This piece originally appeared in Roll Call.
Senate passage of immigration reform legislation, S 744, begs the question: Is it better than current law? Probably, but the answer could change.
Parts of the bill do improve both the immigration system and the labor market. New rules limit abuses of internationally recruited workers, make union organizing easier and protect immigrants from employer retaliation. S 744 also prioritizes permanent immigrants with skills over family connections and creates a Bureau of Immigration and Labor Market Research that would make the system more data-driven. And regularizing unauthorized migrants would bring exploitable workers and their families out of the shadows, allowing them to assert their rights and bargain collectively. Both immigrants and Americans would benefit as wages rise, and law-abiding employers would no longer have to compete in a race to the bottom.
But much more should have been achieved.
Applicants for Registered Provisional Immigrant status — the status afforded to qualifying unauthorized immigrants in S 744 — must pay processing fees and back federal taxes, as well as meet minimum income and employment tests, and then go to the back of the imaginary immigration “line.” The result? An estimated one-fourth to one-half of the 11 million unauthorized migrants might never attain legal status — dooming us to repeat history. The amnesty legislation in 1986 offered a speedier and more direct path to legalization. Yet it turned out to be too restrictive, leaving out 2 million to 3 million immigrants, who became the core of today’s unauthorized population.
The new Bureau of Immigration and Labor Market Research should be an independent agency that can give Congress the information needed to adjust immigration levels to real-world economic conditions, while increasing transparency and public support. Instead, S 744 limits its role and places it in an inappropriate Homeland Security subagency with no research or analytic expertise and that serves corporate clients.
Too much of the bill is corporate giveaways, at the expense of wage growth and job opportunities for U.S. workers. A massive guest worker program will fill year-round jobs in lower-skilled occupations like housekeeping and landscaping, and a separate, existing seasonal program for similar jobs will double in size. The Senate apparently doesn’t care that wages have been flat and unemployment in double digits for years in these occupations.
The tech sector’s lobbying firestorm — based on unsupportable claims about severe labor shortages in science, technology, engineering and math fields — paid off. S 744 nearly triples the troubled H-1B guest worker program without fixing its loopholes and abuses despite little evidence of a high-tech labor shortage. Most H-1B guest workers are employed in information technology jobs, where wages are stuck at 1990s levels and unemployment remains above pre-recession levels.
To the benefit of contractors and supplier firms, the bill wastefully spends $46 billion for more drones, equipment and manpower to further militarize the southern border. The additional 20,000 border patrol agents the bill mandates will have little to do since the net flow of unauthorized migrants from Mexico is already near zero and, because of Mexican demographic trends, is unlikely to increase significantly.
Nevertheless, S 744 fails to adequately prevent migrants with temporary visas from overstaying. As a result, the Congressional Budget Office predicts the bill will only decrease overall future flows of unauthorized migrants by 33 to 50 percent. To effectively prevent overstayers requires a biometric visa exit tracking system and an electronic employment verification system that’s coupled with vastly increased workplace enforcement by the Labor Department. Unfortunately, the bill falls far short.
S 744 only requires a biometric tracking system at 30 airports within six years. And although it makes the existing electronic employment verification system, known as E-Verify, mandatory for all employers, businesses will still employ unauthorized workers by classifying them as “independent contractors” or keeping them off the official payroll. The only way to tackle this fatal weakness is to increase the number of inspectors auditing their books.
Shockingly, the bill does not increase staffing or funding for the enforcement of labor standards. Some 40,000 border patrol agents will guard an already-safe border, while only 1,100 wage and hour investigators will police 7 million employers. And nothing in the bill guarantees even current funding levels for labor inspectors.
On balance, the Senate bill is already a disappointment. Too often, it advances special interests rather than the national interest. It is difficult to imagine how it will promote broadly shared prosperity or the rule of law if it fails to legalize millions of the undocumented and fails to prevent a new population of unauthorized migrants.
On the one hand, legalizing those unauthorized migrants who can clear the bill’s hurdles will be incredibly beneficial. That much deserves support. However, if the House throws any more roadblocks in the path to legalization and citizenship, or weakens labor standards in guest worker programs, it will become clear that Congress’ reform effort has failed. Such an immigration law would do more harm than good.
