Download pdf - an examination of guest worker immigration reform policies in the

AN EXAMINATION OF GUEST WORKERIMMIGRATION REFORM POLICIES IN

THE UNITED STATES

Merav Lichtenstein *

INTRODUCTION

The current undocumented immigrant population in the UnitedStates is estimated to be anywhere from ten to twelve million 1 and isincreasing by approximately five hundred thousand each year.' Today,undocumented migrants make up more than 29% of the nearly thirty-six million foreign-born residents in the United States.3 This enormousundocumented population demonstrates that the immigration policiesin the United States are failing and in need of a considerable overhaul.Failure to substantially repair the current immigration policy will resultin an unrelenting growth of the undocumented population. Throughprotests and messages to Congress, Americans are speaking out aboutthe need for immigration reform, placing the issue at the top of theirlists of problems facing the nation, "one that, in many people's minds,outweighs every other threat save international terrorism."4

In January 2004, President George W. Bush proposed the institu-tion of a new guest worker plan under a policy called the "Fair and

* Associate Notes Editor, Cardozo Public Law, Policy and Ethics Journal; J.D. Candidate

(June 2007), Benjamin N. Cardozo School of Law; B.A. Emory University (2003). I thankProfessor Ellen Yaroshefsky for her assistance and guidance with this Note. I also recognize the

efforts of past and present editors for their feedback and helpful editing. Most importantly, I

want to thank my parents, brother, and friends for their support, love and constant encourage-

ment, and Jonathan Purow, for his patience, warmth, creative insight, and humor during thefrustrating days of law school.

1 JEFFREY S. PASSEL, PEW HISPANIC CENTER, UNAUTHORIZED MIGRANTS: NUMBERS AND

CHARACTERISTICS 3 (JUNE 14, 2005), http://pewhispanic.org/files/reports/46.pdf.2 RAJEEV GOYLE AND DAVID A. JAEGER, CENTER FOR AMERICAN PROGRESS, DEPORTING

THE UNDOCUMENTED: A COST ASSESSMENT 1 (2005), http://www.americanprogress.org/atf/cf/%7BE9245FE4-9A2B-43C7-A521-5D6FF2E06E03%7D/DEPORTINGTHEUNDOCUMENTED.PDF.

3 PASSEL, supra note 1, at 3.4 Tamar Jacoby, Immigrant Nation, FOREIGN AFFAIRS, Nov. - Dec. 2006, at 50. Regarding

American voters, Jacoby writes: "an overwhelming majority - between two-thirds and three-

quarters in every major poll - would like to see Congress address the problem with a combina-

tion of tougher enforcement and earned citizenship for the estimated 12 million illegal immi-grants already living and working here." Id. at 51.

690 CARDOZO PUB. LAW, POLICY 6- ETHICS J [

Secure Immigration Reform" program. 5 Though President Bush's pro-posal has not made any significant movement in the White House since2004, the idea did prompt Congress to draft a range of guest workerprogram proposals. Much debated but never completely agreed upon,the immigration reform bills proposed in Congress provide an exampleof the existing dispute underlying immigration reform policy, as well asa glimpse of what could happen in the future regarding the undocu-mented population.

Despite the support of the President and the passage of a majorimmigration bill in the Senate last May,6 Congress has not been able toagree on how-and even if-a guest worker program should be legis-lated. Nevertheless, Democratic victories in the November 2006 mid-term elections have raised hopes for "sweeping changes '7 in immigrationreform and guest worker policies, and "the prospects for such a measure• ..had markedly improved since November 7."8 At the time of thiswriting, members of Congress have resumed discussions regarding a newguest worker bill to be proposed in the coming months.9 Further, Presi-dent Bush stated in December 2006 that he would consider signing abill into law next year. 0 Though no solution will be perfect, somethingneeds to be done. -I

A comprehensive discussion of immigration reform raises a varietyof issues, 1' most of which are beyond the scope of this Note. This Note

5 Press Release, The White House, Fact Sheet: Fair and Secure Immigration Reform Act(Jan. 7, 2004), http:lwww.whitehouse.gov/news/releases/2004/O1/20040107-1.html (last vis-ited Feb. 24, 2007). See also Camille J. Bosworth, Guest Worker Policy: A Critical Analysis ofPresident Bush's Proposed Reform, 56 HASTINGS L.J. 1095, 1100 (2005). Since 2004, the Presi-dent has expressly repeated his appeal for immigration reform, including a guest worker policy,but has received much opposition from members of the Republican party. David Nitkin andMatthew Hay Brown, Bush's Push for Compromise is Greeted with Skeptiscim, President EncountersWary Democrats and Some Republican Opposition, BALT. SUN, Feb. 2, 2007, at 2A.

6 In May 2006, the Senate passed a comprehensive immigration reform bill (for a detailed

explanation, see infra section C), but the bill was later blocked by Republican opposition in theHouse. See Steven Labaton & Steven R. Weissman, Victorious Democrats Vow Cooperative Ap-proach on Taxes and Economy, N.Y. TIMES, Nov. 9, 2006, at Cl. See also Rachel L. Swarns,Senate in Bipartisan Act, Passes Immigration Bill, Tough Fight is Ahead, N.Y. TIMES, May 26,2006, at Al.

7 Randal C. Archibold, Democratic Victory Raises Spirits of Those Favoring Citizenship forIllegal Aliens, N.Y. TIMES, Nov. 10, 2006, at A27.

8 Rachel L. Swarns, Bipartisan Group Drafting Bill For a Simpler Path to Citizenship, N.Y.

TIMES, Dec. 26, 2006 at Al.9 Id.

10 Id.

I I Including health care, education, taxes, Medicaid, etc.

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REFORMING IMMIGRATION

will be limited to an examination of proposed guest worker programsand the legalization of undocumented immigrants, including, but notlimited to: whether the United States could implement a guest workerprogram sufficiently different from the one that it unsuccessfully exe-cuted in the 194 0s and 50s; how a guest worker visa program wouldcompare to the current temporary worker H-2A and H-2B visa pro-grams; whether there is a demand for guest workers in the United Stateslabor market; how long guest workers should be allowed to remain inthe country; whether guest worker visas should be tied to their em-ployer; whether family members should be granted visas; and finally,whether the program should provide a means for guest workers to ob-tain legal permanent resident status.

In Part I, this Note briefly summarizes past immigration policiesregarding guest worker programs as well as the presently available tem-porary and permanent visas for immigrants looking to work in theUnited States today. This section also counters the argument that im-migrants are harmful to the U.S. economy and explores the apparentgap between the number of visas available to immigrants, and the actualneed in the United States for immigrant workers. Part II lays out arange of immigration reform strategies that have been proposed by thePresident and various members of Congress since 2004 to address theseissues. Part III provides an analysis and critique of previously proposedguest worker plans, including a consideration of the relevant issues listedabove. This Note argues that, in order for a guest worker policy to besuccessful, it must permit currently undocumented immigrants living inthe United States to adjust their status without having to leave the coun-try. Further, guest worker visas should not tie guest workers to theiremployer but should instead provide sufficient flexibility for workers tofind and switch employment according to demand. Additionally, theguest worker and his family must have the option to adjust to perma-nent status and not automatically be forced to depart the country uponthe expiration of their guest worker visa. In Part IV, the Note concludesthat, while eliminating the entire undocumented immigration popula-tion in the United States is impossible, an accommodating guest workerpolicy-such as the one passed by the Senate last May12-that suffi-ciently addresses the issues described above is a reasonable first step.

12 See Senate Bill infra section C.

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I. GUEST-WORKER IMMIGRATION POLICY: PAST & PRESENT

A. A Step Back: A Look at a Previous Immigration Reform Policy

Guest worker programs have been instituted in the past to copewith worker shortages at times of war. 13 The Bracero Program, estab-lished in 1942 during World War II, is the most well-known attempt ata guest-worker policy in the United States to date. 14 From 1942 to

1964, more than four million Mexican immigrants worked in theUnited States as part of the Bracero Program. 15 Through an agreementwith Mexico, the United States permitted American farmers to hireMexican workers to meet their temporary employment needs by work-ing in the United States for up to nine months each year. 16 Linked totheir employers by federal government contracts regulating wages, andworking and living conditions,1 7 workers were then forced to returnhome to Mexico after the growing season ended.18

The Bracero program was a large disappointment to both Ameri-

cans and immigrants and came to an end after intense lobbying fromorganized labor and Latino organizations. Highly criticized for failingto keep its promises, 9 the American government was faulted for insuffi-ciently protecting workers and for ignoring the substandard workingconditions that occurred throughout the country.20 Workplace abuses

13 ANDORRA BRUNO, CONGRESSIONAL RESEARCH SERVICE, IMMIGRATION: POLICY CON-

SIDERATIONS RELATED TO GUEST WORKER PROGRAMS 1 (2005), http://shelby.senate.gov/legislation/Immigration.pdf.

14 Patricia Medige, Panel Discussion: Perspectives on the Bush Administration s New Immigrant

Guestworker Proposal: Immigrant Labor Issues, 32 DENV. J. INT'L. L. & POL'Y 735, 740 (2004);

Bosworth, supra note 5, at 1096; WALTER A. EWING, AMERICAN IMMIGRATION LAW FOUNDA-

TION, FROM DENIAL TO ACCEPTANCE: EFFECTIVELY REGULATING IMMIGRATION TO THE

UNITED STATES 4 (Nov. 2004), http://www.ailf.org/ipc/ipfl 12204.pdf.15 See Medige, supra note 14, at 740. BILL ONG HING, DEFINING AMERICA THROUGH

IMMIGRATION POLICY 156 (2004). KENNETH K. LEE, HUDDLED MASSES, MUDDLED LAWS:

WHY CONTEMPORARY IMMIGRATION POLICY FAILS TO REFLECT PUBLIC OPINION 56 (1998).16 Medige, supra note 14, at 740. Bosworth, supra note 5, at 1097.

17 LEE, supra note 15, at 56.

18 Id. Bosworth, supra note 5, at 1099 ("The Braceros were, essentially, part of a captive

workforce whose livelihoods were dependent on staying with the employers who sponsored their

visas.").19 HING, supra note 15, at 127-129.

20 Maria Elena Bickerton, Prospects of a Bilateral Immigration Agreement with Mexico: Lessons

fom the Bracero Program, 79 TEX. L. REv. 895, 909 (Mar. 2001) ("Particularly during the

period of direct recruitment, but even after 1951, braceros received insufficient food and sub-

standard housing, and suffered inadequate wages, unsafe working conditions, and unemploy-

ment during the contract periods."). Id.

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were rampant; meager wages, inadequate housing, and violations ofworkplace safety laws were common.2' Furthermore, the program didnot impose sufficient burdens on employers to properly dissuade themfrom hiring undocumented workers, while it concurrently "legalized im-migration and removed [the] psychological barriers that had reduced thewillingness of Mexicans to seek work in the United States."'22 The fewtimes legislators attempted to pass any sort of amendment requiring em-ployer sanctions, their efforts were quickly defeated.23 Bill Ong Hing,an immigration policy scholar, wrote of the Bracero Program: "For thetime being, we were not about to punish real Americans-employers-who might be benefiting from the labor of low-wage undocumentedworkers."'24 Many immigration activists look back on the Bracero Pro-gram not only as an immigration policy failure but also as an example ofhow an unsuccessfully implemented and insufficiently enforced guestworker program could offend conventional civil and human rights.25

The culmination of the Bracero program prompted a large surge ofundocumented migration to the United States; Mexican workers be-came reliant upon the available jobs and reliable wages, while Americanemployers grew dependent on the availability of additional assistance.26

Following the program, almost all low-wage work in the United Statesbecame exclusively undocumented and "the period until 1986 evi-denced a pernicious campaign to ensure the continued existence of theundocumented program, "27 as smuggling and mistreatment of workers,and the unregulated recruitment of undocumented workers by employ-ers seeking to pay lower wages increased at a rapid pace.2

During the 1970s and 80s, about eight to twelve million undocu-mented aliens were estimated to have arrived in the country.2 ' In 1986,the United States attempted to resolve the substantial undocumentedimmigrant population problem by overhauling the existing immigrationpolicy and implementing the Immigration Reform and Control Act

21 Id.22 HING, supra note 15, at 127-29.23 Id.24 Id. at 156.25 Id. See also Bosworth, supra note 5, at 1101 ("Civil rights groups saw the Bracero Program

as exploitative and a CBS documentary portraying the difficult plight of farm workers, entitled,'Harvest of Shame,' sparked public outcry.").

26 LEE, supra note 15, at 56.27 HING, supra note 15, at 131.28 Id. at 127.29 Id.

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694 CARDOZO PUB. LAW, POLICY & ETHICS j V

("IRCA").3 ° IRCA had two main goals: to prevent the further entry ofundocumented immigrants and to establish a number of programs togrant amnesty to undocumented immigrants already in the country.3

To achieve the first goal, the policy relied almost entirely on "employersanctions" (punishing employers who hired undocumented workerswith criminal and civil penalties) 32 and border enforcement.3 3 Toachieve the second goal, IRCA granted legal status to 2.7 million un-documented workers, all of whom were required to prove that they hadlived continuously in the United States for at least five years by the timeof IRCA's enactment. 34

IRCA was the culminating response to years of social, political, andcongressional debate about the apparent lack of border control and ille-gal immigration at the U.S.-Mexico border.35 Though the tremendousgrowth of the undocumented migrant problem had been looming foryears, Congress enacted IRCA quickly and without much deliberation,as it was the only practical possibility presented at the time.3 6 While theprogram did offer legal status to a considerable number of undocu-mented migrants, 37 it was an inadequate effort by Congress to take intoaccount what could (and ultimately would) arise in the future: an addi-tional, even larger flow of immigrants resulting from the budding eco-

30 Bosworth, supra note 5, at 1104.

31 EWING, supra note 14, at 4. VERNON M. BRIGGS, JR. AND STEPHEN MOORE, STILL AN

OPEN DOOR?: U.S. IMMIGRATION POLICY AND THE AMERICAN ECONOMY 24 (1994).

32 HING, supra note 15, at 156.

33 EWING, supra note 14, at 4.

34 Id. GOYLE AND JAEGER, supra note 2, at 2. Two legalization programs were established in

1986 under IRCA, including the Special Agricultural Worker ("SAW") provision, which legal-

ized workers who had worked in seasonal agriculture on American land for at least ninety days

between May 1, 1985 and May 1, 1986, and a general provision that legalized undocumentedimmigrants who had lived continuously in the United States since January 1, 1982. HING, supra

note 15, at 166-67.


36 Id. at 158. Describing the enactment of IRCA, Hing wrote: "Given this last-minute time

pressure to get anything passed, many in Congress admitted IRCA's imperfections, but thought

it the "least imperfect" bill possible.... A few said the choice was between IRCA and no bill at

all, or that it was "now or never" with the bill." Id.

37 HING, supra note 15, at 159. But see Evaluating a Temporary Guest Worker Program: Hear-

ing Before the Subcomm. on Immigration, Border Security and Citizenship of the Comm. on the

Judiciary, 108th Cong. 8 (2004) (testimony of Vernon M. Briggs, Cornell Univ.) [hereinafter

Hearing on Evaluating a Temporary Guest Worker Program] (arguing that when the U.S. offered

legal residence to illegal immigrants in 1986, an incentive arose for undocumented immigrant toremain in the country "in the hopes that another amnesty will be forthcoming in the future.").

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nomic relationship between Mexico and the United States.38 Forexample, the employer sanctions, while improving work conditions, alsocreated a flourishing black market for false identification documentsthat immigrants could present to employers upon arrival. 9 While Con-gress might have prohibited employers from hiring undocumentedworkers, the government failed to provide a trustworthy process for em-ployers to check on an immigrant's legal working status.4"

The population of undocumented workers remained fairly stableafter IRCA was enacted, but, by the mid-1990s, the population began togrow at a rate "without historical precedent."'" Despite additional pro-visions enacted by the government, such as the Immigration Act of1990, which increased the number of employment and family-basedpermanent visas available,42 two-thirds of the undocumented immi-grants in the United States today arrived within the last ten years.43

This population can be split into two groups: those who overstay theirvisa and those who cross the border illegally. 4 Temporary visitors whooverstay their visas are estimated to constitute about 25% to 40% of theundocumented population (approximately 2.5 to 4 million people).4 5

Meanwhile, undocumented immigrants who cross the border withoutany type of inspection are estimated to amount to anywhere from five toseven million.46 These numbers are so great that the number of un-documented immigrants who cross the border, or remain here past the

38 EWING, supra note 14, at 4.

39 Id. See also Hearing on Evaluating a Temporary Guest Worker Program, supra note 37. In anarticle on the failure of past immigration policy, Eduardo Porter of The New York Times pro-vided one explanation as why employer sanctions fail to work:

Employers have long been the main driver of immigration policy... Not surprisingly,they tend to dislike the provision in current immigration law for penalties against

employers. That may explain why fines for hiring illegal immigrants can be as low as$275 a worker, and immigration officials acknowledge that businesses often negotiate

fines downward. And why, after the I.N.S. raided onion fields in Georgia during the1998 harvest, a senator and four members of the House of Representatives from the

state sharply criticized the agency for hurting Georgia farmers."Eduardo Porter, Economic View; The Search for Illegal Immigrants Stops at the Workplace, N.Y.

TIMES, Mar. 5, 2006, at 33.40 Porter, supra note 39. BIGGS AND MOORE, supra note 31, at 24.41 BRIGGS AND MOORE, supra note 31, at 30. See also GOYLE AND JAEGER, supra note 2, at

2.42 BRIGGS AND MOORE, supra note 31, at 26-27.

43 GOYLE AND JAEGER, supra note 2, at 2.44 Id. at 3.45 Id.46 Id.

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expiration date on their visas, exceeds the number of immigrants whoenter the United States legally each year.47

Despite the attempt at immigration crackdown by Congress andPresident Bush after September 11, 2001, the undocumented popula-tion has continued to increase at a consistent rate.4 8 While undocu-mented immigrants make significant economic contributions to thecountry, the lack of a formal, workable solution leaves their uncertainimmigration status susceptible to the same type of exploitation theBraceros faced fifty years ago. The system is broken, and little haschanged. It is hardly surprising that every Congress in the last four yearshas vigorously taken up the issue of immigration, and has attempted toidentify solutions to this problem. However, an effective solution hasyet to be reached.

B. Temporary Visa Options Available Today

The United States currently has sixteen different types of tempo-rary immigration visas available for employment or education. 49 Of

those, only two temporary visas, the H-2A and H-2B visas (collectively"H-2 Visas"), are available for workers in fields that require lower levelsof training or education.50 In 2002, the H-2A and H-2B visas ac-counted for only 16% of the total temporary worker visas that wereallocated that year.5' The rest of the visas were allocated to workers whocould meet higher levels of skill and education requirements.5 2

47 PASSEL, supra note 1, at 3.48 GOYLE AND JAEGER, supra note 2, at 4. See also Bosworth, supra note 5, at 1106.49 ROB PARAL, AMERICAN IMMIGRATION LAw FOUNDATION, No WAY IN: U.S. IMMIGRA-

TION POLICY LEAVES FEW LEGAL OPTIONS FOR MEXICAN WORKERS, 4 IMMIGRATION POLICY

IN Focus 4 (2005), available at http://www.ailf.org/ipc/nowayin.asp.50 See 8 U.S.C. § 1 101(a)(15)(H). The H-1B visa, also a temporary worker visa, is allocated

to workers "in a specialty occupation"-an occupation that requires "theoretical and practicalapplication of a body of highly specialized knowledge," and often "the equivalent of a bachelor'sdegree." See 8 U.S.C. § 1 101(a)(15)(H)(i)(b). Though the H-1B temporary worker visa has alsobeen controversial regarding immigration policy, especially after September 11, 2001, it gener-ally does not affect low-wage workers or the majority of the undocumented workers in thecountry today. Id. See also ROGER DANIELS, GUARDING THE GOLDEN DOOR 258 (2004)("The H-1B workers are aristocracy and the H-2A and H-2B workers are plebians.

51 PARAL, supra note 49, at 4.

52 Id.

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The H-2A visas are allocated only to agricultural workers, 53 gener-ally granting them a one-year stay in the United States, 54 while H-2Bvisas are limited to "seasonal" or "temporary" workers," and both visasare attached to a long list of taxing requirements. 56 In order to qualifyfor an H-2 visa, the worker must receive a job offer from an employerwho can prove that he is unable to fill the position with a U.S. em-ployee. 57 The employer must file a labor certification petition with theDepartment of Labor ("DOL"), while the employee files for the applica-ble H-2 visa in his home country. 58 Only once the DOL approves thepetition and confirms that there is a labor shortage will the H-2A visa beissued.5 9 About thirty thousand H-2A visas are allocated each year.60

The H-2A visa program, enacted through the establishment ofIRCA in 1986, gets much criticism from both employers and workers,who argue that the labor certification requirements are too burdensomeand tedious. 6' Employers are unable to anticipate how many workersthey will need by the time the DOL approves their petition, and work-ers must wait until the petition is approved. 62 Employers must also sup-ply housing and transportation for their guest workers and must ensureemployment for at least three-fourths of the worker's visa period.63

Many employers have even admitted to "dropping out" of the H-2Aprogram and hiring undocumented workers, because the H-2A processis too expensive, taxing, and time-consuming.64 Labor advocates also

53 8 U.S.C. § 1101(a)(15)(H)(ii)(a). Under this category, the worker must come to theUnited States "to perform agricultural labor or services, as defined by the Secretary of Labor inregulations and including agricultural labor... of a temporary or seasonal nature." Id.

54 See 8 C.F.R. § 214.2(h)(5)(iv)(A) (1973). According to the relevant statute, an H-2Aworker is allowed to stay in the United States for up to three years. However, both the Depart-ment of Labor and the INS are generally very restrictive and do not approve the H-2A petitionfor such a lengthy period of time.

55 8 U.S.C. § 1 101(a)(15)(H)(ii)(b) (1952). Under this category, the worker must be com-ing to the United States "to perform other temporary service or labor if unemployed personscapable of performing such service or labor cannot be found in this country." Id.

56 8 U.S.C. § 1101(a)(15)(H)(ii).

57 STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGE LAW AND POLICY 367 (4th ed.

2005).58 Id.

59 Bosworth, supra note 5, at 1107.60 BRUNO, supra note 13, at 4.

61 Id. See also Howard F. Chang, Liberal Ideals and Political Feasibility: Guest Worker Pro-

grams as Second-Best Policies, 27 N.C.J. INT'L. & COM. REG. 465, 469 (2002).62 Id.

63 Medige, supra note 14, at 738.64 Id.

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criticize the H-2A visa program, because it does not provide sufficientprotections for the workers. 65 H-2A workers do not receive health in-surance, and as with other non-immigrants, they do not qualify for anyfederally funded public assistance, with the exception of Medicaid emer-gency services.66 Finally, any worker who has worked in the UnitedStates without a legal visa, or who has held an H-2A visa but has vio-lated its terms, may not apply for the current H-2A program.67 Thisrestriction essentially cuts out the majority of current agricultural work-ers who are undocumented.68

While the H-2B visa process is generally less burdensome on em-ployers than the H-2A visa program, 69 it is limited to to "'temporary'work that is defined so restrictively as to disqualify workers in manyindustries. ' 70 In order for an employer to get workers under the H-2Bvisa, the employer must first show that they unsuccessfully attempted tofind U.S. workers for the job, and then must pay the H-2B visa holderthe prevailing wage for that job.71 The attractive nature of the H-2Bvisa to both employers and workers has meant that demand consistentlyoverwhelms supply, which is arbitrarily limited to sixty-six thousandvisas. For example, in 2004, the limit was reached by March; in 2005,the cap was reached by January.72 This stringent limit means that em-ployers cannot get documented workers to fill the "seasonal" work thatarises during at least eight months of the year.

While supporters of the H-2B cap argue that the limit is necessaryto reserve room for American workers, the remaining temporary posi-tions are generally filled by undocumented workers.73 Employers tendto take advantage of undocumented workers, hiring them at lower wagesfor these jobs than their American counterparts; as a result, native-bornworkers often face greater competition for available positions.74 In their

65 BRUNO, supra note 13, at 7.66 Id.

67 Id.

68 Lauren Gilbert, Fields of Hope, Fields of Despair: Legisprudential and Historic Perspectives on

the Aglobs Bill of 2003, 42 1-Lv. J. ON LEGIS. 417, 437 (2005).69 Medige, supra note 14, at 739.70 PARAL, supra note 49, at 4.71 NATIONAL FOUNDATION FOR AMERICAN POLICY, H-2B VIsAS: PROVIDING A LEGAL RE-

GIME FOR U.S. EMPLOYERS 1 (2005), http://www.nfap.net/researchactivities/studies/H2BVISAS2005.pdf.

72 PARAL, supra note 49, at 4.

73 NATIONAL FOUNDATION FOR AMERICAN POLICY, supra note 71.74 Id.

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study on H-2B visas, the National Foundation for American Policywrote:

The bottom line? Those concerned about competition caused by newworkers coming to the United States should support foreign workersentering and working in legal status rather than as undocumented im-migrants. Since an individual here legally will earn more than an ille-gal immigrant, he or she is less likely to be hired simply to undercutthe wages of others.75

Furthermore, critics of the H-2 visa program argue that it is detri-mental to workers, specifically because it does not provide means foradjusting to permanent resident status or for applying for citizenship.76

The H-2 visa program also does not allow the worker to bring his fam-ily.77 Additionally, both the H-2A and H-2B visas generally attach thevisa holder to a specific employer. 78 This requirement is not only eco-nomically inefficient, keeping workers from filling jobs according totheir need, 79 but also burdens both the employer and the employee.The minute the employment terminates, even when the employee is notat fault, the worker loses his visa and must immediately uproot his lifeand return home. 80 Furthermore, the visa limits job flexibility, whichdiscourages employees from reporting job abuse for fear that they willlose their jobs and have to return home. 81 The ability to leave a job andfind another job elsewhere moves the power back into the hands of theemployee; it keeps employers from taking advantage of their employeesand grants workers the ability to report wage and work conditionabuses.82

75 Id.76 Medige, supra note 14, at 739.

77 Chang, supra note 61, at 471.78 Id. at 470. See also Bosworth, supra note 5, at 1107.79 Chang, supra note 61, at 470.80 Bosworth, supra note 5, at 1107. See also Ian Urbina, Storm and Crisis: Immigrants; Double

Trap for Foreign Workers, N.Y. TIMES, Sept. 6, 2005, at Al (discussing Biloxi, Mississippi casinoemployees from Jamaica who lost their jobs and possibly their temporary work visas due toHurricane Katrina).

81 Bosworth, supra note 5, at 1108.82 Chang, supra note 61, at 471.

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C. Permanent Visas Available for Immigrants

If an employer wants to hire a low-skill worker on a permanentbasis, he is, by and large, out of luck. As with temporary visas, thenumber of permanent visas available today is significantly inadequate tomeet the demands of both immigrants and employers. Of the five em-ployment-related preference categories for permanent visas, only one-the "third preference"-is reserved for workers in less-skilled jobs.13

The other four categories are reserved for immigrants with higher educa-tion levels or financial capital.84 The "third preference" is capped at fivethousand visas per year.85 Of that amount, only a small percentage isallocated to "other workers," or workers in occupations that do not re-quire at least two years of education, training or experience." For ex-ample, in 2004, only 1,525 of the five thousand visas were awarded to"other workers. 87

The visa petition for a "third preference" job must be filed by theemployer on behalf of the worker.88 Moreover, the employee may onlyremain in the country so long as that specific employment persists, andthe worker may not switch to other employment. 89 Aside from the tinypercentage of workers eligible for family or diversity visas, permanentimmigration workers in less-skilled jobs have this "third preference" em-ployment visa as their only option.90

Family-based permanent migration preference categories also donot provide much hope for unskilled workers. Due to random numeri-cal caps and difficult rules and regulations, long delays and systembacklogs typically characterize the family-based preference categories. 91

83 See 8 U.S.C. § 1153 (b)(3) (LexisNexis 2007).84 Id.85 See 8 U.S.C. § 1153(b)(3)(B) (LexisNexis 2007). The cap is actually 10,000 visas allo-

cated yearly, but 5,000 visas are reserved each year for beneficiaries of the Nicaraguan Adjust-ment and Central American Relief Act (NACARA). PARAL, supra note 49, at 4, n.7.

86 8 U.S.C. 1153 § (b)(3)(A) (LexisNexis 2007).87 ROB PARAL, ET AL., AMERICAN IMMIGRATION LAW FOUNDATION, ECONOMIC GROWTH

& IMMIGRATION: BRIDGING THE DEMOGRAPHIC DIVIDE 1 (2005), http://www.ailf.org/ipc/special-report/2005-bridging.pdf.

88 8 U.S.C. § 1153(b)(3)(C) (LexisNexis 2007).89 Id.

90 Id.

91 LEGOMSKY, supra note 57, at 254. Family preference categories are allocated in the follow-

ing order: (1) unmarried sons and daughters of citizens, (2) spouses and unmarried sons andunmarried daughters of legal permanent resident aliens, (3) married sons and married daughtersof citizens, (4) brothers and sisters of citizens. See 8 U.S.C. § 1153(a).

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Only immediate relatives of U.S. citizens are not included in the family-based preference categories and do not have to compete for availablevisas.92 Additionally, the family-based preference category is country-neutral. 93 Thus, the number of visas afforded to Mexico, where the rateof immigration to the United States is extremely high, is the same as thenumber of visas afforded to any other country.94 Furthermore, the sup-ply of available permanent visas fails to ever correspond with the de-mand.95 Depending on their country of origin, a relative of a UnitedStates citizen, and especially a family member of a Legal Permanent Res-ident ("LPR"), can wait over ten years before they are awarded a perma-nent visa to join their family in the United States. 96 For some countries,this wait can be even longer.97 In the case of Mexican immigrants, thewaiting time for spouses of legal permanent residents is currently sevento ten years.98 With such long waiting times, it is no wonder thatspouses, family members and relatives choose undocumented migrationto enter the country when wanting to join their families. 99

Finally, fifty thousand Diversity visas are allocated to immigrantseach year,"00 but only to immigrants from nations that are not highlyrepresented in the current population. 1 ' Consequently, these visas offerno assistance to workers coming from Mexico, where immigration ratesare extremely high.'0 2 The current quota of twenty thousand visas for acountry that is so intimately connected geographically, historically,

92 8 U.S.C. § 1153(b)(2). See also LEGOMSKY, supra note 57, at 250.

93 LEGOMSKY, supra note 57, at 250.

94 Id.95 Id.96 Id. at 251.

97 Id.98 PARAL, supra note 49, at 5. The April 2005 Visa Bulletin indicated that spouses of legal

permanent residents from Mexico who had applied for a visa in 1998 were only being allowedinto the country as of April 2005. LEGOMSKY, supra note 57, at 251.

99 PARAL, supra note 49, at 5.100 See US Department of State, Diversity Visa Programs, http://travel.state.gov/visa/

immigrants/types/types_1322.html (last visited Feb. 23, 2007).101 8 U.S.C. § 1153(c) (LexisNexis 2007).

102 LEGOMSKY, supra note 57, at 340. For the 2007 fiscal year, the State Department listed

fifteen countries as "high-admission," or ineligible for diversity visas, including: Canada, China(mainland-born), Colombia, the Dominican Republic, El Salvador, Haiti, India, Mexico, Ja-maica, Pakistan, the Philippines, Russia, South Korea, the United Kingdom (except for North-ern Ireland) and Vietnam. Id.

2007]


monetarily, and socially fails egregiously to meet the expecteddemand. 103

D. Visas Currently Available Will Not Meet Expected Job Growth

As discussed above, the number of temporary and permanent visasavailable to immigrants from countries with high migratory rates (suchas Mexico) is insufficient to meet demand. In the last ten years, the USeconomy is estimated to have attracted about 1.5 million immigrantworkers-both skilled and unskilled. °4 Because only about two-thirdsof those immigrants can enter legally, more than half a million foreignworkers are forced to find their way into the country by some othermeans. As Jacoby writes: "It is as if American cars were made withimported steel but the government maintained such restrictive steel quo-tas that a third of what was needed had to be smuggled in."10 5

While anti-immigrant activists, including some large labor un-ions,"' contend that increased immigration will have a negative impacton low-wage workers and the national economy, United States indus-tries depend on the immigrant workforce. 1

17 The argument that immi-

grants take jobs from Americans is flawed. 0 8 Immigrants have playedan integral role in the economic growth of many US industries and theeconomy as a whole. 10 9 Within the next decade, the United Stateseconomy is expected to experience an increase in job growth, but a de-crease in worker availability, most particularly in low-skilled jobs. 10

103 DOUGLAS S. MASSEY, AMERICAN IMMIGRATION LAW FOUNDATION, BEYOND THE BOR-

DER BUILDUP: TOWARDS A NEW APPROACH TO MEXICO-U.S. MIGRATION, 4 IMMIGRATION

POLICY IN FOCUS 9 (2005), http://www.ailf.org/ipc/infocus/2005beyondborder.pdf.104 Jacoby, supra note 4, at 59.105 Id.106 See, e.g., Rachel L. Swarns, Chamber and 2 Unions Forge Alliance on Immigration Bill, N.Y.

TIMES, Jan. 19, 2006, at A17. In response to guest-worker proposals, the AFL-CIO argues thatthe program "would result in the disappearance of thousands of permanent jobs with benefitsand would lead to the workers being exploited." Meanwhile, the Service Employees Interna-tional Union in January 2006 aligned with the Chamber of Commerce in support of guestworker legislation. Id.

107 Tisha R. Tallman, Liberty, Justice and Equality: An Examination of Past, Present and Pro-

posed Immigration Policy Reform Legislation, 30 N.C. J. INT'L L. & COM. REG. 869, 871 (Sum-mer 2005).

108 See Judith Golub, Immigration Reform Post 9/11, 13 U.S.-MEx. L.J. 9,10 (Spring 2005).109 Id.

110 Jim Abrams, Chamber: U.S. Faces Worker Shortage: The Group Is Pushing For Education

and Immigration Law Changes to Cope with the Expected Problem, WILKES-BARRE TIMES LEADER,

Jan. 5, 2006, at Cl.

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Further, it is estimated that by 2012, there will be about fifty-six millionjob openings, and that 75% of those jobs will be in fields that do notrequire high levels of education or training."' Research indicates that"native-born workers are becoming more educated every decade,"' 12

leaving open the lower-skilled jobs. In addition, the number of workersin the US labor force between the ages of twenty-five and thirty-fourwill increase by only three million, whereas the number of workers overage fifty-five will increase by eighteen million.1 13 By 2010, seventy-seven million baby boomers are expected to retire, and by 2030, 20% ofAmericans are projected to be senior citizens. 14

Meanwhile, more than six million of the undocumented immi-grants in the country today are employed.1 15 In 2004, this six millionaccounted for 4.3% of the civilian workforce.1 16 The Chicago Councilon Foreign Relations published a study in 2004, which stated that to-day's economies are "highly dependent on immigration, legal and ille-gal, temporary and permanent."'"1 7 It is estimated that the labor markethas space for about five hundred thousand workers in service jobs everyyear, yet our current immigration policy provides only five thousandimmigrant visas annually. 1 8 Undocumented workers currently fill posi-tions that citizens and permanent residents are either unwilling or una-ble to take,"19 representing about one in seven workers in businessservices (such as cleaning and repair) and one in five workers in private

111 PARAL, ET AL., supra note 87, at 2.

112 Jacoby, supra note 4, at 52.

113 BuREAu OF LABOR STATISTICS, Labor Force Projections to 2012: The Graying of the

U.S. Workforce, (Feb. 2004), http://www.bls.gov/opub/mlr/2004/02/art3full.pdf.114 The Need for Comprehensive Immigration Reform: Serving our National Economy: Hearing

Before the Senate Comm. on the Judiciary, Subcomm. on Immigration, Border Security and Citizen-

ship of the Comm. on the Judiciary, 109th Cong. (2005) [hereinafter Hearing on Need for Compre-hensive Immigration Reform] (testimony of Thomas J. Donohue, President and CEO, U.S.Chamber of Commerce), http://www.uschamber.com/issues/testimony/2005/050525tjdimmigrationtestimony.htm.

115 GOYLE AND JAEGER, supra note 2, at 4.

116 PASSEL, supra note 1, at 26.

117 Hearing on Need for Comprehensive Immigration Reform, supra note 114 (testimony of

Thomas J. Donohue).118 Frank Sharry, Immigration Demystified, AMERICAN PROSPECT (Nov. 10, 2005), available

at http://www.prospect.org.119 Hearing on Need for Comprehensive Immigration Reform, supra note 114 (testimony of

Thomas J. Donahue).

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704 CARDOZO PUB. LAW, POLICY & ETHICS J V

household service jobs (such as house cleaning and baby-sitting). 120 Theconstruction and masonry industries are believed to create about185,000 jobs every year, but employers report that they are unable tofind a sufficient amount of young Americans with legal status to fill thejobs. 12 1 Likewise, the restaurant and food sector, which currently em-ploys about 12.5 million workers around the country, is expected to seean increase of at least 15% in the next decade, 122 yet the number of 16to 24-year old workers usually employed in the field is not expected toincrease at all. 123

The obvious dependence of US industries on undocumented im-migrant workers is a "clear signal that something is seriously wrong withthe current immigration system, namely that the legal immigration sys-tem lacks the mandate and the flexibility to respond to the legitimateshortages of qualified workers to fill real job vacancies.' 1 24 The UnitedStates needs to adopt a plan that acknowledges the realities of the USlabor and market demands. From an economic or business perspective,Congress should focus on two major problems: how to fill the jobs thatwill open up in the future and how to maintain the current workforcethat the country so greatly depends upon. 125

II. TIME FOR A CHANGE?

A. President George W Bush's First Steps

In the summer of 2001, Mexico's President Vicente Fox, electedonly a short while after President George W. Bush, delivered a rousing

120 B. Lindsay Lowell and Roberto Suro, Pew Hispanic Center, How Many Undocumented?

The Numbers Behind the U.S.-Mexico Migration Talks, PEW HIsPANIc CENTER REPORT 7-8(Mar. 2002), http://pewhispanic.org/files/reports/6.pdf.

121 Jacoby, supra note 4, at 53.122 Id.

123 Id.124 BRIGGS AND MOORE, supra note 22, at 30. See also Porter, supra note 39.

Regardless of whether the United States ought to have more or less immigration, thenation's policy must be flawed when almost half of all immigrants come in illegally.Indeed, some experts argue that the basic reason illegal immigration hasn't stopped isthat the country doesn't want it to. Gordon H. Hanson, an economist at the Univer-sity of California, San Diego, said the ineffective approach was the product of a collec-tion of interests. 'Employers feel very strongly about maintaining access to immigrantworkers, and exert political pressure to prevent enforcement from being effective,'Professor Hanson said. 'While there are lots of groups concerned about immigrationon the other side' of the argument, 'it's not like their livelihood depends on this.'

Id.125 Hearing on Need for Comprehensive Immigration Refbrm, supra note 114.

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address, insisting that the United States offer amnesty to the undocu-mented Mexican workers by the end of the year. 126 A Mexico-U.S.group was established to consider proposals on how undocumentedworkers in the United States could continue working and attain legalstatus by becoming temporary workers or permanent immigrants. 127

Both President Bush and Congress gave their word that the issue wouldbe seriously considered and addressed. 28 Various references to a guestworker proposal were made in presidential speeches and on the congres-sional floor, and the general feeling in Washington was moving towardfinding a way for Mexican workers to work in the country legally. 129

However, after September 11, 2001, all discussion of legalizing undocu-mented migrants veered to talks of monitoring the border and prosecut-ing and deporting any foreigner who may (or may not) be a threat tonational security.' 30

On January 7, 2004, however, President Bush resumed immigra-tion talks and proposed plans for a new temporary worker policy, calledthe "Fair and Secure Immigration Reform" program.131 The Presidenthas emphasized the proposal in virtually every State of the Union ad-dress since 2004,132 summarizing many broad issues that would be ad-dressed by the program, such as protecting the country, improving thenation's economy and providing "incentives" for workers to return totheir home country. 133 The President's plan, though vague, would au-thorize temporary workers to remain in the country legally while filling


127 Philip L. Martin, The United States: The Continuing Immigration Debate, in CONTROL-

LING IMMIGRATION: A GLOBAL PERSPECTIVE 59 (Wayne A Cornelius, et al. eds. 2d ed. 2004).128 HING, supra note 15, at 266.

129 Martin supra note 127, at 83.

130 Bosworth, supra note 5, at 1110. HING, supra note 15, at 266. But see, e.g., Martin, supra

note 127, at 52 ("the most significant development in the national immigration debate [after 9/11] is what hasn't happened: No lawmaker of influence has moved to reverse the country'sgenerous immigration policy" (quoting James W. Ziglar, Commissioner of the U.S. Immigra-tion and Naturalization)).

131 Martin, supra note 127. See also Medige, supra note 14, at 736.

132 President George W. Bush, 2004 State of the Union Address (Jan. 20. 2004), available at

http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html (last visited Feb. 23,2007); President George W. Bush, State of the Union 2005 (Feb. 2, 2005), available at http://www.whitehouse.gov/news/releases/2005/02/20050202-1 1.html. (last visited Feb. 23, 2007).President George W. Bush, 2007 State of the Union Address, http://www.whitehouse.gov/news/releases/2007/01/20070123-2.html (last visited Feb. 24, 2007).

133 Medige, supra note 14, at 736.

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jobs that could not be filled by Americans. 134 The program would be-gin by allowing undocumented workers to apply for guest worker visaswhile already in the country, without first having to return home. 135 Atsome future date, however, the program would be limited to those non-immigrants outside the country. 136 Under Bush's plan, the workerswould remain in the country for up to three years and the visas wouldbe renewable. 1

37

Two years ago, the only sure thing about President Bush's proposalwas that any program passed by Congress would not include an oppor-tunity for citizenship or permanent residency. 138 It was evident that theAdministration intended for guest workers to remain non-immigrantsand not attain permanent residence status as a consequence of the tem-porary worker program. 139 The President emphasized that temporaryworkers "should not receive an unfair advantage over those who havefollowed the law, and they will need to be placed in line for citizenshipbehind those who are already in line."'140 The President referred to thegranting of permanent status to undocumented workers as "amnesty ' 14

1

or "unfair rewards to illegal immigrants in the citizenship process, " 141

and requested that any new policy include incentives for guest workersto return to their home country after their time in the United States has

134 Press Release, supra note 5.135 Gebe Martinez, Security Fears Conflict with the Need for Workers, Hous. CHRON., Nov.

21, 2005, at Ai.136 Id.137 Press Release, supra note 5.138 ROB PARAL, IMMIGRATION POLICY CENTER, TIES THAT BIND: IMMIGRATION REFORM

SHOULD BE TAILORED TO FAMILIES, NOT JUST INDIVIDUALS, 4 IMMIGRATION POLICY IN Fo-

cus 2 (June 2005), http://www.ailf.org/ipc/tiesthatbindprint.asp. (last visited Feb. 23, 2007)139 Medige, supra note 14, at 736.

140 Press Release, supra note 5. Speaking at an Air Force base in November 2005, President

George W. Bush stated, "Those who enter the country illegally violate the law. The Americanpeople should not have to choose between being a welcoming society and a lawful society. We

can have both at the same time." Michael A. Fletcher & Darryl Fears, Bush Pushes Guest-Worker

Program: President Emphasizes Border Security but Faces a Battle in Both Parties, WASH. POST,

Nov. 29, 2005, at Al.141 Fletcher and Fears, supra note 140. When anti-immigration advocates and lawmakers

referred to President Bush's entire guest worker plan as "amnesty," however, President Bush

argued that it was not "amnesty", but a guest worker program because non-immigrants wouldnot be allowed to remain legally past their visa and adjust to permanent status. See Richard W.

Stevenson, President Renews Effort to Overhaul Immigration Policy, N.Y. TIMES, Nov. 29, 2005,

at A18. See also President George W Bush, State of the Union Address; 'We Strive to be a Compas-

sionate, Decent, Hopeful Society,'N.Y. TIMES, Feb. 1, 2006, at A18.142 Press Release, The White House, President Bush Proposes New Temporary Worker Program

(Jan. 7, 2004), http://www.whitehouse.gov/news/releases/2004/01/20040107-3.html.

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expired. 4 3 On December 24, 2005, the New York Times referred toBush's plan as a "safety valve that would reduce illegal immigration"while "easing concerns among conservatives that it would amount toamnesty for lawbreakers."' 144

At the time of this writing, however, President Bush's stance on thelegalization of undocumented immigrants remains unclear. Followingthe passage of the immigration bill in the Senate in May 2006, the NewYork Times reported: "the President supports a bipartisan Senate mea-sure that enhances enforcement but also opens up a path to citizenshipfor illegal immigrants and creates a guest worker program."' 14 5 Likewise,while the White House website on immigration reform still specifiesthat any guest worker program must be "truly temporary" and that the"President opposes an automatic path to citizenship or any other formof amnesty," it also indicates that "the President supports a rationalmiddle ground" and lists a number of requirements that undocumentedimmigrants must meet before they are even eligible to be considered forlegal status. 146

B. "The Enforcement-First Approach "117:Congress's First Step Ignores the Issues

On December 16, 2005, the U.S. House of Representatives, ignor-ing the President's call for a guest worker policy, approved a Republi-can-sponsored bill entitled the "Border Protection, Anti-terrorism, andIllegal Immigration Control Act" '148 (also known as the "Sensenbrenner

143 Id. See also Richard W. Stevenson, President Renews Efforts to Overhaul Immigration Pol-

icy, N.Y. TIMES, Nov. 29, 2005, at A18. In October 2006, President Bush stated:We must face the reality that millions of illegal immigrants are already here.

They should not be given an automatic path to citizenship. That is amnesty. I opposeamnesty.. There is a rational middle ground between granting an automatic path tocitizenship for every illegal immigrant and a program of mass deportation, and I lookforward to working with Congress to find that middle ground.

David Stout, Bush, Signing Bill for Border Fence, Urges Wider Overhaul, N.Y. TIMES, Oct. 27,2006, at A16.

144 Stevenson, supra note 143.145 Julia Preston, US. Puts Onus on Employers of Immigrants, N.Y. TIMES, July 31, 2006, at

Al.146 See THE WHITE HOUSE, COMPREHENSIVE IMMIGRATION REFORM, http://www.

whitehouse.govlinfocus/immigration/. (last visited Feb. 23, 2007).147 Sheryl Gay Stolberg, Bush Signaling Shift in Stance On Immigration, N.Y. TIMES, July 5,

2006, at Al.148 The Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005,

H.R. 4437, 109th Cong. (2005).

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708 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 5:689

Bill" for its sponsorship by Congressman Jim Sensenbrenner) by a voteof 239-182."9 Despite its success in the House, the bill's strict enforce-ment measures 150 were met with nation-wide protest and mediafrenzy. 15 1 Since the House and the Senate could not agree on the termsof the bill and integrate its contents with the terms of the Senate billpassed a few months later, 152 most of the controversial content of theSensenbrenner was shelved before the November 2006 elections, and amuch abbreviated "Secure Fence Act" was instead passed in the Housein September 2006.113 This new bill was then approved by the Senate,80-19, on September 29, 2006,154 and signed into law by PresidentGeorge W. Bush on October 26, 2006, under the same "Secure FenceAct" title. 155

This legislation was one of the "chief elements to survive thebroader comprehensive bill that President Bush and a Senate coalitionhad hoped would tighten border security, grant legal status to most ille-gal immigrants and create a vast guest worker program to supply the

149 House Passes Immigration Enforcement Bill Containing No Provision for Guest Workers,

74 U.S.LW. 2376, 2377 (Jan. 3, 2006).150 The bill called to eliminate the Diversity Visa Lottery Program, proposed the building of

a 698-mile double-layer fence in portions of California, New Mexico and Texas at a cost of $2.2

billion and called for the increase of vehicle barriers, checkpoints and advanced technology tostrengthen border security. The bill would have also made it a federal crime to live in the United

States illegally, thereby turning all ten million plus undocumented immigrants into federal

felons. The Border Protection, Anti-terrorism, and Illegal Immigration Control Act of 2005,H.R. 4437, 109th Cong. (2005). Further, the proposal required all undocumented immigrants

to be placed in detention centers, toughen penalties for any employer that hires an undocu-mented worker, and penalize any social service or religious organization, including priests,

nurses, or social workers, that assist undocumented immigrants. Supporters of this legislation

argue that such laws will discourage people from aiding undocumented immigrants, making itmuch more difficult for undocumented immigrants to thrive in the United States. David Stout,

Bush, Signing Billfrr Border Fence, Urges Wider Overhaul, N.Y. TIMES, Oct. 27, 2006, at A16.

See also Rachel L. Swarns, Capitol's Pariah on Immigration is Now a Power, N.Y. TIMES, Dec. 24,

2005, at Al; Raymond Hernandez, Clinton Suggests Legalizing Some Immigrants, N.Y. TIMES,

Mar. 9, 2006, at B4; Rachel L. Swarns, Senator Introduces Bill Creating Guest Worker Programs,N.Y. TIMES, Feb. 25, 2006, at A10; Carle Hulse and Rachel L. Swarns, Congress Passes Tax Plan

to Aid Gulf Coast, N.Y. TIMES, Dec. 17, 2005, at Al.151 See e.g. Rachel L. Swarns, Bill on Illegal Immigrant Aid Draws Fire, N.Y. TIMES, Dec. 30,

2005, at A24.152 See Senate Proposal, infra section C.

153 The Secure Fence Act of 2006, H.R. 6061, 109th Cong. (2006).

154 Id.

155 See Press Release, Fact Sheet: The Secure Fence Act of 2006 (Oct. 26, 2006), http://www.whitehouse.gov/news/releases/2006/10/20061026-I.html (last visited Feb. 23, 2007).


nation's industries."' 156 Despite the efforts of the Senate in the spring of2006, however, this legislation did not include the guest worker pro-gram or the legalization of undocumented immigrants. Rather, the newlegislation calls for the building of another 700 miles of fence along theborder with Mexico, authorizes the addition of "more vehicle barriers,checkpoints, and lighting to help prevent people from entering ourcountry illegally"'157 and "authorizes the Department of Homeland Se-curity to increase the use of advanced technology like cameras, satellites,and unmanned aerial vehicles to reinforce our infrastructure at theborder."1

58

The Bush White House supported the "Secure Fence Act," statingthat it was a "positive step" toward comprehensive immigration re-form,' 5 9 but stated that such a limited immigration policy, without theimplementation of a guest worker policy, was not sufficient. 160 WhilePresident Bush initially urged the Senate to take up the immigrationreform bill with the inclusion of a guest worker program, by October2006 he nevertheless agreed to sign the bill without it.16 1

By pushing legislation that promotes border control and securitybut fails to include any provisions for working with the undocumentedpopulation currently in the country, Congress fails to learn from its pastmistakes. 62 A correct solution does not solely lie in border enforce-ment. In fact, as Jacoby writes: "The problem is that the United Stateshas already tried that, tripling the size of the Border Patrol and quintu-

156 See Carle Hulse and Rachel Swarns, Senate Passes Bill on Building Border Fence, N.Y.

TIMES, Sept. 30, 2006 at A10.157 See Press Release, Fact Sheet: The Secure Fence Act of 2006, supra note 155.158 Id.

159 Bureau of National Affairs, Inc. supra note 149, at 2378.160 Richard W. Stevenson, President Renews Efforts to Overhaul Immigration Policy, N.Y.

TIMES, Nov. 29, 2005, at A18.161 Bureau of National Affairs, Inc., supra note 149, at 2378. In July 2006, the New York

Times reported:"[President Bush] thinks that this notion that you can have triggers is something

we should take a close look at, and we are," said Candi Wolff, the White Housedirector of legislative affairs, referring to the idea that guest worker and citizenshipprograms would be triggered when specific border security goals had been met, aprocess that could take two years.

Stolberg, supra note 147.162 As the Washington Post wrote: "The bill passed by the House... to step up border enforce-

ment and crack down on the millions of undocumented workers in the country would bedoomed to failure if enacted because it does not acknowledge the inexorable economic forcesthat drive illegal immigration." Fletcher and Fears, supra note 140.

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710 CARDOZO PUB. LAW, POLICY 6- ETHICS J.

pling its budget over the past decade, to virtually no avail." 163 Further-more, all steps to curtail the rush of illegal immigration across theborders have generally proven ineffective.16 4 History demonstrates timeand time again that building fences and increasing border enforcementdoes not succeed in cutting down on smuggling and illegal border cross-ing. 165 Data suggest that undocumented workers with children who areU.S. citizens present particular challenges, and that a strong governmentcrackdown on illegal immigration has a negligible effect on the growthof the illegal immigrant population. 166 For example, in 1986, Congressbuilt border fences in El Paso, Texas and San Diego, California. 167 Thisnew strategy only encouraged undocumented migrants to cross the bor-der at more remote and dangerous locations 168 or to pay professionalsmugglers, or "coyotes," as much as $1,500 to lead them into the

United States. 169 Congress then built fences in those locations, such asin New Mexico and the Rio Grande Valley of Texas, and migrationcontinued to creep to other, less traditional, open passageways along theborder. 170

Fences and increased border patrol have simply not dissuaded mi-grants from attempting to cross the border, 17 1 and reduced migration isan unreasonable expectation for the future. From the fiscal years 1993to 2004, the federal government more than quadrupled the amount ofmoney spent on border enforcement: up from $740 million to $3.8billion. 172 Nevertheless, the number of undocumented immigrants dur-ing that time has more than doubled-growing from roughly 4.5 mil-lion to about 10 million. 173 The percent of migrants that cross the


164 Bickerton, supra note 20, at 914.

165 MASSEY, supra note 103, at 3-4. See, e.g., HING, supra note 15, generally, for an interest-

ing account of why border enforcement and restrictions has been the government's primary

means of immigration reform policy for the last twenty years.166 GOYLE AND JAEGER, supra note 2, at 4.167 MASSEY, supra note 103, at 3-4.168 Id.

169 Bickerton, supra note 20, at 914-915. See, e.g., Lizette Alvarez & John M. Broder, More

and More, Women Risk All to Enter U.S., N.Y. TIMES, Jan. 10, 2006, for a poignant account

regarding the increased population of women crossing the U.S.-Mexico border and the current

danger they encounter when hiring coyotes to assist them in crossing the border illegally.170 Id.

171 MASSEY, supra note 103, at 5.172 EWING, supra note 14, at 7.173 Id. See, e.g., Fletcher and Fears, supra note 140.

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Mexico-U.S. border increased from 29% in 1988 to 64% in 2002.171Undocumented immigrants are always finding new ways to cross theborder, 175 and if anything, U.S. border-enforcement policy has only re-duced the odds that migrants will be caught while crossing the bor-der. 176 Risk of apprehension at the border has decreased from 33% inthe 1970s and 80s to 5% in 2002.177 Moreover, increased border en-forcement only deters undocumented workers already in the UnitedStates from returning to their home countries.' 78 Before 1986, the an-nual probability of undocumented Mexican immigrants returning toMexico fluctuated between 40% and 50%. 17 9 Today that likelihood ofreturn has decreased to about 25%.180

Jacoby argues that while stronger border enforcement may one dayeventually reach the goal that the government is striving for,

the cost would be the creation of a virtual police state, with an electricfence and armed guards on the border, roadblocks on every highway,regular raids on all U.S. businesses, a Big-Brother-like national track-ing system, and extensive use of ethnic profiling. Short of such drasticmeasures, which still might not succeed in stemming supply and de-mand, it makes more sense to revise the law to make it more realisticand then use modest enforcement means to ensure it holds. This is theparadox at the heart of the comprehensive consensus. The best way toregain control is not to crack down but to liberalize - to expand quo-tas, with a guest-worker program or some other method, until theyline up with labor needs. The analogy is Prohibition: an unrealisticban on alcohol was all but impossible to enforce. Realistic limits, incontrast, are relatively easy to implement. 18 1

C. Senate Proposal-Could This Be The Future?

Despite the strong push by the more conservative members ofCongress for stricter border enforcement, many of the major immigra-

174 MASSEY, supra note 103, at 4.

175 Neal Pierce, Retired CEO Offers Immigration Solution, Fresno Republican Plan Grounded in

Reality and American Values, CHARLOrE OBSERVER, Jan. 3, 2006, at 1LA.176 MASSEY, supra note 103, at 5.177 Id.178 EWING, supra note 14, at 8.179 MASSEY, supra note 103, at 9.180 Id.


2007]


tion policy issues, specifically those surrounding a guest worker policy,tend to cut across party lines. 182 In response to President Bush's call fora guest worker program, and prior to the approval of the above de-scribed "Secure Fence Act," the Senate proposed a number of immigra-tion reform policy bills that included the implementation of a new guestworker program. While many immigration reform bills were drafted inCongress over the last few years, the most successful bill proposed in the109th Congress included the bipartisan "Comprehensive ImmigrationReform Act of 2006"183 (a redrafted version of a prior bill known as the"Secure America and Orderly Immigration Act" or more commonlyknown as the "McCain/Kennedy Bill"'184) sponsored by Senators ArlenSpecter, Edward Kennedy and John McCain, among others. Aroundthe same time, a Republican-sponsored "Comprehensive Enforcementand Immigration Reform Act of 2005," was also introduced in the Sen-ate by Senators Jon Kyl and John Cornyn.' 85

In May 2006, the Senate reached an agreement on a new guestworker policy and passed the "Comprehensive Immigration Reform Actof 2006" by a vote of 62-36.186 Before the new Congress was electedeight months later, however, the House and Senate were unable to cometo any agreement, and the bill came to a screeching halt in the House.Today, neither of the above-named Senate bills is currently in play asoriginally drafted, and a new version will likely be re-drafted by thenewly elected Congress in the coming months. Nevertheless, a closer

182 Dan Balz, Political Splits on Immigration Reflect Voters'Ambivalence, WASH. POST, Jan. 3,

2006, at A07.183 Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. (2006)

184 Secure America and Orderly Immigration Act, S. 1033, 109th Cong. (2005). The Wash-

ington Times reported on February 2, 2007, that Senator Jon Kyl was working on drafting a newversion of the bill with Senator Mel Martinez of Florida, to be introduced later this spring.Donald Lambro, New RNC Chief Backs Bill with Guest-Worker Plan, WASH. TIMES, Feb. 2,2007, http://www.washtimes.com/national/20070202-124747-8013r.htm.

185 The Comprehensive Enforcement and Immigration Reform Act of 2005, S. 1438, 109th

Cong. (2005).

The Republican-sponsored bill, introduced on the Senate floor on July 20, 2005, includedthe implementation of a "Nonimmigrant Temporary Worker Category," or a new "W" visa.This visa was to be made available only to non-immigrants currently outside the United Statesand would not be available to undocumented immigrants currently working in the UnitedStates, unless they departed the country and then apply. W visa holders would have to leave thecountry after a specified length of time, and no other means of legalization for undocumentedimmigrants already in the country was included in the Bill. Id § 501.

186 Charles Babington, Senate Approves Immigration Bill, Measure Faces Tough House Opposi-

tion, WASH. POST, May 26, 2006, at AO.

[Vol. 5:689


look at the design of the Senate bill can provide a deeper understandingof the debate behind the guest worker programs, a glimpse of the possi-ble solutions and a look at what the future could hold. 18 7

1. Senate-Approved Guest Worker Legislation

Following the passage of the Comprehensive Immigration ReformBill in the Senate in May 2006, the New York Times reported that "if theSenate bill's provisions were to make it into law, they would be the mostsubstantial overhaul of immigration law in two decades."' 88 Proposed bya bipartisan committee and passed by the Senate in May 2006,189 thebill looked to carry out the immigration reform proposals of PresidentBush and was embraced by progressive advocates for promising to bringthe nation's immigrants out of the shadows and formally acknowledgingthe critical role of immigrants in the national economy.

The new legislation included a plan to enhance border security bybuilding 370 miles of additional fencing along the Mexican border, in-creasing border patrol, using aerial surveillance and authorizing the useof 6,000 National Guard troops to patrol the border.' 90 In addition tostricter border and interior enforcement measures, the bill also includeda new strategy to reduce the backlog of people waiting for employmentor family-based visas191 by raising the ceilings and providing for unusedvisa recapture. 192

The Senate Bill also included plans to expand and reform the ex-isting H-2A agricultural guest worker program (part of AgJOBS)193 andcreate a new "Temporary Worker Visa Program"194 by making available

187 Guest worker programs have been a method of resolving a worker shortage problem in

other parts of the world for decades. Germany, for example, permits foreign workers to stay forextended periods of time, often over twenty years, without ever adjusting to permanent status.And unlike in the United States, where children born to foreigners in the United States areautomatically citizens (a law known as jus soli), children born in Germany to foreign parentsmay never become citizens. Kathleen Harvey, Alfred Hupp, & Mira Mdivani, Immigration LawUpdate fur Employment, Corporate and Business Lawyers, 74 J. KAN. B. Ass'N. 6, 41 (2005).

188 Rachel L. Swarns, Senate, in Bipartisan Act, Passes Immigration Bill; Tough Fight Is Ahead,

N.Y. TIMES, May 26, 2006, at A19.189 S.2611, 109th Cong. (2006).

190 Id. § 101. Much of these enforcement proposals were incorporated into the Secure Fence

Act, supra Section B.

191 S. 2611, 109th Cong. § 501 (2006).192 Id.

193 Id. § 612.194 Id. § 402.

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325,000 new H-2C temporary guest-worker visas a year. 195 To be eligi-ble for the guest worker visa, the immigrant would have to pay $500plus processing fees' 96 (as well as $100 for their spouse and each child),submit to a medical examination and fill out an application containinginformation about health, criminal and gang history, immigration his-tory and any terrorist involvement. 97

These proposed H-2C visas would allow the guest workers to workin the United States for three years, and then renew the visa once for atotal of six years. 198 The visa would not tie a worker to his employer, 199

but rather, would allow the worker to move from one approved em-ployer to another.2 °° Additionally, after the worker has been employedfor at least four years, the new legislation would grant the worker or theemployer the ability to file an employment-based visa petition on behalfof the worker, qualifying the worker to apply for lawful permanent resi-dent status.20 ' To qualify, the worker would have to obtain a U.S. De-partment of Labor Certification stating that there are insufficientnumbers of US workers available and qualified to fill the job,20 2 andsubmit at least two specified documents to establish currentemployment.203

The new visa program outlined by the bill provided for a waiver ofinadmissibility for specified labor certification, document, and prior un-lawful presence violations committed for humanitarian, family unity, orpublic interest purposes. 2 4 However, it would not allow non-immi-grants entering under the H-2C visa to change their status to any othernonimmigrant classification 2 5 and would terminate the H-2C admis-sion if the worker becomes unemployed for sixty or more consecutivedays, thus requiring them to return to their foreign residence.20 6 If a

195 Id. § 408. This cap would adjust based on use of the program (i.e., if the cap is exhausted

during the fiscal year, it would increase in the following year; if the cap is not met, it would

decrease.).196 Id. § 403. Spouses and children of H-2C visa holders would also be admitted through a

new H-4 nonimmigrant visa program proposed by this legislation. Id. at § 408.197 Id.198 Id. § 403.

199 In contrast to the Bracero program.200 Id. 408.201 Id.202 Id.203 Id.204 Id. § 403.205 Id.206 Id. 218A(0(3)(A).

[Vol. 5:689


worker does not depart to their foreign residence within ten days ofexpiration of authorized admission, they will be barred from enteringthe country for ten years and from receiving any future immigrationbenefits, other than asylum. 20 7

In addition to the increased availability of guest worker visas, theSenate bill proposed to manage the country's vast undocumented popu-lation through the implementation of a new three-tier system, separat-ing undocumented immigrants into tiers according to the non-immigrant's length of residence in the country. Tier one included im-migrants who resided in the country for five years or longer,20 8 tier twoconsisted of immigrants who resided in the country two to five years,20 9

and tier three was to be comprised of the roughly two million immi-grants who entered the country in the last two years.210

To be eligible for tier one, an undocumented immigrant must haveworked in the country for at least three of the last five years.211 Onlyimmigrants who fit into this tier would be able to qualify for earnedadjustment to permanent resident status without having to leave thecountry.212 However, in order to adjust to permanent resident status,the tier one undocumented immigrant would have pay a minimum of$2,000 in fines (per person), as well as substantial processing fees andback taxes, and pass the naturalization test for civics and English.213

Tier two, also referred to as the "Deferred Mandatory DepartureProgram," ("DMD") would consist of undocumented immigrants whoarrived in the country between January 2001 and January 2004.2 14 Theprogram requires undocumented immigrants that qualified for this tierto leave the country within the next three years, in order to be eligible toimmediately return under the new guest worker program, with the op-portunity to ultimately qualify for permanent resident status in about

207 Id. § 218A(h),(i).

208 Id. §601.209 Id.210 Id. See also WASHINGTON POST, The US. Congress Votes Database, http://projects.

washingtonpost.com/congress/109/senate/2/votes/157/ (last visited Feb. 23, 2007).211 S. 2611, 109th Cong. § 601 (2006).

212 Id.213 Id.

214 Id. See also Joan Friedland & Josh Bernstein, Document Fraud Provisions in Senate Immi-

gration Bills Could Put Legalization Out of Reach For Millions, 20 IMMIGRANTS RIGHTS UPDATE

2, May 23, 2006, http://www.nilc.org/immawpolicy/CIR/cirO 1 3.htm.

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716 CARDOZO PUB. LAW, POLICY & ETHICS J V

eight years.2 15 The immigrant would be able to apply for DMD statuswhile still in the country but would have to depart before he/she isadmitted into the program. The undocumented immigrant would alsohave to pay a $1,000 application fee, along with other processing fees tobe eligible for this program, and then must depart the country beforethe expiration of the DMD and register with DMD prior to their depar-ture.216 However, any immigrant who does not depart before the expi-ration of the DMD status becomes ineligible for immigration benefitsfor up to ten years and, if caught, must pay a fine of $3,000.217

Undocumented immigrants, who do not fit into either of the toptwo tiers because they entered the country after January 2004, would berequired to leave the country without the protections of DMD. If theysuccessfully did so, they would then be eligible to apply to return underthe guest worker program provided for under the bill, assuming therewere visas available under that program.218

The last legalization mechanism proposed by the Senate bill wasthe implementation of the DREAM Act,2 19 which would have allowedany student who had arrived in the country more than five years ago,when he or she was fifteen years old or younger, to apply for legal statusupon graduating from high school.2

" The student would be granted upto six years of legal status, during which they must complete at least twoyears of college-level education or serve in the U.S. military for at leasttwo years. 221

215 Id. See also National Immigration Law Center, Comprehensive Immigration Reform, SEN-

ATE APPROVES SWEEPING BUT FLAWED IMMIGRATION REFORM BILL: THE COMPREHENSIVE

IMMIGRATION REFORM AcT OF 2006, HTTP://WWW.NILC.ORG/IMMLAWPOLIcy/CIR/CIRO17.

HTM. (LAST VISITED FEB. 23, 2007).216 S. 2611, 109th Cong. § 601 (2006). The departure requirement could be waived if the

DMD holder is granted an immigrant or nonimmigrant visa and can demonstrate substantialhardship on him or an immediate family member if forced to leave the U.S. Id.

217 Id.218 Id.

219 The Development, Relief, and Education for Alien Minors Act of 2006 or the DREAM

Act of 2006. See id. § 623. The Dream Act was originally introduced by the 107th Congress in2001, and has since garnished increased support by House and Senate members. National Immi-gration Law Center, Dream Act: Basic Information (2006), http://www.nilc.org/immawpolicylDREAM/dreambasic info_0406.pdf (last visited Feb. 24, 2007).

220 S. 2611, 109th Cong. § 623 (2006).

221 Id. See also National Immigration Law Center, Dream Act: Basic Information (2006),

supra note 219.

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III. LEGISLATIVE ANALYSIS

A. Undocumented Immigrants Living in the United States Should BeEligible for Guest Worker Visas at Affordable Cost

Without Having to Return Home

The issue of whether undocumented immigrants currently residingin the United States should be eligible for a guest worker visa is contro-versial. A guest worker program could either be restricted to eligibleemployees outside the country222 or to all non-immigrants, includingthose that have already crossed the border illegally or remained in thecountry past their visas.223 Supporters of a more restrictive policy, suchas President George W. Bush and Republican Senators Kyl and Cornyn,argue that any program that allows undocumented immigrants in thecountry to obtain legal status rewards those that have broken the law,particularly if there is an option to change status to a legal permanentresident, and encourages the future undocumented migration of thoseunwilling to wait for a guest worker visa.224

However, implementing a policy that allocates guest worker visasonly for those immigrants that have not yet arrived in the country doeslittle to change the current system. Currently, any immigrant who hasworked in the United States without a legal visa may not apply for anH-2A temporary visa.225 If a guest worker policy without such means isimplemented, the ten million or more undocumented workers in theUnited States will remain exactly where they are-unwilling to returnhome and unable to attain legal status.226 As such, a more relaxed policythat allows undocumented workers to change status would undoubtedlyhelp reduce the nine to eleven million undocumented workers currentlyliving in the United States.227 If undocumented workers can legalizetheir status without fearing deportation, and consequently attain better

222 As originally proposed in the more conservative Kyl/Cornyn Bill, mentioned supra section

C.223 Secure America and Orderly Immigration Act of 2005, supra note 184.

224 Press Release, supra note 5.

225 BRUNO, supra note 13, at 13.

226 See, e.g., Hearing on Evaluating a Temporary Guest Worker Program, supra note 37 (testi-

mony of Vernon M. Briggs, Jr. Cornell University) ("As envisioned, those eligible for this pro-gram are already here. Many have been here for a long time. It is logical that many will havebrought their families with them or created new families while living here illegally.").

227 Id.

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job security and wages, it is more likely that they will apply for a guestworker visa and come out of the shadows. 28

The Senate Comprehensive Immigration Reform bill describedabove proposed a new plan to deal with this issue. The proposal, if re-drafted and agreed upon by the House and Senate, would force thebottom two 'tiers' of immigrants-undocumented immigrants whohave been residing and working in the United States for two to fiveyears-to return to their foreign residence before being able to return tothe United States on a guest worker visa. While immigrants in the sec-ond-tier could apply for the DMD program before leaving the country,granting them some reassurance that they would be able to return to thecountry legally, immigrants who fit into the third tier would have toreturn to their foreign residence and apply for visas without any guaran-tee that they would receive visas to return legally.229

While this proposal is certainly an improvement over the moreconservative bills previously proposed in the Senate which provided nomethod of adjustment to permanent status, this bill is still not problem-free. With an estimated 500,000 or more230 undocumented immigrantsentering the country each year, this type of arrangement could still leavemillions of immigrants out in the cold. Without any guarantee thatthey would be able to return to the United States within a short periodof time, 231 or even ever, 232 third-tier immigrants would have little incen-tive to pick up and leave. Requiring undocumented workers to departfrom the United States before they return with a valid visa is unrealisticand overly burdensome. 3 Furthermore, the guest worker application

228 See, e.g., Golub, supra note 108, at 17.229 S. 2611, 109th Cong. § 601 (2006).

230 GOYLE AND JAEGER, supra note 2, at 1.

231 The Senate Bill does not provide a time frame in which tier three immigrants would be

able to return on H-2C guest worker visas. S. 2611, 109th Cong. (2006).232 Undocumented immigrants who return home under this policy would have to apply for

one of the 200,000 available H-2C guest worker visas. Though the Bill makes provisions forthose inside the U.S. today to fit within the 200,000, it limits those that would be able to enterin the future. S. 2611, 109th Cong. § 408 (2006).

233 Jacoby, supra note 4, at 62-63.

The bottom line: in this case, too, no policy can hope to work if it is not realis-tic. A successful program must accommodate the ways real people behave, not ignorehuman nature. That means a policy that creates incentives for migrants to returnhome when their temporary-worker visas expire - and also incentives for them to

become citizens if they decide to settle in the US.

[Vol. 5:689


fee, coupled with the costs of constantly relocating, will be too burden-some on low-income workers.

The option for "second-tier" undocumented immigrants is onlyslightly brighter. The Senate's proposed DMD program is like that pre-viously proposed by the more conservative Kyl/Cornyn bill in 2005.234Aside from requiring currently undocumented workers to leave theUnited States, thus forcing them to abandon their current employment,desert their salary and incur moving costs, the program also requires theundocumented immigrant to plead guilty to being unlawfully present inthe country and to pay fees beginning at $2,000.235 Furthermore, theproposal does not provide a time frame in which the workers would beable to return. Instead of bringing undocumented workers out of theshadows, it seems this type of proposal would only guarantee that theworkers remain in hiding and out of the government's sight. Ratherthan forcing "second-tier" undocumented immigrants to have to leavetheir current employment and pay fees burdensome on low-wage sala-ries, a plan should be implemented to allow these workers to convert tolegal guest worker status without having to leave the country.

Worker exploitation is also a concern. If the guest worker policy islimited to workers outside the country, currently undocumented work-ers who choose to stay here, rather than risk returning home with theuncertainty of whether or not they will be able to return, will continueto be exploited and threatened by unethical employers.236 Any new pol-icy implemented by the government must craft a path to legalize andprovide safer job conditions for the hard-working immigrants who arealready contributing to this country.

B. Guest Worker Visas Should Not Be Tied To Employment

In contrast to President Bush's original proposal to link workers'visas to specific employers,237 the Senate bill provided for a significantand positive change from today's H-2 Visas-the guest workers' abilityto remain in the country would no longer be tied to their employer.2 38

Under the current policy, if guest workers lose the job they came to theUnited States to attain, they must return to their home country or find

234 S. 1438, 109th Cong. § 501 (2005).235 S. 2611, 109th Cong. § 601 (2006).236 BRUNO, supra note 13, at 25.237 Bosworth, supra note 5, at 1112.238 S. 2611, 109th Cong. § 403 (2006).

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new employment and attempt to stay here illegally.239 Though the plandescribed above gives undocumented workers a limited period of time inwhich to find new employment (sixty days in the case of the Senatebill),24 ° the proposed policy does not require that the guest workers leavethe country immediately upon termination of their employment.

Requiring workers' status in the country to be reliant on their em-ployer hurts not only the worker, but also the employers.24' Jobs thatare currently filled by undocumented workers, such as those in the agri-cultural field or in construction industries, do not require workers toremain in their position for extended periods of time.242 Many of themare seasonal or terminate upon completion of a project.243 Employersneed more workers during busy seasons, but the demand can decreasedramatically during slow periods.244 These employers should have flexi-bility when hiring but should not have to wait months to fill open posi-tions. Further, workers should not be penalized at the drop of a hatwhen the employment terminates.245 Under a system where the guestworker's visa is tied to employment, such as the current H-2 visa, theguest worker is wholly dependent upon the employer to remain in thecountry and obtain a visa for another year.246 Workers should have theflexibility to find other temporary employment.2 47 The New York Timeshighlighted this issue in September 2005 following Hurricane Ka-


240 S. 1033, 109th Cong. § 302 (2005).


242 See generally HELENE HAYES, U.S. IMMIGRATION POLICY AND THE UNDOCUMENTED:

AMBIVALENT LAWS, FURTIVE LIvEs 30-31 (2001).243 Id.

244 Id.

245 Id.

246 BRUCE GOLDSTEIN, FARMWORKER JUSTICE FUND, INC, THE BASICS ABOUT GUEST

WORKER PROGRAMS (2004), http://www.fwjustice.org/GWbasics.htm.247 See, e.g., Hearing on PROSPECTS FOR AMERICAN WORKERS: IMMIGRATION'S IMPACT:

HEARING BEFORE THE SUBCOMM. ON IMMIGRATION, BORDER SECURITY, AND CLAIMS OF THE

COMM. ON THE JUDICIARY, 108th Cong. 36 (2003)[hereinafter Hearings on PROSPECTS FOR

AMERICAN WORKERS: IMMIGRATION'S IMPACT] (testimony of Daniel T. Griswold, CatoInstitute).

Mobility is essential so that workers can exercise full freedom to change jobs to realizemaximum pay and working conditions, under the theory that a worker's best protec-tion against below-market pay and working conditions is the ability to leave for abetter offer. On an economy-wide scale, full mobility would allow the supply of laborto shift between sectors to meet changing demand.

[Vol. 5:689


trina.248 Over 950 immigrants received nine-month guest worker visasto work at casinos along the Gulf Coast.249 The hurricane left many ofthese immigrants, whose families back home depended on the incomethey earned at the casinos, with the sole choice of returning home orremaining in the country illegally.250

Moreover, immigrant workers should not have to fear voicing theirconcerns or challenging their employers regarding dangerous workingconditions or unreasonable wages. Currently, any worker who turnsdown a wage that has been approved by the DOL, is regarded as "un-available" for work and can be replaced by another guest worker.251

C. Family Visas

For a guest worker policy to be successful, it must take into ac-count family needs, such as family visas and family reunification.252

Any new policy must include a means for immediate family members toremain in the United States legally with their working family mem-bers.253 A policy such as the one originally proposed by Senators Kyland Cornyn, which only granted family members short-term visas tovisit their spouse or parent, seems unrealistic and dangerous. 254 Familymembers of workers would be better served by a plan such as the Senatebill described above, which granted spouses and children of the partici-pating worker the ability to adjust to legal status alongside their familymember. 5

248 Urbina, supra note 80, at Al.

249 Id.250 Id.251 GOLDSTEIN, supra note 246.

252 See, e.g., Tallman, supra note 107, at 890. See also Medige, supra note 14, at 741.

253 See, e.g., BRIGGS AND MOORE, supra note 31, at 58.

254 See, e.g., Tallman, supra note 107, at 890. See also BRUNO, supra note 13, at 27.

The treatment of family members became a significant issue in the 1986 legalizationprograms described above. As enacted, IRCA required all aliens to qualify for legaliza-tion on their own behalf; it made no provision for granting derivative LPR status tospouses and children. Legalized aliens, thus, needed to file immigrant visa petitions onbehalf of their family members. These filings were primarily in the family preferencecategory covering spouses and children of LPRs (category 2A) and had the effect oflengthening waiting times in this category.

255 S. 2611, 109th Cong. §§ 403, 601 (2006).

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722 CARDOZO PUB. LAW, POLICY & ETHICS J [Vol. 5:689

D. All Guest Workers Should Eventually Have theOption to Adjust to Permanent Status

The question of whether to have an "earned adjustment" program,or grant guest workers the opportunity to adjust to legal permanentstatus, has proved very divisive.256 Opponents of a legalization programargued that granting non-immigrants a means to adjust to Legal Perma-nent Resident status is a form of "amnesty" that awards citizenship tolaw-breakers and "encourages the violation of our laws and perpetuatesillegal immigration. "257

However, a policy that requires all guest workers to return to theirhome countries after a specified period of time is unrealistic 258 and hasthe potential to create a permanent class of second-class citizens.2 59

Rather than disrupting families and businesses, a workable, realistic andmorally conscious policy would be one similar to the approved Senatebill,26° which grants guest workers a path to permanent status and citi-

256 Peter Wallsten, Immigration Policy Rift Cleaves GOP, L.A. TIMES, Jan.20, 2006, at 1.

257 Elisabeth Bumiller and Tim Weiner, At Conference, Fox Backs Bush's Guest-Worker Plan,

N.Y. TIMES, Jan. 13, 2004, at A3. At a congressional hearing before the Subcommittee onImmigration, Border, Security and Citizenship on February 12, 2004, Senator John Cornyn

said:

I believe that the President's basic principles are embodied in the bill that I will de-scribe. In particular, the President's fourth principle of immigration reform as out-lined in his speech is to provide incentives for temporary workers to return to their

home country.

I believe this is a crucial component of comprehensive immigration reform, and it is

one that among all of the option before you today is embodied only in my bill. Wemust provide incentives for risk takers to return to their home country with the capi-tal and the skills that they have acquires as temporary workers in the United States ifwe are going to begin to address the root causes of illegal immigration in the first

place...

Our current immigration policy fails to give undocumented immigrants any incentiveto make such a return... Those of us here in America cannot afford for our southern

border to remain a one-way street.Hearing on Evaluating a Temporary Guest Worker Program, supra note 37, at 8 (testimony of Sen.

John Cornyn).258 Jacoby, supra note 4, at 62-63.

259 GOLDSTEIN, supra note 246.

260 S. 2611, 109th Cong. (2006). See also Hearing on Evaluating a Temporary Guest Worker

Program, supra note 37, (testimony of Sen. Edward M. Kennedy).

I believe the White House proposal falls shorts of the serious reforms needed. It cre-

ates a temporary worker program similar to the ones of the past that treated immi-grant workers as second-class citizens. It does little to provide permanent legal status

for the millions of hardworking, undocumented men and women in ourcommunities.

2007] REFORMING IMMIGRATION

zenship. All immigrants who work in the United States for a deter-mined period of time should be granted the opportunity to settle hereand take full advantage of greater economic opportunities. 26' Theyshould not be made to feel that their time is up and be forced to uproottheir lives.262 The option to choose to leave or to stay in the UnitedStates should be made available.

Furthermore, it is unlikely that undocumented immigrants, alreadysettled with families and jobs with wages much greater than those theywould realize back home, will risk signing up for a visa that will requirethem to return home and "in effect, self-deport. ' 263 Twenty years ago, itwas common for married male migrants to come into the country alone,

Id.261 See, e.g., Hearing on PROSPECTS FOR AMERICAN WORKERS: IMMIGRATION'S IMPACT,

suPRA note 247, at 34 (testimony of Daniel T. Griswold, Cato Institute).Legalization of undocumented workers would restore the normal incentive for themto upgrade their skills and would increase their bargaining power with employers. Asevidence, a 1995 Labor Department study found that undocumented workers whowere legalized in the 1980s as part of the IRCA "amnesty" provisions responded byinvesting in their skills and education 'For many, legalization appears to have been aturning point. Suddenly, there was a surge of investment in language skills, education,and training,' the study found.

Id.262 Jacoby, supra note 4, at 64.

The problem with this approach principled as it may seem, is that it would create a perma-nent caste of second-class workers, people trusted to cook Americans' food and tend their chil-dren but not to call themselves Americans or participate in politics. They would live inpermanent limbo, at risk of deportation if they lost their jobs, afraid of bargaining with employ-ers, and unlikely to make the all-important leap that is essential for assimilation. Surely, that isnot the answer for a proud democracy such as the United States. Indeed, it is hard to imagineanything worse, for the immigrants or for American values.

Id.263 NATIONAL IMMIGRATION FORUM, BUSH TALKS IMMIGRATION: THE GOOD NEWS AND

THE BAD NEWS (2005), http://www.immigrationforum.org/DesktopDefault.aspx?tabid=774.See also Staff Editorial, Real Border Security, N.Y. TIMES, Dec. 5, 2005, at A22. In response toquestions presented by Senator Chambliss, Vernon M. Briggs, President of the School of Indus-trial and Labor Relations at Cornell University wrote:

Actual experience, both in the United States and elsewhere would say "no" it is notpossible for guest worker programs to be temporary. The single over-riding character-istic of past guest worker programs in the United States has been that the have lastedfar longer than anticipated when introduced. . Employers, once able to tap into asupply of workers who are contractually tied to them (or in the case of the currentBush proposal workers who would have to leave if they have become unemployed and,thus, are dependent entirely on satisfying employer needs as a condition of their con-tinued presence), becomes addicted to them.

Hearing on Evaluating a Temporary Guest Worker Program, supra note 37.


earn money and return to their families.264 Today, migrants tend tohave stronger family connections in the United States and, more oftenthan not, come with the intention to remain here with their families.265

The percentage of undocumented immigrants expected to return totheir country of origin after five years in the United States decreasedfrom 86% in 1990 to 40% in 1998.266

Any temporary worker policy implemented today must take intoaccount that new immigration laws will impact entire families, not justsingle male workers. Over 92% of recently arrived Mexican non-citi-zens live with a family member, meaning that they live with someonethey are related to by birth, marriage or adoption.267 There are 3.2million children who are citizens of the United States by birth, who livein households where at least one parent is an undocumented immi-grant. 268 Almost all undocumented families living in the United Stateshave at least one member who works, and most of these workers havebeen in the United States for five years or more.269 Legislators mustconsider that either entire families will have to return to their country oforigin together, a policy this Note does not advocate, or the undocu-mented immigrant(s) will have to remain in the U.S. to avoid separationfrom his/her family.270

The Senate bill described above would only allow guest workers toremain in the country for up to six years. 27 1 After about four years, aworker can apply for adjustment to permanent residence, or they will beforced to return home after their employment terminates.272 By thatpoint, however, a worker and his/her family is likely to be much moredependent on their earnings in the United States than they were whenthey first arrived.273 It is difficult to imagine that a worker and his/herfamily will choose to return to their country of origin without the op-portunity to return, rather than remain in the country illegally and con-

264 PARAL, supra note 49.

265 Id.266 Id.

267 Id.

268 GOYLE AND JAEGER, supra note 2.

269 Id.

270 Id.

271 See S. 2611, 109th Cong. §408 (2006).

272 Id.


[Vol. 5:689

2007] REFORMING IMMIGRA TION

tinue to earn greater wages than they would back home.27 4 If, forexample, the bill is passed in Congress today, it is feasible that manycurrently undocumented workers would apply for a guest worker visa,and the United States would have a handle on a sizeable percentage ofthe undocumented population in the country today.2 7 5 Yet six yearsfrom now, the country will find itself back at square one-the guestworkers who were not eligible to adjust to permanent residence status 276

will revert back to undocumented status.277 Nothing will have changed.

On the other hand, a path to legal status may also provide undocu-mented workers with an incentive to apply for a guest worker visa.278

Without this incentive, undocumented workers will continue to remainor arrive in the country illegally and will have little motivation to applyfor a guest worker visa and notify the government of their status.279 Assuch, a plan like that proposed by the Senate bill, if implemented prop-erly and efficiently, could ultimately reduce the number of undocu-mented immigrants in the future. In addition, because the UnitedStates Constitution grants citizenship to anyone born in the country,including the children of non-immigrants, it is unlikely that the guest

274 See, e.g., Hearing on Evaluating a Temporary Guest Worker Program, supra note 37, at 12

(testimony of Senator Edward M. Kennedy):

The administration claims that these workers will come out of the shadows and sign

up for a temporary worker program. But that result will never happen when the vast

majority realize that they will be deported after their temporary status expires. Regis-

tering for work now only to be deported tomorrow is unfair and will not work.

Id.275 Bosworth, supra note 5, at 10.276 If they are unable to attain a Department of Labor Certification and/or employer sponsor-

ship. S. 2611, 109th Cong. §601 (2006).277 Bosworth, supra note 5, at 10.

278 See Hearing on Evaluating a Temporary Guest Worker Program, supra note 37, at 12-13

(testimony of Senator Edward M. Kennedy).279 Id. In his written follow-up questions for Under Secretary Asa Hutchinson, Senator Ken-

nedy wrote:For any immigration reform proposal to work, we need to encourage maximum par-

ticipation by the undocumented. If only a fraction of the current undocumented pop-

ulation comes forward and signs up for the program, it won't meet its goals and wewill essentially be in the same situation as we are in now. I've heard many immigrants

who are long-time residents say: "Why should I show up for a few years of legal status,

if I'm going to be sent back to my country in three years?" These are people who have

lived here for a decade or more, put down roots, are raising U.S. children. Unless theyare assured an opportunity to apply for permanent residence and ultimately citizen-

ship, why would they come out of the shadows for a few years to risk deportationwhen the program ends?

Id. at 69.


worker program will generate the type of caste society that has beencreated in countries that do not provide citizenship by birth.28°

CONCLUSION

No solution is ideal, 281' but the key to a reasonable immigrationpolicy is to face the reality that immigrants will continue to flow intothe country, and rather than try to keep them out, instead work toensure that all workers employed in the United States are here legally.While any guest worker policy will have its share of problems, a realisticand effective guest worker program must provide enough visas for theexpected future flow of workers, make sufficient visas available for fam-ily reunification, allow currently undocumented workers to legalize theirstatus without having to leave and return and avoid the abuses of formerguest-worker programs by offering strong wage and labor protections, aswell as a trustworthy method for employers to check on an immigrant'sworking status.

While eliminating the undocumented population entirely is a tre-mendous, and likely impossible feat, a policy structured similar to thatsuggested by the approved Senate bill could be a reasonable and appro-priate first step. Employers must be forced to pay immigrants the samewages as similarly-situated workers. Guest worker visas cannot continueto be attached to their employers and workers must be able to movefreely without fearing deportation.

A new guest worker program on its own, however, is insufficient.The key to ending undocumented immigration is to create a means forthe eleven million undocumented immigrants to come out of theshadows willingly and to feel secure with their status in our country. A

280 See Chang, supra note 61, at 473. Germany, a country with a considerable guest worker

policy, does not have a birthright citizenship. For over forty years, the German country allowed

guest workers to enter the country but never granted children born in Germany the privilege of

citizenship. While recent passport reforms have established a means for guest workers to become

German citizens, the system has long been criticized for creating a caste system and for keepingguest workers from properly integrating into society. Rob Broomby, Germany's Guest Workers

Mark 40 Years, BBC NEWS ONLINE, Oct. 30, 2001, http://news.bbc.co.ukll/hi/world/europe/

1627912.stm. See also Philip L. Martin, Germany: Managing Migration in the Twenty-First Cen-

tury, in CONTROLLING IMMIGRATION: A GLOBAL PERSPECTIVE 225-233. (Wayne A Cornelius,et al. eds., 2d ed. 2004).

281 1 acknowledge that the creation of a guest-worker program, in effect, institutionalizes a'second-class' status of citizens, at least temporarily, and in no way advocate for this as the ideal

solution. I fear, however, that the alternative-or what exists in the country today-is a muchgraver solution.

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working system must be in place before the program begins. Otherwise,the millions of undocumented workers looking to take advantage of thenew benefits will only throw a system, already burdened by immensebacklog, into further turmoil. Additionally, to succeed, a new guestworker program must be attached to the formation of new pathways topermanent migration and an increase in the number of green cardsavailable annually.

Legalization will grant immigrants the opportunities to increasetheir bargaining power with employers, to accept or deny greater joboffers without the fear of losing legal status and to upgrade their educa-tion and language skills and presumably attain wages equivalent to thoseof citizens born in the country. Providing legal permanent residence topreviously undocumented workers will put immigrants at an equal foot-ing with documented workers-a reality that is certainly not presenttoday.