When many people think of our so-called “broken” immigration system, they think of undocumented aliens. They think of borders out of control. They think of the jobs that foreign workers take.
Immigration as a system is a reflection of our country’s values and needs, as well as our current political climate. It will be a hot topic during the cold winter months of 2010. Like health care and war, immigration has its advocates — and its enemies.
A noncitizen or alien enters the system by walking across the border, by seeking a visa, or by being admitted to the United States at a port of entry. Annually, hundreds of millions of people come to the United States or seek to do so. While most aliens leave and return home uneventfully, some stay legally; others become citizens and remain here the rest of their lives; and others overstay, become illegal and are removed.
In 1986, Congress passed the Immigration Reform and Control Act (IRCA). Its goals were to reform a system then viewed as broken and control the inflow of undocumented aliens into the United States. IRCA created both amnesty and employer sanctions. Millions of undocumented aliens legalized their status and many became U.S. citizens.
Sanctions were enacted to stop undocumented aliens by imposing restrictions on employers. As everyone who has secured employment since Nov. 6, 1986, knows, all new hires must fill out an Employment Verification Form, the I-9. This tool, along with enforcement actions and the controversial E-Verify system, are used to try to encourage lawful employment and discourage unlawful employment.
Along the borders fences were built, Border Patrol agents were hired and apprehended aliens were returned home. This has deterred the flow of undocumented aliens, but what really slowed the influx of illegal immigration in the past two years has been the economic downturn. With no jobs awaiting them, people stayed in their home countries or returned in droves.
IRCA didn’t stem the tide of illegal immigration or provide reforms that met the nation’s long-term immigration needs. Enforcement alone does not address a broken immigration system, but it is one part.
Recently, U.S. Homeland Security Secretary Janet Napolitano said: “[When] I talk about immigration reform, I’m referring to what I call the ‘three legged stool’ that includes a commitment to serious and effective enforcement, improved legal flows for families and workers, and a firm but fair way to deal with those who are already here.”
But all three of those areas have issues that must be addressed:
• Enforcement and fairness. Serious and effective enforcement needs to include enhanced border control, sanctions against unscrupulous employers, an accurate E-Verify system, among other things. It should include speedy and fair hearings for those subject to removal. But should states and cities be permitted to pass their own immigration-related laws and have local police be the enforcers? Should the law limit “due process of law” to those aliens in removal proceedings or include a mandatory national identity card? Should undocumented aliens have the right to earn legal status, or simply be removed? Should no undocumented aliens be able to continue to work or receive health care in the United States?
• Families and workers. Through family members who are citizens or permanent residents, aliens may secure immigrant visas to come to the United States or remain here as permanent residents. Not all family relationships permit reunification and not all families are reunited quickly. Spouses and parents of U.S. adult citizens are “immediate relatives” and can relatively quickly secure permanent residency (“green card”) to live and work in the United States. The brothers and sisters of U.S. citizens have to wait decades. Visas are not available for spouses or children under 21 of permanent residents for three years or more. Such long waits can result in family destruction rather than family reunification.
Employment-based immigration entails delays and visa unavailability that is as discouraging as the family-based delays. Most employment-based immigrant visas require a petitioning employer who needs the services of a skilled alien. A complicated and cumbersome system tests the labor market and vets the alien employee to determine if he or she is taking a job away from a U.S. worker. Once the Department of Labor decides that the alien is needed — that takes one to two years — it could be another five years before the alien could seek a “green card.” Quite simply, process and delays in the system are a disincentive for needed alien workers to come and stay in the United States. Perhaps more important, the system deprives U.S. employers of workers needed to ensure America’s competitiveness in a global market place.
• Improved legal flows. Improved legal flows of families and workers include realistic vetting of workers and balancing supply of visas with domestic needs for those workers. It includes being humane about offering family reunification so the family members can live long enough to be reunited. Does it include eliminating employment-based immigration? Does it include eliminating birth right citizenship? How about eliminating visas for adult siblings of U.S. citizens?
Debate concerning immigration reform is based upon public and personal values. Hopefully, in 2010, that debate will result in Comprehensive Immigration Reform that reflects the American values of opportunity, humanity and diversity at their best.
(Pittsburgh lawyer Robert S. Whitehill who chairs the Immigration Practice at Fox Rothschild, can be reached at firstname.lastname@example.org or (412) 394-5595.)