Perspectives Cir Primer We 111213
Perspectives Cir Primer We 111213
Perspectives Cir Primer We 111213
1331 G STREET, NW WASHI NGTON, DC 20005 TEL: ( 202) 507- 7500 FAX: ( 202) 742- 5619
www.immigrationpolicy.org
February 2013
PERSPECTIVES:
OVERHAULING IMMIGRATION LAW:
A BRIEF HISTORY AND BASIC PRINCIPLES OF REFORM
BY MARY GIOVAGNOLI
For more than a decade, efforts to systematically overhaul the United States immigration system
have been overshadowed by other eventsfrom foreign wars and national security concerns to
the financial crisis that threatened to bring down the world economy. In addition to this ever-
changing list of national crises, years of partisan political fighting and the resurgence of a
volatile restrictionist movement that thrives on angry rhetoric have made opportunities for
advancing genuine reform few and far between. As a result, many in both parties opted for a
political strategy that emphasized immigration enforcement over immigration reform, holding to
the argument that efficiently deporting non-citizens would reduce illegal immigration and pave
the way for more sensible outcomes in the future. Instead, the unprecedented spending on
immigration enforcement, the extraordinary rise in deportations, the passage of state anti-
immigrant laws, and the almost daily anecdotes of separated families and discrimination finally
took their toll. Voters signaled in the 2012 federal elections that they were tired of enforcement-
only immigration policies and the senseless pain they caused. Now more than ever, the
opportunity to craft immigration laws that reflect American values and needs is a distinct
possibility. The White House, Members of Congress, and countless organizations have issued
new ideas and principles for making the system work. These proposals vary and will likely
change even more as proposals translate into legislation, but there are a number of common
themes that exist. This paper lays out an overview of the underlying legal system, the most basic
principles of reform, the reasons behind them, and how they are likely to be reflected in coming
legislation.
The Immigration and Nationality Act in a Nutshell
Although Americans routinely acknowledge that the United States is a nation of immigrants, the
system of laws that govern who can immigrate, who can visit, who can stay, and under what
conditions is largely unknown to most people. The Immigration and Nationality Act (INA) of
1952 is a complex and often confusing collection of laws that does everything from setting forth
qualifications for naturalization to regulating foreign students to managing temporary workers to
authorizing humanitarian protections such as asylum and refugee admissions. The INA also
contains quotas or limits on the number of legal immigrants who may come to the country each
year, numbers which were last adjusted in 1990. In addition, the INA has authorized relief
from deportation over the years. Providing relief through various laws allowed an individual to
make the case that he or she should be permitted to enter or remain in the United States, despite
being in violation of immigration laws, based on family unity, contributions to the community,
or other humanitarian concerns. Similarly, the INA has been amended numerous times both to
2
expand access to the United States (based on characteristics of immigrants such as country of
origin, occupation, and humanitarian factors) and to restrict access (based on criminal
convictions, occupations, or political affiliations). Critics of these amendments routinely argue
that we are either too generous or too restrictive in whom we allow to enter and remain in the
United States, setting the stage for political arguments that have little to do with immigration
itself and far more to do with issues of race, economics, culture, and identity.
What kinds of events prompt changes in immigration law?
Immigration reform is often fueled by other aspects of social change when the American public
realizes that immigration law lags behind other social reforms. For instance, against the backdrop
of the civil rights movement, the 1965 amendments to the INA eliminated biases in the law that
favored European immigrants over all others. Following the refugee crises brought on by the
Vietnam War, Congress enacted refugee and asylum provisions in 1980 that brought the United
States into compliance with international standards of refugee protection. In 1986, driven by
increased unauthorized immigration and few means to control it, Congress created a trade-off
legalization of approximately three million unauthorized immigrants in exchange for requiring
all workers to establish their eligibility for employment in the United States.
By 1996, when unauthorized immigration was still not in check, many in Congress blamed the
more generous provisions of the INA for the problem. As a result, lawmakers, led by then-House
J udiciary Immigration Subcommittee Chairman Lamar Smith (R-TX), enacted a harsh new
immigration removal scheme that eliminated or restricted many forms of relief, required
mandatory detention and removal for many immigration violations, and authorized extensive or
permanent bars on admission following a deportation. In subsequent years, the severity of these
measures and the hardships experienced by many unauthorized immigrants who had fled civil
wars and violence in Central America, Haiti, and the former Soviet Union led Congress to pass
some small legalization programs, but nothing on the scale of the 1986 law.
On September 10, 2001, President George W. Bush and Mexican President Vicente Fox were
making plans for a new temporary worker program and other immigration reforms, brought
about by a booming economy, efforts to build a stronger partnership with Mexico, and a rise in
unauthorized immigration. Of course, that initiative and many others fell by the wayside on
September 11, to be replaced with enhanced national security and anti-terrorism laws, many of
which attempted to regulate possible threats to the country through restrictions on immigration.
1
Nonetheless, bipartisan efforts to achieve a comprehensive immigration reform package began
again in earnest by 2004, led by Senators Edward M. Kennedy (D-MA) and J ohn McCain (R-
AZ) and Cong. Luis Gutierrez (D-IL) and J eff Flake (R-NM). At the same time, continued
immigration restriction sentiments in Congress, particularly in the House, led to passage of a
House bill in 2006 that would have made simply being in the country unlawfully a crime. The
Senate responded by passing a bipartisan comprehensive immigration reform bill, but the two
immigration bills were never taken up by the other chamber. In 2007, a second bipartisan effort
came to the Senate floor twice, but could not obtain enough votes to overcome procedural
hurdles.
3
Why is comprehensive immigration reform back in the news?
There is little doubt that the results of the November election, particularly the impact of Latino,
Asian, and New American voters, jump-started the conversation on immigration reform, but the
political momentum has increased each year since 2007. In fact, some might argue that the
legislative push in 2013 can be traced back to the extremely punitive 1996 law. After almost 20
years, the supposed reforms of 1996 have led to years of troubled enforcement policies, further
undermined a system that could not respond quickly to changes in the economy, and often
ignored the important contributions made by immigrants to this country.
The persistent legacy of the 1996 law, which enhanced immigration penalties but eliminated
many forms of relief, has been a series of ever-expanding efforts to deter illegal immigration
through higher penalties and fewer options. The law also expanded mandatory detention and
expanded immigration enforcementincluding mass worksite raids and greater
federal/state/local law-enforcement cooperation through programs like Secure Communities
which has ratcheted up the numbers of non-violent, non-criminal immigrants arrested for
immigration violations. Despite the fact that many of the unauthorized have lived in the country
for a decade or more and have U.S.-citizen and lawful permanent resident (LPR) family
members, deportation has been almost inevitable because there is little relief available under the
INA. The damage that millions of deportations have inflicted on U.S. families and communities
is well-documented.
2
The long-standing inadequacy of existing channels for legal immigration has also served as a
motivation for change. That inadequacy, coupled with more than a decade of strong economic
growth prior to the 2008 recession, created a jobs magnet in the United States, while also
decreasing the likelihood that unauthorized immigrants would return to their home countries.
Since the recession, unauthorized immigration has slowed to a trickle given the contraction of
the U.S. labor market and improving economic conditions in Mexico.
3
Yet 11 million
unauthorized immigrants still call the United States home.
4
Emerging from the recession, however, was also a growing consensus that the contributions of
immigrants in speeding an economic recovery were critical.
5
This was reflected in the growing
number of arguments in favor of expanding both temporary and permanent access to high-skilled
labor, as well as major reports on the role of immigrants as entrepreneurs and innovators. Many
business leaders became more sensitive to the issue following state-led efforts to restrict
immigration, and numerous reports assessing the value of immigrant contributions to the
economy have poured out over the last few years.
6
This mindset helped to foster greater openness to the idea that immigrant contributions far
exceed the perceived problems of immigration. Demographic changes have further helped to
solidify that point of view. Similarly, the activism of young unauthorized immigrants around the
DREAM Act further expanded a general understanding of the shortcomings of the current
immigration system, while at the same time lifting up the enormous contributions that these
young people hoped to make to their country.
7
Further, notwithstanding the decline in unauthorized immigration in recent years, the economic,
demographic, and political strength of immigrants and their children is growing.
8
Meanwhile,
evidence mounts that anti-immigrant measures such as Arizonas SB 1070 result in
4
discrimination, racial profiling, and hate crimes against people of color. All of these factors have
contributed to the growing awareness that an immigration crisis exists in the United States.
Political polling following the 2012 elections further clarified that many voters, particularly
those of Latino and Asian descent, think that a politicians negative views on immigration
reflected a bias against them, regardless of their place of birth.
9
Thus, the current efforts to
reform immigration laws are the culmination of years of effort, but also of the political realities
of America in 2013.
Is it necessary to try to fix all the immigration laws at once?
For years there has been debate over whether immigration reform should be comprehensive,
piecemeal, or incremental. As a practical matter, immigration law should be something that
is updated and revised constantly to reflect current economic and political conditions, to reflect
changes in social issues, and to respond to foreign policy and humanitarian concerns.
Congressional gridlock, and the particular paralysis that has stalled immigration reform, has
meant that issues which should have been addressed periodically, such as adjustments to overall
legal immigration admission numbers, dont happen in a timely way. That makes it even more
difficult to address more dramatic challenges, such as the plight of 11 million unauthorized
immigrants. Even as the President and Congress contemplate systematic overhaul of the
immigration system, Members of Congress are introducing individual, more targeted bills. Both
are necessary and can play a role in improving the system. The key, however, is coordinating the
various proposals so that the overall effect is a more cohesive set of laws that acknowledge the
biggest issues of immigration reform today: the need for an improved legal immigration system
that is generous enough to discourage unauthorized immigration and provide a solution for the
11 million unauthorized immigrants, allowing them to transition from an underground existence
to lawful permanent residence and, ultimately, U.S. citizenship. For a variety of reasons, these
two components are critical and should be considered simultaneously, regardless of how many
individual bills are initially introduced to put the issues on the table.
What other reforms are likely to be under consideration?
There is a humanitarian and political imperative to resolve the legal status of the roughly 11
million unauthorized immigrants in the United States, and this has been a central component of
virtually every immigration overhaul proposal offered since 2004. Other critical components to a
systemic approach include creating a fair, but realistic system to regulate future immigration
needs, securing our borders through efficient application of smart enforcement strategies and
technologies, ensuring that our immigration system welcomes new immigrants, and ensuring that
all immigration laws respect the principles of due process on which this country is based.
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What are the basics of reform?
1. Creating a pathway to citizenship for unauthorized immigrants that is fair but
feasible.
Today, the vast majority of Americans support some form of legalization for
unauthorized immigrants. While the details of that process may vary, polls show that the
public wants a system put in place that permits legal status and ultimately citizenship, if
the immigrant establishes commitment to the United States. Routinely, that commitment
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is demonstrated through some form of initial registration, a willingness to learn English,
and full payment of any outstanding taxes. Many of the fiercest debatesbehind the
scenes, in committee, and on the House and Senate floorwill likely turn on other
requirements or conditions placed on individuals. For instance, the amount of fees and
fines may determine who can actually apply for the program and who will be unable to
afford it.
The scope of the programwhether you can apply for legalization based on presence on
the date of enactment, at the time the bill was initially introduced, or sometime further
backwill expand or narrow the number of people who can participate. While persons
with major criminal convictions will clearly be excluded from the process, Congress will
have to decide whether all criminal convictionsincluding misdemeanors or crimes
committed long agowill also bar someone from eligibility. For example, will
convictions for immigration violations, such as entry after deportation, be held against an
applicant?
Congress will also have to decide how many years an applicant must wait to transition
from some form of provisional legal status to becoming an LPR. The amount of time
could depend on whether or not LPR status is contingent on first clearing out the backlog
of applicants in legal immigration visa categories, whether someone qualifies under
special categories like DREAM Act or AgJ obs, or whether someone is applying
independently or as the derivative of a spouses or parents application. Each of these
questions has implications for thousands, if not millions, of people, and that will make the
final legalization package a series of compromises with clear winners and losers.
2. Ensuring that immigration policy supports families and American values.
While the economics of unauthorized immigration is frequently the focus of the
immigration debate, the breakdown of the family immigration system is equally
destabilizing and also spurs a significant amount of unauthorized immigration. Current
backlogs in family-based immigration lead to delays of up to 20 years for the legal
migration of family members.
11
Moreover, recent attempts to undermine family-based
immigration have ignored the significant role family support plays in the success of
immigrants, and thus of the American dream. The long delays and outdated procedures
have generated several policy proposals that could form the basis for reforming family-
based immigration.
12
Among the issues likely to be debated include increasing the overall
number of visas available in order to reduce current backlogs, whether those increases
will be temporary or permanent, and whether increases in family-based immigration can
be made while simultaneously increasing employment-based immigration.
Critics of the current family-based visa categories may argue that only nuclear-family
members should have access to family-based immigration. They say siblings of U.S.
citizens should compete for visas under a merit or employment-based system. Such
arguments are often justified by claiming that family immigration leads to chain
migration or a constant flow of more and more immigrants as each new immigrant
brings in additional family members, but the actual number of people who immigrate
based on any relationship to a U.S. citizen is quite low.
13
There have also been proposals
that would tie elimination of family backlogs to the ability of unauthorized immigrants to
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become LPRs, on the theory that it is unfair to make family-based immigrants wait longer
for their visas than unauthorized immigrants would. Proposals like these, however, often
fail to explain that the family-based backlogs are of Congresss own making and can be
fixed by raising current limits.
Other issues likely to arise, in either an initial package or as a bill moves through
Congress, include expanding the eligibility of same-sex partners to petition for spouses
and children, allowing the spouses and children of LPRs to be treated as immediate
relatives (eliminating waits of several years for LPR families to reunite), and providing
broader discretion to grant waivers for persons with an immigration violation to remain in
the country based on family or other humanitarian needs.
Another proposal that may be brought into the discussion is the introduction of a point-
based immigration system. In a point system, immigrants are admitted based upon a list
of characteristics that a country finds valuable, such as education, occupation, work
experience, language ability, or age. While the 2007 Senate immigration bill contained a
point system, it was a hurriedly produced experiment that was driven by political
compromise rather than evidence that a point system would work. In order to be
consistent with both American tradition and the countrys varied economic needs, any
effort to experiment with a point system would have to be a supplement toand not a
substitute forthe existing systems of family-based, work-based, and humanitarian
immigration.
3. Ensuring that immigration enforcement enhances national security and community
safety without undermining due-process protections.
Most experts and analysts, including those in law enforcement, think legalization is one
of the key elements to ensuring our countrys safety because it would allow the federal
government to focus on genuine threats posed by those seeking to do the country harm,
rather than individuals who lack status but have committed no other crimes.
14
Recent
reports have also emphasized that many of the markers and targets proposed for
enforcement, especially border enforcement, have been met in recent years.
15
Other
studies have suggested that a decade of increased spending for immigration enforcement
has produced diminishing returns with respect to ending unauthorized immigration, and
that the economy, rather than enforcement measures, is a better predictor of unauthorized
immigration.
16
Despite these developments, enforcement measures will continue to
appear in overhaul bills. These could include additional proposals to strengthen the
border and ports of entry, as well as some increased penalties for existing immigration
violations. Immigration reform advocates may also push for limits on immigration
detention and reduced use of state and local law-enforcement officers to enforce
immigration laws.
Shifts in public support away from immigration enforcement may limit additional
immigration control measures. However, one area that appears likely to be expanded is
the mandatory electronic employment-verification system, E-Verify.
17
While E-Verify
continues to have many critics, the debate over its further implementation is likely to turn
far more on the level of employer and employee protections embedded in the system, the
amount of time it will take to fully implement a mandatory program, what type of
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exemptions may exist for individual employers, and how businesses protect themselves
from liability for hiring unauthorized workers.
4. Ensuring that the legal immigration system is sufficiently robust to meet the needs of
the American economy, does not put native-born workers at a disadvantage, and
does not encourage new waves of illegal immigration when job demand is high.
One of the major criticisms of the Immigration Reform and Control Act (IRCA),
which
legalized nearly three million unauthorized immigrants in the late 1980s, was the failure
to include provisions for dealing with future workforce needs.
18
The authors assumed
employer sanctions would deter future unauthorized immigration, but they did not
account for an increased need for immigrant workers. Because overall immigration
numbers were not adjusted to meet demand (and have remained essentially stagnant since
1990), the growing economy, widely available jobs, and inefficient enforcement fueled
continued unauthorized immigration. Consequently, regulating the flow of immigration
so that it reflects constantly shifting employment needs is critical to a systematic overhaul
of the immigration system. It may also be one of the most difficult pieces of the puzzle to
negotiate. Some issues, such as increasing the number of visas available in science,
technology, engineering, and mathematics (STEM) fields, or encouraging foreign
entrepreneurs to invest in the United States, have widespread support among Republicans
and Democrats.
Other components of future immigration flow, particularly regulating the temporary
workforce, are more controversial because they raise difficult questions about the
dynamic between the native-born workforce and immigrants. The concerns range from
unfair competitive advantages to defining labor shortages to ensuring adequate worker
protections. Some argue for the necessity of a short-term and dependable supply of
foreign labor, while others argue that businesses should be able to find and recruit needed
workers wherever they may be. And other critics maintain that relying primarily on
temporary workers, whether professional or day laborers, to meet job demand depresses
wages and discourages American workers from obtaining the skills and training they
need to succeed. Congress likely will piece together a series of bills that address different
aspects of these issues, and may attempt to solve the problem of anticipating future need
through various market-driven schemes. That could be through some form of an
independent commission tasked with regulating immigration numbers, through lifting
some caps on employment categories, by creating new visa categories, or some
combination of these ideas. Congress may also choose to put some temporary increases in
places with enhanced labor protections and defer the larger fight to another day.
Regardless of whatever compromise is reached on this topic, the future-flow issue
promises to be one of the most carefully watched and controversial aspects of reform.
5. Long-term commitment to citizenship
Although it frequently receives less attention, continued support of integration and
naturalization for immigrants remains a goal of systematic immigration reform. A truly
successful legalization program, for instance, should include support for teaching English
as a second language and civics education in order to ensure that new immigrants are
fully prepared to participate in American life. The high cost of becoming a citizen is a
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frequent critique of the U.S. immigration system, yet Congress has routinely cut support
for the Office of Citizenship in the last few years. Viewing citizenship as an investment
in the future should be a given in any major reform package, but it remains to be seen
whether Congress will be willing to invest funds in citizenship education during a period
of fiscal austerity.
ConclusionBut Theres More
This is only a brief analysis of what we are likely to see in the coming months. A host of issues
will likely be raised at some point in the debate: the restoration of many due-process protections
for immigrants in court, reform of the immigration court system itself, access to counsel for
minors and persons with disabilities, expansion of the protections for battered spouses and
children under the Violence Against Women Act (VAWA), eliminating barriers to asylum such
as the one-year filing deadline. Some of these issues may proceed under other pieces of
legislation, such as VAWA reauthorization. Some of them may be debated but left for another
day. The breadth and scope of these issuesboth those that we know must be considered and
those that we know should be consideredunderscore why the time for a genuine debate over
immigration reform is not only much anticipated, but long overdue.
Endnotes
1
Walter A. Ewing, Opportunity and Exclusion: A Brief History of U.S. Immigration Policy (Washington, DC: Immigration
Policy Center, American Immigration Council, J anuary 2012).
2
J an Flora, Claudia M. Prado-Meza, and Hannah Lewis, After the Raid is Over: Marshalltown, Iowa and the Consequences of
Worksite Enforcement Raids (Washington, DC: Immigration Policy Center, American Immigration Council, J anuary 2011).
3
Immigration Policy Center, Immigration Enforcement in a Time of Recession: Explaining the Recent Decline in Unauthorized
Migration (Washington, DC: American Immigration Council, September 9, 2010).
4
Immigration Policy Center, Legalize Who?: A Portrait of the 11 Million Unauthorized Immigrants Living in the United States
(Washington, DC: American Immigration Council, J anuary 2013).
5
Immigration Policy Center, Rebooting The American Dream: The Role Of Immigration In A 21
st
Century Economy
(Washington, DC: American Immigration Council, November 2011).
6
Immigration Policy Center, Bad for Business: How Alabamas Anti-Immigrant Law Stifles State Economy (Washington, DC:
November 2011). Also see Strength In Diversity: The Economic and Political Clout of Immigrants, Latinos, and Asians in the
United States (Washington, DC: American Immigration Council, January 2012).
7
Immigration Policy Center, The DREAM Act: Creating Economic Opportunities (Washington, DC: November 2010).
8
Immigration Policy Center, The New American Electorate: The Growing Political Power of Immigrants and Their Children
(Washington, DC: American Immigration Council, October 2010).
9
Gary Segura, What Latinos Want Immigration ReformBill, Latino Decisions, November 2012.
10
Immigration Policy Center, Focusing on the Solutions: Key Principles of Immigration Reform (Washington, DC: American
Immigration Council, March 2010).
11
Asian American J ustice Center, National Asian American Organizations Applaud Senators Menendez, Gillibrand, Kennedy
and Schumer Introduction of the Reuniting Families Act (Washington, DC: September 2008). Also see Reuniting Families Act
Backgrounder (Washington, DC: Asian American J ustice Center, 2009).
12
U.S. House of Representatives, A Bill to Amend the Immigration and Nationality Act to promote family unity, and for other
purposes, 111
th
Cong., 1
st
sess., June 4, 2009, H. R. 2709 (Also see S. 1085 [111
th
], S. 1247 [111
th
]). Also seeSen. Menendez and
Rep. Honda Work to Protect Family Reunification in the Immigration in the Unification Process (Washington, DC: Office of
New J ersey Senator Robert Menendez, September 19, 2008).
13
Bin Yu, Immigration Multiplier: A New Method of Measuring the Immigration Process, Population Association of America,
2006 Annual Meeting.
14
Lynn Tramonte, Debunking the Myth of Sanctuary Cities: Community Policing Policies Protect American Communities
(Washington, DC: Immigration Policy Center, American Immigration Council, April 2011). Also see the Major Cities Chiefs
Association, M.C.C. Immigration Committee Recommendations for Enforcement of Immigration Laws By Local Police Agencies
(Columbia, MD: June 2006).
15
Greg Chen and Su Kim, Border Security: Moving Beyond Past Benchmarks (Washington, DC: American Immigration Lawyers
Association, J anuary 30, 2013).
16
Immigration Policy Center, Immigration Enforcement in a Time of Recession: Explaining the Recent Decline in Unauthorized
Migration (Washington, DC: American Immigration Council, September 9, 2010).
9
17
Immigration Policy Center, Mandatory E-Verify without Legalization Would Hamper Economic Recovery and Cost U.S.
Workers Jobs (Washington, DC: American Immigration Council, February 9, 2011).
18
J immy Gomez and Walter A. Ewing, Learning From IRCA: Lessons for Comprehensive Immigration Reform (Washington,
DC: Immigration Policy Center, American Immigration Law Foundation, May 2006).