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Earned Legalization: A Points System for Essential Workers

by Gary Endelman

Gary Endelman The recent resignation of Mexican Foreign Minister Jorge Castenada over the failure to reach a migration accord with the United States highlights the political implications of undocumented immigration for both countries. President Fox has made it the cornerstone of his foreign policy and President Bush wants to use it as an outreach into the treasure trove of Hispanic votes that Karl Rove sees as the key to victory in 2004. All sides to this debate recognize that some sort of guest worker program is going to be proposed in 2003, but few observers believe this to be the ultimate solution to the chronic problem of undocumented immigration. At the same time, some support is growing among the homeland security folks for bringing the undocumented out of the shadows so that we know where they are and what they are doing. These "essential workers" clean our office buildings, labor in noisy shipyards, sweat in dangerous foundries, cut our grass, care for our old, tend the sick, freeze in meat plants, pick our food, work in our hotels, and staff our restaurants. For a while, in the euphoria of the boom, America forgot about these folks; now, when the party is over and life has gotten serious again, we remember them. What is the best way to legalize those now living outside the law, and the mainstream economy, in a way that promotes national security?

One emerging suggestion is the concept of "earned legalization" whereby the undocumented already here would be afforded the chance to apply for legal status. How do they do that? By what rules? That is where the companion concept of a points system can be a true friend. Several countries, Canada is the best known, have adopted a points system as the basis of their legal immigration system but no country so far has used it as a way to come to terms with illegal immigration. Let's be the first! Moreover, almost all, with the possible exception of New Zealand, point systems favor the highly educated while discouraging the lesser skilled who do hard, dirty, boring, and low paying jobs that often go begging but remain essential The United States, where the old economy is still very much with and important to us, should skew its point system to these very same essential workers that have few other immigration options.

A points system that de-emphasizes eduation and rewards other factors of equal, if not greater, economic importance can make this union a lasting and mutually profitable one. President Bush has already recognized that the job of government is to match up willing workers with the employers who need them. That is what earned legalization does. This is not a matter of immigration policy but a political acceptance of an economic symbiosis that already exists. Homeland security is enhanced and the undocumented are protected. They are brought within the tax system where the revenue generated by their labor can fund the massive social benefits that the retirement of the baby boom generation will soon necessitate. Simply stated, earned legalization makes possible the targeted investment of sweat equity.

A points system for essential workers should reward the following:

  1. Prime working age: 18-45
  2. Fluency in English
  3. Specialized expertise in shortage occupations
  4. Time spent in the United States.
  5. Family ties to the United States
  6. Residence in low unemployment areas unable to attract qualified US job applicants
Note the absence of education. This is by design. The highly educated have other immigration options and do not need this one.

How would an earned legalization program work? The earned legalization program should be open to any individual who has worked in an essential worker occupation as defined by Congress on a full-time basis over a 12-month period. Such an individual would be granted temporary residence during which time they would have to work in an essential worker occupation, although not necessarily the same one they were in at the time of application. There would be no requirement for any employer to demonstrate they have been unable to recruit US workers or have been paying the prevailing wage.Everyone knows this has not been happening. Indeed, this is precisely why most undocumented workers were hired in the first place. The best way to break this cycle of exploitation, and thereby remove the threat of cheap labor, is to give the undocumented true mobility to find better jobs by not linking their legal status to any particular employer. The marketplace, not another layer of DOL regulations that will neither be readily understood nor easily implemented, protects the legitimate interests of US workers. An essential worker who has the ability to walk is the US worker's best friend. There are some who want to require that earned legalization applicants pay all outstanding back taxes before seeking any benefit. This is a deal-killer. People who survive by getting paid under the table cannot do this, at least not right away. A more realistic alternative, which still requires that the undocumented pay their outstanding debts, is to demand that each new temporary resident enter into an agreement with our friendly IRS to repay back taxes, with interest but no penalties, and give them three years to do it or risk automatic loss of status.

The earned legalization program would represent a paradigm shift in US immigration policy. First, the needs of the economy would replace those of a petitioning employer as the driving factor. Give the essential worker ownership of his visa and free him from wage bondage to an unscrupulous employer. Second, administer this program in the spirit of new federalism that allows each state to mold it to its own needs. This would work in two ways. Each state would be able to identify what occupations are in shortage and ask the DOL to list them on a regional Schedule A list so that workers in these trades can benefit. We do not have one national economy in America but a series of regional economies whose needs are as diverse as the states themselves. Second, use earned legalization to encourage essential workers to live in places that normally would be unable to attract them. Grant occupational credits to each state, much in the manner of energy conservation credits that are now available, and allow them to be used, swapped or sold as the specific needs of a state dictate. This means, for example, that if North Dakota needs hotel workers or meat packers but cannot get them, while Florida or California has more than enough, but needs agricultural labor, then these states can either sell the desired credits to each other or simply exchange them. How they distribute such occupational credits to earned legalization applicants is up to each state to figure out.

The adoption of an earned legalization program should be coupled with the elimination of the cap on the immigration of unskilled workers in general. It should be lifted in order for America to take full advantage of these workers and the contribution they can and do make to growing the economy and shrinking the deficit. This is especially critical now when state governments throughout the nation confront enormous budget deficits made worse by the additional security obligations imposed on them by Washington. One example of this was the recent announcement by the Republican Governor of Ohio with the eminently respectable name of Robert Taft that his state now has a $530 million Medicaid shortfall. The Federal Reserve can stimulate growth by lowering interest rates but they are now so low that little more can be done. Congress can prime the pump by massive deficit spending but there is little likelihood of this happening anytime soon. Unleasing the economic potential of millions of undocumented workers in a way that expands tax flows can do more than any policy initiative now under discussion to inject new hope and money into the nation's economic bloodstream.

Some modest proposals. Let the debate 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.

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