In the aftermath of the 2012 presidential election, the possibility of comprehensive immigration reform has been resurrected. It is important to analyze the current movement to reform our immigration system in an historical context. Important questions include: Why did the last amnesty in the 1980s not resolve this problem? How have the government and the business community contributed to the growth of illegal immigration? What other efforts have been undertaken by the Obama administration to address the situation of undocumented individuals in the absence of comprehensive reform?
The Immigration Reform and Control Act (IRCA), which became law on November 6, 1986, had three major components: legalizing undocumented workers, creating employer sanctions, and enforcing protections against citizenship-based discrimination. In addition to IRCA-based sanctions, the legacy Immigration & Naturalization Service routinely conducted work-site raids and the Social Security Administration started sending “No-Match” letters to employers if they could not verify an employee’s social security number. Over time, however, employer sanctions enforcement and work-site raids dwindled to the point of becoming almost nonexistent. This change in strategy resulted, largely, from continuing protests from one segment of our society.
Interestingly, this “hue and cry” did not come from immigrant rights groups or the ACLU; it came from the U.S. Chamber of Commerce and other employer groups. The 1990s was a time of prosperity in the U.S. and the need for semi-skilled and unskilled workers greatly expanded. In past times, this need was filled by new waves of immigrants. Unfortunately, IRCA did not create a mechanism to expand immigration in the face of economic need and many of these jobs were filled by undocumented workers. Consequently, companies complained that stricter enforcement measures were creating hardships for many businesses.
For many years, an unspoken truce existed whereby the federal government did not aggressively enforce employer sanctions or conduct work-site raids, while at the same time no initiatives were created to grant lawful status to the millions of undocumented workers employed in the United States. This truce ended about the time of the 2006 Congressional elections which elevated illegal immigration to a major political issue along with the highly-publicized SWIFT work-site raids. These events are sometimes referred to as the “Bunker Hill” of a new war against undocumented workers.
With the election of President Obama, immigration reform activists hoped for the introduction and passage of comprehensive immigration reform, including a path to legal status for undocumented immigrants. During President Obama’s first term, however, comprehensive immigration reform was a non-starter. Behind the scenes, though, the administration has taken a number of unilateral steps to provide some relief to undocumented workers. Starting on August 15, 2012, young undocumented individuals, often referred to as “DREAMERS” could apply for deferred action status, which allows them to remain in the United States for an initial period of two years and obtain work authorization.
On January 2, 2013, USCIS instituted a “state-side” waiver program which allows undocumented immediate relatives of U.S. citizens to apply for waivers of inadmissibility in the United States. Previously, the application had to be presented outside the U.S. and, if denied, the undocumented applicant would be unable to reenter the country thereby dividing families. This new program protects families from this draconian outcome. Despite these limited benefits, most of the estimated 12 to 15 million undocumented workers, many of whom are children, siblings, or parents of U.S. citizens, must live in the shadows, unable to obtain work authorization, driver’s licenses, or benefits despite the fact that most undocumented workers pay taxes. Although a majority of Americans now favor granting legal status to undocumented workers, opposition to such measures in Congress has allowed this untenable situation to continue.
One of the main impediments to immigration reform is the conflict between principle and practicality. Most people would agree that it is both impractical and detrimental to our country to have 10 to 15 million people, who are overwhelmingly law-abiding and hardworking, and who are closely connected to the larger community, live as an underclass in our society. The possibility of deporting all of these people or encouraging them to self-deport is quixotic at best. At the same time, many people feel that, on principle, we cannot reward people who have broken the law. This sense of principle is one of the main impediments to crafting a practical solution to this issue.
Concerns about civil liberties also punctuate this issue. For example, the government could solve the issue of illegal immigration by creating a counterfeit-proof ID card that must be used by all individuals for a number of purposes, including applying for work. Many people fear that a national ID card would give “big brother” authority to the federal government.
If the truth be told, some people are also concerned that legalization, as well as any expansion of immigration, will accelerate the process of people of color becoming the majority population in the U.S. Finally, an overarching question remains as to whether our immigration policy should serve our historical mission of welcoming the poor, the oppressed, and the “huddled masses” or whether it should be a tool for nation-building with a focus on economic growth and development. Hopefully these issues will be fully aired in the upcoming debate on comprehensive immigration reform.
Perhaps, compassion, political reality, and even a sense of duty and history, will motivate law makers to provide relief to undocumented workers in a way that also provides for the future needs of our country, including finding innovative ways to mesh the needed flow of immigration with border security, discrimination protection, and effective employer sanctions.
By: Kenneth Stern and Emily Assunta White
This article originally appeared in the March 11, 2013 edition of Law Week Colorado.