May 1st has been a day historically associated with workers rights and has become a day to rally around immigration reform issues. The issue is heated and has shown a deep divide in this country that surprisingly enough doesn’t seem to line up in the usual conservative and liberal paradigm. President Bush, and some conservative legislators from boarder states are on the side of comprehensive immigration reform aligned with many liberal members of Congress. The majority of Republicans in Congress and the majority of Americans are clearly against any sort of comprehensive immigration reform and have a great deal of anger about the issue.
Why am I writing this?
I have been surprised by the vitriol that people whom I know have used in this debate. Some of the people that I usually describe as “liberal” and who I assumed would be supportive of issues on undocumented immigrants seem to be steeped in a lot of the rhetoric and are aligned with the views expressed by the majority of Americans which tend to blame these immigrants for the current problem. What I have heard from family and friends has made me uncomfortable and seems to be based solely on emotion. On the flip side my position has been driven by my personal sense of morality and compassion not by data and therefore is based on my “gut” too.
I know from my work in public policy that a position that is not supported by the data is circumspect. Since my position and the position held by those that are at odds with me are positions that are born from the gut- from emotion- and less from a rational analysis of the data they do not lend themselves to a robust discussion on policy . So I decided it was time to do a little research to see what the data say and what direction the data take to support a rational, not emotional, policy conclusion.
I realize that my own position needs to be fluid and open to being informed by what the data tell me. My goal here is to vet out some the reality from the rhetoric in as manner that is as unbiased as possible. I am engaging in this exercise so I can evolve my own thinking based on the facts rather than my intuition and moral compass. But I want to share the fruits of this labor with friends, family and other interested parties who regularly read my blog so we can all come to our own conclusions based on fact and not rhetoric.
As stated above, my purpose here is to approach the subject with as little bias as possible but as in all things- personal conviction and bias creep in. So I need to disclose my position before I continue. Due to moral and ethical beliefs, I support comprehensive immigration reform which includes a road to citizenship for undocumented immigrants. This puts me in the odd position of agreeing with President Bush- a position that makes me feel— well creepy! I bristle at the term “illegal immigrants, personally opting for “undocumented immigrants”, because I have found that too often the former phrase sounds racially charged and does not truly reflect what I believe is the real illegal activity – employers hiring undocumented workers. I live in San Francisco which is a sanctuary city for undocumented immigrants and have always supported that status for the city. I realize that my position puts me at odds with most Americans- but this is not something unusual for me. All that being said, I hope that the research reported hear can lead to conclusions based on facts and not based on emotions no matter what our current bias may be.
Let’s talk numbers first so we know exactly what we are talking about. These statistics are from the Pew Hispanic Center. Founded in 2001, the Pew Hispanic Center is a nonpartisan research organization supported by The Pew Charitable Trusts. Its mission is to improve understanding of the U.S. Hispanic population and to chronicle Latinos’ growing impact on the entire nation. The Center does not advocate for or take positions on policy issues. It is a project of the Pew Research Center, a nonpartisan “fact tank” in Washington, DC.
According to the Center there are 12 million people living in the United States “illegally” and 1 in 20 workers (5% of the US workforce) is undocumented. Their statistics show that undocumented workers have a huge impact on certain industries. 1 in 8 workers in food preparation, 1 in 7 in construction, 1 in 6 in cleaning and janitorial, 1 in 4 in farm work, dry walling and roofing are undocumented.
According to a 2004 study by the Urban Institute, a nonpartisan economic and social policy research organization, 57% of undocumented immigrants are from Mexico, 23% from other Latin American countries, 10% from Asia, 5% from Europe and Canada and 5% from the rest of the world.
The Urban Institute found that nearly all (96%) of undocumented men (over 18 years of age) are in the workforce. Their workforce participation rate exceeds that of men who are legal immigrants or who are U.S. citizens. The reason for this high rate of workforce participation is not due to the fact that undocumented immigrant men are younger, less likely to be disabled, retired or in school the study concluded. This counters the idea that they have a higher rate of workforce participation than others primarily because they are willing to work for substandard wages that fall below minimum wage requirements that are in place for legal immigrants and U.S. citizens. The study found no validation for this theory.
According to the same study undocumented workers earn considerably less than working U.S. citizens. About two-thirds of undocumented workers earn less than twice the minimum wage, compared with only one-third of all workers. Undocumented workers make up less than 10 percent of the 43 million low-wage workers in the United States.
Contrary to public perception, the Urban Institute found that women make up a substantial share of the undocumented population- 41%. Additionally about 1.6 million children under 18 in the United States are themselves undocumented immigrants. Another 3 million children with undocumented parents are U.S. citizens because they were born here.
The last time there was any sort of immigration reform was in 1986 during the Reagan administration. Many critics of comprehensive immigration reform point to the amnesty granted in that bill and lack of provisions for substantive deportation as the reason for the surge in undocumented immigration that has since occurred.
The Cato Institute, viewed predominantly as a conservative think tank and whose stated mission is is “to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets, and peace by seeking greater involvement of the lay public in questions of public policy and the role of government”, has found other issues at play in its analysis of that law.
According to a study by the Cato Institute published in 2006, the 1986 law failed because it lacked any expansion of legal immigration to meet U.S. labor needs. It legalized 2.7 million immigrants and ramped up enforcement, but with no allowance for the entry of new, legal workers, the population of illegal immigrants soon began its inevitable increase to the current level of an estimated 12 million.
This analysis goes on to say that United States Department of Labor Department projects our economy will continue to create a net 400,000 or more low-skilled jobs annually in service sectors such as food preparation, cleaning, construction, landscaping and retail. They conclude that a visa cap below the actual demand in our economy would only perpetuate the problem of illegal immigration and the current visa cap is much lower for these labor sectors.
Why not just apply to be a citizen through the legal process?
This leads us to discuss why undocumented immigrants do not just apply for a visa in the legal way. Many Americans unfamiliar with our arcane immigration laws believe that undocumented immigrants could easily legalize their status and become part of mainstream America if they simply took the time to fill-out the correct paperwork. Unfortunately, nothing could be further from the truth. Under our current system, most undocumented immigrants do not qualify under any of the overly restrictive categories available for individuals wishing to immigrate to this country.
According to a paper published by the American Immigration Lawyers Association (AILA), the narrowly defined eligibility categories under our current immigration system serve neither our economic interests nor the interests of families seeking to reunify. Generally, foreign-born individuals can immigrate to this country in one of three ways: through family sponsorship, through an employer sponsor, or by winning one of the limited number of visas in the Diversity Visa Lottery.
To qualify under the family categories, the prospective immigrant must have a close family member (defined very narrowly) living in the U.S. legally and eligible to sponsor the foreign relative. However, the waiting times in many of these categories are lengthy. For example, a U.S. legal permanent resident from Mexico may have to wait 10 years or more to bring his or her spouse into this country. Sponsoring a sibling could take 20 years or more from certain countries.
The employment-based route is equally outdated and unworkable. Even assuming the U.S. employer can negotiate the complicated, multi-agency process and prove that there are not sufficient U.S. workers who are able, qualified, and willing to perform the work in question, there are only a very limited number of employment visas available. As mentioned before the visa cap is woefully low. In the “other worker” category, only 5,000 visas per year are available—nowhere near the number necessary to meet our economy’s need for these essential workers. Once again, waiting times in this category can run a decade or more.
As for the Diversity Visa Lottery, it is available only to individuals from countries that send relatively few immigrants to the United States, and provides only a limited number of visas per year.
The AILA analysis states that three-year, 10-year and permanent bars to admission render most undocumented immigrants ineligible to receive a permanent immigrant visa, even if they were to qualify through a family relation or via employer sponsorship. The 1996 immigration law created three-year, 10-year and permanent bars on admission to the U.S. for a variety of immigration status violations. These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status. The three-year bar applies to individuals who have been unlawfully present in the U.S. for a continuous period of more than 180 days, but less than one year, and who voluntarily depart the country. The 10-year bar applies to individuals unlawfully present in the U.S. for a continuous period of one year or more and who depart—whether voluntarily or involuntarily. The permanent bar applies to any person who has ever been ordered removed (or has resided in the U.S. unlawfully for more than one year in the aggregate), leaves the United States, and then returns or attempts to return without being admitted.
Thus, even if an undocumented individual is eligible to become a permanent resident through family or employer sponsorship, he likely will be unable to attain that status—he is ineligible to remain in the U.S. and “adjust his status” here (Section 245(i) of the Immigration and Nationality Act has expired), and he is ineligible to receive a permanent immigrant visa at a U.S. consulate until he has been outside the U.S. for the three- or 10-year period, depending upon the circumstances. If subject to the permanent bar, he will remain ineligible for life.
Th AILA paper concludes that “rather than stemming illegal immigration, these bars encourage people to remain in the U.S. in an undocumented status. The bars undermine rather than promote our country’s national security goals. If we eliminate these rigid bars, individuals will be encouraged to come out of the shadows and normalize their status by leaving the country and applying for a lawful visa authorizing their reentry.”
Reliance on Public Benefits
There are a lot of questions about whether or not undocumented people rely too much on this country’s public benefit system. Many folks stating that these people really come here to rely on our benefits. As noted before 96% of the men coming here work and do not rely on welfare as has often been reported. This issue was addressed in the article “Care Expenditures of Immigrants in the United States: A Nationally Representative Analysis.” published in American Journal of Public Health, Vol. 95, No. 8, August 2005. The article found that “undocumented immigrants are ineligible for the vast majority of state and federal benefits and are only eligible for those that are considered important to public health and safety. In fact, many legal immigrants are also ineligible for most federal benefits. As a result, health care spending for immigrants is approximately half that of citizens.”
According to a New York Times article on April 5, 2005, “…the estimated seven million or so illegal immigrant workers in the United States are now providing the system with a subsidy of as much as $7 billion a year….Moreover, the money paid by illegal immigrants and their employers is factored into all the Social Security Administration’s projections.”
According to that April 6, 2005 New York Times article, “Starting in the late 1980s, the social Security Administration received a flood of W-2 earnings reports with incorrect—sometimes simply fictitious—Social Security numbers. It stashed them in what it calls the “earnings suspense file” in the hope that someday it would figure out to whom they belonged.
In the current decade, the file is growing, on average, by more than $50 billion a year, generating $6 billion to $7 billion in Social Security tax revenue and about $1.5 billion in Medicare taxes.
It seems that the federal government is relying on these revenues. It factors in the revenue while not factoring in a later expenditure. This indicates that there is full knowledge that there will never be claims made in either the Social Security system or in the Medicare program by any individual associated with these contributions.
Not surprisingly enough the mismatched W-2’s fit like a glove on illegal immigrants’ known geographic distribution and the patchwork of jobs they typically hold. An audit found that more than half of the 100 employers filing the most earnings reports with false social Security numbers from 1997 through 2001 came from just three states: California, Texas and Illinois.
That New York Times article on April 5, 2005 stated, “…the estimated seven million or so illegal immigrant workers in the United States are now providing the system with a subsidy of as much as $7 billion a year….Moreover, the money paid by illegal immigrants and their employers is factored into all the Social Security Administration’s projections.”
Why aren’t employers concerned about illegally hiring undocumented workers?
In March 2005, Wal-Mart, a company with $285 billion in annual sales. was fined $11 million for having untold hundreds of illegal immigrants nationwide clean its stores. “The federal government boasts it’s the largest of its kind. But for Wal-Mart, it amounts to a rounding error—and no admittance of wrongdoing since it claims it didn’t know its contractors hired the illegals” wrote the Christian Science Monitor on March 28, 2005.
“If it weren’t so easy for employers to skirt worker ID verification, the settlement’s requirement that Wal-Mart also improve hiring controls might have a ripple effect in corporate America. but the piddling fine will hardly deter businesses from hiring cheap labor from a pool of illegals that’s surged by 23 percent since 2000….But enforcement is pathetically inadequate, especially since 9/11.” After 9/11 enforcement by Immigration and Customs Enforcement (ICE) has almost exclusively focused on boarders and not employers.
The Immigration Reform and Control Act of 1986 provides for sanctions against businesses that hire undocumented worker. In a stroke of bad timing the law was enacted once Mexico-US border maquiladoras run by US corporations began closing, and those workers streamed across the border (most of these factories moved to Asia), searching for jobs of any kind. But any fines incurred are really considered just a cost of doing business for most companies.
In a paper “Immigration and Compliance for Small Businesses” by Samantha Barlow Martinez a partner at Muskat, Martinez & Mahony, LLP, a labor and employment law firm, the consequences for violations regarding the hiring of undocumented workers is outlined and it shows just how negligible are any real negative consequences for illegal actions by employers. Obviously, either hiring or continuing to employ an undocumented alien once his undocumented status is discovered is a violation. A company may have either actual knowledge of an employee’s undocumented status (such as when the employee tells you this), or constructive knowledge. Either kind of knowledge is treated the same under the law.
The regulation on point states that constructive knowledge is “knowledge which may be fairly inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 CFR § 274a.1(l)(1). It goes on to give examples of when the law would infer that an employer has constructive knowledge: (1) if it fails to or improperly completes the I-9 form; (2) if it has information available to it which indicates the alien is not authorized to work, such as a Labor Certification (a form used to obtain certain kinds of work visas); or (3) it acts “with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.”
Violations of this type result in civil fines of only $250 to $10,000 per each unauthorized alien, depending on the company’s past record of violations. More shockingly, “Good faith compliance with the employer verification requirements (I-9 form)” provides a defense to a charge of knowingly hiring an alien. 8 CFR § 274a.4.
There is widespread abject poverty and starvation in Mexico since US corporations relocated their cheap-labor plants from the US-Mexico border to Asia, and after Mexican banks and telecommunications were privatized thus creating dozens of instant billionaires and plunging millions into poverty.
US employers are anxious for more profits, and willing to exploit the poverty and fears of illegal immigrants to do so. Many of those who cross the boarder will continually try to cross even if they have been repeatedly sent back. They even risk their lives to cross often paying everything they have to “coyotes” who benefit from human trafficking and enslavement. For many – they have no real alternatives for their survival or, more importantly, the survival of their families
Enforcement seems to focus on the worker who is looking for a better life and not the companies that exploit them. The fines are nothing more than a factor in the cost of doing business. This fuels anger anger towards the workers and rarely, if ever, focuses on the employers and tends to exacerbate racial bias.
Currently there is virtually no legal path for these workers. Under the current system, most undocumented immigrants do not qualify within any of the overly restrictive categories available for individuals wishing to immigrate to this country.
“Our nation virtually posts two sign on its southern border: ‘Help Wanted: Inquire Within’ and ‘Do Not Trespass,” says Pastor Robin Hoover of Humane Borders. Without the help of immigrant labor, the US economy would virtually collapse. We want and need cheap immigrant labor, but we do not want the immigrants.”
Yes- we need immigration reform, yes we need to secure our boarders- but we must not stop there- we must look at all parts of the equation.
We must ease the current restrictions on visas for the types of work that attracts undocumented workers so these individuals have the opportunity to come here legally. We must also ensure that employers who hire undocumented workers realize consequences that actually discourage this practice by levying meaningful fines, ensuring mandatory prison for the executives in charge, and no loop holes to use like the ones that currently exist.
Finally we should develop a road to citizenship for those that are here and already contributing to our society. But they should not get a free pass either; there should be a consequence for their action. They should pay fines and any back taxes that they may owe for the pay that they have received before becoming eligble for naturalization.
It is clear that the problem of illegal immigration has nothing to do with entitled feelings on the part of those who cross our boarders. On the contrary- they are very productive members of our society on whom we depend. Without them, as Mayor Bloomberg of NYC said, our economy would collapse. We should not vilify these people we owe them the opportunity to become full members of our society.
According to the Cato Institute an immigration reform must reflet the underlying reality that the American economy continues to create hundreds of thousands of new jobs each yer for low-skilled workers. Those jobs are being created in retail sales, food preparation, cleaning and janitorial services, for retails salespersons, agriculture, construction and landscaping. Meanwhile, the supply of Americans willing and happy to fill those same jobs continues to shrink. We are getting older and more educated as a nation.
“Illegal” immigration continues to grow becuase our immigration law has no legal channel for a peaceful, hardworking immigrant from Mexico or another country to enter the United States legally to fill those jobs even temporarily. The result is large-scale “illegal” immigration.
The Cato Institute analysis concludes that any reform worthy of the name must offer a path to legalization for the millions of undocumented workers already here. Deporting them all would be impractical, yet continuing indefinitely with millions living in a legal twilight zone also is unacceptable.
With all of these facts now on the table. I agree with the Cato Institute. There must be recognition of our dependence on undocumented people that are here and the contribution that they make which is far greater than any cost we incur by their presence. We must look at our current immigration laws and revamp them to be more appropriate for the current economic and security needs of this country. We must also ensure real consequences for American employers that flagrantly break the law. All of these points are part of comprehensive immigration reform. This is the only way to repair our system, not just funneling money to enforcement which has clearly not worked.
Do not villify these people. Let’s do the American thing and lend them a hand. They don’t want to live in the shadows – they just want to support their families. After all – aren’t we a country that believes in family values?
I truly started researching this piece not knowing where it would lead. Where it has led me is to not only support comprehensive immigration reform but to support it vigorously. Moreover I will do all I can to support the people who are here trying to create lives for themselves and their families and I will boycott the companies and businesses that flagrantly break the law and exploit these people.