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Uncle Sam Wants You: Why America Needs A Wartime Immigration Law
by Gary Endelman

Gary Endelman The Bush Administration never tires of reminding the nation that we are at war. Yet, while much attention is paid to the turf battle over where the INS will wind up and in how many pieces, precious little, if any thought, has been devoted to examining how a peacetime Immigration and Nationality Act can be converted into an effective instrument against terror. That may seem surprising to some since hardly a day goes by when Attorney General Ashcroft does not announce a new restriction on aliens, whether they want to come here or have already arrived. Today, it is registration; tomorrow it is fingerprinting and photographs; the next day it is electronic notification of acceptance by universities as a precondition to issuance of student or exchange visitor visas. Secret hearings, lots of lawsuits, tremendous angst and big headlines all around. What more can the Administration do? They can get serious.

The truth is that, for all the shouting, nothing proposed thus far goes beyond cosmetic changes which slow things down, create insecurity and make life difficult for the immigrants in our midst. How much of the Agency's time, energy and human capital is spent on things that should have been made irrelevant by September 11th? There has been no fundamental reordering of INS priorities; no attempt to define a new sense of mission that will get rid of the old stuff and zero in like a laser on what really counts. We have essentially the same Immigration and Nationality Act administered by the same INS which is being told something like the following: do everything you used to do in peacetime and, oh by the way, do all this other stuff without more staff or money. Small wonder that the INS recently announced receipt of some 700,000 AR-11 change of address forms in recent weeks without any way to deal with this flood or any notion of how to control what is sure to come. Al Quaida must be getting worried.

Neither the supporters or opponents of immigration really care a whole lot about the war effort. Few in either camp take it very seriously. Restrictionists want to use the war to regain political legitimacy and clamp down on immigration in a way that would have been politically impossible before 9/11. Expansionists want to go back to the world before the planes hit the World Trade Center and the Pentagon. What they share in common is an unyielding insistence on the advancement of their own agendas that have remained largely immune from the war and any sense of national sacrifice that it has aroused. The concept of arriving at a new consensus that enables the nation to think of immigration in a systemic way that can revitalize the economy and promote national security remains, to use that terribly inelegant phrase, "alien" to the true believers on both sides of the barricades. Nor is the Administration itself immune from this critique. They say that times have changed, and they have, but other than making immigration the whipping boy for the war, nothing of substance to change the law has been brought forward.

Well, friends, if Confucius was right when he said that the journey of a thousand miles begins with a single step, let's start walking down a new road and make immigration law a true partner in the war against terrorism. Consider the following:

1. Nothing matters but stopping the terrorists from coming here. That should be the only ground of inadmissibility. Let the INS do THAT and nothing else.

2. This means, for example, that Section 214(b) should either be totally scrapped or only applied to citizens of those countries identified as state sponsors of terrorism. This is the "guilty until proven innocent" statutory provision that tries to screen out intending immigrants and is used to deny nonimmigrant visas to those who are unlikely to return to their homeland. How much time and energy is wasted by US Consular officers in trying to decide who is likely to stay here and who is likely to go back? Would the war effort not be better served by having these same resources used to find out where the bad guys are and make sure that THEY do not get visas?

3. Get rid of employer sanctions. Even the President wants to match up eager workers with willing employers. If we did not want these undocumented workers here, if we were really serious about getting rid of them, they would have been gone a long time ago. Bring these hard working people who want a better life for their families in from the shadows and out of the underground economy. Tax them and fund social security for the baby boomers. For those who cry out that this is another instance of liberal crappola rewarding law breakers, ask yourself this simple question: Are we more secure or less secure knowing who the undocumented are and where they live? Is America better off making them part of the mainstream? How does an ever-growing mountain of I-9 forms help defeat Osama Bin Laden?

4. Make enforcement tougher, a lot tougher. There is no reason why strict enforcement and more immigration cannot only coexist but nurture and sustain each other, even in tough times like the present, maybe especially now. One need only look around with honest eyes and true interest to find ways that this can happen. The General Accounting Office recently came out with a sobering report on the need to strengthen controls by the Department of Commerce over transfers of dual use technology to foreign nationals, most notably from the Peoples Republic of China. While Commerce monitors visa issuance outside the United States, there is no review of applications by international students who seek to change to H-1B temporary worker status after earning their graduate degrees at American universities. The GAO estimates that there are 15,000 H-1B applications whose approval by the INS involve sensitive technology under the export control laws. Why not have the INS concentrate on working with the Department of Commerce to explore ways of implementing effective examination of any such H1B cases that might involve employment that afforded access to sensitive technology? Let the INS worry less about petty violations of status and more about ways to deny foreign nationals unauthorized exposure to controlled technologies that can be used by potential future enemies to upgrade their military capability. Is the US more secure if INS investigators go out into the workplace to make sure that the security features built into deemed export licenses are being observed or when these same investigators raid another construction site on an I-9 raid?

5. America is powerful because the American economy works. Anything that makes us a more productive people makes us more secure. Immigration does that. Those who dispute the need for more foreign workers ignore reality. They do a gross disservice to the American workers they claim to protect. Our immigration system should not exist to benefit immigrants but to enrich America. We need a true investor visa, not one that is for sale to wealthy foreign businessmen but one that is granted as a credit to reward US companies who invest in the American economy by creating new jobs. For every 10 full time jobs created in any fiscal year, American employes should be allowed to immigrate one worker of their own choosing. This could be known as the "Workforce Investment Visa Credit" and can be used by American employers as they see fit. US employers not DOL regulations or INS Service Centers should make basic immigration decisions on which the future health of our economy depends.

The INS needs wartime leadership. It is fundamentally unfair to the men and women of the INS to ask them to enlist in the war without giving them brand new marching orders. Those who reject the idea of the nation state will reject the idea of using immigration to fight terror. For them, the idea of immigration is not to make America more secure, but to use immigration as social outreach. Those who deny the validity of the capitalist ethos will care little about policy innovations that make it more vital. Others will dismiss the idea of more immigration with tighter enforcement as a way to fight terror, preferring instead to retreat within the false security of a Fortress America. Most Americans who know we are a nation at risk and a nation of immigrants will, however, react quite differently. They will understand and support an immigration policy that is animated by a sense of wholeness and responsibility. Andrei Sakharov put it best when he wrote in his Nobel Prize lecture that "we must make good the demands of reason and create a life worthy of ourselves and of the goals we only dimly perceive." For all the many difficulties that will undoubtedly attend any attempt to create a wartime Immigration and Nationality Act, this week of remembrance, when the nation paused as one to remember those who died for freedom on September 11th, is a good time and place to begin.

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.