both "receiving" and "sending" countries. It clearly has implications for all undocumented workers in the United States, and has raised hopes within U.S. immigrant communities.

Whether these hopes remain alive in the wake of the September 11 attacks remains unclear. On the down side, restrictive immigration provisions have been included in new anti-terrorism measures, leaving the immigrant rights community with new sets of civil liberties and civil rights concerns. On the other hand, the "war on terrorism," has forced the administration to adopt more of a global and regional perspective than it previously had, to secure future collaboration with its hemispheric partners and to think about meeting future threats from a multinational position. So the regularization of undocumented workers—at least on a limited scale—may still be in the offing.

Bush’s perspective on immigration—especially Mexican immigration—is markedly different from that of many of his Republican colleagues. Unlike former California Governor Pete Wilson who used anti-immigrant rhetoric as a campaign tool in the mid-1990s, Bush has advanced a cautiously pro-immigrant message, speaking positively of immigrants’ contributions, referring to his Mexican family members, and speaking passable Spanish. While the President has made it clear that he will not support a "blanket amnesty," his statements, while vague, suggest that he would support a program allowing workers to earn legalization if they can prove they have worked and paid taxes in the United States for some period of time. He also supports a program that links willing employers with willing employees.

For his part, Fox, unlike his predecessors in Los Pinos (the Mexican White House), has consistently championed the rights of Mexicans who live in the United States. After all, Mexican Americans send important remittances to Mexico and may soon acquire the right to vote in Mexican elections. Fox has repeatedly urged the United States to make the borders more open to Mexican workers and to "build new conditions of fairness" for undocumented immigrants "whose hard work is a daily contribution to the prosperity of this great nation." The personal relationship between the presidents has ignited the possibility of bringing their vision of future Mexico-U.S. relations to the fore. At best, it creates an opportunity to develop a sensible migration policy that addresses both push and pull factors, and places firm responsibilities on both sides of the border. At worst, it presents the danger of building on the failures of the past, particularly temporary worker programs that create an exploited underclass of workers.

Of course, Bush cannot implement his proposals without Congress. While immigration has not been a strictly partisan issue, the President will certainly encounter difficulties bringing his party in line with his proposals. Some GOP conservatives, notably Sen. Phil Gramm (R-TX), will oppose any legalization programs viewed as rewarding lawbreakers; opponents of legalization plans also point out that illegal immigration increased dramatically following the 1986 legalization of undocumented workers already in the country. This restrictionist wing is likely to butt heads with those who favor an attempt to reshape the Republican Party with an eye toward the increasingly significant Latino vote, which—Miami Cubans excepted—has long been overwhelmingly Democratic.

Indeed, with their increasing numbers and visible presence, U.S. Latinos are beginning to play a significant role in the shaping of immigration policy as well as a host of other issues ranging from education to economic policy. The 2000 Census data show a large growth in Latino population; the number of self-identified Hispanics in the United States grew by 58% from 1990 to 2000, reaching a grand total of 35 million people. Roughly one in eight U.S. citizens is of Hispanic origin, making Hispanics the nation’s largest ethnic minority group. Census data also shows that 60% of U.S. Latinos are natives of the United States, not immigrants.[1] Nevertheless, Latinos across the country—immigrants or not—feel the impact of immigration policy because they live in immigrant families and communities and often have strong ties to those with immigrant backgrounds. Immigration has powerful symbolic meaning for the Latino community, and the immigration debate often serves as an indicator of respect for the contributions of the larger Latino community to the nation. While immigration ranks behind education and health care as a public policy priority for Latinos, it is an important question that provides signals for other issues. Thus immigration policy is critical as both Republicans and Democrats court the Latino vote.

Meanwhile, Democrats, labor leaders, and immigrant advocates demanding broad immigration overhaul are nervous about Bush’s initiative and have put forward their own agenda. The Democratic leadership has laid out a set of principles for immigration including an earned legalization program, a temporary worker program that includes workplace protections, improved border safety and due process for migrants, and renewed focus on family unification. In addition, labor and business have joined forces in support of legalization; an unlikely tag-team of AFL-CIO President John Sweeney and U.S. Chamber of Commerce CEO Thomas Donohue testified at a House Immigration Subcommittee hearing in early September praising the benefits of legalizing the status of millions of undocumented workers.[2]

Donohue’s presence comes in the midst of growing evidence that U.S. economic growth—especially in the service industries—has been dependent on a low-wage immigrant workforce for some time. Representatives of industries in the service sector, like hotels, restaurants, and nursing homes have formed an Essential Worker Immigration Coalition (EWIC) which argues in favor of more generous immigration policies, including the legalization of those already in the U.S. workforce. During the long economic upturn, these employers argued that widespread labor shortages were a significant constraint on economic growth.

As for the AFL-CIO, labor leaders argue that legalization of the undocumented workforce is vitally important for protecting the overall U.S. workforce. The AFL-CIO, in a unanimous decision by its executive council in February 2000, took the position that the best way to protect all U.S. workers is to legalize those who are in the workforce without immigration papers. Unions argue that employers can ignore labor laws and undermine organizing campaigns for those workers who lack immigration status because workers who complain run the risk of deportation, underscoring the scale and importance of the undocumented workforce.

Proposals for two major programs have surfaced in recent months: a legalization program under which certain undocumented workers already in the United States could legalize their status and become legal permanent residents, and a guestworker program through which foreign workers would enter the United States temporarily in order to fill labor shortages in the service industry. At the time of this writing, no legalization or service sector guestworker legislation has been introduced, but several agricultural guestworker bills have been introduced, Republican versions by Sen. Larry Craig (R-ID) and Rep. Chris Cannon (R-UT), and Democratic bills by Sen. Edward Kennedy (D-MA) and Rep. Howard Berman (D-CA).

Underlying the current debate is the fact that the population of undocumented immigrants living and working in the United States has grown steadily since the 1986 Immigration Reform and Control Act (IRCA). Despite heightened border controls and the imposition of penalties against employers who hire undocumented persons, a substantial and growing number of undocumented workers have found a place in the U.S. labor force. Credible estimates from the Immigration and Naturalization Service (INS) and the Urban Institute estimate that the size of this population is between six and nine million, entering at a rate of 200,000 to 300,000 per year.[3] In addition to the population that crosses the U.S.-Mexico border illegally, the INS estimates that as many as 40% of undocumented migrants enter on valid visas and overstay them.[4] As long as the U.S. economy needs additional workers, immigrants continue to come, even at great risk to their safety.[5]

Given these realities, U.S.-Mexican negotiations, and the Congressional debate they have inspired, provide an historic opportunity to reshape immigration policy in a way that is responsive both to labor market needs in the United States and the needs of immigrants themselves. In particular, these discussions could create a coherent and more effective alternative to the current immigration control regime, which is ineffective and discriminatory. Such alternatives would have the following characteristics:

—Legalization would be a major element of any progressive policy change. The long-term interests of U.S. citizens would be best served by allowing long-term, hard-working, tax-paying residents to come out of the shadows and participate fully in the U.S. economy and society. Those who can demonstrate that they’ve made those commitments should be afforded the opportunity to legalize, and the opportunity should not be limited to Mexicans.

—Temporary worker programs by themselves are not a viable long-term policy option. The nation’s history with guestworker programs, which have mostly applied to agriculture, has been a highly negative one. Proposed expansions to these programs are opposed by immigrant advocates because they undercut workers’ rights by offering few labor protections, tie workers to individual employers and provide no opportunities for adjustment of status. Furthermore, some undocumented workers come to the United States with the intention of returning to their home countries. They do not seek to be immigrants, and often end up "trapped" in the United States because U.S. border control policies make it to difficult to depart and re-enter, swelling the ranks of the undocumented.

—A temporary worker framework to "regularize" future worker flows could be a reasonable policy outcome. However, it must be markedly different from the existing temporary worker construct. In particular, it is essential for any workers who participate to be fully covered by U.S. labor laws, including the right to change employers, strong protections for wages and working conditions, the right to unionize and the ability to keep their families together. Similarly, it is essential that such laws be vigorously enforced by strengthening the Wage and Hour division at the U.S. Department of Labor as well as by ensuring that these workers have access to legal services. Finally, any temporary worker program must also include a path to adjustment of status for its workers; if their labor is needed here year after year, they should be able to choose to remain in the United States as immigrants, having demonstrated that their labor is of value here.

—Immigration enforcement must be conducted strategically. Even a successful temporary worker structure would not eliminate the need to conduct immigration enforcement at U.S. borders and the interior. But this enforcement must be conducted strategically, aimed at large-scale smugglers and employer networks that deliberately import workers from other countries in order to skirt U.S. wage and other laws that aim to protect workers. Enforcement at the border and the interior must also be conducted according to a strict set of standards to protect the civil and human rights of those who come into contact with enforcement personnel. In addition, the ineffective and discriminatory employer sanctions regime should be replaced by a new system that emphasizes labor law enforcement and eliminates the economic incentive for unscrupulous employers to hire unauthorized workers.

—Economic development efforts must be targeted to create opportunity in areas where migrants originate. If the experience of the 15 years since IRCA has taught us anything, it is that even the toughest laws, vigorously enforced, are no match for the economic forces that drive migration. As Washington properly revises the laws that affect what happens within its borders, it must also look closely at the so-called "push" factors that drive migration. In the long term, if we wish to alter the migrant stream that originates in Mexico and other countries, we must include economic development in those communities as part of our overall migration strategy.

The September 11 terrorist attacks on the World Trade Center and the Pentagon have had devastating and far-reaching effects on the nation’s policy agenda—and on a wide variety of communities across the United States. The specific impact on immigrant communities is worth noting: Many foreign nationals, immigrants, and first-generation U.S. citizens are included among the numerous victims and heroes of the attacks. Family members of some immigrant workers, however, have been hesitant to report missing loved ones out of fear of the INS; further, many of these immigrants and their family members, due to severe restrictions on eligibility for public services, remain unable to access certain public programs such as disaster relief programs and unemployment insurance. Many more immigrant workers find themselves among the unemployed as a result of cutbacks in travel and other affected industries. And despite strong statements from U.S. officials urging racial and ethnic tolerance, reports of violence, harassment, and hate crimes against Arab Americans, Muslim Americans, and others simply mistaken for "terrorists" have been distressingly common. In the wake of the attacks, some people immediately called for even more severe restrictions on immigrant admissions and a further curtailment of the rights of immigrants already in the country. Issues that previously had low priority such as national ID cards, increased border enforcement and INS restructuring may re-appear in light of recent events.

The immigrant rights community will need to be vigorously engaged in the policy debate in response to the attacks to ensure that policy changes enhance safety without sharply curtailing the rights of the foreign born. While committed to flushing out terrorism and ensuring that the United States and all of its people are safe from future attacks, the immigrant advocacy community, in coalition with many diverse interests, is equally committed to protecting the civil liberties of all people and defending the freedoms that define the United States and attract immigrants to this country in the first place. We must make sure that our policy does not target individuals and groups based on ethnicity, nationality, religion, or appearance. Moreover, the events of September 11 demonstrate the need for close collaboration between the United States, Mexico and Canada on immigration matters; international migration must no longer be seen as a domestic issue, but as a complex system requiring multinational cooperation and broad-reaching, long-term vision.

Like so many other issues that were pressing before September 11, the U.S.-Mexico agenda and other immigration proposals are on hold, and the future remains uncertain. When the Bush administration and Congress eventually take up immigration issues again, they will most likely proceed more slowly and carefully than originally envisioned, and several new challenges are likely to emerge. In the midst of a war on terrorism, U.S.-Mexican relations may no longer be on the administration’s front burner. Furthermore, the continued effect of the current wave of anti-immigrant sentiment on future immigration proposals may be an issue. In the wake of a national tragedy most likely perpetrated by foreign-born terrorists, the U.S. public may be less open to legalization and guestworker programs. Prior to September 11, an opinion poll conducted by a bipartisan team, Lake Snell Perry & Associates and The Tarrance Group, found that a majority—59% of U.S. voters—supported legalization for undocumented immigrants who could prove that they have lived, worked, and paid taxes in the United States. More recent polls show that Americans believe lax immigration law enforcement played some role in the terrorist attacks, and that Washington must step up enforcement activity.

In light of such views immigration will need to be discussed in more careful terms. While the fundamental issues remain the same, legalization legislation is likely to move more slowly; the unknown effects of an anti-immigrant backlash and economic changes in key industries will have a major influence on eventual outcomes.

The United States, however, still stands at the threshold of an important opportunity to bring rationality and justice to its immigration policies after decades of failed experiments. Those policies are currently teeming with inconsistencies: The law seeks to discourage and restrict undocumented workers; the U.S. economy beckons low-wage workers. The law makes the hiring of undocumented workers illegal; it winks at the existence of an unauthorized workforce estimated to be as high as nine million people. The institutions of labor and immigration policy are supposed to protect the jobs of U.S. citizens; together, they tolerate a subclass of undocumented workers, thus undermining wages, working conditions and organizing opportunities for all workers. U.S. political culture touts "family values"; spouses and children of U.S. citizens must wait years to come here legally because of lengthy INS backlogs.

While some argue that a legalization program would undermine the rule of law, it is hard to imagine any situation more likely to encourage disrespect for the law than the hypocrisy of the current system. The discussions between the United States and Mexico have opened the door to a recognition of the economic realities that drive migration. They have also opened the door to a realignment of U.S. immigration laws with the best traditions and values of the United States.

Michele Waslin is a senior immigration policy analyst at National Council of La Raza and a Ph.D. candidate in political science at the University of Notre Dame

1. Beyond the Census: Hispanics and an American Agenda (Washington, D.C.: NCLR, 2001).
2. Hearing Before the Committee on the Judiciary, Subcommittee on Immigration, September 7, 2001.
3. See Michael Fix and Jeffrey S. Passel, Immigration and Immigrants: Setting the Record Straight (Washington, D.C.: The Urban Institute, 1994) and Statistical Yearbook of the Immigration and Naturalization Service (Washington, D.C.: U.S. Government Printing Office, 1999).
4. Michael Fix and Jeffrey S. Passel, Immigration and Immigrants: Setting the Record Straight.
5. An alarming number of deaths take place each year at the U.S.-Mexico border. Since the initiation of Operation Gatekeeper, a major border-control initiative in the mid-1990s, at least 1,700 migrants have lost their lives crossing rivers, deserts, and mountains entering the United States. See Wayne A. Cornelius, "The Efficacy and ‘Unintended’ Consequences of U.S. Immigration Control Policy, 1993-2000," monograph, 2001.

Tags: US immigration policy, undocumented, US-Mexico border, Latinos, INS

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