Lessons Learned From the Legalization Programs Of The 1980s
With the newly reelected Bush Administration thinking about revising (and
loosening) the immigration law, it might be helpful to look back to the late
1980s to review what happened when the government last attempted a major
approach to the problem of illegal migration. In 1986 the Congress passed, and
President Reagan signed, the Immigration Reform and Control Act;1
it provided for an extensive (and complex) amnesty program and established
employer sanctions, i.e., penalties on employers who hired illegal aliens.
As it happened, I was able to take a very close look at IRCA as the Ford
Foundation had asked me to assess the new legalization program as it unfolded. I
spent most of the next 18 months talking to a wide variety of actors throughout
the country and examining the statistics generated by the program. I also had a
grant from a small (and no longer existing) federal agency, the Administrative
Conference of the United States, to examine a narrower aspect of the program,
the four centralized facilities where the actual legalization decisions were
What lessons can be drawn from the IRCA experience? In the broadest of strokes,
these come to mind:
A. Large numbers—often much larger than anticipated—of aliens sought
legalization and the overwhelming majority of applications were accepted.
B. The compromises leading to the passage of the legislation led to an extremely
complex program, full of internal inconsistencies.
C. There was a great deal of many different kinds of fraud in the program; much
of the apparent fraud did not lead to the denial of applications.
D. The promised balance—of a large legalization program for currently illegal
aliens joined with a strict enforcement program against the future arrival of
illegal aliens—did not eventuate. Yes, there was much legalization, but there
was little enforcement of the law forbidding the employment of the undocumented
E. Within the legalization process there was a built-in (if probably
unconscious) bias toward Hispanics and away from other undocumented populations.
F. Demographic considerations (are there too many of us?) and equity in the
labor market (are we widening the disparity between rich and poor?) were largely
On the other hand, a matter to be discussed later, IRCA had some admirable
features, which may not be repeated in the proposed Bush program.
The IRCA program of the past and the current Bush proposal (to the extent that
it is known) have some features in common and some quite different
Both seek (or sought) to grant legal status (temporary or permanent) to large
numbers of aliens now in illegal status and thus both seek to expand the legal
work force in the United States; both at least allege that the proposed programs
will decrease the future incidence of illegal immigration.
IRCA offered a tangible benefit to the applying alien, temporary legal status in
the U.S., with a fairly easy path toward permanent legal status; the Bush
proposal is to grant a temporary legal status for three years, perhaps
extendible for another three years, after which the alien is expected to leave
the United States. There is in the Bush proposal, as there was not in IRCA, a
promise of a financial benefit to the alien for returning to the home country,3
presumably a return of Social Security taxes paid by the worker while in the
The total IRCA package was a complicated and detailed one. Employers were, for
the first time in history, to be penalized for employing illegal aliens. Efforts
to create a work-force-wide identification system, so that legal workers could
be identified by a single, government-issued document were defeated and a
jerry-built documentation system was erected in its place.
As for illegal aliens, there were four different legalization programs, two
minor ones, and two major ones. The largest of the programs, created under
Section 245A of the Act, provided legal status to those aliens who had been in
the nation, more or less continuously, since Jan. 1, 1982, and who had not been
convicted of serious crimes. It also provided legal status to those aliens who
had done farm work for at least 90 days prior to May 1, 1986; these were special
agricultural workers or SAWs. Applicants who submitted something other than a
frivolous application were given temporary resident alien (TRA) status and then,
later, could move onto permanent resident alien (PRA) or green card status, and
from there to full citizenship. The two minor programs related to small
populations of aliens: 1) those who had been in the nation, in illegal status,
since Jan. 1, 1972, and 2) a subset of aliens in illegal status who had come to
the United States from either Haiti or Cuba.
The Section 245A applicants were given a year to apply, from May 5, 1987, until
May 4, 1988; the SAW applicants were granted 18 months, from June 1, 1987, until
November 30, 1988.
So what can be learned from this? There appear to be six sets of lessons.
More than three million aliens applied for one of the legalization programs, and
the overwhelming majority of applications were granted.
To provide a statistical frame of reference, the 3,000,000 can be compared to
the 600,000 legal immigrants who arrived yearly during the 1980s—so the IRCA
legalizations equaled five years of normal, legal immigration. In addition to
international migration, the other component of population growth is the excess
of births over deaths; in the 1980s there were usually about 3.6 million births
a year in the United States, and about 2.1 million deaths, producing an annual
increase of about 1.5 million more legal residents. This is about half the
number of IRCA legalizations.
Of the IRCA applicants, about 1.8 million were in the 245A program, and about
1.2 million were in the SAW program. While the numbers in the first program were
somewhat lower than predicted, those in the SAW program were two and three times
higher than expected.
More than two years after the filing deadline, the Immigration and
Naturalization Service was still making decisions. At that time4
it issued the numbers shown in Table 1.
The approval rates among the decided cases were high: 94.4 percent for the 245A
program and 93.5 percent for the SAW program; the pending cases generally wound
up as approvals later.
The program may still be continuing in a minor way—in January 2005, the fiscal
year 2003 Yearbook of Immigration Statistics arrived in the mail, showing that
33 245A applicants were granted green card status during 2003 as well as six
The IRCA program, unlike most of the rest of the immigration law, set no limits
on the number of people who could be granted a benefit; in that sense they were
treated like immediate relatives of U.S. citizens. It is likely that the Bush
proposals will, similarly, lack a numerical ceiling on the granting of temporary
There were not only four different legalization programs, each program package
had different requirements, benefits and deadlines, different forms, and often
different appeals procedures; needless to say this made the program harder to
understand for the applicants and the immigrant-serving agencies, and harder to
administer for the government.
Generally, the SAW program was more welcoming than the other three programs.
This was on purpose, a boon to agribusiness which wanted to legalize as many
farmworkers as possible, to reduce any pressures toward the increase of wages
for these, the least well-paid of all American workers. Among other things, SAWS
were given 18 months to apply, while 245A applicants had only a year; SAWs had
to claim illegal presence in the United States before 1986, while the others had
to claim that they had been here since Jan. 1, 1982; the process of moving from
TRA to PRA status was automatic for the SAWs, but required some exposure to
English instruction on the part of the 245A applicants. Even more significantly,
SAWs did not bear the burden of proof of eligibility, while other applicants
One of the reasons for the inconsistencies in the program related to different
kinds of legislative histories regarding the two major program elements. While
most of the provisions of IRCA were worked out in the normal Congressional
process of hearings, mark-ups, and floor consideration, this was not true of the
That program was, in fact, worked out in the kitchen of a townhouse on Capital
Hill, where two Congressmen lived. The three players, all Democrats, were:
Congressman Howard Berman, who spoke for the illegal workers and Hispanic
interests: fellow Californian Congressman Leon Panetta, who spoke for the
growers; and New York Congressman (now Senator) Charles Schumer, who was the
deal maker. They worked out a mutually acceptable package late in the
legislative process and sold it their colleagues on Capital Hill; had they not
done so, it was widely reported, agricultural interests would have defeated IRCA
in the Congress.
The then-normal practice of INS when dealing with an application for an
immigration benefit (a green card, naturalization, etc.) was to give the
decision-making power to the officer interviewing the applicant. The theory was
that the officer, working under the supervision of a district director, would
have first-hand knowledge of the applicant’s demeanor and papers, and was in the
best position to make the initial determination.
This practice, however, was regarded as better suited to programs with
relatively smaller volumes of applications than were expected in the
legalization program; further, the practice had led to sometimes
widely-differing approval rates, officer by officer and district by district.
INS decided, as it planned for IRCA, to create a different system; INS staff
members would handle the legalization applications in the field, recommending
approval or denial, but the final decision would be made in four Regional
Processing Facilities—we called them “Decision Factories.” These were designed
to resemble Internal Revenue Service processing centers, where advanced
technology, centralized control and limited interference from the outside world
would lead to a consistent decision-making process. (No applicants, and for a
while, no immigration lawyers, ever appeared in these cloistered locations; even
telephone numbers were hard to obtain for everyone other than INS insiders.)
The incidence of fraud in the two major programs was quite different; aliens
seeking legalization had a choice of two programs, one in which the requirements
(e.g., residence since 1982) were tough, and another, the SAW program, where
standards were lower. (It is easier to document (either honestly or dishonestly)
that one had worked in agriculture for 90 days than it is to prove that one was
residing in the United States for five or six years.) So, people who qualified
for one program or the other picked the program that worked for them, but those
who qualified for neither were quickly attracted to the SAW program. Everyone in
or near the legalization program recognized this situation.
Many an urban resident claimed SAW status, many without justification. There
were countless anecdotes of fur-coat wearing Europeans seeking SAW status in
Manhattan, applicants who contended that the cotton they harvested was purple,
or that cherries were dug out of the ground, or that one used a ladder to pick
strawberries. Often the temporary INS staffers handling the SAW applications
were as clueless about agriculture as some of the applicants.
The application takers, when in doubt, could check that the SAW application in
question should be denied, and this was usually done, strange to say, without
letting the applicant know that it had happened. As a matter of fact, there were
internal INS statistics that showed that 888,637 legalization applications in
both programs had been marked for denials for local office staff, but on the
same date (March 24, 1989) only 60,020 final denials had been issued.6
INS essentially threw up its hands and decided not to spend the time and energy
needed to sort out the fraudulent SAW applications. Although substantial funds
were available (applicants paid $185 when they filed) INS decided to use
$50,000,000 in unspent SAW funds on a new generation of computers for the
agency, rather than devoting those resources to fighting fraud. An INS Assistant
Commissioner (who will remain nameless) literally screamed at me when he saw my
criticism of that decision.7
IRCA had bipartisan support, being passed by a Republican-dominated Senate and a
Democratic majority House; major actors were Sen. Alan Simpson (Rep. Wyo.) and
Congressman Peter Rodino (Dem. N.J.), chairs, respectively of the Senate
immigration subcommittee and of the House Judiciary Committee. The legislative
package was sold as a grand compromise, assuring legalization for the more
senior (and more rural) of the undocumented aliens while creating a new system,
employer sanctions, to prevent employers from hiring illegal aliens in the
future. (The latter was very much desired by the AFL-CIO at the time, then under
different leadership than today.)
Prior to 1986 it had been illegal for an undocumented worker to be in the
country, and it was illegal for people to “harbor” such aliens, but it had not
been against the law to employ them.
Employers and the immigration bar disliked the idea, but with the agricultural
interests satisfied by the SAW provisions and a stand-by Replacement
Agricultural Worker8 program, the grand compromise
of some legalization and some employer sanctions made it through the Congress.
But passing laws and enforcing them are two different matters. The Reagan
Administration and Republicans, generally, never were very enthusiastic about
the enforcement of labor laws, and relatively little money was made available
for employer sanctions. The law remains on the books but has made only a very
minor difference in the labor market.
In a sense, however, it does play an episodic role at the very top of the U.S.
labor market, that is where Cabinet officials are hired. Several likely
potential future members of the Cabinet, both Democrats and Republicans, have
come to grief for hiring illegal aliens as household servants.
E. A Tilt Against Non-Hispanics
The distributions, by nation of birth, of legalization applicants, on May 9,
1989, and of legal immigrants in fiscal year 1986 are shown in Table 2.
The nations listed are the ranking ones for the 245A program; all but the
last-listed of these nations were once part of the Spanish Empire.
Of course, the vast majority of legalization applicants would be Hispanic, as
the vast majority of illegal aliens are Hispanic. There were, however, several
factors at work that many observers thought tilted the system against
The most obvious was the favoritism given by Congress to farm employers (and
therefore to once-illegal farm workers) that shifted the balance toward Mexican
nationals, as they do most of the nation’s seasonal farm work.
In addition, regulations were drafted by an agency that had substantially more
experience with the cross-border movements from Mexico than the cross-oceans
movements of other illegal aliens, so the allowable breaks in continuous
presence were defined in such a way as to reflect the shorter visits to the
homeland made by Mexican nationals than those made by others. If one flies back
to the hometown in China, given the cost of travel, one is more likely to stay
longer than if one returns to the Mexican village for Christmas.
Further, INS outreach activities to those speaking Spanish were more likely to
be effective than those reaching smaller communities, such as those of Thais,
Nepalese, and Turks, simply because of the economies of scale. Finally, Hispanic
community organizations pitched in to support the program earlier and with more
vigor than those of other ethnic groups.
F. Demographic Considerations
As noted earlier, considerations about the appropriate size of the U.S.
population, or the impacts of large numbers of additional legal residents on the
infrastructure and on labor markets were rarely part of the legislative
dialogue, and were never mentioned in the regulatory or administrative context.
This lack of concern for these matters—which is not the case in Canada and
Australia—is a regular feature of how America thinks about its immigration
IRCA’s Positive Features
In contrast to what we are seeing in the Bush Administrations’s so-far sketchy
proposals, some elements of IRCA seem, in retrospect, to have been
In the first place, IRCA’s objective was to offer legal status primarily to
people who were in the United States at that time that they applied. There was a
minor exception to that in that some 100,000 or so of the 3,000,000 applicants
were allowed to file for SAW status at the southern border or at U.S. consulates
in Mexico—but they had to claim that they had previously been in the United
States doing a sufficient amount of farm work to qualify.
The Bush proposals, however, would make it possible for persons who do not
qualify for a visa to work in the United States under current law to apply from
overseas without even claiming that they had ever been in the country before.
Secondly, an IRCA applicant did not need a current U.S. employer to apply. The
Bush proposal, at this stage, seems to require the consent of such an employer,
which would give employers a remarkable amount of power vis-a-vis their
currently illegal workers as well as creating an illicit market for fraudulent
Thirdly, the drafting of the IRCA regulations9 was
a remarkably open process, much more so than in normal regulation-writing. INS
went out of its way to consult various interests as it worked out the
necessarily complex rules for the program.10 We do
not know how this would play out if the Bush proposals become law.
Fourthly, IRCA’s offer was described as a one-off deal, never to be repeated.
This was done in a probably vain attempt to discourage follow-on migration of
illegal entrants hoping for the repetition of the amnesty offer. There is none
of this yet visible in the Bush program.
Finally, the end-game for those who successfully moved through all of IRCA’s
processes was permanent resident alien status, and a chance to apply for
citizenship. IRCA was designed to bring people out of the shadows into full
participation in American society. This was in keeping with our traditional
notions of both equality for all and of America as a land of immigrants.
The Bush proposals seem to point to a different end-game. It is to create a
second or third class of people who can participate only marginally in American
life, and who are supposed to be tossed out of the country when their employers
are done with them, certainly after no more than six years in the nation. If
anything, such a program would create and institutionalize even more income
disparity than we have at the moment.
1. Pub.L 99-603.
2. See David S. North and Anna Mary Portz, “The U.S.
Alien Legalization Program,” TransCentury Development Associates, Washington,
1989 (written for the Ford Foundation) and North and Portz, “Decision Factories:
The Role of the Regional Processing Facilities in the Alien Legalization
Program,” the Administrative Conference of the United States, Washington, 1989.
While Ms. Portz was a full and valued partner in these research activities, she
did not participate in the drafting of this Backgrounder.
3. Bush announced the proposal on Jan. 7, 2004; see,
for example, these citations that emerged from a Google search:“Inside Politics:
Bush calls for changes on illegal workers”
www.cnn.com/2004/ALLPOLITICS/01/07/BUSH.IMMIGRATION or, for a view from the
left: “Immigrants need a real amnesty: Why Bush’s immigration ‘reform’ is a
4. U.S. Department of Justice, Immigration and
Naturalization Service, “Immigration Reform and Control Act: Report on the
Legalized Alien Population” Washington, 1992, Table 1. Data are for February 18,
5. U.S. Department of Homeland Security, Office of
Immigration Statistics, Washington, 2004, table 4.
6. North and Portz “U.S. Alien Legalization
Program,” p. 52.
7. For another account of this INS decision, see
“INS Adjudications: from the 19th to the 21st Century,” Interpreter Releases,
Vol. 66, No. 9, March 6, 1989, p. 249. Interpreter Releases, a weekly newsletter
for the immigration bar, provided a substantial amount of reporting on
legalization issues at the time.
8. The RAW program, designed to be put in place if
there turned out to be a shortage of farm workers in the years following IRCA’s
passage, never came to pass; the triggering mechanism, a continuing study of the
supply and demand for farm workers, kept finding a surplus.
9. Federal Register, Vol. 52, No. 53, March 19,
1987, pp. 8740-8795 (proposed regulations) and Vol. 52, No. 84, May 1, 1987, pp.
16189-16228 (final regulations).
10. “...the process was, in the words of one
long-time actor, ‘exemplary’... ” See Doris Meissner and Demetrios Papademetriou,
“The Legalization Countdown: a Third Quarter Assessment”, The Carnegie Endowment
for International Peace, Washington, DC, February 1988, pp. 22-23.
About The Author
David North for the Center for Immigration Studies is a former Assistant to the U.S. Secretary of Labor, and has been studying immigration policy matters since 1969.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.