June 4, 2007 | WebMemo on Immigration
The Senate's immigration reform proposal would not improve border security and could actually worsen the problem of illegal immigration. The most dramatic impact of the legislation would be to allow millions of immigrants who are unlawfully present in the United States to remain, critically undermining the deterrent effect of U.S. immigration laws and border security. The legislation also provides no significant new security guarantees. To improve border security, the Senate should modify its legislation by removing the probationary status granted to individuals unlawfully present in the United States and the requirement to implement the electronic employment eligibility verification system, establish a realistic and practical temporary worker program, and implement the commonsense border security and workplace enforcement provisions of the bill.
A Flawed Security Concept
As recent experience in both the United States and Europe demonstrates, legalization measures only spur further unlawful migration. The Immigration Reform and Control Act of 1986-which legalized individuals who had resided illegally in the United States continuously for five years by granting them temporary resident status adjustable to permanent residency-is the most prominent example of amnesty. The law required a criminal background check, payment of application fees, acquisition of English-language skills, a civics requirement, and signing up for military service. Despite these measures, the law failed to curb the influx of illegal immigration.
The Senate's legislation embodies the same flawed strategy as the 1986 law. Any subsequent additional measures to enhance border security or improve immigration services would be overwhelmed by a continued flow of both illegal border crossing and overstays (individuals who enter legally but remain in the country past the period authorized by their visa).
To deter future illegal border crossing, Congress should not grant individuals unlawfully present in the United States any form of legal status (except for legitimate asylum cases) that does not require them to leave the U.S. voluntarily and undergo adequate criminal, national security, and health checks before seeking to return.
Equally troubling is the Senate's temporary worker proposal. The program as envisioned does not offer a credible, market-based alternative to hiring undocumented workers and thus will do little to discourage the flow of unlawful migration.
Ineffective, Counterproductive Triggers
The security and process triggers in the Senate legislation would not deter future unlawful presence, because individuals already here could immediately register for probationary benefits, including work authorization, protection from removal, and a social security number. This would only encourage others to follow their example.
Additionally, the legislation's delay in establishing a truly effective temporary worker program is unwise. An effective temporary worker program would offer an alternative to illegal entry and help achieve operational control of the border. Congress should establish a market-based temporary worker program as soon as practicable. The triggers to establishing a temporary worker program should concern whether the U.S. government has the capacity to rapidly conduct comprehensive security and health checks and adjudicate the status of individuals in any new visa program. The mistakes of the 1986 reform-which put individuals in probationary status following cursory checks and left them there for years-should not be repeated.
Finally, though a temporary worker program would contribute to the task of policing borders and coastlines, the U.S. must implement a comprehensive plan for integrated border security and achieve operational control of the border before initiating any new programs that substantially increase the number of permanent or temporary workers in the United States. This determination should be made by the Administration, subject to legislative concurrence, and should not be determined by arbitrary measures such as hiring and deploying personnel or building border obstacles.
Assessment of Security Measures: Good, Bad,
The promised security enhancements in the legislation fall into three categories: (1) commonsense and prudent measures that are not current law and should be enacted apart from the effort to address comprehensive immigration reform; (2) border security initiatives already underway that do not require endorsement in new legislation; and (3) unnecessarily intrusive or ineffective measures that hold out little real security value.
Positive Security Enhancements. Several components of the law should be implemented regardless of the fate of comprehensive immigration reform. Among the most important of them are:
Unnecessary and Arbitrary Requirements. Several components of the Senate legislation serve no purpose. Among them are:
Counterproductive Security Proposals. One part of the Senate's approach to improve immigration-law enforcement is likely to cause more trouble than it is worth. Title III of the act requires establishing an electronic eligibility verification system as a tool for workplace enforcement. This proposal is ill-conceived and a poor alternative to using existing authorities and systems to conduct workplace enforcement and increasing civil and criminal penalties for violations.
The proposed electronic employment eligibility verification system has four major problems:
The Way Forward
Congress should recognize that its proposal would not improve border security. Fixing it will require major changes, including removing the amnesty provision, eliminating the requirement for an electronic employment eligibility verification system, and improving and rapidly implementing the temporary worker program.
James Jay Carafano, Ph.D., is Assistant Director of the Kathryn and Shelby Cullom Davis Institute for International Studies and Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies at The Heritage Foundation.