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Problems With President Bush's Guest Worker Proposal

by Alan Lee, Esq.

There are a number of problems concerning the president's remarks in the State of the Union address on January 31, 2006, on the immigration issue. 

We hear claims that immigrants are somehow bad for the economy, even though this economy could not function without them.

Keeping America competitive requires an immigration system that upholds our laws, reflects our values and serves the interests of our economy. Our nation needs orderly and secure borders. To meet this goal, we must have stronger immigration enforcement and border protection. And we must have a rational, humane guest-worker program that rejects amnesty, allows temporary jobs for people who seek them legally and reduces smuggling and crime at the border.

1.) Does President Bush really want it, and if so, does he have the will or political muscle to push through a guest worker program?

Many critics rightfully point out that there is great variance in Mr. Bush's words and subsequent actions. A prime example is his past speeches on bipartisanship as he has been extremely divisive in pushing through controversial legislation such as lowering taxes for the wealthy, appointing (during congressional recesses) a relative novice to head the U.S. Immigration and Customs Enforcement Agency (U.S.I.C.E.) and the tainted John Bolton to be ambassador to the United Nations (accused of constant belittling of staff members), and again selecting an apparently unqualified (Harriet Myers) and then ultra-conservative (Samuel Alito) justice to the Supreme Court in the face of Democratic Party opposition. Examining the question of will, Mr. Bush has thus far had five years in office to push through an immigration package and has not done so despite many calls over the years by his good friend, President Vicente Fox of Mexico, who has invested much political capital in Mr. Bush and has yet to see any return. Besides will, a large question is whether he is capable of whipping the Republican Party in line to pass the program. He is not seen as a strong president at this time because of his problems with Iraq, the weak response to Hurricane Katrina, the controversy over domestic spying (his non-use of the Foreign Intelligence Surveillance Court, a largely rubber-stamping court granting warrants either before or within 72 hours of government surveillance activity, caused one of its judges, James Robertson, to resign apparently on the logic that there was no point to his service if the president did not even think that he needed a rubber-stamp for his actions ), and the ethics scandal presently rocking Washington, especially the Republican Party. 

So there are valid concerns at this time whether any immigration reform package besides one that only has enforcement provisions can be passed during this Administration. 

2.) Will a guest worker program solve this country's security problem of knowing who is in the country?

The answer is unfortunately "no". There are anywhere from 9-14 million undocumented persons in the U.S.. A guest worker program with no hope of amnesty has little chance of enrolling the majority of these individuals. Mr. Bush has clearly rejected the McCain/Kennedy (S. 1033), Hagel (S. 1916, 1917, 1918 and 1919) and Specter (draft) reform proposals, and apparently adopted the Cornyn/Kyl (S. 1438) approach that denies a path to permanent residence and would require departure within a certain number of years with incentives for early departure. The majority of the undocumented have already built lives for themselves here in the States that they have no intention of abandoning. In order for the program to succeed and enhance U.S. security, it would have to attract most if not all of the undocumented. Otherwise they would continue to exist like the vast numbers of sea creatures below the surface unable to be seen. The goal of knowing who is in the country would be lost. Besides the lack of a treasured prize at the end of the process, one should seriously ask why the undocumented, especially Mexicans, would want a guest worker program in light of the past failure of such a program in the 1950's. Under the bracero program, guest workers were exploited and not given promised benefits upon return to their home country. The stigma of past failure rests heavily in the Mexican communities and almost guarantees by itself a less than enthusiastic response to a guest worker program. 

3.) If you cannot entice them with a carrot, can you beat them into submission with a stick?

The Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437), which was recently passed by the House of Representatives on December 16, 2005 would among other harsh enforcement provisions criminalize unlawful presence by making it a felony to be illegal in this country. Does the Administration hope that the threat of felony charges will drive most undocumented individuals to register for a guest worker program? Hopefully not, because anyone can see that this is an empty threat. The costs of jailing and deporting millions of the undocumented would be astronomical. Senator John Cornyn (R-Texas), a cosponsor of S. 1438, even stated that "The dirty secret is that we couldn't deport 10 million illegal immigrants if we wanted to." A recent survey by the Center for American Progress estimated the costs of a vast deportation effort to be at least $206 billion over five years, and the costs could reach as high as $230 billion or more. The authors of the study realized that figures are mind-boggling and unable to be comprehended by readers who are more attuned to the price of a gallon of milk or pair of pliers than to rampant governmental spending. Therefore they gave comparisons that the amount of $206 billion on an annualized basis of $41 billion would either be more than double the annual cost of military operations in Afghanistan; half the annual cost of the Iraq war; or approach the total amount of money requested by the 33 federal agencies responsible for Homeland security activities for fiscal year 2006. Even the Congressional Budget Office report of December 13, 2005, estimated a cost of $1.9 billion over five years to implement H.R. 4437, but under the assumption that there would only be an increase of the prison population by 7000 person - years over the 2006-2010 period and factoring in such expenses as employment eligibility verification systems, payment to counties along the southern U.S. border, additional port of entry inspectors and dogs, etc., but conspicuously leaving out costs of deporting the undocumented. On the other hand, the Administration might certainly hope that a few high-profile prosecutions and sentences under a felony statute might stampede the reluctant to enroll into the program. The problem with such a strategy is that, with so much tied up in the effort over the years to remain permanently, many would most likely not be panicked into participating. This would have the unwelcome effect of creating a permanent subculture, terrified of any encounter with authority figures and prone to crime and worker exploitation because of fears that they themselves could be jailed while reporting crimes and other abuses. In addition, such a law would divide the nation while ostracizing the undocumented and their children as felons.

Is there a possibility than most of the undocumented would sign up on the thought that this is the only game in town and that things could change in U.S. immigration policy by the time that they would have to leave? The difficulty here is that the firm tone against amnesty does not promote hope of change in the future and there is common knowledge that enrollment into a guest worker program would make it much easier for the government to locate and subsequently deport those who did not return. 

4.) Can you have an effective guest worker program without enlisting undocumented workers if the purpose of such a program is only to help the U.S. economy without concern for security?

The answer is probably "no" both in the short and long term. Whatever form of program is finally established will undoubtedly be expensive for participating employers and workers alike. Most U.S. employers will probably want to know more about the individuals that they are sponsoring in light of their investment and they will not be able to obtain a feel about the individuals if they are outside the U.S.. Unlike large corporations and farms, many small U.S. employers will be reluctant to petition for guest workers that they know nothing about. Long-term, this will hurt the U.S. economy as the security measures now being enacted along U.S. borders and other ports of entry will largely turn off the flow of illegals and the visa overstays that are adding to the number of workers in the U.S. With the retirement of the baby boomer generation, this country faces a shortfall of 30 million workers that will not be made up by Americans in the following working generations. Even with the number of undocumented workers in the country and a current replacement birth rate higher than the European countries, the country will face a timebomb in the future. Without more workers, the U.S. has the unhappy prospect of being reduced to a second-tier power in which the off-shoring of jobs will become a necessity. If this happens, shortsightedness will become one of the legacies of this Administration. 

5.) What is the answer to the immigration problem?

If the writer had a true answer, he should be heading the U.S.C.I.S. and running for Congress at the same time. Any answers here are dependent upon the perceived beneficiaries. If the goal is to show compassion towards the undocumented, they should be afforded a path to legalization. If it is to secure the country against terrorism with no thought to cost or compassion, they should all be identified through any means possible, detained and deported or given some status. If it is to secure the future of this country's leadership position, the choices appear to be a.) returning to the policies of tolerance towards illegal immigration complete with porous borders, ability of illegals to obtain identity documentation, to work, and to travel without fear that the local law will enforce the immigration laws; or b.) regularize their statuses instead of attempting to make them leave. The first choice would actually make more economic sense as the undocumented would continue to make less wages than U.S. workers thereby providing an automatic wage cap for inflation purposes and pay far more in taxes than they obtain in benefits. With either choice, the government should expand by vast amounts the number of individuals allowed to enter the country under employment based visas. The present annual allotment of 140,000 permanent resident visas for needed workers is hopelessly inadequate. Unfortunately it appears at this time that this Administration will settle for an antiquated U.S. guest worker program solution, leaving the problem for the next Administration.

2006 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.