Reforming Immigration Reform

National Review Online | Published on May 6, 2013

By Yuval Levin

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In an op-ed in the May 3 Wall Street Journal, Senator Marco Rubio explained that the Gang of Eight immigration bill will be amended as it goes through the Senate in the coming weeks, and that (perhaps unlike some others in the gang) he welcomes this process. He wrote:

Since my colleagues and I introduced immigration legislation, intense public scrutiny has helped identify shortcomings and unintended consequences that need to be addressed. Many concerned citizens have gone a step further and offered specific ideas to improve it. This kind of constructive criticism is a positive force that should always be welcomed in the political process.

In this spirit of constructive criticism, below are some suggestions for the sorts of amendments that might make the bill more palatable to some of its critics, without at the same time making it thoroughly unpalatable to its champions.

It is worth noting that, compared with some other conservative critics (including some of NR’s editors), my starting point on this subject is significantly friendlier to the sort of approach Rubio seems to have in mind. This is in part because I probably have a different view of the law-and-order element of the question of illegal immigrants (a view more like the one Peter Skerry outlines here), and in part because I am probably more concerned than they tend to be about the degree to which our economy is held back by a shortage of high-skill (and especially the highest of high-skill) workers — a serious problem with no real precedent in the postwar era for America; and I therefore have a greater sense of urgency about legal-immigration reform.

That is not to say, however, that this bill is how I would reform our immigration system. My ideal approach to reform, roughly outlined here last year, would look very different from the Gang of Eight bill and indeed would not be a single comprehensive bill at all. But I think there are ways to improve the Gang of Eight bill that would allow it to do more good than harm and be worthwhile.

I would propose five kinds of amendments:

1. Rebalance labor-based immigration. The worst aspect of the Gang of Eight bill is its approach to the lower-skill end of America’s labor market; the best is its approach to the higher-skill end. The basic trouble is that the bill treats both segments the same way — as though there is a shortage of workers in both, and if only we addressed that shortage with immigrant workers, it would also help everyone involved and the country as a whole. This is true for high-skill workers, but it is decidedly untrue for low-skill workers.

The April unemployment report, for instance, showed that the unemployment rate among people with bachelor’s degrees or higher was 3.6 percent. Among those with less than a high-school diploma, it was 11.4 percent.

The first number indicates something of a labor shortage while the second indicates that supply far outstrips demand. This disparity is nothing new, of course, though it has actually gotten much worse since the last round of the immigration wars, in 2007. Here is what the unemployment rate has looked like for people with bachelor’s degrees or more (what high-skill immigrants tend to be) and for those with less than a high-school diploma (as low-skill immigrants tend to be) over the past ten years, using data for people 25 and older to be able to compare apples to apples:

For workers on the lower end of our skill and wage spectrum, these are extremely difficult times, both economically and culturally, and not just since the last recession. For decades now, they have been facing the brunt of both globalization and the collapse of the family and marriage culture, and in both cases there is just not all that much that public policy can do to help. But surely there are ways to avoid making things worse, and one of those would be avoiding the concerted importation of competitors for low-wage jobs and the artificial inflation of the size of the American population subject to these pressures.

A huge amount of American social policy is directed to reducing the number of people in our country who have low levels of skills and education, and it would be bizarre to use our immigration policy to increase that number significantly. Between the temporary-worker program (parts of which are not so temporary — the new W visa is not only permanently renewable but would actually allow temporary workers to apply for green cards through the new merit-point system) and its increase in low-skill immigration, this bill envisions a very significant increase in that number. And that a meaningful portion of that comes through a guest-worker program is particularly problematic, as Ramesh Ponnuru ably argued last month.

It is important not to overstate the degree to which additional low-wage immigrants would harm low-wage Americans. The evidence suggests that the direct negative effect on wages is limited (and low-skill immigration offers a modest benefit to the larger economy, though nowhere near what high-skill immigration does), though the effect on employment seems to be somewhat larger. The enormous increase in low-skill immigration envisioned in this bill would make for rather different circumstances than those measured by the available research on this subject, however, and seems likely to place greater pressure on the wages of low-skill workers. And in any case, even limited economic harm to America’s most vulnerable workers is unnecessary and unwise, and the artificial expansion of the low-skill and low-wage portion of our population, with its train of serious accompanying challenges, is all the more so. To what problem is such an increase in low-skill immigration a solution?

Amending the bill to significantly reduce the scale of low-skill immigration (by eliminating the guest-worker program and changing the merit-point system to place far greater value on education and skills) would be a major change, of course, but not one that undercuts the fundamental compromise of the bill, which is about a balance between border enforcement and legalization rather than high- and low-skill immigration.

Some business interests would be less happy with the bill as a result. Too bad. It is well past time for Republicans to focus more attention on the concerns and priorities of working-class families. In other policy areas, Senator Rubio has actually made this case himself, and he and others are working to translate that increased attention into policy proposals. They ought to do the same here.

2. Add actual triggers for legalization. The Gang of Eight bill establishes a process by which illegal immigrants can immediately apply for the newly created Resident Provisional Immigrant (RPI) status, and mere proof of their application enables them to work legally. Then, once the secretary of homeland security tells Congress that she has begun implementing strategies to build more fencing and otherwise protect the southern border, DHS can begin processing those applications. Then, ten years later, if the department can show that the border and fencing strategies are in effect, a new employer verification system is in place for all employers, and an entry and exit system is in effect at air and sea ports, DHS can begin to process immigrants’ applications to move from RPI status to green cards.

The trouble with this approach is that the triggers are not really triggers; they don’t initiate the key events in the legalization process. The privileges of the RPI status are not very different from those of permanent residence (especially because they include the ability to travel abroad), so illegal immigrants would immediately gain the right to work legally once the bill becomes law and then would gain more or less all the other privileges they care about once DHS merely informs Congress that it has begun to do something about the border. That’s ridiculous.

Triggers, of course, are almost inevitably going to be somewhat ridiculous. There is no easy way around that, but it is possible to make them a little less ridiculous, especially by putting them earlier in the process and involving Congress more in the particulars of border enforcement — requiring the enactment of a separate border-enforcement law before any legalization can begin. Before illegal immigrants can even apply for RPI status, and therefore have their employment status effectively legalized at all, DHS should be required to submit a border control and fencing strategy to Congress, which would then have to approve the strategy by a vote of each house, or else instruct the department to submit a revised strategy for a vote.

The RPI application process should not begin until the border strategy has been enacted into law. The beginning is the key; everything else happens after amnesty. Then, in order to start processing those applications, the department would need to show that implementation of the approved plan is under way. And the second-order triggers — proof that the plan is in effect and that employer and visa-exit verification (which should happen at land crossings, not just the air and sea ports proposed) are operating — should come at the six-year mark when RPI status has to be renewed. No renewals could occur unless those markers were met.

This would hardly be a foolproof system. But it would be more likely to actually bring us closer to effective enforcement of our immigration laws, and would more properly prioritize the elements of this reform.

3. Require civic education. Our approach to immigration must be grounded in an idea of citizenship — in the end, we are discussing how to elevate foreign newcomers to the exalted status of Americans and initiating them into our cultural and political traditions. The Gang of Eight bill does almost nothing to advance that cause, and most of what goes by the name of integration in the bill involves signing people up for the new RPI status, not teaching them anything about what it means to become an American. This is more like community organizing than civic education. Assimilation is no simple matter, of course, but there are some straightforward steps that might help.

The bill should be amended to require illegal immigrants applying for the new RPI status to pass the very simple English-language and civics exams that legal immigrants must pass to become citizens today. They might, for instance, be permitted to file their applications for RPI status (and receive a confirmation of that filing that would enable them to work legally while the application is considered), but then be required to pass these exams before their application could be approved — and therefore before they are allowed to travel abroad and receive the further benefits of RPI status. Many of these individuals have actually been here longer than people ordinarily applying for citizenship, and so should not have trouble reaching the minimal levels of competency involved in passing these tests. Before they can apply for a green card at the end of their ten years of RPI status, moreover, they should be required to complete an approved course in American history and civics (the design of which should take account of the important concerns raised recently by John Fonte and Althea Nagai).

These are hardly onerous requirements, and in fact they are largely symbolic in nature. But in a process of acculturation, symbols matter, and America should assert the importance of civic education and assimilation.

4. Verify sooner. The new employment-verification system established by the bill takes far too long to get into place. Employers with more than 5,000 employees have to use it for all new workers starting two years after DHS publishes regulations implementing the system, those with more than 500 workers have three years, and everyone else has four years. There is no serious reason for such a long delay. The system should begin after one year for all employers, and over the first year of operation, it should require verification of all existing employees as well as new hires.

5. Cut the pork. The Gang of Eight bill includes a variety of narrowly tailored and often state-specific giveaways and favors. On page 817, we find a special provision for “meat, poultry, and fish cutters and trimmers.” On page 767, we find a favor for ski instructors. On page 774 is a special protection for foreigners brought to America — mostly to Florida, one imagines — to perform maintenance on cruise ships. There are surely many more.

Obviously such special goodies have long been part of how Congress passes large and politically complicated pieces of legislation. But that’s no excuse for doing it here. The bill should be systematically stripped of such overly specific provisions. And if we’re stripping overly specific provisions, I can’t say I’m a huge fan of defining the hourly wages of immigrant farm workers to the second decimal place, either (seriously, that nonsense starts on page 228 with $9.37 in 2014).

The point of these proposed categories of amendments is not to scuttle the bill but to save it. They are intended to make the bill more responsive to our economic realities, our civic obligations, and our commitment to the rule of law. They would retain the basic structure of the Gang of Eight’s approach to immigration, but address some of its key weaknesses, some of which were surely intentional, others perhaps not. Many Democrats might dislike them, of course, but they would not find it easy to justify a vote against them, or against a final bill because of them.

The bill that would result from such changes would be far from perfect, but it would be worth passing — and I would wager it would stand a far better chance of reaching the president’s desk.

— Yuval Levin is Hertog fellow at the Ethics and Public Policy Center and editor of National Affairs