Immigration Reform: Is It Dead? Where Is It Heading?
Will we ever get back to comprehensive immigration reform? That's the issue on the minds of many progressive reformers as they continue to battle the steady barrage of propaganda from conservative talk radio seeking to blame undocumented immigrants for every imaginable societal ill -- from global warming to overcrowded public schools, bloated welfare rolls, deteriorating inner-city neighborhoods, rising street crime and most recently, identity theft.
And make no mistake about it: For all its shallow meanness, nativist propaganda is having a major policy impact -- in the introduction of hundreds of new state and local anti-immigration proposals, in the stepped-up federal immigration raids on workplaces, and in the unprecedented rewriting of government rules to allow Social Security records to be used to target undocumented workers.
But despite these setbacks, many activists remain hopeful that once the current U.S. presidential campaign ends, the political tide will shift away from immigrant scapegoating, fear-mongering and repression. John McCain and Barack Obama are among the U.S. Senate's strongest supporters of comprehensive reform, and flush from victory, either should have considerable leverage with Congress to pass a new reform bill granting legal status to undocumented workers.
But don't be so sure.
For one thing, the complexion of the Congress is not likely to change dramatically in November 2008. Democrats in the House and Senate will likely win some seats -- especially in the House -- but probably not enough in the Senate to make immigration reform filibuster-proof.
Moreover, to a certain extent, the damage is already done. The mood in much of the country has turned ugly, and unless the economy begins turning around, anti-immigrant sentiments will remain strong, stoked by the right's relentless propaganda.
Activists were hoping that many of the new state and local anti-immigration proposals would be overturned by the courts -- and while some initial proposals were, many others, like Arizona's draconian crackdown on employers hiring undocumented workers, have so far survived court challenges. Unless voters in these jurisdictions decide to rescind the controversial measures, they are likely to survive -- at least for now.
But the main reason for doubting major progress on immigration reform may be far simpler: While the consensus on the need for reform is strong, there are still fundamental disagreements in the U.S. political establishment about exactly what needs to be reformed -- and how.
The "Grand Bargain" -- A Myth?
Despite all the heady talk of a "grand bargain" on immigration reform, last summer's immigration legislation probably foundered because of the profound -- in fact, irreconcilable -- positions that lay at the center of the bill.
Not all of these disputes centered on the fate of the estimated 10 million to 20 million immigrants currently residing in the United States illegally. While media coverage of the bill tended to focus on this contentious issue, the intervention of Sen. Edward Kennedy, D-Mass., had allowed "pro" and "anti" immigrant forces to agree on a formula that would have allowed most if not all of the undocumented to become legalized and eventually qualify for citizenship -- a huge victory for the reform cause.
Instead, what really sank the bill were outstanding disputes over how the legal immigration system should function -- for families or for business -- and whether U.S. industry should have free reign to import foreign-born workers over native-born workers and to do so at the expense of workplace rights and wage standards for the native-born and immigrants alike.
In other words, it wasn't illegal immigration per se but the underlying economic class issues at the heart of the contemporary U.S. immigration system that most threatened passage of last summer's bill.
Among the key provisions that remained in dispute:
Immigration "Point" System: More Class Privilege?
In the midst of the debate, the White House introduced a provision that would have transformed the U.S. immigration system from one based on family reunification to one that prioritized higher skill and education qualifications with families' unity strictly a secondary consideration.
The current immigration system allows lower-skilled workers, primarily from Latin America, to immigrate with the supportive structures of their families, which research has shown allows these immigrants to advance economically and to maintain their physical, psychological and emotional health. Between two-thirds and three-quarters of annual U.S. admissions under the current immigration system are for family reunification purposes, primarily for these lower-skilled workers.
The newly proposed "point" system -- eagerly endorsed by U.S. industry and by its GOP allies -- would be modeled on similar systems now in place in Australia, Canada and Great Britain and would have shifted immigration away from low-income families and toward workers with higher skills, education and income.
The shift would mean that fewer workers would come from poor regions of the Western hemisphere like Mexico and Central America, where immigration is the key to national economic survival since immigrants remit billions of dollars in their U.S. wages back home to support their families in the absence of government welfare programs.
Instead, more of the U.S. immigrant pool, an estimated 65 percent according to the nonpartisan Migration Policy Institute, would be comprised of upwardly mobile workers with higher skills and education from countries in Europe, as well as India and China, with the potential to generate much higher productivity -- and profits -- in key U.S. industries.
Many Democrats in Congress opposed the introduction of the point system, charging that it was "elitist" and inherently class-biased. They also cited the dismal record of point systems in other countries like Canada, where it was blamed for creating massive labor bottlenecks that ended up undermining the economy, while driving many of the imported workers into poverty.
H-1B and the New Offshore "Sweatshops"
Just as contentious as the proposed point system are the efforts of U.S. industry, led by high-tech companies like Microsoft, to promote the use of the H-1B temporary visa system as a way of getting access to large numbers of cheaper skilled workers quickly, outside of regular immigration channels.
The H-1B program was created in 1990 and is supposed to be limited to 65,000 visas annually, with some adjustment allowed depending on the demand. Employers using the program are supposed to recruit domestic U.S. workers first, before turning to workers abroad. They're also required to pay foreign workers standard industry wages, so as not to undercut the bargaining position of U.S. workers.
But, as numerous studies have shown, the H1-B program doesn't actually work that way. For years, industry has found ways to break the visa cap to hire as many as 200,000 workers annually -- three times the original limit established by Congress. Moreover, in the absence of government oversight, companies using the program pay only lip service to the law's protections for U.S. workers. When the U.S. General Accounting Office investigated the program in 2001, it found that the Department of Labor had been routinely rubber-stamping all H-1B visa applications, eliminating the pretense that domestic U.S. workers were being recruited. Other studies have shown that H-1B workers are routinely paid 20 to 25 percent less than U.S. workers for the same jobs.
Last summer's comprehensive immigration reform bill would have made this situation worse. The one bone thrown to worker advocates was the passage of a provision that would have made it harder for employers to utilize H-1Bs to outsource U.S. jobs. U.S. firms with operations overseas could no longer build their entire work force around cheaper and more exploitable H-1B workers -- just 50 percent. However, the proposed bill would also have increased the H-1B visa cap to 115,000 workers, nearly doubling the program's size, while effectively blessing the recruitment and wage standard abuses currently practiced under current law.
Back to Bracero?
Another potential blow to workers under comprehensive immigration reform was the proposed expansion of the H-2B temporary visa program for unskilled workers to parallel the expansion of the H-1B program for skilled workers. Here again, the absence of labor and wage protections threatened to turn this program into a sop to big business, with limited gains for native-born workers and immigrants alike.
The United States already has plenty of experience with a large-scale guest worker program -- all of it negative. During and after World War II, the Bracero program brought hundreds of thousands of poor Mexican laborers into the United States to live and work on American farms and to fill other supposed "labor shortages" in industry. The record of abuses registered under Bracero -- including unpaid wages and subhuman working conditions, widespread illegal child labor and other abuses of workers -- is legendary.
Started in 1942, the program was eventually disbanded in 1964 after years of condemnation and protest by church and farm labor groups.
In recent years, however, other sectors of U.S. industry, including construction, food service, retail and others, have joined agribusiness in pushing for a revival of a large-scale guest worker program for unskilled workers throughout the U.S. economy. Many companies who have exploited illegal labor for decades are now trying to use the immigration enforcement argument to their advantage, suggesting that enforcement has deprived them of ready access to unskilled workers and that without a fresh supply of legal workers, their industries will lose their competitiveness, stagnate and decline.
Immigration advocates, sensing the inevitability of a guest worker program, originally tried to have the program modified during last summer's comprehensive reform debate. The idea was that unskilled workers would be granted temporary visas, but if they found a job and met other requirements, they would be given an opportunity to stay and work in the United States permanently. In effect, rather than a guest worker program, strictly speaking, the program would have functioned as a two-stage immigration program, giving tens of thousands of low-skill workers the opportunity to earn green cards denied to them under the current immigration system (which limits unskilled visas to just 5,000 workers annually).
But opponents of immigration reform attacked the expanded guest worker program, suggesting that despite expanded immigration enforcement, the program would fuel unacceptably high levels of legal and illegal immigration. Bowing to these pressures, the program was redesigned as a more traditional guest worker program. Visas would still be renewable, but after each contract was completed, workers would have to return home for a full year before re-applying -- and there would be no special path to legal residency.
For many Latino and immigrant advocates, the revival of a more traditional guest work program smacked of a return to the disgraced Bracero program. And U.S. labor, which was already wary of the H-1B program expansion, saw the proposed H2-B expansion on terms so favorable to business as yet another attack on U.S. workers.
In response, key labor allies in Congress introduced several amendments to the newly truncated guest worker program, including one designed to kill the entire program off after five years. Ted Kennedy and the other chief architects of the "grand bargain" opposed the so-called "sunset" amendment, fearing that it would upset the fragile coalition of business and labor groups and "pro" and "anti" immigration groups that had agreed to sign off on a single, sweeping (if flawed) reform bill. And that's exactly what happened: The proposed guest worker amendment narrowly passed, and within days, the entire immigration reform coalition fell apart.
Toward a Different Reform Agenda
One of the lessons from the collapse of comprehensive reform in 2007 is that immigration's powerful class imperatives -- and conflicts -- need to be more forthrightly acknowledged and addressed by architects of future reform. Disguising or trying to paper over these differences simply doesn't work.
Several legislative initiatives -- some national and some at the state level -- have been floated in recent years that progressives might rally around to bring the immigration reform debate out of its current impasse.
For example, an innovative bill introduced by Sen. Bernie Sanders, I-Vt., would tighten labor enforcement in the H-1B program and also tie increases in H-1B visas to IT scholarships for U.S.-born workers. Sanders' bill would impose an $8,500 surcharge on employers for each new H-1B petition filed. The fees would be used to establish and fund a new National Science Foundation merit-based scholarship program for 65,000 American students per year -- exactly the number of H-1B visas allowed under the old legislation.
Under Sanders' proposal, qualified students pursuing associate, undergraduate or graduate degrees in mathematics, engineering, computer science, nursing or medicine could receive up to $15,000 per year toward their education. A similar bill is being pushed by the Programmers Guild, an advocacy group that represents native-born IT professionals who are being displaced by current H-1B outsourcing schemes.
State and Local Initiatives on Wage Enforcement
The emphasis on labor enforcement is also at the heart of some recent state legislation that opposes costly and discriminatory immigration law enforcement initiatives pushed by conservatives, while an alternative campaign is under way to enforce wage laws for all workers, regardless of their nativity or legal status.
Studies have shown that a majority of workers in industries like nursing homes and restaurants have wages stolen from them through illegal violations of wage and hour laws. Especially vulnerable are undocumented workers, as well as temporary workers, such as those employed in the H-1B or H-2B guest worker programs. Because these workers are so vulnerable and so cheap, employers have a huge incentive to turn to these workers while displacing native-born workers or forcing them to accept lower wages. Closing the wage and enforcement gap, therefore, can be a critical tool for reducing illegal immigration while also protecting native-born and immigrant workers alike.
Just how far the current U.S. immigration debate is from a concerted wage enforcement approach to illegal immigration is demonstrated in congressional budget priorities. In 2007-2008, a grand total of $177 million was appropriated to enforce U.S. wage and hour laws, compared to a whopping $13 billion for border enforcement. In other words, the federal government is currently spending nearly 100 times as much on border enforcement as it is for wage enforcement.
Fortunately, a number of states and cities have begun stepping into this policy void with creative initiatives of their own. Recently, Arizona, Ohio, Massachusetts and Iowa have all passed ballot initiatives or state laws instituting triple damages for violations of their state wage standards, which have the effect of bringing immigrant wage rates up and equalizing rates for immigrants and non-immigrants. These initiatives typically also include a multilingual hotline that workers can call to anonymously report exploitative employers.
In addition, a number of immigrant gateway cities such as Los Angeles and New York have conducted massive investigations of wage and labor conditions in conjunction with the U.S. Department of Labor in key immigrant industries such as food and apparel, and have ordered employers in these industries to pay millions of dollars in back wages to their employees. Not surprisingly, most of the beneficiaries of these judgments are immigrants.
Shifting Enforcement Funding Priorities
Of course, one of the keys to improving joint federal-state DOL investigative capabilities is the hiring of more labor inspectors, especially bilingual and multilingual inspectors who can operate in immigrant-heavy industries. In addition, state action works best if it is conducted in close cooperation with labor unions and nonprofit agencies who can publicize wage and hour enforcement campaigns to immigrants and urge them to cooperate with inspectors, who are prohibited by law from inquiring about a worker's legal status.
Focusing on upholding wage standards and labor law enforcement implies a major shift in funding priorities away from the current obsession with expanding the Immigration and Customs Enforcement agency and its collaboration with local law enforcement -- the focus of so many state and local initiatives. While billed as measures to reduce illegal immigration, these initiatives, like so many other aspects of immigration enforcement, have tended to dovetail with business prerogatives, while limiting worker rights, without, in the end, actually reducing illegal migration.
For example, all of the federal government's highly publicized crackdowns on illegal immigrants during the past year have largely targeted the workers, and except for a few highly publicized examples, have left the offending employers, many of whom underpay their workers, untouched.
In addition, immigration enforcement has been used by businesses experiencing union drives and other worker protests to harass, intimidate, arrest and deport undocumented workers involved in these labor activities. A good example is the much-publicized crackdown on the Swift meat processing plant in North Carolina, which was being organized by the United Food and Commercial Workers. Once Immigration and Customs Enforcement (ICE) was called in, all of the leading union organizers and their supporters were driven out.
In place of expanded class-based immigration enforcement, worker-based immigration enforcement would require an expansion of the resources and institutional clout of the Department of Labor so that wages and working conditions could be actively monitored on a routine basis, rather than in response to an isolated tip, or to a special executive initiative. Despite some of the important wage and hour investigations conducted in New York and Los Angeles in recent years, much more could be done if federal and state budgets for DOL wage and hour inspections were doubled or even tripled. New York added just 10 additional inspectors to its current corps of 100 -- an improvement, for sure, but nowhere near what's required to dramatically impact the way low-skill, immigrant-intensive employers try to hire and manage their employees.
Obama vs. McCain on Reform
Of course, a labor-centered immigration enforcement agenda will not be popular with conservatives. That is where the election of Obama over McCain in November could make a huge difference in the future of immigration reform. The media has focused on the broad similarities between the two candidates on immigration -- indeed, frequently suggesting that McCain is and has been the true "champion" of reform, while Obama was a latecomer who played no real role in the debates leading up to last summer's vote.
In fact, Obama did play an important late role: as a co-sponsor of several of the so-called "poison pill" amendments that brought the guest worker program -- and comprehensive reform -- to a crashing halt because they failed to adequately protect U.S. workers and immigrants from abuse. And make no mistake about it: McCain is no reformer from a class-based perspective. He has long supported a business-oriented guest worker program and his basic orientation is toward guaranteeing a steady labor supply for U.S. industry, which includes legalizing workers already in place, but not necessarily expanding protections so that those workers and other immigrants will be free from exploitative conditions at the workplace.
If and when Congress chooses to revisit immigration reform -- in 2009, or beyond -- it should be apparent that there are class dimensions to immigration that need to be addressed more explicitly. McCain has no incentive to do this, and Obama, alone, may not have the political capital to expend on a controversial "repositioning" of the current reform agenda. Strong progressive advocacy will be needed from labor unions and pro-immigrant groups that want to see all U.S. workers protected, regardless of nativity or legal status. And some of the measures recently adopted by states and localities could serve as powerful case studies and catalysts for a new, systemwide labor enforcement model -- once the budgetary resources, and political will to apply them, become available.
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