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An Immigration Reform Agenda For The 110th Congress

by Dan Stein of Federation for American Immigration Reform

No truly effective comprehensive immigration reform bill passed in the 109th Congress because the entire immigration debate was saddled by proposals to enact a mass amnesty and reward those who have broken the law. Thus, the 109th Congress yet again missed an opportunity to pass an immigration reform agenda that will truly serve our national interest.

Last year, there were some gains in the enforcement arena. Congress authorized the construction of 700 miles of fencing along the southern border, the hiring of more law enforcement agents, and the creation of more detention space. In addition, Congress passed the REAL ID Act to improve the uniformity and integrity of driver's licenses issued throughout the United States. These were all reforms that FAIR advocated and fought for on Capitol Hill.

Unfortunately, while the passage of these measures suggests progress, it is entirely uncertain whether they will bear fruit. First, the funding for these reforms is by no means certain. For example, Congress only authorized about $1.2 billion needed for fencing, an amount proponents say will actually only build about 390 miles. Ongoing funding is also needed for the creation of detention space and the hiring and training of law enforcement agents. And, even if lawmakers are dedicated to funding these reforms, it will take at least a couple of years to see results.  Finally, the incoming Congress and the election of many new members creates further uncertainty with respect to these enforcement reforms and any others on FAIR's agenda. Some members of Congress have publicly stated they intend to revisit immigration-related legislation passed in the 109th Congress (specifically the Secure Fence Act) and make adjustments where deemed necessary. This does not bode well for reformers who supported their passage in the first place.

In the area of legal immigration, the 109th Congress can claim no progress whatsoever. No action was taken on the urgent need to limit and roll back immigration, no action was taken to eliminate abuse in the refugee and asylum program, and an immense backlog still exists in processing immigration applications due to slow-moving background checks. Meanwhile, in the last waning hours of the session, Congress managed to pass special interest language extending three guest worker programs. These programs allow nurses, doctors, and certain skilled individuals to work in the United States and compete with U.S. workers.

In short, while the 109th Congress did not pass a comprehensive immigration reform package, a handful of smaller immigration-related measures passed via other bills. These measures were:

FY06 appropriations increase of $1.2 billion for border security (H.R.2360):

  • 1000 additional border patrol agents
  • 250 additional criminal investigators
  • 100 additional ICE agents
  • 1000 detention beds
  • Requires DHS to submit a comprehensive immigration enforcement strategy that reduces the number of undocumented aliens by 10 percent per year and a requirement that DHS and ICE develop a national detention plan for undocumented aliens.
REAL ID Act of 2005 enacted (H.R. 1268)
Secure Fence Act of 2006 enacted (H.R. 6061)
FY07 appropriations increase of $2.1 billion for border security and immigration (HR 5441):
  • $1.2 billion for border fencing, vehicles, and technology
  • 1,500 additional border patrol agents
  • 6,700 additional detention beds
  • Criminalizes construction of border tunnels

Extension of the H-1C nurse program for three years (H.R. 1285), authorizing the issuance of nonimmigrant visas to certain foreign nurses who agree to work in "shortage areas" of the U.S.
Extension of the J-1 doctor program for two years (H.R. 4997), authorizing the issuance of nonimmigrant visas to certain foreign doctors who agree to work in "shortage areas" of the U.S.
Passage of the Compete Act (S. 3821), expanding eligibility for P-1 visas granted to athletes and individuals of extraordinary ability

With lawmakers set to return to Capitol Hill in January, it is critical that the 110th Congress take long overdue action to bring U.S. immigration policy in line with our national interests. The following legislative agenda for the 110th Congress lays out the critical reforms to federal immigration laws and enforcement capabilities needed to redirect U.S. immigration policy and get it back on track.

1.   Cut the Numbers. The United States currently admits over one million legal permanent residents every year. This is equivalent to annually adding a city the size of Dallas, straining our communities, health care, education, and overall infrastructure. In fact, the Associated Press recently reported that New York City planners currently project the city's population growth will lead to an all-day rush hour by the year 2030. This level of immigration is unprecedented and unsustainable—a conclusion also reached by the bipartisan Jordan Commission in 1995. The growth in the number of legal immigrants is mainly the result of ever-expanding family-based preference system. It is further compounded by the increase in employer-based visas lobbied for by big business as they seek to import cheap foreign labor and increase profits. FAIR believes that a sustainable level of immigration is approximately 300,000 annually. To cut the numbers while allowing for the maintenance of nuclear families, FAIR advocates the following measures:

  • Take an immigration time-out of most immigration to relieve pressure on the system, eliminate backlogs, and start setting an enforceable annual cap.
  • Eliminate family preferences for adult siblings and adult sons and daughters
  • Eliminate the visa lottery
  • Repeal INA 245(i)
  • Eliminate birthright citizenship legislatively
  • Reform temporary protected status, asylum and refugee laws to limit abuse.

2. Secure the Borders. The first step to solving our illegal immigration problem is to secure the border. The Census Bureau estimates that over 500,000 illegal aliens enter the United States every year. While this number is in part made up of visa over-stayers and not border-crossers, the fact is that over one million aliens are caught attempting to cross the U.S.-Mexico border every year. Until sufficient resources and manpower are placed at the border to stop the influx of illegal aliens, the problem will continue to get worse. FAIR advocates the following border security measures:

  • Extend fencing along the entire border and increase security on both borders
  • Increase manpower (Border Patrol Agents, CBP Agents, etc.)
  • Increase detention space by a minimum of 10,000 beds (end Catch-and-Release)
  • Uniformly apply expedited removal to illegal entrants, including criminal aliens
  • Restrict visa waiver program
  • Strengthen and clarify "hot pursuit" authority at border
  • Appropriate sufficient funds to accomplish these tasks

3.  Apply Strong and Serious Worksite Enforcement. Hand in hand with securing the border is enhancing, and enforcing, penalties on employers who knowingly hire illegal aliens. There is broad agreement that the reason most illegal aliens come to the United States is to find work. Some employers seek to take advantage of illegal workers by employing them at sub-standard wages and increasing their profits. Their willingness to break the law by hiring illegal aliens creates demand for even more illegal aliens and only serves to depress wages for U.S. workers (including aliens here legally). FAIR advocates the following employment-related measures:

  • Implement mandatory Electronic Eligibility Verification System
  • Reduce number of documents permitted to show work authorization
  • Increase and consistently apply civil and criminal penalties against employers of illegal aliens
  • Dramatically increase the number of Worksite Enforcement Agents
  • Permit civil actions by employers against other employers who intentionally fail to verify work eligibility of their employees to gain a cost advantage
  • Eliminate federal preemption on employer sanctions (i.e. allow states to impose stricter penalties)
  • Permit U.S. citizens to file unfair employment practices complaints under the INA

4.  Eliminate Document Fraud. Document fraud is one of the primary ways illegal aliens manipulate the system to stay in the United States. Fake birth certificates, fake driver's licenses, and forged immigration documents enable illegal aliens to get work and in some instances claim benefits for which they are ineligible by law. Moreover, hundreds of thousands of false social security numbers are submitted to the Social Security Administration every year. For citizens and legal aliens whose social security numbers are stolen, the impact can be severe. To help stop document fraud, FAIR advocates the following measures: 

  • Secure the Social Security card (counterfeit and tamper-resistant)
  • Authorize and fund increased training for federal, state, and local law enforcement officers on the detection of fraudulent documents
  • Appropriate sufficient funds for implementation of REAL ID Act

5.    Reform Federal Agencies that Impact the Enforcement of Immigration Laws. The federal agencies that administer our nation's guest worker programs do not take adequate measure to protect American workers. In addition, the federal agencies responsible for enforcing our nation's immigration laws do not share information that would uncover illegal immigration and have not closed systemic loopholes that enable employers to hire illegal aliens and encourage more illegal immigration.  FAIR advocates the following reforms:

  • Reform tax laws so employers cannot use employment of illegal aliens to their advantage (i.e. deduction of wages and benefits)
  • Provide increased resources for IRS to investigate and apply sanctions for fraudulent tax returns submitted by employers and aliens
  • Restrict use of ITINs (Individual Tax Identification Numbers) to tax-related purposes only
  • Require SSA to share information with DHS on issuance of no-match letters to employers
  • Bar work performed illegally from counting towards Social Security
  • Impose stricter standards for the recruitment of U.S. workers and require that U.S. workers be given absolute preference in hiring and job security
  • Protect wages and working conditions to maintain the standard of living of U.S. workers and eliminate an unfair economic advantage reaped by the employer for hiring illegal workers
  • Allow injured U.S. employers and employees to litigate civil complaints in DOL administrative tribunals to protect their businesses and jobs against unauthorized employment of aliens

6.  Encourage State and Local Law Enforcement Authorities to Enforce Immigration Laws. Because Immigration and Customs (ICE) agents cannot be in all places all of the time, it is imperative that state and local law enforcement be assured they have the proper authority to arrest and detains illegal aliens. Law enforcement officers at any level should not be required to ignore violations of federal law. To improve the enforcement of immigration laws at the state and local level, FAIR advocates the following measures:

  • Reaffirm authority of state and local law enforcement agencies to enforce federal immigration laws
  • Require federal reimbursement for state and local law enforcement expenses directly related to illegal immigration, except where local sanctuary policies encourage illegal immigrant settlement
  • Increase funding for the SCAAP program to help states pay for the incarceration of criminal aliens
  • Authorize state and local judges to authorize removal of nonimmigrants as part of plea bargains in criminal cases

7.  Eliminate State and Local Benefits to Illegal Aliens. The provision of benefits to illegal aliens is essentially a tax-payer subsidy of criminal behavior and only encourages more illegal immigration. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 made illegal aliens ineligible for most federally administered benefits, excepting certain emergency provisions, such as emergency medical care and assistance for battered aliens. However, many states have not passed legislation making illegal aliens ineligible for state and local benefits. In addition, some states that have adopted laws restricting benefits do not have the proper systems in place to verify eligibility. While the federal government cannot dictate to states what laws they adopt, Congress can refuse to allow federal taxpayer dollars to be sent to states that subsidize illegal immigration. To reduce the taxpayer subsidy of illegal immigration, FAIR advocates the following measures:

  • Withhold federal grants to public universities that enroll aliens who have neither legal residence nor a valid visa
  • Deny by law U.S. citizenship to children born in the United States to illegal aliens
  • For "essential" legal temporary workers, require employers to reimburse state and local governments for the education, health, and other taxpayer-subsidized costs
  • Prohibit non-citizens from voting in elections
  • Encourage laws denying other privileges and benefits to illegal aliens

8.  Improve the Detention and Removal Process. Currently, the processes and procedures for determining who is ineligible for admission and removing aliens who are present in the U.S. illegally is inefficient and contains many loopholes. Routine cases are bogged down in endless litigation, further impeding the enforcement of our immigration laws. To improve the detention and removal process, FAIR advocates the following measures:

  • Streamline process for immigration litigation
  • List immigration violators in the NCIC database
  • Authorize the detention of dangerous aliens
  • Restrict remedies for immigration litigation
  • Deny visas to nationals of countries with poor rates of repatriation
  • Bar the entry of and establish the deportability of gang members
  • Mandate the detention of alien gang members
  • Provide for the ineligibility of gang members from TPS, asylum, or refugee status

9.  Enhance Ability of DHS and DOJ to Enforce Laws; Provide Resources. No law enforcement agency can accomplish its mission without adequate penalties for law-breakers and resources to enforce the laws. There must be serious penalties for all those who break our immigration laws and sufficient attorneys and judges to process the enormous number of immigration-related cases. To improve the ability of the Department of Homeland Security and the Department of Justice to enforce our immigration laws, FAIR advocates the following measures:

  • Provide additional immigration judges
  • Provide additional attorneys in DOJ and DHS to handle immigration litigation
  • Prohibit granting of immigration benefits until all background checks of applicants are completed to satisfaction of DHS
  • Increase criminal penalties for aliens smuggling
  • Increase criminal penalties for marriage fraud
  • Require uniform guidelines for the prosecution of immigration violations

10.   Intensive Congressional Oversight Required on an Ongoing Basis. Over 20 years of experience since the passage of the 1986 Immigration Reform and Control Act has taught us that simply passing laws does not mean that that our immigration system works. Constant oversight is required to make sure that federal agencies charged with enforcing are immigration laws are actually doing so. The following on-going measures are needed to make the reforms proposed above work as intended:

  • Expeditiously and fully implement comprehensive entry-exit (US-VISIT) system
  • Increase the rate at which Department of Homeland Security agents, such as border patrol and ICE agents, are trained
  • Recruit, hire and train SSA personnel for electronic eligibility verification system (EEVS)
  • Develop and carry out employer training for EEVS
  • Update and upgrade technology for EEVS
  • Promulgate rules and regulations for EEVS, including appeal of tentative non-confirmations
  • Rapidly increase and implement use of biometrics in immigration documents
  • Expeditiously and fully implement the REAL ID Act
  • Enhance coordination and information sharing between local and federal law enforcement

11. Oppose immigration legislation against our national interest.  U.S. immigration laws already contain a multitude of guest worker programs. These include programs for agricultural workers, unskilled workers, high-tech workers, doctors, nurses, etc. It is against our national interest to continue to import cheaper foreign labor to compete with U.S. workers (including legal aliens) and depress wages. Providing amnesty for illegal aliens is also against our interest because it rewards unlawful behavior, encourages more illegal immigration, and is fundamentally unfair to aliens who come to this country legally.

  • No amnesty
  • No new guest worker program

12. Oppose international agreements that impair U.S. sovereign control over immigration and border management issues. One past example includes the North American Free Trade Agreement (NAFTA), which opened the flood gates and allowed big business to import cheap foreign labor en masse to take American jobs. A current example is the so-called NAFTA superhighway, the plan to create a 10-lane, limited-access highway running from Mexico to Canada. This superhighway would enable Asian manufacturers to ship containers full of goods to Mexican ports, unload them using Mexican labor (rather than U.S. labor) and put them on Mexican driven trucks (bypassing the Teamsters) which would then be driven into the United States. The goods would then be distributed through a new customs-free port in the U.S. operated by the Mexican and U.S. governments. FAIR opposes agreements such as these because they institutionalize the use of cheap foreign labor and are being made to cater to big business interests, not the interests of the American workers. FAIR also opposes these agreements because they complicate the process of effective border management in the interests of commercial considerations that minimize commitments to border and national security.

About The Author

Dan Stein has been the executive director of the Washington-based Federation for American Immigration Reform (FAIR) since 1988. He has worked for nearly 15 years in the field of immigration law and law reform, including his prior position as Executive Director of the Immigration Reform Law Institute, a public interest litigation group. Mr. Stein is the author of many articles on immigration published both in scholarly journals and in the popular press. He has appeared in Congress on behalf of FAIR and made presentations about immigration reform at organizations across the country. Mr. Stein is a graduate of Indiana University and of Catholic University School of Law.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.