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Renaissance: The Ziglar Resignation and the Chance for Immigration Renewal
by Gary Endelman

Gary Endelman We should have seen it coming. How much longer could genial Jim Ziglar survive John Ashcroft, James Sensenbrenner and September 11th ? While the resignation of Mr. Ziglar created splashy headlines around the country, in all likelihood, the White House political pros were not taken by surprise. While Commissioner Ziglar was the "Sergeant At Arms" of the US Senate, this time around the smart money says that President Bush will look for a soldier- a real one- or at least someone with a law enforcement or national security background. The implications for meaningful, even marginal, improvement in the willingness or ability of the INS to deliver quality services on time are not hard to figure out. The contrast with the surging momentum of the days right before September 11th when genuine progress seemed not only possible but inevitable could not be more dramatic or discouraging.

Ziglar is not to blame for an Agency that does not know what America wants it to do. Indeed, the Service is the perfect institutional embodiment of our national schizophrenia on immigration. All of the clashing assumptions, competing programs and contradictory goals under which Ziglar and his predecessors have labored make any effective action by the Service on almost any issue of moment an occasion for great relief and genuine surprise. If it is true that the best way to get rid of a bad law is to enforce it, then the best way to decide what immigration means to the American economy is to arrive at a point when a leaderless INS does not know which way to turn. That is where we are now.

The old answers no longer work, if they ever did. When both the AFL-CIO and the National Association of Manufacturers want employer sanctions to go, it is only the relative non-enforcement of I-9 compliance that has kept the system on life support. Whatever one thinks about IRCA, it seems fairly clear that the protection it has provided for American workers is, to put it charitably, less than overwhelming. The real threat to the legitimate interests of the American workforce comes not from the undocumented but from the chain migration to this country through family ties that is entirely legal but largely unchecked by any effective labor market controls. While most critics of immigration zero in on the H-1B or an allegedly overgenerous employment-based system, the truth is that the number of green cards earned this way is a piker compared to the much larger number of family immigrants who are really coming to work. The only reason that this has not become a real issue until now is the fact that the family visa categories are protected by a widely shared belief in their moral legitimacy that has never been extended to any employment-based options.

The Ziglar abdication presents a chance for genuine immigration renewal, perhaps the last real one before the next September 11th closes the gates for a long time. If America moves forward with strong and active faith to deregulate the immigration system so that smart markets not dumb regulations determine what is important, this time will not be wasted. Mr. Ziglar's falling on his sword will be remembered as the selfless sacrifice of a true patriot. Start from the assumption that immigration policy should not a noble exercise in international social work but a clear-eyed expression of enlightened national self interest and the rest falls easily into line. Here's how it can work:

  1. Make the unity of the nuclear family sacrosanct. Our current system claims to do that but actually separates families, often for many long years. This is unconscionable. All numerical restrictions on the first two family categories must be immediately removed. The unmarried sons and daughters of US citizens, as well as the spouses and minor children of permanent residents, should come in quota free as immediate relatives.

  2. Abolish all other family categories and throw the diversity lottery on the scrap heap for good measure.

  3. Transfer these immigrant visa numbers to the employment side of the ledger. Most of the relatives who think they have been wronged will actually wind up coming to the US much faster this way. Why are the coming here anyway? They want to work. Now, they will get that case, finally. But, and there always seems to be one, there is a catch. No longer will chain migration be unchecked by labor controls.

  4. US employers will be given a choice. They can either pay for the green cards they claim to need in the form of a processing fee, likely a high one to test their sincerity and measure their interest, or advertise their jobs and demonstrate the absence of qualified, available and willing US workers. The market controls and American workers breathe easier. Let employers choose. The fee paid in place of labor certification can fund either a private sector training program, perhaps even one conducted by the same employer, or into a special grant program run by the federal government to retrain displaced or underemployed American workers. There would be no need for Congress to change the law. There is no reason why DOL could not accomplish this by regulation and grant interested employers who pay the fee the ability to skip labor certification entirely. If we have doubts about the concept, then start small and launch a pilot project in a designated area for a limited time to see how things turn out. It is hard to imagine why employers or workers would oppose this. If we want to give foreign workers true mobility, and thereby really help US workers, make the visa applicant a free agent and allow him/her to negotiate with interested US employers to see which ones will offer the best deal.

  5. There is no reason why those who will benefit from the Mexican amnesty that President Bush still wants should be immune from these same labor controls. Make them get a job and make the employers who hire them pay a hefty fee or endure the rigors of labor certification. Dramatically expand the employment quotas by 5-fold for 5 years to give these new workers every genuine chance to land a decent job. If they do not get one by then, send 'em home. This controlled amnesty is a back door 245(i) legalization, better in fact since it rewards the undocumented for following the law rather than escaping its reach and brings them out of the shadows into the mainstream economy where their labors can be taxed to fund social security. The only other necessary safeguard is a thorough background check to screen out any Al Quaida sympathizers. Other than that, if we want legalization, or whatever name we choose to give it, to work, let's keep it simple.
Immigration exists to serve the nation rather than the other way around. America needs not more or less immigration, but a different kind designed to serve different ends. We must not argue about the past but prepare for the future and serve the present. The Ziglar resignation reminds us all that this would be a good time and place to start.

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.