amnesty

President Trump’s Amnesty Plan

The White House today released four principles for immigration reform.  Overall, the Trump plan would cut legal immigration and spend about $25 billion on border security and a wall.  In exchange, the Trump administration has decided to support an amnesty and citizenship for an estimated 1.8 million DREAMers. 

Ted Cruz’s Mixed Record on Immigration Reform

Republican presidential candidates Ted Cruz and Marco Rubio both impressed audiences in the last debate.  Senator Rubio’s positions on immigration are discussed frequently, but Senator Cruz is normally viewed as an immigration restrictionist – an unfair characterization.  It’s more important to look at Senator Cruz’s actions when he offered amendments to the 2013 “Gang of Eight” comprehensive immigration reform bill (S. 744) than it is to cherry-pick a few quotes.  Senator Cruz did end up voting against S. 744, but only after he offered many amendments.   

Senator Ted Cruz was a tremendous supporter of skilled immigration and supported massively expanding the size of those programs, even beyond what was proposed in S. 744.  He offered four amendments (1324, 1326, 1586, 1587), to expand the number of employment based green cards to over a million annually.  Senator Cruz offered two amendments (1325 and 1585) to increase the number of H-1B visas issued annually to 325,000 while S. 744 allowed an upward bound of 180,000 annually (with some upward adjustments possible).  In other words, Senator Cruz’s amendment intended to practically double the number of H-1B visas over that which was proposed in the Senate’s 2013 comprehensive immigration reform bill.  Amendment 1587 also increased the number of H-1B visas and employment based green cards.  Senator Cruz’s amendments would have also allowed the spouses of all H-1B visa holders to work legally – going beyond President Obama’s actions to increase work eligibly for those spouses.  Expanding the number of green cards and H-1B visas for skilled workers would have been a tremendous boost to the U.S. economy.   

Do Amnesties Increase Unlawful Immigration?

One popular argument against a legalization, or amnesty, of unlawful immigrants is that it will merely incentivize future unlawful immigration.  Unlawful immigrants will be more likely to break immigration laws because they will eventually be legalized anyway, so why bother to attempt to enter legally (ignoring the fact that almost none of them could have entered legally)?  This claim is taken at face value because the stock of unlawful immigration eventually increased in the decades after the 1986 Immigration Reform and Control Act (IRCA) that amnestied roughly 2.7 million.

However, that doesn’t prove that IRCA was responsible for the increase in the stock of unlawful immigrants.  The stock of unlawful immigrants may have been increasing at a steady rate prior to the amnesty and that rate may have just continued after the amnesty.  Measuring the flows of unlawful immigrants is the best way to gauge whether the 1986 Reagan amnesty incentivized further unlawful immigration.  If the flows increased after IRCA, then the amnesty likely incentivized more unlawful immigration.  The number of annual apprehensions of unlawful immigrants on the Southwest border is a good way to approximate for these cross-border flows.

It’s perfectly reasonable to think that an amnesty of unlawful immigrants could increase their numbers in the future.  There are at least two ways this could occur.  The first is through knowledge of an imminent amnesty.  If foreigners thought Congress was about to grant legal status to large numbers of unlawful immigrants, then some of those foreigners may rush the border on the chance that they would be included.  Legislators were aware of this problem, which was why IRCA did not apply to unlawful immigrants who entered on January 1st 1982 or after.  IRCA had been debated for years before passage and Congress did not want to grant amnesty to unlawful immigrants who entered merely because they heard of the amnesty.  To prevent such a rush, subsequent immigration reform bills have all had a cutoff date for legalization prior to Congressional debate on the matter. 

Even with the cutoff date, some recent unlawful immigrants would still be able to legalize due to fraud or administrative oversights.  An unlawful immigrant who rushes the border to take advantage of an imminent amnesty still has a greater chance of being legalized than he did before, so legalization might be the marginal benefit that convinces him to try.  This theory of a rush of unlawful immigrants prior to an imminent amnesty is not controversial.

Interpreting Obama’s Immigration Executive Action

President Obama will soon announce an executive action to defer the deportations of somewhere between 1 million and 4.5 million unauthorized immigrants. Those whose deportations are deferred will be eligible for a temporary work permit through a 1987 provision in the Code of Federal Regulations.

Those who support immigration reform note that any executive action by the President will poison the well for reform, making it impossible for Congress to move piecemeal bills to the President’s desk.  Last year, one of the most effective arguments against immigration reform was that President Obama would not enforce the law as written, a prediction that seems to be borne out with this executive action.  The Wall Street Journal editorial board said it the best:

If he does issue an executive order, we hope Republicans don’t fall for his political trap.  He and many Democrats want Republicans to appear to be anti-immigrant.  They want the GOP to dance to the Steve King-Jeff Sessions blow-a-gasket caucus.

To poison the well of reform there actually had to be water in the well to begin with. I’m not convinced there was.  If there was a serious Congressional effort to reform immigration in the immediate future, then the President’s actions here would totally derail it.

Executive Action on Immigration

President Obama will likely take some executive action this fall to reduce deportations or legalize some unauthorized immigrants. He recently ordered Jeh Johnson, Secretary of Homeland Security, to delay the release of a review of current deportation policy until after the summer. 

Removing the 3/10 Year Bars Is Not Amnesty

It’s no secret that the Senate’s proposed legalization for some unauthorized immigrants was a deal breaker in 2013. Detractors labelled such a legalization “amnesty” even though it is anything but that – and that label has stuck. That, at minimum, some unauthorized immigrants become legalized is economically and ethically imperative, so it’s time to consider less-than-comprehensive, keyhole solutions that will fix at least some of the problems with our immigration system.

One such solution, which even many of those opposed to immigration reform have endorsed, is a small legislative reform to the 3/10 year bars that will allow some unauthorized immigrants to depart and apply for reentry under the legal system without special treatment. This reform would avoid the so-called amnesty objection to immigration reform.

 

Removing the Bars

The 3/10 year bars require any immigrant who stays in the United States illegally for more than six months but less than one year may not leave, reenter, or apply for a green card for three years. Any immigrant who illegally stays for more than a year may not leave, reenter, or apply for a green card for 10 years. Any immigrant who violates it triggers a twenty-year ban from reentering the United States for any reason. That’s a problem because almost all applicants for a green card or visa have to visit a U.S. embassy or consulate abroad to apply which, in the case of unauthorized immigrants, requires them to leave the Untied States thus triggering the bars. The 3/10 year bars prevent any unauthorized immigrant from using the legal immigration system. 

E-Verify’s Continued Ineffectiveness

Now that the government shutdown is over, Congress’ attention will turn to other issues.  There is a possibility that a series of immigration reform bills will be voted on in the House of Representatives before the end of the year.  One bill will certainly include mandatory E-Verify.

As my colleagues and I have written over the last several years, E-Verify is bad for businesses, taxpayers, the privacy of all Americans and residents, economic growth in general, and it won’t stop unlawful hiring.  Don’t believe me on the last point?  Just look at Arizona.  Here is a table of the number of all new hires in the state and the number of E-Verify queries run per quarter:

Year, Quarter

All New Hires

E-Verify Queries

Percent

2008, 1

558,949

36,723

6.6%

2008, 2

563,980

238,593

42.3%

2008, 3

533,502

265,452

49.8%

2008, 4

563,744

276,371

49.0%

2009, 1

385,166

197,612

51.3%

2009, 2

376,634

167,313

44.4%

2009, 3

353,744

172,350

48.7%

2009, 4

477,636

184,053

38.5%

2010, 1

353,612

160,790

45.5%

2010, 2

427,575

199,885

46.7%

2010, 3

384,026

310,648

80.9%

2010, 4

470,302

273,955

58.3%

2011, 1

363,854

220,471

60.6%

2011, 2

446,439

229,635

51.4%

2011, 3

455,134

249,873

54.9%

2011, 4

513,352

281,277

54.8%

2012, 1

406,895

224,396

55.1%

2012, 2

429,773

230,169

53.6%

2012, 3

454,834

267,577

58.8%

2012, 4

496,482

296,856

59.8%

Source: U.S. Census and Department of Homeland Security

Although all hires in Arizona are supposed to be run through E-Verify, an average of just over 50 percent of hires actually were from 2008 to the end of 2012.  These numbers actually overstate E-Verify’s enforcement record because multiple E-Verify queries could be run on the same hire.  The numerator could be a lot smaller than is reported above.    

If a state like Arizona will not enforce E-Verify, what chance is there that the federal government will do it everywhere?  Thankfully, lax enforcement of E-Verify in Arizona is a good indicator that this harmful system will not get the chance to be as destructive as many of us fear if it is ever mandated nationally.      

Immigration Reform Is Not Amnesty

Many opponents of immigration reform have labeled any type of legalization for unauthorized immigrants “amnesty.”  In common terminology, an amnesty is a general forgiveness for past offenses. Calling immigration reform amnesty brands it with a scarlet letter in the minds of many who are skeptical of reform.  A recent video made by the Cato Institute explains just some of the many steps an unauthorized immigrant will have to go through to become legalized if the Senate’s immigration reform becomes law: 

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