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When You Come To A Fork In The Road Take It: A New Immigration Law For America
by Gary Endelman

Gary Endelman America needs a new charter to shape national immigration policy. Yet, few, if any, "experts" are talking about it. Rather, the conversation is all about where the INS will wind up, in what form, with what authority and how this will affect both services and enforcement. Winners and losers, that is what occupies center stage at the moment. What the INS will do once the new shape takes form seems less compelling.Yet, at the end of the day, that is what counts and what history will remember. For this reason, let us go back to basics and rewrite the Immigration and Nationality Act in its entirety.

Start from the core principle that immigration policy should express and implement a clear and consistent national purpose to promote economic growth while protecting domestic tranquility. Does the current law do that? The question literally answers itself. The very notion of using immigration to achieve larger aims seems, to use an inapt phrase, "alien". Since IRCA, we have simply piled one law on top of another without considering how they all relate to one another or what the entire body of jurisprudence was designed to achieve. Things have become so bad that even the most informed and experienced observers, including the immigration bar, shrink from the task of beginning anew. It is hard, perhaps impossible, to swallow all of it at once. To make it more digestible, whatever unlucky soul winds up in charge of immigration once the dust settles should appoint a blue ribbon panel to draw up a spanking brand new Immigration and Nationality Act. Farmers, workers, immigrants, housewives, teachers, lawyers, business folks, union officials and federal civil servants should all have a role to play. Give them the benefit of expert consultants who know how the system works down in the trenches. Come up with a new charter for US immigration that can serve the nation as we now live and work- an immigration law for OUR TIME.

We must not be afraid of simplicity. It can be just as difficult to understand or put into practice as its more complex cousin. An immigration law that says what it means will not throw government regulators or immigration lawyers out on the street. There will be more than enough work for all to do. In fact, once a rational system becomes accessible to the vast majority of our fellow citizens, something that is clearly not now the case, the volume of immigration activity will soar . Those who make their livelihood in this field must have enough respect for themselves and their knowledge to welcome change and not seek to block it. We have far more to offer our clients than that. The need for a new model law to replace the crazy quilt statute we have now is more important than what the contents of any revised charter will be. Whatever the law says, a law that can be understood will be invested by the good sense of the American people with the moral legitimacy that our present system so manifestly lacks. For this reason, even if there is sharp and fundamental disagreement on immigration policy, that should not prevent us from putting a new immigration scheme into place. Indeed, the very fact that so many people feel so strongly about so many different aspects of immigration law actually highlights the need for a grand conclave that can give all concerned parties a chance to be heard.

Not knowing as much as those who have brought us to the place where we are now, what fundamental goals should inform any attempt to rewrite the Immigration and Nationality Act? A tough question, but let's try to figure something out. How about the following?

  1. The American people must understand the law and feel they have a stake in its interpretation, enforcement and evolution. It must belong to them not to lobbyists, lawyers, bureaucrats or scholars.

  2. Immigration is not international social work but an enlightened exercise in national self-interest. Immigration exists to serve the nation not the other way around. We must use immigration the way we use tax policy, interest rates or trade restrictions to make us a more prosperous people.

  3. It should be harder to come to America and easier to stay. Impose more restrictions on nonimmigrants and fewer on those who seek green card status.

  4. We need much tougher enforcement and much higher levels of immigration. Opponents of immigration should no longer be able to frustrate immigration through arbitrary or capricious enforcement that clearly goes beyond what Congress intended. At the same time, supporters of immigration must stop acting as if September 11th never happened. They have nothing to fear from honest enforcement motivated by a sincere desire to protect not to punish.

  5. The concept of family unit is sacrosanct. Anything that divides families must go. Remove all numerical limits on the nuclear family and make all such immigration quota free. This allows the children and spouses of permanent residents, as well as the unmarried adult sons and daughters of US citizens, to come in NOW!

  6. All other family categories must go. This includes immediate abolition of the diversity visa lottery which lacks any clear or sustaining rationale that could possibly justify its continuance. Transfer all of these visa numbers to the employment side of the ledger. In the long run, most people in the family stream come to work, just as we all do.

  7. The real threat to US workers comes not from the distinctly limited number of employment-based immigration but from the much larger number of family-based immigrants whose entry is unchecked by any labor market control.

  8. Markets not regulations should govern what hiring decisions employers make. Deregulate the issuance of immigrant visas. Give employers the option of paying a fee to buy the green cards they need or go through the process of advertising the job and demonstrating the absence of qualified, willing and available US workers. It should be their choice.

  9. Working visas, be they temporary or permanent, should belong not to the employer who files the application but to the alien worker who benefits from it. Make that worker truly mobile and able to take advantage of the best deal they can cut with any US employer. That, not any government compliance regime, will really safeguard the wages and working conditions of the domestic labor force.

  10. Reward not past achievement but future potential when deciding which aliens have the talent to enrich the American economy. Decisions on extraordinary ability, national interest waivers or outstanding researchers should be governed not by what someone has done before but what they are likely to do once they get here. We need people who are going to do their best work for us in the years to come, not those whose salad days are behind them, even if their resume looks more impressive right now.

  11. Repeal employer sanctions which encourages disrespect for the law and contradicts the ability of willing workers and interested employers to help each other. Eliminate the underground economy and use the taxes from those who live in the shadows to fund social security for the foreseeable future. An aging America must expand its tax base before the baby boomer retirement tsunami hits. Immigration is the the only way to do it, short of raising taxes or cutting benefits, neither of which is politically acceptable.

  12. Make temporary work visas truly temporary and not half-way houses to the attainment of green card status. It must be the stated policy of America to have fewer temporary workers who never leave and more permanent residents whose feel that this is their home.

  13. Remove any artificial caps on employment-based categories. When employers no longer need to hire, they will not need big brother to tell them not to. At the same time, make it much more expensive for those employers that do bring in immigrants to benefit from their coming. Both supporters and opponents of immigration must learn to trust the culture of capitalism and believe in its legitimacy.

  14. Employment-based immigration should care more about the creation of new economic opportunity rather than the preservation of what exists now. Growth not protection is the goal. Facilitating future growth not punishing past transgressions is what all who care about America should place first.

    Now that is a mouthful. Many of you will agree with some of these suggestions and disagree with others. Few will endorse all of them and some will toss them all right into the trash can. What matters is that the conversation start, that the need for a model law be openly acknowledged and honestly pursued. Once the American people have an immigration law they can believe in, the never-ending series of crises and emergency campaigns can finally be replaced by a sober examination of what the nation needs and what it is willing to do to satisfy such needs. There are so many new laws and regulations that observers of good will and keen intellect will legitimately feel overwhelmed. Worry about a new immigration charter right now? Are you nuts? Well, maybe, but not for this reason. It is precisely when the headlines scream the loudest that we must step back from the moment, take a deep collective breath, and quietly set about the task of doing something for our clients and our country.

    There are those who say this is not the right time to boil things down to their essentials, that such big picture initiatives are best dealt with in more tranquil times when we have the leisure to think about them. Such a respite may never come. The ancient sage Hillel anticipated such objections many centuries ago when he cautioned that one should not "make a statement that cannot be easily understood on the ground that it will be understood eventually." Now is preeminently the time to think and act boldly. The one true test of leadership is the ability to lead and lead vigorously. We must not be afraid to try new things and, if these do not work, to try others. Mistakes will be made; they may even be necessary and should certainly be expected. The fact that fundamental change is difficult, even painful, only suggests how much we need it. For those who like their wisdom put a bit more plainly, why not try that other rabbinic authority Yogi Berra who said what we all know to be true: " When you come to a fork in the road, take it!" We will, Yogi, and thanks for the advice.

    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.

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