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Moderation And Immigration Reform

by Harry DeMell


Both sides in the current immigration debate have taken unrealistic positions that pander to different audiences. Neither position is viable. There is a third approach.

This paper proceeds under the assumption that immigration reform is needed but that the two sides currently being touted, both eager for attention are wrong. There are reforms that can be instituted now in an effort to ratchet up boarder protection and shrink the pool of undocumented aliens in order to allow better control of our immigrant population. This needs to be done without severely impacting the American economy.

It is also better for Congress to wait until some proposals are instituted and digested by the immigration system before instituting others. At that time it can better evaluate what is best for the United States, what is working and what has not and what resources are necessary to accomplish what results.

This proposal could have been significantly longer but is presented as "food for thought".


What is needed is a step by step process to fix our immigration and visa system. It wasn't broken overnight and can't be fixed overnight. It is broken to some extent because of congressional actions that have encouraged illegal immigration.

We need to take meaningful but manageable steps in perusing this goal.

We need to shrink the size of our undocumented population by using a combination of restructured enforcement and by redefining classes of illegal and partially documented aliens who might be eligible for benefits.

Current Proposals

We first need to examine what is wrong with the positions being taken by those seeking some type of legalization and those exposing complete removal of all undocumented foreigners.

The Bush administration recommended some type of "earned legalization" program. This was just a code word for amnesty. Having had extensive experience with the last amnesty in the 1980s there is no doubt that this would only encourage a large influx of undocumented aliens in an attempt to qualify and a flood of fraudulent documents also to that end. This is what happened in 1987 and this is one reason why today our problem has gone from the 2 million person problem that we had then to an estimated 11 million person problem now.

It is also important and correct to let immigrants know that those who have obeyed our laws and waited their turn will be given first consideration for any benefits.

There was also a farm worker amnesty program in 1987 that congress passed. That was a program that all agree resulted in at least a 90 per cent fraud rate. Most of these fraudulent cases were approved because the overworked administrative agency just caved in under the work. This is one important lesson we cannot afford to forget. Many of these fraudulent applicants are now United States citizens and have brought their families to live legally here. Those few honest cases such as by sugar cane workers were denied benefits after the government ruled that sugar cane was not an agricultural product. The message on the street became "lie and you will be rewarded". And they did.

Some say the definition of insanity is to do the same thing over and over and expect a different result. To repeat these programs would be insane. Yet that is what many in our government are asking us to do in the name of reform.

The real reason we are being given the same failed solutions is that there are few really new ideas in congress or on the street.

The anti-immigrant lobby is seeking to deport all undocumented aliens but has no idea about the scope of the problem and what exactly it would take to accomplish this nor what this would do to the economy if actually implemented.

The anti-immigrant lobby is awash with the same old arguments that immigrants take American jobs, don't fit in and don't pay taxes. The truth is that some immigrants contribute much to our society and some little. The history of our country is clear that in every generation, Americans have used these arguments. Benjamin Franklin used this argument about the Amish in the 18th century. We seem to do on the whole very well in every generation with whatever immigrants come. Each group integrates, supports our country and becomes a net asset. There is no reason to believe that this will change.

In order to remove eleven million people we would need a huge infrastructure and a significant increase in enforcement on every level. This would entail a huge bureaucracy in excess of anything envisioned even by George Orwell. Our immigrant enforcement budget would exceed our criminal justice system by far since the numbers of immigrants to be removed far exceeds the number of criminals and potential criminals in our society.

There would be a severe economic dislocation in our society. We all use the services of undocumented aliens if we eat in restaurants, or eat at all. We use these services when our lawns are cut and when we fill up our gas tanks. We use these services when we have our house cleaned and hire nannies. That is not to say that all these occupations are staffed solely but illegal aliens but I suspect that many are. Mass removals might also lead to increased outsourcing of American jobs. We might find out that we threw out the baby with the bathwater.

In these economically troubled times caution is required.

The process of removing these people to their countries of origin requires deportation hearings. This in turn requires an even larger bureaucracy than there is now. The history of government tells us that once government grows it takes on a life of its own and that an entrenched bureaucracy finds new ways to remain viable. This is something to beware of.

There would be foreign policy problems in removing people to countries that do not want them and cannot absorb them into their economies.

Also, some national profiling may be necessary. Although this is politically incorrect, it is reality. No one fears that Mexican farm workers will perform terrorist acts. We are and must continue to monitor some nationalities differently from others. We will have to make necessary decisions about what nationals might be targeted first.

The Moderate Approach

Any proper approach to immigration reform will need to:

1. Somehow decrease the pool of illegal persons in the United States,
2. Create incentives for aliens and their employers to comply with our laws and
3. To make it increasingly difficult to ignore these laws.

We need to take these three items and start with manageable changes with the intention of monitoring the affects from year to year with a view towards increasing the effectiveness of our programs each year.

Decrease the number of persons outside the system. In order to decrease the pool of illegal immigrants that we need to deal with we must recognize that there are illegal immigrants in this country that we know about but for several reasons are unable to legalize or we have been unable to remove. They need to be dealt with.

Removal: Those persons with final orders of deportation (also called removal) need to have their information placed in a national data base that the police and the many departments of motor vehicles can access on a daily basis. The several immigration authorities need to retrieve this information so that they can actually apprehend and remove these people. I estimate that there are at least several hundred thousand persons in this category. That number might be over one million.

While it is inadvisable to have the many police departments enforce our laws they should have a clear mandate to detain those persons with final removal (deportation) orders in much the same way that they would have the authority to detain persons wanted for crimes in other jurisdictions. Those same agencies need guidelines to continue to assist some undocumented aliens when they are in need of legitimate police protection. No one should be afraid to contact the police when it is necessary.

Measured benefits: At the same time there are somewhere between 1 and 2 million people in the United States who are eligible for immigrant visas (green cards) but for some technicality are unable to complete the process of obtaining their legal residence here. These are persons that our system has determined are eligible to reside permanently in the United States.

The vast majority are stuck because to complete the process they need to return home and that trip that might subject them to a 10 year wait or require them to apply for special forgiveness for their unlawful stay. That application might subject them to years of separation from their families and the loss of productive work.

The law passed in 1996, that punishes persons who remain in the United States while out of legal status for more than one year from obtaining their residence has been counterproductive and should be repealed. It has only encouraged aliens who might otherwise complete their legal residence to remain here undocumented and has not served as a deterrent.

Visa processing abroad: We should encourage most aliens to complete their legal permanent residence process in their home countries and remove them from the pool of those persons we want out. If they would otherwise be eligible for residence either to join family or to fill jobs that the Department of Labor has certified as a shortage occupation there is no reason to allow them to remain in limbo. If they need to be considered for forgiveness for their illegal overstays here let them do it before they depart for a final visa appointment.

In fact, aliens should be encouraged to return to their countries of origin in many cases to complete their residence where, if refused, for reasons such as health or criminal grounds, they would be outside of the United States. No resources for removal hearings, detention, monitoring or deportation would be necessary. Since most immigrant visa processing is done at the National Visa Center within the United States limited additional resources would be necessary. Those resources that need to be funded can be funded by increased user fees.

By deporting those with final orders on a more regular basis and by allowing those who but for some technicality in the law are unable to complete the process, we might take up to one third of the persons out of the pool we have to deal with. Critics will say that this is not enough but this is much more than is being accomplished now. It is a solution to part of the problem that we can accomplish with existing resources. What do the critics have to offer other than a big wall?

Discourage illegal employment; We need to tighten the screws for those who work without proper documentation. Employment is the biggest draw for immigrants coming to the United States. Just by disallowing an employer tax deductions for wages paid to undocumented workers or to those employers who fail to in good faith document the legal status of their workers, we will dry up many job opportunities for those who would work without documentation. Just by changing our tax code we would be instructing every accountant in the United States to counsel their clients against these undocumented employees. This is for the most part self policing.

Work visas; On the other side we need to recognize the need for many of these worker's services and expand our work visa program to accommodate those aliens who have real taxpaying work in the United States. Laws are already on the books allowing the government to issue temporary work visas. Little change is necessary except policy changes and additional visa numbers.

There is a current program for H-2 temporary workers. Due to numerical and draconian restrictions few employers even try to take advantage and bring workers in legally under this program.

This program can be expanded to allow some workers currently illegally working in the United States to apply for permission to work along with persons outside the U.S.. All visas would be obtained outside the U.S. and would require yearly renewal. They would not be available to those without sponsors and would require renewals to show taxes and lack of a criminal record. Families would not be included and this would not be a path to legal permanent residence.

The H-1 visa program for specialty workers should be numerically expanded to encourage high tech companies to process their work in the United States and not have to outsource this work.

Additional proposals; This will leave still a very large pool of persons here. There are proposals to deal with further shrinking this pool.

Registry; There is a law on the books allowing persons in the United States since before 1972 to obtain legal residence. This is called registry. This law was changed in the 1980s from 1948 to 1972. Before that it read 1924. There would be precedent in moving this date to 1986, the date of the last amnesty. While the pool remains small, it would remove from consideration those who have the longest roots in the United States without encouraging more to come in and wait another 20 years.

Dream Act; We might allow persons who have lived in the United States for a number of years and who have graduated from high school here and possibly also served honorably in the military become legal residents and eventually sponsor their parents.

Judicial flexibility; There has been a trend in this country for the executive and legislative branches of government to take judgment away from the judges. This needs to be reversed at least in the immigration context. Judges need to have greater flexibility in granting relief to aliens in this country. Judges need to be able to generally take individual hardship into account in granting benefits or in denying them. This will encourage an additional percentage of undocumented aliens to come forward rather than hide in the shadows.

General registration; A general registration with no immediate benefits should be considered with the knowledge that those who do not register will have additional problems obtaining any legal status in the future. This could be similar to the special registration that has been in place for aliens from certain countries after September 11th. Those registrants will get no benefits other than the right to apply for some benefit in the future and only if they wait on the same visa lines and qualify according to the same rules as any other applicant. This will apply even though they may have been illegally in the United States. These rights do not have to include bringing their families to the United States and should include the right to travel to and from their countries when they are able to obtain some legal status.

The general registration should not be used to begin removal proceedings but should also not be protection from removal should they be picked up in other ways.

There will be great incentive to register and those who don't will fail to do so with the knowledge that it will become increasingly difficult for them to legalize their status in the future. It will also help define the scope of our problem for future action.

I suspect that with these reforms the pool of persons here without documentation will shrink significantly and the remaining persons will further stand out and find it increasingly difficult to function in the United States. This will in turn allow the government with existing resources or with some increase in resources to better monitor those in the Unites States.


Extreme positions resonate with many voters. Some persons like to create headlines but sound minds will want to know what is realistic and workable now. How much can we handle now and what can we expect. Our immigration and visa system gets a D today. Let's move it to a C and have a plan to go later to B and to A.