When You Come To A Fork In The Road Take It: A New Immigration Law For America
by
Gary Endelman
America needs a new charter to shape national immigration policy. Yet,
few, if any, "experts" are talking about it. Rather, the conversation is
all about where the INS will wind up, in what form, with what authority
and how this will affect both services and enforcement. Winners and
losers, that is what occupies center stage at the moment. What the INS
will do once the new shape takes form seems less compelling.Yet, at the
end of the day, that is what counts and what history will remember. For
this reason, let us go back to basics and rewrite the Immigration and
Nationality Act in its entirety.
Start from the core principle that immigration policy should express and
implement a clear and consistent national purpose to promote economic
growth while protecting domestic tranquility. Does the current law do
that? The question literally answers itself. The very notion of using
immigration to achieve larger aims seems, to use an inapt phrase,
"alien".
Since IRCA, we have simply piled one law on top of another without
considering how they all relate to one another or what the entire body of
jurisprudence was designed to achieve. Things have become so bad that
even
the most informed and experienced observers, including the immigration
bar, shrink from the task of beginning anew.
It is hard, perhaps impossible, to swallow all of it at once. To make it
more digestible, whatever unlucky soul winds up in charge of immigration
once the dust settles should appoint a blue ribbon panel to draw up a
spanking brand new Immigration and Nationality Act. Farmers, workers,
immigrants, housewives, teachers, lawyers, business folks, union
officials and federal civil servants should all have a role to play. Give
them the benefit of expert consultants who know how the system works down
in the trenches. Come up with a new charter for US immigration that can
serve the nation as we now live and work- an immigration law for OUR
TIME.
We must not be afraid of simplicity. It can be just as difficult to
understand or put into practice as its more complex cousin. An
immigration
law that says what it means will not throw government regulators or
immigration lawyers out on the street. There will be more than enough
work
for all to do. In fact, once a rational system becomes accessible to the
vast majority of our fellow citizens, something that is clearly not now
the case, the volume of immigration activity will soar . Those who make
their livelihood in this field must have enough respect for themselves
and
their knowledge to welcome change and not seek to block it. We have far
more to offer our clients than that. The need for a new model law to
replace the crazy quilt statute we have now is more important than what
the contents of any revised charter will be. Whatever the law says, a
law
that can be understood will be invested by the good sense of the American
people with the moral legitimacy that our present system so manifestly
lacks. For this reason, even if there is sharp and fundamental
disagreement on immigration policy, that should not prevent us from
putting
a new immigration scheme into place. Indeed, the very fact that so many
people feel so strongly about so many different aspects of immigration
law
actually highlights the need for a grand conclave that can give all
concerned parties a chance to be heard.
Not knowing as much as those who have brought us to the place where we
are
now, what fundamental goals should inform any attempt to rewrite the
Immigration and Nationality Act? A tough question, but let's try to
figure
something out. How about the following?
- The American people must understand the law and feel they have a stake
in its interpretation, enforcement and evolution. It must belong to them
not to lobbyists, lawyers, bureaucrats or scholars.
- Immigration is not international social work but an enlightened
exercise in national self-interest. Immigration exists to serve the
nation
not the other way around. We must use immigration the way we use tax
policy, interest rates or trade restrictions to make us a more prosperous
people.
- It should be harder to come to America and easier to stay. Impose more
restrictions on nonimmigrants and fewer on those who seek green card
status.
- We need much tougher enforcement and much higher levels of
immigration.
Opponents of immigration should no longer be able to frustrate
immigration
through arbitrary or capricious enforcement that clearly goes beyond what
Congress intended. At the same time, supporters of immigration must stop
acting as if September 11th never happened. They have nothing to fear
from
honest enforcement motivated by a sincere desire to protect not to
punish.
- The concept of family unit is sacrosanct. Anything that divides
families must go. Remove all numerical limits on the nuclear family and
make all such immigration quota free. This allows the children and
spouses
of permanent residents, as well as the unmarried adult sons and daughters
of US citizens, to come in NOW!
- All other family categories must go. This includes immediate abolition
of the diversity visa lottery which lacks any clear or sustaining
rationale that could possibly justify its continuance. Transfer all of
these visa numbers to the employment side of the ledger. In the long run,
most people in the family stream come to work, just as we all do.
- The real threat to US workers comes not from the distinctly limited
number of employment-based immigration but from the much larger number of
family-based immigrants whose entry is unchecked by any labor market
control.
- Markets not regulations should govern what hiring decisions employers
make. Deregulate the issuance of immigrant visas. Give employers the
option of paying a fee to buy the green cards they need or go through the
process of advertising the job and demonstrating the absence of
qualified,
willing and available US workers. It should be their choice.
- Working visas, be they temporary or permanent, should belong not to
the
employer who files the application but to the alien worker who benefits
from it. Make that worker truly mobile and able to take advantage of the
best deal they can cut with any US employer. That, not any government
compliance regime, will really safeguard the wages and working conditions
of the domestic labor force.
- Reward not past achievement but future potential when deciding which
aliens have the talent to enrich the American economy. Decisions on
extraordinary ability, national interest waivers or outstanding
researchers should be governed not by what someone has done before but
what they are likely to do once they get here. We need people who are
going to do their best work for us in the years to come, not those whose
salad days are behind them, even if their resume looks more impressive
right now.
- Repeal employer sanctions which encourages disrespect for the law and
contradicts the ability of willing workers and interested employers to
help each other. Eliminate the underground economy and use the taxes from
those who live in the shadows to fund social security for the foreseeable
future. An aging America must expand its tax base before the baby boomer
retirement tsunami hits. Immigration is the the only way to do it, short of raising taxes or cutting benefits, neither of which is politically acceptable.
- Make temporary work visas truly temporary and not half-way houses to
the attainment of green card status. It must be the stated policy of
America to have fewer temporary workers who never leave and more
permanent residents whose feel that this is their home.
- Remove any artificial caps on employment-based categories. When
employers no longer need to hire, they will not need big brother to tell
them not to. At the same time, make it much more expensive for those
employers that do bring in immigrants to benefit from their coming. Both
supporters and opponents of immigration must learn to trust the culture
of
capitalism and believe in its legitimacy.
- Employment-based immigration should care more about the creation of
new economic opportunity rather than the preservation of what exists now.
Growth not protection is the goal. Facilitating future growth not
punishing past transgressions is what all who care about America should
place first.
Now that is a mouthful. Many of you will agree with some of these
suggestions and disagree with others. Few will endorse all of them and
some will toss them all right into the trash can. What matters is that
the
conversation start, that the need for a model law be openly acknowledged
and honestly pursued. Once the American people have an immigration law
they can believe in, the never-ending series of crises and emergency
campaigns can finally be replaced by a sober examination of what the
nation needs and what it is willing to do to satisfy such needs. There
are
so many new laws and regulations that observers of good will and keen
intellect will legitimately feel overwhelmed. Worry about a new
immigration charter right now? Are you nuts? Well, maybe, but not for
this reason. It is precisely when the headlines scream the loudest that
we
must step back from the moment, take a deep collective breath, and
quietly set about the task of doing something for our clients and our
country.
There are those who say this is not the right time to boil things down to
their essentials, that such big picture initiatives are best dealt with
in
more tranquil times when we have the leisure to think about them. Such a
respite may never come. The ancient sage Hillel anticipated such
objections many centuries ago when he cautioned that one should not "make
a statement that cannot be easily understood on the ground that it will
be
understood eventually." Now is preeminently the time to think and act
boldly. The one true test of leadership is the ability to lead and lead
vigorously. We must not be afraid to try new things and, if these do not
work, to try others. Mistakes will be made; they may even be necessary
and
should certainly be expected. The fact that fundamental change is
difficult, even painful, only suggests how much we need it. For those
who like their wisdom put a bit more plainly, why not try that other
rabbinic authority Yogi Berra who said what we all know to be true: "
When
you come to a fork in the road, take it!" We will, Yogi, and thanks for the
advice.
About The Author
Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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