Immigration Reform: Five Years Later, Five Big Challenges

It has been more than five years since the last congressional effort at comprehensive immigration reform dissolved in acrimony. Since that time, the U.S. government has deported nearly 2 million unauthorized immigrants; a weaker economy and tougher border enforcement resulted in arrests of illegal crossers at the border with Mexico dropping from more than 850,000 to 327,000 annually, the lowest since the early 1970s; and skilled immigrants, facing long waits for green cards as well as the diminished opportunities of a weaker economy, are no longer coming to the United States in the numbers they once did.

This week, the effort at rewriting an antiquated and ineffective set of laws starts again. A bipartisan group of senators released today a broad set of principles for a comprehensive reform of immigration laws. Similar bipartisan efforts are quietly under way in the House. President Obama travels to Las Vegas Tuesday to lay out the White House thinking. The optimistic scenarios call for legislation to be approved by later this year.

The biggest hurdles are political ones. Many leaders in the Republican Party, including Senator Marco Rubio (R-FL) and House Speaker John Boehner (R-OH), have come out in support of immigration reform, recognizing that some action is needed to reverse the party’s falling fortunes with the growing number of Latino voters. But in the House, a majority of Republicans come from safe districts where the greatest threat is a primary challenge, and a vote for immigration reform would likely trigger such a challenge. The GOP leadership will either need to persuade those members to take a tough vote for the party’s future, or be prepared to pass legislation with Democratic votes and a minority of Republicans.

But the substantive questions matter enormously as well. The 2006-2007 legislation died for a variety of reasons, but one of the biggest ones was that it became such an unwieldy mess of complex and conflicting mandates that even the strongest supporters of reform lost their enthusiasm for it. Here are five big issues that need to be handled successfully this time around.

• Workplace enforcement. The failure to create any effective means for ensuring that employers hire only authorized workers was perhaps the biggest reason the last major immigration reform law, in 1986, was followed by a surge of illegal immigration. In the past five years, considerable progress has been made under a federal system called E-Verify, in which new hires are checked for their eligibility against Social Security and immigration records. About 10 percent of employers are now enrolled and the number is growing rapidly. But the system cannot protect against identity fraud. Legislation will need to resolve this issue, but in a way that does not impose big burdens on small employers. The operating principle should be to create a system that’s easy for honest employers to follow, coupled with aggressive enforcement and harsher penalties against employers who refuse to play by the rules.
• Border security. By the available measures, U.S. borders are far more secure than they were five years ago. But there is little trust in the measures provided by DHS, and as I have written elsewhere with colleagues, substantial improvement in performance measures is badly overdue. The Senate proposal calls for the creation of a commission of southwest governors, attorneys general and community leaders to make recommendations on whether the border is secure, which would provide a trigger for many of the 11 million undocumented immigrants currently living in the United States to apply for permanent residence and citizenship. This is not a bad suggestion, but there are two dangers. First, the commission may conflate control of illegal immigration with control of illegal drugs moving across the border. Both are real problems, but they are different ones. Second, the Senate proposal sets out the utterly unrealistic goal of arming the Border Patrol “to prevent, detect and apprehend every unauthorized entrant.” If a secure border means no illegal entry, it will fail; as my co-author, former DHS economist Bryan Roberts has noted, even the Cold War inter-German border – with barbed wire, watch towers and armed guards with shoot-to-kill orders – was successfully crossed by about 1,000 people each year.
• Skilled immigration. There is broad consensus that the United States needs to make it easier for the best and brightest immigrants, many graduating from U.S. universities, to remain in this country. Four senators – Rubio, Orrin Hatch (R-UT), Amy Klobuchar (D-MN), and Chris Coons (D-DE) – are set to introduce legislation that offers a good balance. It would: increase the H-1B visa cap from 65,000 annually to 115,000 but with flexibility depending on labor market conditions; eliminate the quota for graduates with advanced degrees from U.S. universities; allow spouses of H-1B holders to work; eliminate the national quotas for green cards that make waits so long for Chinese and Indians; and make it possible for visa holders to renew without returning to their home countries, a procedure that often triggers lengthy and unnecessary background checks.
• Temporary work programs and/or higher quotas for unskilled immigrants. It is notable that the modern era of illegal migration to the United States began when Congress eliminated the temporary work program known as Bracero in 1964. For all of the many serious problems with the program, it had the virtue of providing legal employment for unskilled workers, mostly from Mexico. When that door closed, many decided that coming to the United States illegally was their only option. The challenge here is to find a balance that opens new legal opportunities for low-skilled immigrant workers without depressing wages or reducing job opportunities for Americans and previous immigrants. It is encouraging to see the Chamber of Commerce, the AFL-CIO, and the Service Employees International Union trying to find common ground.
• Legalization. Ironically, if the first four pieces can be put in place, an agreement on some sort of earned legalization for undocumented migrants already in the United States -- long considered the most controversial issue -- may actually be the easiest piece to achieve. For the past five years, we have tried the alternative, known as “attrition through enforcement.” Record deportation levels, workplace raids and investigations, and a variety of state laws have made life in this country miserable for many of those without status. But surprisingly few have left. Like it or not, they are mostly here to stay. Opinion polls show that the public is pretty comfortable with that, and favors legalization. The real challenge will be to convince lawmakers that a new “amnesty” will not attract another wave of illegal migrants as happened after the 1986 legislation. And for that, the first four pieces – tough border and workplace enforcement couple with sensible and flexible legal immigration quotas – are the key.