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How the Senate Bipartisan Immigration Bill Fixes the Mistakes of 1986

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NEW RESOURCE: Review of key amendments filed in Senate Judiciary Committee from America’s Voice

This morning, the Senate Judiciary Committee cast a near-unanimous vote against an amendment from Senator Jeff Sessions (R-AL) to unduly restrict future legal immigration into the country over the next decade.  Sessions was the only Senator to vote for his amendment, which he claimed would stop “chain migration” and prevent immigrants from “taking American jobs.”  Why did his amendment garner such sweeping opposition?  Because the vast majority of Senators in both parties recognize that we can either facilitate immigration through reasonable legal channels, or continue to experience unauthorized migration.

In fact, this is the key lesson learned from prior attempts at immigration reform, and one of the core differences between the components of the 1986 law signed by President Reagan and the bipartisan bill under consideration in the Senate today.

Following is a statement from Frank Sharry, Executive Director of America’s Voice:

The Senate Gang of Eight’s immigration bill learns from and corrects the mistakes of the 1986 Immigration and Reform Control Act (IRCA).  Yet the opponents of the current immigration reform bill being marked up in the Senate Judiciary Committee, such as Senator Chuck Grassley (R-IA), often cite IRCA as the reason for their opposition.  They say that the promise of border enforcement was not fulfilled, that the employment verification system didn’t work and that the legalization program incentivized future illegal immigration.  Therefore, they argue, we should not proceed with a proposal that they claim leads with legalization and promises enforcement later.

Here’s why they are wrong.

The 1986 IRCA law contained a legalization program for approximately 3 million undocumented immigrants – half of the nation’s undocumented population – combined with employer sanctions and border security.  While opponents like to say the bill was a failure, the record is more mixed.  It was not a failure for the 3 million undocumented immigrants who got on a path to citizenship.  Most used their newfound freedom and mobility to make significant contributions to the nation they call home.  As for the employer sanctions provisions, the law required that new hires show proof of legal status and identity to employers, a provision that was undermined by the widespread availability of false documents.  With respect to border security, the George H.W. Bush Administration did not significantly increase the border patrol.  Instead, the present-day ramp up began with the Administration of President Bill Clinton in 1993 and has continued to the present day.  Since 1993, the border patrol has grown from 2,000 agents to 21,000.  According to the Migration Policy Institute, we spend more on immigration enforcement today than on all other federal law enforcement agencies combined.

Why did the dramatic increase in border patrol agents coincide with a dramatic increase in the undocumented population (rising from 3 million to 11 million)?  Because IRCA did not do what the bipartisan Senate bill does in three essential ways.

  • First, the new bill combines the vastly increased border security of today with a mandatory electronic employer verification system.  Arguably the most underreported aspect of the current bill, this system will make it significantly harder for unauthorized workers to get hired and nearly impossible to use fake documents to obtain jobs.  Yes, some employers will circumvent the system and seek out exploitable workers without papers, but the bill cracks down hard on them.  And these employers will be the exception, not the norm, as they are now in some industries and occupations.  Instead of focusing enforcement mostly at the point of entry, the Senate bill will significantly expand and improve enforcement at the point of hire.
  • Second, the Senate bill legalizes almost all of the current unauthorized workers (not just half, as in IRCA), something that is a must if mandatory electronic employment verification is to work.  Without legalizing the current workforce, mandatory E-Verify would drive undocumented workers further underground, lead to more worker exploitation, exacerbate the erosion of wages and working conditions for all workers, and advantage unscrupulous employers at the expense of honest ones.  By combining mandatory E-Verify with immigration status and eventual citizenship for most of today’s undocumented workers, the bill will create a level playing field in which workers in the country are mostly legal and hiring in the country is mostly legal.  This level playing field, in which everyone plays by the rules, provides a clean slate to start from and get it right this time.  One concern, however, is that the Senate bill has a cut-off date of 12/31/11, leaving hundreds of thousands of undocumented workers out of the program.  This is a mistake for the same reason that it was a mistake to leave millions out in 1986.  Instead of cleaning the slate, it perpetuates a symptom of the broken status quo: a population subject to illegal hiring and employer abuse.
  • Third, the Senate bill creates a set of worker-oriented legal channels that provide a legal alternative for low-skilled workers coming in the future. It’s these channels that Senator Sessions was trying to constrict with this morning’s amendment, only to fail miserably.  One of the fundamental reasons IRCA fell short is that it did not acknowledge the need for a properly-regulated legal channel for essential workers.  For example, in the mid-2000s, when unemployment was low and demand for low-skilled labor was high, an estimated 500,000 undocumented workers entered the U.S. labor market each year.  During that time the number of visas available for permanent low-skilled workers was (and is) 5,000.  That gap in demand and supply led to high levels of unauthorized immigration – and, due to increased border patrols at traditional entry points, high levels of migrant deaths in the desert.  The current proposal allows needed workers to apply  for visas overseas and come legally with labor rights, on an airplane rather than through a dangerous desert crossing.

This is the combination that will work together to solve the broken immigration system: border enforcement combined with mandatory employment verification combined with a path to citizenship for undocumented workers combined with legal channels for workers in the future.  Those who claim that the answer is “border security first” or “border security only” neglect the fact that this has been our nation’s de facto immigration strategy for 25 years – and it has failed.  It failed because it didn’t combine core elements in a way that creates a legal, orderly and safe immigration process that serves America’s interests and reflects American values.

One thing the 1986 immigration law did get right, however, was the spirit behind it.  In his farewell address to the nation President Ronald Reagan, who signed IRCA into law, described his vision of America as a “shining city upon a hill” and said, “if there had to be city walls, the walls had doors and the doors were open to anyone with the will and heart to get here.”

This time, Congress is poised to enact a complete solution that addresses the policy challenge while staying true to our nation’s values and character.  That’s why 2013 is different from 1986.