One of the concerns I hear most frequently about immigration reform—and, to be honest, one of the most legitimate from my perspective—is that our country could repeat some of the mistakes of the “amnesty” legislation signed by President Reagan in 1986. I would not characterize the Reagan-era Immigration Reform and Control Act as a total failure. I personally know a number of amazing people who got their legal status through that legislation, including some very effective pastors who would probably not be ministering so effectively today without their valid Social Security cards. I also know of Spanish-speaking churches that were born out of the legalization, as legalized immigrants came into local churches seeking affordable, authorized help to fill out immigration forms and ended up coming back for Bible studies that eventually developed into full congregations. And yet, that last major legalization of undocumented immigrants clearly did not stop illegal immigration, as many promised that it would. Earlier this week, I examine two other potential pitfalls Congress faces as they begin to discuss reforming immigration. Today, I want to look at the question of how Congress shapes our visa system moving forward, which is vital if we are to avoid a situation that requires a new legalization process every few decades.
Essentially, the 1986 legislation offered most undocumented immigrants residing in the country at the time the opportunity to legalize their status while concurrently making it illegal for employers to hire unauthorized workers going forward. Theoretically, there should have been no employment opportunities for those tempted to come (or overstay a visa) unlawfully after the passage of the law, and thus illegal immigration should have ceased altogether.
Here’s why that did not happen: Congress forgot (or could not find the political will to pass) a crucial piece of the puzzle. They legalized (most of) the undocumented and tried to make it harder to enter and work in the U.S. unlawfully, but they did almost nothing to make it easier to enter and work legally. Quotas for visas, particularly for employer-sponsored immigrants who are not considered “highly-skilled,” were before the 1986 law (and remained afterwards, and continue to be) woefully out of touch with the needs of the U.S. labor market. While a dynamic economy means it is impossible to identify precisely the exact number of jobs that our economy relies upon at any given moment that do not require a Master’s degree but which American citizens or lawfully present immigrants are not usually eager to accept—think farmworker jobs, for example—just about every economist in the country would tell you it is way more than the 5,000 immigrant visas currently available annually through our employer-sponsored immigration system for other-than-“highly-skilled” workers (I think the quotation marks are important, since I do have a Master’s degree but do not have the skills or the disposition to do agricultural work for twelve hours a day in the California heat).
The Immigration Reform and Control Act of 1986 did not stop illegal immigration, because employers—who in most cases did not want to violate the law, but simply needed adequate supplies of labor—found they could not operate and grow successful businesses with the workers who were available to them under the law. Many began to hire immigrants present unlawfully (after all, our Social Security card—mine, like my grandfather’s did several decades ago, looks like it was made with blue construction paper and a typewriter—must be the easiest of governmental identity documents to forge), which created a new magnet to draw desperate people fleeing poverty in Latin America and elsewhere into the United States. The federal government, under pressure from industry groups who warned that strict enforcement of employment authorization laws would cripple their businesses and, potentially, the U.S. economy as a whole, largely ignored the new employment authorization laws. When they did penalize businesses, it was usually the equivalent of a slap on the wrist: an occasional, relatively small fiscal penalty that businesses could basically factor into their business plans as an operational cost.
Though I’m not condoning this unlawful behavior on the part of corporations, I also think that they were forced into a no-win situation by the failure of the 1986 reforms to establish a new system of visas that could adapt to the needs of the labor market. Most Americans don’t seem to blame the employers who hire undocumented immigrants either, since we continue to buy vegetables, eat fast food, and stay in cleaned hotel rooms, without worrying that these industries rely heavily on undocumented labor. (Interestingly, while amnesty for undocumented workers—as opposed to an earned legalization process with a fine involved—is politically toxic, it seems quite clear that we will essentially be extending amnesty to employers who have violated the law, and no one seems upset by this).
The only way to really stop illegal immigration—without devastating our economy, which I guarantee no elected official wants to do anytime in the lead up to an election—is to make legal immigration responsive to the needs of the labor market. That does not necessarily mean unregulated immigration (though some of my libertarian friends think that is the direction to go), but at least our regulations should take the dynamic labor market—for jobs at all points on the educational spectrum—into account. Our current system, as the Wall Street Journal’s Jason Riley wryly notes, resembles and works about as well as most exercises in Soviet-style central planning.
One of the worst things that we could do in a new immigration bill would be to fail, as we did in 1986, to establish significant new visa opportunities. I was disturbed to read a statement attributed to a leader of one of the major unions last week that said that an adjustment of the visa system “is arguably really not necessary to be in the package.” While I appreciate the role that labor unions play in ensuring fair treatment of workers, both citizens and immigrants, I could not disagree more. Historically, many labor unions have opposed further immigration because they presume a zero-sum theory of labor economics: essentially, the idea that there are a set number of jobs and every immigrant worker means one job fewer for a U.S. citizen. But economists simply do not find this to be true. Immigrants do not just take jobs, they also create them, both through entrepreneurship (for example: former refugee Sergey Brin, who started a little company called Google) and because they are also consumers, expanding the “pie” of jobs that our economy requires by consuming goods and services (if there were no undocumented immigrants ordering Big Macs, McDonald’s would probably need significantly fewer cashiers and cooks on the other side of the counter, and also fewer managers and folks in their corporate office). Without a policy change to allow lawful migration that matches our country’s labor needs, unlawful migration will inevitably occur. While I’ve critiqued some policy ideas that are mostly coming from the Republican-side of the aisle earlier this week, resistance to a robust future flow of immigrants is probably more likely to come from Democrats. I think such opposition is short-sighted.
Fortunately, though full details have not yet been released, the U.S. Chamber of Commerce and the AFL-CIO union came to an agreement between themselves last weekend—miracle of miracles, right?—that initial reports suggest would create significant new channels for “low-skilled” migrant workers, who could enter as guest workers but would have the option to adjust their status to stay permanently and whose legal status would not be tied to a specific employer, a situation that invites exploitation. While it remains to be seen how much of this proposal Congress will see fit to enact into law, to have these major players talking together is an important start. Many of my immigrant neighbors are desperate for the chance to earn legal status and eventually citizenship, and there is no shortage of voices focusing on the importance of border security, but if immigration reform fails to include this third leg—a market-sensitive reform of our visa system—we will repeat the mistakes of our past.
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