TCS Daily


Bold Temerity

By Ilya Shapiro - January 20, 2004 12:00 AM

Now that the first wave of reaction to President Bush's new immigration initiative has passed, we can go beyond the knee-jerks of the left and the right to probe both the details of the proposal and what it says about our vision of immigration policy. After all, it was expected that ethnic demagogues and multiculturalist academics would be aghast that "undocumented" immigrants are not granted a red carpet to citizenship as a reward for short-circuiting the law. And naturally, Buchananites and even many reasonable conservatives are enraged that a Republican administration has again granted an "amnesty" that will only encourage broader border transgressions.

The White House, meanwhile -- banking on Karl Rove's Midas political touch -- is gambling that the proposal will cement the mythical "Hispanic" vote to the G.O.P. in much the same way as F.D.R. did with the (still) monolithic black vote. Nobody is completely satisfied, so this is just another political compromise that got it about right, right?

The truth, to the extent that we can judge a major policy shift before Congress runs cockroach-like across it (to use Howard Dean's metaphor), is that the President's proposal manages to go both too far and not far enough, and altogether adds to the incoherence of the nation's immigration regime.

What the proposal essentially does is expand the category of people eligible for temporary work permits, or "H-1B's". That is, there has long existed a "guest-worker" program in this country -- the unofficial term is a literal translation of gästarbeiter, Germany having pioneered the use of non-permanent-resident "temporary" immigrants in the West (with mixed success). It is just that unlike Germany, or, say, Saudi Arabia, the United States allows only those with "special skills" -- typically scientists, consultants, lawyers, and other professionals -- to come here to work for a set period of time. To use the most common example, technology companies hired software engineers from India in the late 1990s, and pressured Congress to expand the number of H-1Bs granted each year. (Full disclosure: After having spent many years in this country on an "F-1" student visa, I am currently on a NAFTA-related "TN" visa, and will be switching to an H1-B when I start working for a law firm in the fall.)

Now it seems that no special skills will be required to get the same type of visa, to allow the entry of construction workers, gardeners, maids, farm workers, busboys, etc. Just like with the H-1B, an unskilled worker will have to find a job before being admitted into the country, and if he leaves this job, for whatever reason, he has to find a new one within a short time or return home. After two such visas (six years), the worker will have to leave the country, unless he can find some way to qualify for permanent residence -- a green card.

Now, H-1B holders can be sponsored by their employer for a green card, the employer having to jump through all sorts of legal hoops and expenses to prove, for example, that no American qualifies for the job. (They can also, of course, marry a citizen -- or even another green card holder). The employer thus has a great amount of leverage, and at the margins will not go through the extra hassle when he can just hire a different temporary worker (or, indeed, an American). Between threats to fire and threats not to sponsor (if the unskilled will even be eligible for sponsorship), uneducated blue-collar workers would be in an even worse position, with much room for real exploitation, not just the Marxist-canard kind. In this sense, the program is too narrow.

At the same time, those already in the country illegally but holding down a job will be allowed to register under the new program, so it is no exaggeration to say that this is an amnesty. Where reentry following deportation is currently a felony, in the future these felons (or "economic refugees") would be welcomed -- and we would encourage their brethren to come with or without visas. In this sense, the program is too broad.

The problem is that, unlike a century ago, when the tired tropes of Ellis Island -- whose museum is one of New York's most underappreciated treasures -- and "the nation of immigrants" were born, there is no "policy" in our admittance policy. Indeed, we have long stopped even pretending that there is any method behind the immigration madness. When it is virtually impossible for an illegal alien to be caught once past the border, and illegal for most city and state employees (including police) to even inquire as to immigration status, must we ask why nobody is deterred from coming? Moreover, when many more people immigrate (legally) through family-reunification provisions and the green card lottery -- note to Tom Ridge: the odds are quite good in certain countries -- than through any considered choices, is it any wonder skilled jobs are beginning to move overseas?

More than the non-enforcement of existing laws and the non-assimilation of existing immigrants (due to the pathologies of both the welfare state and the educational system), what disturbs me is the incoherence of the overall immigration scheme. What is the purpose of immigration? What kinds of immigrants are desirable? What are the values and norms that we want potential immigrants to know before we let them in? These are the questions that nobody asks when devising stop-gap measures every few years, and yet these are the questions that, if asked, would help solve so many other public policy issues.

If we are concerned about skilled jobs (and earnings) being "exported" and want more dynamism in the economy to spur the "jobless recovery," let's encourage all of these skilled foreigners to come here -- permanently. Let's develop and implement a new category of "independent immigrant," allowing in talented, hard-working people and letting them live and perpetuate the American Dream.

As for unskilled and illegal immigrants, guest-worker visas may well be the way to go, but there has to be a new emphasis on enforcement and assimilation for this legal acknowledgment of social fact to do anything for America and its citizens that the status quo does not. And it all has to be part of a grander strategy to develop and reform Mexico and Central America, the greatest sources of these immigrants.

Ilya Shapiro, a recent graduate of the University of Chicago Law School, is currently clerking on the United States Court of Appeals for the Fifth Circuit.


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