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Executive Memorandum #982 on Department of Homeland Security

September 23, 2005

The Cornyn-Kyl Immigration Reform Act: Flawed But Fixable

By , and

Any effective national security solution to reduc­ing illegal border crossings and the unlawful popu­lation in the United States must address internal enforcement of immigration laws, international cooperation, and border security. Effective immi­gration reform must be a key component of these reforms. The legislation proposed by Senators John Cornyn (R-TX) and Jon Kyl (R-AZ) offers just such a comprehensive approach but falls short by not adequately deterring illegal entry.

On the Right Track. After Sen­ator Cornyn became chairman of the Senate Judiciary Subcommit­tee on Immigration, he held a series of hearings with Senator Kyl, chairman of the Homeland Security Subcommittee, on a vari­ety of terrorist travel and border enforcement issues. The Comprehensive Enforcement and Immigration Reform Act (S. 1438) reflects the les­sons learned from these hearings and their own experiences in Texas and Arizona.

The bill recognizes that strengthening border security without reducing America's unquenchable demand for illegal labor is a losing strategy. As Cato Institute analyst Douglas Massey concluded:

Increased border enforcement has only succeeded in pushing immigration flows into more remote regions. That has resulted in a tripling of the death rate at the border and, at the same time, a dramatic fall in the rate of apprehension. As a result, the cost to U.S. taxpayers of making one arrest along the border increased from $300 in 1992 to $1,700 in 2002, an increase of 467 percent in just a decade.

More international cooperation, strong enforce­ment of laws inside the United States, and credible alternatives for employers to hire legal immigrant labor are essential to reducing the flood of illegal immigration and making border security manageable and afford­able.

S. 1438 would create a new "W" nonimmigrant visa for a guest worker program, which would allow employers to hire foreign citizens tempo­rarily to fill jobs that cannot be filled in the U.S. labor market. Workers would be required to undergo background checks and biometric docu­mentation. The bill also provides for "mandatory departure," which would permit an alien who ille­gally entered the U.S. within the past year to apply for a guest worker visa, leave, and then re-enter through legal means.

Where They Went Wrong. One problem is that the bill still rewards those who have entered ille­gally. Individuals unlawfully present in the country should be required to leave and apply for the guest worker program just as everybody else must do. The bill would give them an advantage over people who were following the laws by allowing them to apply for the W visa before leaving the U.S., effec­tively putting them at the front of the line.

Even more important is the principle behind making people leave. Repatriation is required by law. Making unlawful presence in the country per­missible, even for a short period of time for the sake of expediency, undermines the rule of law and sug­gests that the government is not serious about immigration enforcement. People will have little reason to follow the law if their illegal activity (presence in the U.S.) is considered legal if they just wait long enough. For a deterrent to be effective, the government cannot give lawbreakers an advan­tage over those who obey the law.

Furthermore, Cornyn-Kyl does not include security vetting provisions, provide the infrastruc­ture to manage the system, or require that it be in place before implementation. In fact, Congress has a track record of refusing to fund internal enforce­ment of immigration laws adequately. For about 15 years, the number of U.S. immigration agents has held steady at about 2,000, while the number of people unlawfully present in the U.S. has risen from a few million in the early 1990s to an esti­mated 12 million.

Immigration benefits and enforcement systems are little better than they were 15 years ago. In 1991, Mir Aimal Kansi entered the U.S. on a busi­ness visa and overstayed. Two years later, he claimed political asylum and then fraudulently applied for legalization under the 1986 amnesty bill. In January 1993, while his application was pending, he murdered two CIA employees and injured three others outside CIA headquarters. As written, the Cornyn-Kyl bill would do nothing to prevent the recurrence of a similar scenario.

The current application processes are also inad­equate and would be overwhelmed by a guest worker program. U.S. Citizenship and Immigration Services is unable to adjudicate current applica­tions within a reasonable time frame. Its informa­tion systems are not integrated with US-VISIT (a system that tracks foreigners' arrivals and depar­tures) or with the other 28 existing immigration databases. Only a handful of benefits applications are available electronically or require biometrics (e.g., fingerprints). Background checks do not include real-time vetting of law enforcement infor­mation. To work, the Cornyn-Kyl bill must put the infrastructure in place before implementing a guest worker program.

A Realistic Solution. Only a comprehensive solution will address all national security concerns adequately. Immigration reform and, specifically, the implementation of a temporary worker pro­gram must coincide with stronger enforcement of immigration laws. Congress should therefore mod­ify S. 1438 so that it:

  • Requires that the means to manage a guest worker program be in place before its imple­mentation and
  • Does not grant advantages to illegal aliens.

Border enforcement alone, even after spending billions of additional dollars, will not stop illegal entry or discourage unlawful presence. An effective temporary worker program that works for Ameri­can employers and those seeking work will cost less and reduce the cost of border enforcement. Only such a comprehensive solution makes sense.

James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation, Jan­ice L. Kephart is a former counsel to the September 11 Commission, and Alane Kochems is a Policy Analyst for National Security in the Davis Institute.

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