A Flawed Fix, and an Opportunity To Address Immigration Problem

By Howard L. Berman

Published January 23, 2004, issue of January 23, 2004.
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Jews know how it is to arrive in a foreign land as strangers — and not always to welcoming arms. In the late-19th and early-20th centuries, waves of Eastern European Jewish immigrants, including my father, arrived in the United States, often fleeing pogroms. Many were unskilled laborers who took low-paying jobs in factories where they were subjected to substandard working conditions. Out of these waves came future leaders of the labor movement, which helped immigrant workers and their children rise out of poverty. It is with our roots as immigrants, refugees and laborers in mind — and in light of the Jewish tradition that teaches us to welcome the stranger that we should consider the untenable and intolerable state of American immigration policy today.

The United States is now host to between 8 million and 10 million undocumented immigrants, who have either crossed the border illegally or overstayed a visa. They are unknown to our government and, because of the harshness of our immigration laws and the backlogs that plague our system, they have every incentive to hide from the authorities. Most of these people, who are mainly from Mexico and Central America, are working low-skill, low-wage jobs. Their undocumented status makes it difficult for them to use the tools that previous generations of immigrants used to assert their rights and escape poverty. Indeed, some employ-

rs, knowing that government enforcement in the workplace is inadequate, want to hire undocumented workers because they are easily exploited.

This situation is unacceptable in humanitarian terms because of the abuse it engenders. But it is equally objectionable on national security grounds because the presence of so many people who are unknown to the government makes law enforcement and anti-terrorism efforts more difficult. It is against this backdrop that President Bush announced his proposals to address our immigration predicament earlier this month.

The president has proposed granting a temporary visa to any undocumented immigrant currently working in the United States. The visas would be valid for three years and renewable for another three years. He would also make this visa available to foreign workers currently living outside the country in order to fill a specific job as long as the employer shows that he or she cannot find an American worker for the position. Under the Bush plan, these workers would be expected to return to their home countries when their visas expire unless their employers are willing to sponsor them for green cards and lawful permanent residency.

In his speech announcing his proposals, President Bush made some important statements about undocumented immigrants. He acknowledged that these workers are “hardworking men and women” trying to support their families and that the current immigration situation is an unnecessary drain on our homeland security resources. His plan also improves upon the status quo for newer immigrants because it provides a temporary legal status. But unfortunately the flaws of his proposals greatly outweigh their benefits.

In essence, President Bush has proposed an enormous temporary worker program that fails the test of Deuteronomy, which commands, “You shall not abuse a needy and destitute laborer, whether a fellow countryman or a stranger.” It is abundantly clear that temporary guest worker programs are a path to exploitation of workers, and in this case, both immigrant and American workers are impacted.

When an employer has an infinite supply of guest workers who will work for minimum wage, the minimum wage becomes the maximum wage that an employer will pay American workers. When Americans won’t take a job under such conditions, the Bush plan allows employers to import labor. The employer in this program holds tremendous power over the foreign guest worker because the employer is the worker’s sponsor. If he is fired, the guest worker loses his visa along with his job. If the guest worker wants the employer to sponsor him for permanent status in the future, he is unlikely to complain about wages, working conditions, unpaid overtime or any abuse he encounters on the job. If a willing foreign worker exists who will tolerate those conditions, then American workers must face them as well. Without detailed and strong labor protections, guest worker programs foster abuse.

Moreover, for Congress to enact a comprehensive immigration reform plan, it must include one key element that will advance national security: an incentive for as many undocumented immigrants as possible to participate. Immigrants who have spent 10 or more years in the United States in an undocumented status will not be enticed by a promise of legal status for three years followed by deportation. Those who do participate would likely disappear at the end of three years and return to the conditions under which they currently live.

The opportunity for undocumented immigrants already in the United States to earn access to a permanent legal status is the incentive that will bring people out of the shadows. Some may object, asking how we can excuse illegal acts. But we simply cannot afford to perpetuate the status quo — particularly in our post-9/11 world. By creating the incentive for undocumented immigrants to come forward, we would also create the opportunity to perform criminal background investigations, check names against terrorist watch lists and take millions of those currently living in the shadows out of the homeland security equation.

If the promise of permanent status is not seen as real, however, there is no incentive to participate. Some observers note that under the Bush plan, given current visa quotas and processing backlogs, only a small fraction of undocumented immigrants now living in the United States would ever be able to secure green cards as “unskilled” workers.

I have participated in the immigration policy debate in Congress for more than two decades, and the one constant in this debate is that it has two inflexible, polarized sides. These two camps still exist. But in the wake of the September 11 terrorist attacks, many more legislators in the center realize that in order to protect ourselves we need to develop a more humane and rational immigration policy. Notwithstanding his proposals’ flaws, the president has signaled a willingness to join these legislators at the table.

Ideally, we would seek to achieve comprehensive reform in the short-term, but speaking realistically such legislation could take years to realize. In the meantime, there are several bipartisan proposals already on the table that should be considered.

Legislation known as AgJOBS deals with the agricultural industry, in which some estimate that 70% of the workforce is undocumented. The bill has broad bipartisan support in both the House of Representatives and Senate, and it would permit workers who already labor in our fields to earn adjustment of their status through a significant prospective work requirement. Future immigrant farmworkers would enter within the framework of the existing visa program for agricultural workers, but AgJOBS would add many of the labor protections that are absent in the president’s broader proposal.

The Development, Relief and Education for Alien Minors Act, or DREAM Act, which has passed the Senate Judiciary Committee, deals with undocumented young people brought by their parents to the United States, who, upon finishing high school, find themselves with little option but to enter the workforce illegally. The bill embodies the American principle that we do not visit the sins of the parents on the child. It would allow states to decide whether they want to treat undocumented students as residents of their state for the purpose of in-state college tuition rates or other higher education benefits. It would also provide a path to a permanent legal status.

Presidential backing of either of these bills would provide the push they need to become law. It would also help identify the coalition of legislators who could pursue a comprehensive plan to reform our immigration policy.

In creating this reform, we must develop a policy that is fair to workers and creates the incentive for the undocumented to come forward that would enhance our national security. Such reform would need to find the balance between the responsibility to defend our homeland from those who would do us harm and the duty to welcome the stranger.

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