We must end Illegal Immigration
The Purpose of Immigration Laws
The immigration laws of the United States are intended to define who can come to the United States and for what purposes. It is often difficult to actually lay out the purpose of our laws. The Center for Immigration Study has four points that it lists as the underlining precepts of our most recent immigration law. Note that our current immigration law was adopted in 1986, and the one before that was 1965. The Center finds its three points consistent in those two laws and general policies enacted by administrations over the last 30 years.
Family Reunification – That is permitting immediate and extended family members of naturalized citizens to immigrate to the US
Labor force needs
An important result of immigration policy is our long-standing acquiescence, in large-scale illegal immigration, effectively an intent to fill labor needs with t cheap and docile labor and to avoid offending neighboring countries or domestic ethnic constituencies
In 1986, Ronald Reagan signed the Simpson-Mazzoli Act which granted amnesty to some 3 million illegal immigrants. The act required employers to verify their employees' immigration status and made it illegal to hire or recruit unauthorized immigrants. The act provided for the legalization of certain seasonal agricultural immigrants. Further, the act provided for undocumented immigrants in the US before January 1, 1982, and had resided here continuously with a fine, back taxes, and admission of guilt. These immigrants also needed to prove they were not guilty of crimes.
The Simpson-Mazzoli Act did not address the status of children of undocumented immigrants who qualified under the act. President Reagan using an Executive Order legalized the status of minor children of parents granted amnesty under the immigration overhaul.
Since 2000, both bi-partisan and Republican or Democrat versions of immigration reform have been proposed in both the House and Senate. Some have passed the body they were introduced in but failed to garner support in the other body. This impasse has led to President Bush, Obama, and Trump to issue Executive Orders to deal with specific immigration issues.
Since 1986, the number of legal immigrants entering the US has continued to grow. The chart below shows a significant number of foreign-born residents in the US.
While Congress has been unable to act, and there exists major opposition to Presidential executive action to address various immigration issues it is important to review major organization policy statements on immigration as well as the current White House policy.
Council on Foreign Relations
In 2009, the Council on Foreign Relations issued a report titled “Independent Task Force Report No. 63: U.S.
Immigration Policy.” The report’s major points are highlighted below.
“The continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America’s economy, to jeopardize its diplomacy, and to imperil its national security,” concludes a new Council on Foreign Relations (CFR) Independent Task Force co-chaired by former Florida governor Jeb Bush and former White House chief of staff Thomas “Mack” McLarty.
“The stakes are too high to fail,” says the report. “If the United States continues to mishandle its immigration policy, it will damage one of the vital underpinnings of American prosperity and security, and could condemn the country to a long, slow decline in its status in the world.” For this reason, the report urges: “The United States needs a fundamental overhaul of its immigration laws.”1
Our policy on immigration has brought students, workers, and immigrants looking for a better life in the USA. Our immigration policy needs to balance homeland security, business, labor, education, health, and human rights -- All in all, a difficult task. Our immigration policy reform should consider:
Legal systems reform for more efficiency for part-time labor needs.
Enforce laws, border security, and enforce employment laws, so that only documented workers are employed.
Humane and orderly method for undocumented immigrants, a path to remain legally or develop a path to citizenship.
Offer more efficient registration for undocumented workers to sign up to pay premium taxes on their path to citizenship.
After a reasonable time, ICE can begin a nationwide sweep, and any who have not signed up for being taxed will be deported.
The current policy decreases respect for our borders, our lives, security, public education, social services, and us. Relations with Mexico are strained and damaged.
The task force report states:
“no enforcement effort will succeed properly unless the legal channels for coming to the United States can be made to work better.” Therefore, “the U.S. government must invest in creating a working immigration system that alleviates long and counterproductive backlogs and delays, and ensures that whatever laws are enacted by Congress are enforced thoroughly and effectively.”
The Task Force lays out a series of concrete, realistic recommendations for legislation and administrative reforms that would be part of an immigration policy that better serves America’s national interests:
-Comprehensive immigration reform:
A new effort to pass a comprehensive immigration reform bill should be a first-tier priority for the Obama administration and Congress and should be started without delay.
-Attracting skilled immigrants:
The United States must tackle head-on the growing competition for skilled immigrants from other countries, and make the goal of attracting such immigrants a central component of its immigration policy. The report urges an end to the hard caps on employment-based immigrant visas and skilled work visas in favor of a more flexible system, the elimination of strict nationality quotas, and new opportunities for foreign students earning advanced degrees to remain in the United States after they graduate.
The Task Force calls for minimizing visa restrictions that impeded scientific collaboration, noting that America’s long-term security depends on maintaining its place as a world leader in science and technology. The administration should also permit a broader effort by the U.S. military to recruit recent immigrants who are not yet citizens or green card holders, so as to bolster U.S. military capabilities.
The Task Force supports a mandatory system for verifying those who are authorized to work in the United States, including a workable and reliable biometric verification system with secure documents. Tougher penalties should be levied against those who refuse to comply. It calls employer enforcement “the single most effective and humane enforcement tool available to discourage illegal migration.”
-Simplifying, streamlining, and investing in the immigration system:
Congress and the Obama administration should establish a high-level independent commission to make recommendations for simplifying the administration and improving the transparency of U.S. immigration laws. The government must redouble its efforts to reduce backlogs and other unnecessary delays by investing in the personnel and technology necessary for handling visa and immigration applications efficiently.
-Improving America’s image abroad:
The administration and Congress should launch a comprehensive review of the current security-related restrictions on travel to the United States, with an eye toward lifting restrictions that do not significantly reduce the risk of terrorists or criminals entering the country.
The report favors the full implementation of the Secure Border Initiative to gain greater operational control of the country’s borders. It also calls for the expansion of “smart border” initiatives that use information technologies and targeting tools to help distinguish individuals who may pose a security risk to the United States while facilitating easier entry by the vast majority of legitimate visitors and immigrants.
-State and local enforcement:
State and local police forces can and should be used to augment federal immigration enforcement capabilities, as long as this does not interfere with their core mission of maintaining safety and security in the communities they serve.
The Task Force favors a policy of earned legalization, not amnesty, for many of the illegal immigrants currently living in the United States. The DREAM Act, reintroduced in the 11th Congress, provides the right model by requiring that young people without status who wish to remain in the United States must attend college or perform military service and demonstrate good moral character in order to earn their eligibility for permanent residence.
-Upholding American values:
The report identifies three areas that need immediate and serious review--incarceration policies, the severe penalties for minor immigration and criminal violations, and policies on refugees and asylees--and offers steps to address them, including:
Expand the use of alternatives to detention, such as ankle bracelets or monitoring parolees.
Allow greater discretion in implementing some of the penalties that were previously passed by Congress, such as the mandatory three, five, and ten-year bars for many returning deportees.
Create an office within the Department of Homeland Security that is responsible for refugee protection, and give greater priority for refugee issues throughout the Department of Homeland Security and in the White House.
The consensus on the bipartisan Task Force around these issues demonstrates that progress on immigration can be achieved. The report concludes that “the United States has the understanding, the capabilities, and the incentives to move forward and create a more intelligent, better functioning immigration system that will serve the country’s interests. It is time to get on with the job.”1
The 2016 election of Donald Trump started changes in the immigration system beginning with Presidential appointees. Berry, Appleman & Leiden LLP, a law firm that provides immigration services including citizenship and business visa, issued a white paper on immigration immediately following President Trump’s election.
It is titled, “White Paper: High-Skilled Immigration Policy Under President Trump.”, and begins its introduction with:
“Donald Trump’s surprise victory in the presidential election has upended the political and policy landscape for immigration. It will still fall to Congress to make substantial changes to the immigration system, but the Trump administration will have the authority to reshape the lives of hundreds of thousands of unlawful immigrants and influence the ability of US companies to access and retain highly skilled foreign workers. This paper explores how the Trump administration will approach the issue of immigration and analyzes how administrative reforms will impact US companies.”2
A complete overall of the immigration policy began with:
The Department of Justice and the Department of State will also play key roles in developing and implementing new immigration policies. Each department has a unique role in the immigration system, and it is common for there to be competing views within an administration. For example, a change in immigration enforcement priorities by the Department of Homeland Security could affect resource demands at the Department of Justice or it could negatively affect foreign relations discussions.
Also, the Obama policy was reversed by President Trump as promised during his election campaign:
A centerpiece of Donald Trump’s campaign was his promise to rescind Obama’s executive actions on immigration reform. Obama’s most impactful policy proposal - to grant Deferred Action to approximately four million unlawful immigrant parents of US citizens and green card holders - was enjoined by a federal court and never took effect. But the Obama administration did successfully implement many other policy memoranda and regulations that, if fully implemented, would afford some form of lawful status or work authorization to approximately 1 million individuals.
The Trump administration will seek to modify or rescind many of these policies, though it is difficult to forecast the scope and timeline of those changes. Given the huge number and broad range of individuals who would have benefited from Obama’s executive actions [combined with Trump’s proposals for heavy-handed enforcement against unlawful immigrants], there is a high degree of anxiety within the immigration community.2
President Trump’s 10-point plan focused on “building a wall” on the US/Mexico border. The following priorities include a border wall along the 1900+ miles of border:
A priority of the Trump administration will be to show progress on his commitment to build an “impenetrable” wall. Experts disagree on how much it would cost to complete the wall (approximately 670 miles exist today along a 2,000-plus mile border), but there is little doubt that the cost far exceeds current appropriations from Congress. Trump has stated that he will use his authority to tax remittances to Mexico to pay for the wall, but pursuing that option will take many months and will face many obstacles. We should expect that he will look for quick progress (shifting existing appropriations or sending the National Guard to the border), followed by a request to Congress for additional appropriations.
Donald Trump has stated that he will impose “extreme vetting” on travelers from certain regions of the world. This could take many forms, including a resurrection of the post-9/11 “special regulations” program that required additional screening and exit requirements for travelers from certain countries. Civil liberties groups are concerned about religion-based screening, and business groups are concerned about the potential for travel disruption and a decrease in tourism and student enrollment in the US. Based on Trump’s campaign promises, we should expect some increase in security vetting for individuals who are either from or have traveled to certain countries or regions.
President Obama’s first major executive action remains his most significant: granting Deferred Action to approximately 700,000 individuals who came to the US unlawfully before the age of 16. (“Deferred Action for Childhood Arrivals” or DACA). The first DACA program, implemented in 2012 was never successfully challenged in court and was not part of the Texas vs. US legal proceeding. Nevertheless, there is a significant possibility that the Trump administration will seek to end or phase out the DACA program. Even if Trump elects to phase out DACA and not renew Employment Authorization Document (EADs) issued to DACA recipients, approximately 50,000 individuals would lose status each month. This could mean that companies will be required to terminate the employment of DACA beneficiaries at the time their employment authorization is rescinded or expires.
There is no precedent for the creation or termination of a program that is the scale of DACA, so the government will be in uncharted territory. Students and universities around the country are already rallying to the defense of DACA beneficiaries and we expect that any change to the DACA program will result in unprecedented public protests in person and through social media. Absent further action by the Obama administration, Trump would be able to rescind or modify DACA via policy guidance.
A sanctuary city is not a defined term, but it generally refers to any city or jurisdiction that violates federal law by refusing to share information with federal authorities. Sanctuary cities have been around for decades, and the federal government has the authority to withhold federal funding as a means of enforcing cooperation. Post-election, many jurisdictions - including Chicago, New York City, Portland, San Francisco and Seattle - have already announced that they will not cooperate with federal law enforcement actions against unlawful immigrants. We expect that the Trump administration will adopt a more aggressive position against sanctuary cities and will leverage all of the federal government’s legal tools to punish those jurisdictions. But politicians in sanctuary jurisdictions often have the strong support of the people who elected them, which could set up a volatile conflict between federal officials and state and local jurisdictions.
Trump’s 10-point plan calls for the US to “turn off the jobs and benefits magnet” for undocumented workers, which presumably means that his administration will seek to expand the use of E-Verify obligations on some or all employers. The Bush administration sought to expand the use of the program by requiring federal contractors to use the system and by tying certain immigration benefits (e.g. STEM OPT) to use of the program. Due to statutory restrictions, Trump would need to pursue a similar approach as there is no simple way for the new administration to impose mandatory E-Verify on all employers in the US.
Employer participation has grown exponentially in the last ten years. In 2005, only 5,300 companies participated in E-Verify. Today, over 650,000 companies participate in E-Verify and a large percentage of new hires are now run through the electronic system.2
Labor investigations focus on H-1B workers displacing American citizen’s jobs and penalizing employers of H-1B workers who may have replaced American citizen workers with H-1B workers.
Department Of Labor Investigations
Trump has released a short video in which he lays out the administrative actions that he will take during his first 100 days in office. His only reference to immigration is a statement that he will “direct the Department of Labor to investigate all abuses of visa programs that undercut the American worker.” On the campaign trail, Trump focused extensively on the alleged abuse of the H-1B category by Indian outsourcing companies to displace US workers. For example, he invited laid-off Disney workers to speak at campaign events where they alleged that they were displaced by H-1B workers from Cognizant and HCL. It is an open question as to whether Trump will prioritize DOL enforcement resources towards the investigation of companies that are H-1B dependent (i.e. more than 15 percent of US workforce is in H-1B status) and are engaged in offshore IT work.
Under the law, the Department of Labor (DOL) can initiate an H-1B investigation if (i) DOL receives a complaint from an aggrieved person or organization; (ii) DOL receives specific credible information from a reliable source (other than a complainant); (iii) the Secretary of Labor has found that an employer has, within the previous five year years, committed a willful failure of its H-1B obligations; or (iv) the Secretary of Labor personally certifies that he or she has reasonable cause to believe that the employer is not in compliance. The penalties for violating the H-1B regulatory obligations are substantial and can include civil monetary penalties of up to $35,000 per violation and debarment from the immigration program for up to two years. For many companies, debarment would seriously compromise their ability to do business in the US.2
New regulations for allowing postgrad students in science, technology, engineering, and math to stay and work in the US 17-24 months are being considered. Some groups believe that foreign graduates take jobs from US graduates.
F-1 Optional Practice Training (Opt)
Both the Bush and Obama administrations expanded opportunities for foreign graduates of US universities to transition to the US workforce. In 2008, the Bush administration expanded post-graduate Optional Practical Training by allowing graduates with degrees in science, technology, engineering, and mathematics (STEM) fields to obtain an additional 17 months of work authorization. The Obama administration extended the STEM OPT program from 17 to 24 months of work authorization and made other enhancements to the program.
The regulations have survived a judicial review, but it is notable that groups that have supported Donald Trump have challenged the regulations at every stage of their implementation. Those groups have also advocated for tighter restrictions on the existing STEM OPT program, including higher wage obligations.
STEM OPT is a program with broad political support (“staple a green card to a US diploma”), but it has also become the target of groups that believe foreign graduates of US universities steal jobs from US workers. Any changes to the program could negatively affect the hundreds of thousands of individuals working today pursuant to the STEM OPT program. Modifications to STEM OPT would likely need to be made via a new regulation.2
H-1B professional worker policies have pluses and minuses and are difficult to navigate in the policy form.
H-1b Professional Workers
Trump has made several contradictory remarks regarding the H-1B category. In response to questions about terminating the H-1B program, he responded that the US needs to retain highly-skilled workers. At other times, however, he has stated that the program is abused and should be curtailed. His comments about the H-1B program clearly signal his concerns about H-1B wage protections and the use of the program to displace US workers. This should be somewhat worrisome to H-1B dependent employers who are involved in outsourcing services. Indeed, on the campaign trail, Trump often invited US workers who had allegedly been displaced by Indian outsourcing companies to speak at his rallies.
It is difficult to predict how Trump will navigate the H-1B issue, but we do know that opponents of the category have advocated for the following policy changes before Congress and are likely to push the new administration to implement some of the changes through administrative reform:
Prioritize H-1B visa allocation based on salary or education levels;
Elevate prevailing wage levels;
Prohibit primary or secondary displacement of US workers; and
Require employers to recruit US workers before sponsoring an H-1B visa holder.
Whether any of these can be accomplished in the absence of legislation remains to be seen. With over 20,000 different employers utilizing the visa category, any effort to restrict the category will be scrutinized and parties will pursue litigation if the government oversteps its legal authority.2
A little-known category (L-1) might be considered for change:
L-1 Intracompany Transfers
Though the L-1 category remained out of the spotlight during the campaign, opponents of highly-skilled immigration have been advocating for years for new restrictions on the visa category. The most likely scenario is that the government will seek to apply the Matter of Simeio decision to L-1B filings, which means that employers will be required to file an L-1 amendment any time an employee changes geographic locations.
This would result in new costs and operational burdens for many companies, particularly those in the professional services industries. It is also expected that the government may revisit the recent policy guidance interpreting “specialized knowledge” for L-1B petitions, which could result in further narrowing of eligibility for the visa category. Those two changes, both of which could be made through policy guidance, would dramatically alter the L-1B landscape for employers.2
The U.S. involvement in NAFTA is still in flux, but TN Visas will be impacted by any NAFTA changes.
Tn (Trade NAFTA) Visas
The North American Free Trade Agreement (NAFTA) included a visa category (TN) for professionals from Canada and Mexico. That visa category was later codified into regulations, but its underlying authority remains the treaty agreement between the countries. Trump stated during his campaign that he would seek to renegotiate the terms of the treaty and, if the other countries did not agree to do the same, he would unilaterally withdraw from the treaty. Under the terms of NAFTA, any party may withdraw by providing six months’ notice.
There is no precedent for the US withdrawing from a treaty like NAFTA, so it is difficult to predict what would happen to TN visa holders in the US in the event of withdrawal. Under the worst-case scenario, those individuals would lose their status and work authorization. The immigration issues are likely to be secondary to the significant trade implications, it appears likely that there will be no significant changes to the TN category in the next few months.2
More government oversight of employers who employ highly-skilled immigrants will be seen.
Employers who utilize high-skilled visa categories already face a high level of scrutiny by adjudicators and consular officers. Over the past few years, however, the number of civil and criminal investigations into alleged abuse of immigration benefits has significantly increased (e.g. B-1, H-1B, or L-1B visa categories). The new administration will likely continue this trend and, assuming Senator Jeff Sessions (R-AL) is confirmed as Attorney General, the Department of Justice will prioritize enforcement of US immigration laws.
In practical terms, this means that federal prosecutors across the country will feel empowered to aggressively pursue civil and criminal investigations against employers of high-skilled immigrants.2
The Berry Appleman & Leiden LLP white paper was an extensive review of the potential changes in administration policy for immigration.
The Trump White House issued its “Immigration Principles & Policies.”, on October 8, 2017, which outlines how it would address the immigration issue. The policy statement is provided below.
Immigration Principles & Policies
A. Border Wall. Our porous southern border presents a clear threat to our national security and public safety and is exploited by drug traffickers and criminal cartels. The Administration, therefore, proposes completing construction of a wall along the southern border of the United States.
i. Ensure funding for the southern border wall and associated infrastructure.
ii. Authorize the Department of Homeland Security (DHS) to raise, collect, and use certain processing fees from immigration benefit applications and border crossings.
iii. Improve infrastructure and security on the northern border.
B. Unaccompanied Alien Children. Loopholes in current law prevent “Unaccompanied Alien Children” (UACs) that arrive in the country illegally from being removed. Rather than being deported, they are instead sheltered by the Department of Health and Human Services at taxpayer expense and subsequently released to the custody of a parent or family member--who often lack lawful status in the United States themselves.
These loopholes in current law create a dramatic pull factor for additional illegal immigration and in recent years, there has been a significant increase in the apprehension of UACs at our southern border. Therefore, the Administration proposes amending current law to ensure the expeditious return of UACs and family units.
i. Amend the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) to treat all UACs the same regardless of their country of origin, so long as they are not victims of human trafficking and can be safely returned home or removed to safe third countries.
ii. Clarify that alien minors who are not UACs (accompanied by a parent or legal guardian or have a parent or legal guardian in the United States available to provide care and physical custody) are not entitled to the presumptions or protections granted to UACs.
iii. Terminate the Flores Settlement Agreement (FSA) by passing legislation stipulating care standards for minors in custody and clarify corresponding provisions of the TVPRA that supersede the FSA.
iv. Amend the definition of “special immigrant,” as it pertains to juveniles, to require that the applicant prove that reunification with both parents is not viable due to abuse, neglect, or abandonment and that the applicant is a victim of trafficking. The current legal definition is abused and provides another avenue for illicit entry.
v.Repeal the requirement that an asylum officer have initial jurisdiction over UAC asylum applications to expedite processing.
C. Asylum Reform. The massive asylum backlog has allowed illegal immigrants to enter and stay in the United States by exploiting asylum loopholes. There are more than 270,000 pending cases in the asylum backlog before USCIS and approximately 250,000 asylum cases before EOIR. Therefore, the Administration proposes correcting the systemic deficiencies that created the backlog.
i. Significantly tighten standards and eliminate loopholes in our asylum system.
ii. Elevate the threshold standard of proof in credible fear interviews.
iii. Impose and enforce penalties for the filing of frivolous, baseless, or fraudulent asylum applications, and expand the use of expedited removal as appropriate.
iv. Close loopholes in the law to bar terrorist aliens from entering the country and receiving any immigration benefits.
v. Clarify and enhance the legal definition of “aggravated felony” to ensure that criminal aliens do not receive certain immigration benefits.
vi. Expand the ability to return asylum seekers to safe third countries.
vii. Ensure only appropriate use of parole authority for aliens with credible fear or asylum claims, to deter meritless claims and ensure the swift removal of those whose claims are denied.
viii. Prevent aliens who have been granted asylum or who entered as refugees from obtaining lawful permanent resident status if they are convicted of an aggravated felony.
ix. Require review of the asylum or refugee status of an alien who returns to their home country absent a material change in circumstances or country conditions.
D. Ensure Swift Border Returns. Immigration judges and supporting personnel face an enormous case backlog, which cripples our ability to remove illegal immigrants in a timely manner. The Administration, therefore, proposes providing additional resources to reduce the immigration court backlog and ensure the swift return of illegal border crossers.
i. Seek appropriations to hire an additional 370 immigration judges.
ii. Establish performance metrics for immigration judges
iii. Seek appropriations to hire an additional 1,000 U.S. Immigration and Customs Enforcement (ICE) attorneys, with sufficient support personnel.
iv. Ensure sufficient resources for detention.
E. Inadmissible Aliens. The current statutory grounds for inadmissibility are too broad and allow for the admission of individuals who threaten our public safety. Therefore, the Administration therefore proposes expanding the criteria that render aliens inadmissible and ensure that such aliens are maintained in continuous custody until removal.
i. Expand the grounds of inadmissibility to include gang membership.
ii. Expand the grounds of inadmissibility to include those who have been convicted of an aggravated felony; identity theft; fraud related to Social Security benefits; domestic violence; child abuse; drunk driving offenses; failure to register as a sex offender; or certain firearm offenses, including the unlawful purchase, sale, possession, or carrying of a firearm.
iii. Expand the grounds of inadmissibility to include former spouses and children of individuals engaged in drug trafficking and trafficking in persons, if the official determines the divorce was a sham or the family members continue to receive benefits from the illicit activity.
F. Discourage Illegal Re-entry.
Many Americans are victims of crime committed by individuals who have repeatedly entered the United States illegally, which also undermines the integrity of the entire immigration system. Therefore, the Administration proposes increasing penalties for repeat illegal border crossers and those with prior deportations.
G. Facilitate the Removal of Illegal Aliens from Partner Nations.
Current barriers prevent the Federal Government from providing assistance to partner nations for the purpose of removing aliens from third countries whose ultimate intent is entering the United States. Therefore, the Administration proposes authorizing DHA to provide foreign assistance to partner nations to support migration management efforts conducted by those nations. This will allow DHS to improve the ability of Central and South American countries to curb northbound migration flows and to interrupt ongoing human smuggling, which will also substantially reduce pressures on U.S. taxpayers.
H. Expedited Removal.
Limited categories of aliens are currently subject to expedited removal, which erodes border integrity and control by impeding the ability of the Federal Government to efficiently and quickly remove inadmissible and deportable aliens from the United States. The Administration seeks to expand the grounds of removability and the categories of aliens subject to expedited removal and by ensuring that only aliens with meritorious valid claims of persecution can circumvent expedited removal.
2. Interior Enforcement
A. Sanctuary Cities.
Hundreds of sanctuary jurisdictions release dangerous criminals and empower violent cartels like MS-13 by refusing to turn over incarcerated criminal aliens to Federal authorities. Therefore, the administration proposes blocking sanctuary cities from receiving certain grants or cooperative agreements administered or awarded by the Departments of Justice and Homeland Security.
i. Restrict such grants from being issued to:
a. Any state or local jurisdiction that fails to cooperate with any United States government entity regarding enforcement of federal immigration laws.
b. Any entity that provides services or benefits to aliens not entitled to receive them under existing Federal law;
c. Any state or local jurisdiction that provides more favorable plea agreements or sentencing for alien criminal defendants for the purpose of immigration consequences of a conviction.
ii. Clarify ICE’s detainer authority, and States’ and localities’ ability to honor that authority, so that States will continue to detain an individual pursuant to civil immigration law for up to 48 hours so that ICE may assume custody.
iii. Provide indemnification for State and local governments to protect them from civil liability based solely on compliance with immigration detainers and transportation of alien detainees.
iv. Require State and local jurisdictions to provide all information requested by ICE relating to aliens in their custody and the circumstances surrounding their detention.
v. Clarify the definition of a criminal conviction for immigration purposes, to prevent jurisdictions from vacating or modifying criminal convictions to protect illegal immigrants, and roll back erosion of the criminal grounds of removal by courts under the “categorical approach.”
B. Immigration Authority for States and Localities.
The prior Administration suppressed cooperative partnerships between the Federal Government and State or local governments that wanted to help with immigration enforcement, undermining the security of our communities. Therefore, the Administration proposes enhancing State and local cooperation with federal immigration law enforcement in order to ensure national security and public safety.
i. Clarify the authority of State and local governments to investigate, arrest, detain, or transfer to Federal custody aliens for purposes of enforcing Federal immigration laws when done in cooperation with DHS.
ii. Authorize State and local governments to pass legislation that will support Federal law enforcement efforts.
iii. Incentivize State and local governments to enter into agreements with the Federal Government regarding immigration enforcement efforts.
iv. Provide the same extent of immunity to State and local law enforcement agencies performing immigration enforcement duties within the scope of their official role as is provided to Federal law enforcement agencies.
C. Visa Overstays.
Visa overstays account for roughly 40 percent of illegal immigration. The Administration, therefore, proposes strengthening the removal processes for those who overstay or otherwise violate the terms of their visas and implementing measures to prevent future visa overstays which may account for a growing percentage of illegal immigration.
i. Discourage visa overstays by classifying such conduct as a misdemeanor.
ii. Require that all nonimmigrant visas held by an alien be canceled when any one nonimmigrant visa held by that alien is canceled, to ensure that if an alien abuses one type of visa, he cannot circumvent the immigration system by then relying on another type of visa to enter the United States.
iii. Bar all visa overstays from immigration benefits for a certain period of time with no waiver.
iv. Clarify that the government does not bear any expense for legal counsel for any visa overstay in removal or related proceedings.
v. Require DHS to provide all available data relating to any deportable alien to the Department of Justice’s National Crime Information Center for purposes of that alien’s inclusion in the Immigration Violators File, with the exception of aliens who cooperate with DHS on criminal investigations.
vi. Enhance the vetting of bond sponsors for those aliens who enter without inspection, to ensure that bond sponsors undergo thorough background checks prior to being eligible to post or receive a bond.
vii. Permit the Department of State to release certain visa records to foreign governments on a case-by-case basis when sharing is in the U.S. national interest.
viii. Permit the Department of State to review the criminal background of foreign diplomats or government officials contained in the National Crime Information Center database before visa adjudication, regardless of whether the applicant’s fingerprints are in the database.
D. Necessary Resources.
The relatively small number of ICE officers is grossly inadequate to serve a nation of 320 million people with tens of millions of tourists and visitors crossing U.S. ports of entry every year. Therefore, the Administration proposes providing more resources that are vitally needed to enforce visa laws, restore immigration enforcement, and dismantle criminal gangs, networks, and cartels.
i. Seek appropriations to hire an additional 10,000 ICE officers.
ii. Seek appropriations to hire an additional 300 Federal prosecutors to support Federal immigration prosecution efforts.
iii. Reforms to help expedite the responsible addition of new ICE personnel.
E. Detention Authority.
Various laws and judicial rulings have eroded ICE’s ability to detain illegal immigrants (including criminal aliens), such that criminal aliens are released from ICE custody into our communities. Therefore, the Administration proposes terminating outdated catch-and-release laws that make it difficult to remove illegal immigrants.
i. Ensure public safety and national security by providing a legislative fix for the Zadvydas loophole, and authorizing ICE, consistent with the Constitution, to retain custody of illegal aliens whose home countries will not accept their repatriation.
ii. Require the detention of an alien: (1) who was not inspected and admitted into the United States, who holds a revoked nonimmigrant visa (or other nonimmigrant admission document), or who is deportable for failing to maintain nonimmigrant status; and (2) who has been charged in the United States with a crime that resulted in the death or serious bodily injury of another person.
F. Legal Workforce.
Immigrants who come here illegally and enter the workforce undermine job opportunities and reduce wages for American workers, as does the abuse of visa programs. Therefore, the Administration increasing employment verification and other protections for U.S. workers.
i. Require the use of the electronic status-verification system (“E-Verify”) to ensure the maintenance of a legal workforce in the United States.
ii. Preempt any State or local law relating to the employment of unauthorized aliens.
iii. Impose strong penalties, including debarment of Federal contractors, for failure to comply with E-Verify.
iv. Increase penalties for any person or entity engaging in a pattern or practice of violations.
v. Require the Social Security Administration to disclose information to DHS to be used in the enforcement of immigration laws.
vi. Expand the definition of unlawful employment discrimination to include replacement of U.S. citizen workers by nonimmigrant workers or the preferential hiring of such foreign workers over U.S. citizen workers.
vii. Strengthen laws prohibiting document fraud related to employment or to any other immigration benefit.
G. Deportable Aliens.
The categories of aliens that currently qualify for deportation are insufficiently broad to remove aliens who pose a threat to the security of the American public. Therefore, the Administration proposes expanding and clarifying the type of aliens who present a danger to Americans and should therefore be removable on an expedited basis.
i. Expand grounds of deportability to explicitly include gang members.
ii. Expand the grounds of deportability to include those convicted of multiple drunk driving offenses or a single offense involving death or serious injury.
iii. Expand the grounds of deportability to include those who fail to register as a sex offender.
iv. Clarify the technical definition of “aggravated felony” by referring to “an offense relating to” each of the categories of crimes, rather than specifying the crimes themselves. This will ensure certain kinds of homicide, sex offenses, and trafficking offenses are encompassed within the statutory definition.
H. Gang Members.
Today, known gang members are still able to win immigration benefits despite the dangers they pose to American society. As such, the Administration proposes implementing measures that would deny gang members and those associated with criminal gangs from receiving immigration benefits.
I. Visa Security Improvements. Without sufficient resources, the State Department is hindered from adequately vetting visa applicants. As such, the Administration proposes enhancing State Department visa and traveler security resources and authorities.
i. Expand the Department of State’s authority to use fraud prevention and detection fees for programs and activities to combat all classes of visa fraud within the United States and abroad.
ii. Ensure funding for the Visa Security Program and facilitate its expansion to all high-risk posts.
iii. Increase the border crossing card fee.
iv. Grant the Department of State authority to apply the Passport Security Surcharge to the costs of protecting U.S. citizens and their interests overseas, and to include those costs when adjusting the surcharge.
v. Strengthen laws prohibiting civil and criminal immigration fraud and encourage the use of advanced analytics to proactively detect fraud in immigration benefit applications.
3. Merit-based Immigration System
A. Merit-Based Immigration. The current immigration system prioritizes extended family-based chain migration over skills-based immigration and does not serve the national interest. Decades of low-skilled immigration has suppressed wages, fueled unemployment and strained federal resources. Therefore, the Administration proposes establishing a merit-based immigration system that protects U.S. workers and taxpayers, and ending chain migration, to promote financial success and assimilation for newcomers.
i. End extended-family chain migration by limiting family-based green cards to spouses and minor children and replace it with a merit-based system that prioritizes skills and economic contributions over family connections.
ii. Establish a new, points-based system for the awarding of Green Cards (lawful permanent residents) based on factors that allow individuals to successfully assimilate and support themselves financially.
iii. Eliminate the “Diversity Visa Lottery.”
iv. Limit the number of refugees to prevent abuse of the generous U.S. Refugee Admissions Program and allow for effective assimilation of admitted refugees into the fabric of our society.3
In July of 2015, The U.S. Chamber of Commerce issued report on restructuring the U.S. immigration system to increase security and promote economic growth. This study was a comprehensive 41-page report. Highlights of the Executive Summary are provided below.
It is often said, “If it ain’t broke, don’t fix it.” A corollary should be, “If it is broken, we must fix it.” In recent years, there has been a growing awareness among the American public and our representatives in Washington that our immigration system is broken and in need of reform, as leaders of both parties in both houses of Congress have recognized.
The evidence of the dysfunctional immigration system is vast. Millions of undocumented immigrants have resided in the United States for over a decade. Every year, demand for green cards exceeds supply by such an extraordinary margin that unthinkable backlogs are created and further extended. Caps for temporary work visas, as well as employment-based green cards, are so disconnected from economic demand that employers still report jobs unfilled--with neither U.S. workers nor legal visa holders qualified and available. Foreign students who earn degrees at leading U.S. universities and are poised to contribute their talents, innovations, and entrepreneurship to the economy are unable to do so. Instead, each year the United States spends billions of dollars enforcing an immigration system that is increasingly unenforceable. Our agencies are unable to focus on criminal and terrorist threats because our border agents must spend their time apprehending and processing thousands of illegal immigrants.
However, despite years of political debates, immigration reform remains unaddressed and the current system remains broken. This logjam in Congress is due to misconceptions about how immigration impacts the economy and our national security. To address questions of how immigration impacts the U.S. economy, the U.S. Chamber of Commerce (also referred to in this paper as the “Chamber”) has played a leading role in educating the public and members of Congress about the economic potential of immigration reform.
The Chamber has held briefings for staffers and members, hosted numerous public events with leading economists and business leaders, and authored or co-authored a series of reports on the economic implications of immigration.
In 2012, the Chamber co-authored the report, “Help Wanted: The Role of Immigrants in the innovation Economy”, that aimed to tackle common misconceptions about high-skilled immigrants. A follow up brief, “Immigration Myths and Facts,” summarized several prominent economic studies to counter the idea that immigrants take jobs away from U.S.-born workers and burden our tax system. “Open for Business: Spurring Local Economic Growth by Welcoming Immigrants,” describes the experiences of state and local governments trying to revitalize their local economies by recruiting more immigrant residents and workers. Finally, a recent report, “Immigrant Entrepreneurs: Creating Jobs and Strengthening the Economy,” explored one way immigrants spur economic growth--by creating and owning businesses at higher rates than the population as a whole.
Building upon that research, this report offers concrete reforms to immigration laws that would promote economic growth and create American jobs. This report also addresses misconceptions concerning how immigration and national security interact. Structured properly, immigration reform will enhance U.S. national security. This report proposes various improvements to our enforcement and visa system that would improve border security, the tracking and control of foreign visitors and immigrants in our country, and ensure that all individuals and businesses respect the law.
Components Of Immigration Reform For Security And Economic Growth
The U.S. Chamber continues to believe in and strongly supports four areas of immigration reform. Together, these four sets of reforms would both enhance national security and promote economic growth.
1. Controlling Overstays and the Nation’s Borders
In recent years, there has been widespread disagreement about how to best control the nation’s borders and determine whether sufficient levels of border security have been achieved. The U.S. Chamber considers it to be critically important to secure the nation’s borders and ensure that border communities are safe and continue to be a vital economic engine of trade.
Over the last decade, the government has made many needed improvements in border security and in its ability to deter illegal entries at U.S. ports and airports. Still, there is much work to be done. While pursuing immigration reform, our government should continue to build on those improvements--most notably by adding a means to control and dissuade temporary legal immigrants and visitors from overstaying their visas.
2. Modernizing Legal Immigration
The U.S. Chamber believes that fundamental changes to the structure of the current immigration laws and visa programs are needed. These changes should establish visas for lesser-skilled, non-seasonal workers, and provide adequate visas for highly skilled immigrants as well, particularly U.S.-educated STEM graduates. Such reforms should also create a workable visa that would allow farmers and growers to hire the workers they desperately need.
These changes would make the immigration system more responsive to the actual needs of the economy, giving employers an orderly, controlled avenue to hire foreign workers for jobs they would otherwise be unable to fill and reducing the incentives for illegal immigration and unauthorized employment. To keep the system from becoming quickly outdated due to changing workforce needs, caps on visas should be subject to reevaluation and adjustment based on economic realities. A transformed legal flow of immigrant labor, at all skill levels, is fundamental to the ability of the economy to grow.
3.Curbing Illegal Employment through an Updated Employment Verification System
The U.S. Chamber has previously opposed mandatory expansion of E-Verify, the voluntary electronic employment verification system run by U.S. Citizenship and Immigration Services, or associated employment verification enforcement systems. Many employers had viewed E-Verify as unworkable, burdensome and unreliable. However, the technical aspects of the E-Verify system continue to improve, allowing the Chamber, after careful vetting with our members, to reassess our position. The Chamber now supports a uniform national policy expanding the use of E-Verify, as long as certain key conditions are met:
Any law mandating use of the program must include language making it clear that the national E-Verify regulations preempt any similar state and local laws or regulations.
Any new mandate should keep in place the controlling parameters established by the FAR (Federal Acquisition Regulation) Council for federal contractors’ use of the E-Verify program.
Private employers should not be required to re-verify their current workforce.
The I-9 process should be integrated into E-Verify so employers would use a single, fully integrated employment verification system, available electronically or by phone.
Employers should only be required to verify their own direct employees.
Employers would have a safe harbor for good faith efforts to use the system and verify employment authorization.
Agricultural employers, including the dairy industry, must have meaningful access to a workable program to sponsor lawful workers before being subject to any E-Verify mandate, to protect the safety, security and health of the United States food supply.
4. Ensuring a Stable Workforce - An Economy without Millions of Undocumented Workers
Tolerating residency by those who enter or remain in the United States illegally cannot continue to be a feature of the U.S. immigration system. There are currently more than 11 million undocumented people living in the United States, and more than 60 percent of the undocumented population has been in the country for more than 10 years. Neither deportation nor self-deportation of such a large, established population is realistic--but finding a solution has been difficult. Acknowledging that there is no precise formula that will address all concerns, a basic structure can be proposed.
The Chamber believes that criminal background checks and national security clearances must be completed on all unauthorized immigrants currently in the United States--as is already required of legal immigrants. This would then be followed by a probationary period during which the government would need to continue to improve border control and reduce visa overstays. Undocumented immigrants would then be required to pay a fine and show progress toward English proficiency. The government would also phase-in mandatory electronic employment verification. Only then, and under specified and strict conditions, could qualifying individuals earn legal status.
Improving Security Through Immigration Reform
The United States must work to restore the rule of law to its immigration system. To do this, leaders must recognize that border enforcement alone is not enough. No system of border security in the world has ever succeeded in preventing 100 percent of unauthorized entries. As long as significant “push” factors of crime, violence and poverty exist, immigrants will continue to desire to immigrate to the United States. However, the majority of these immigrants do not pose serious threats to the United States such as criminals or terrorists. Most simply wish to work and earn money. Many wish to work only for a period of time and then return to their own countries. Providing more legal visas for these immigrants to enter the country and work when there are not enough qualified American workers to fill vacant jobs, would channel the migrant flow through legal systems where they can be screened and vetted for security threats. Strengthening temporary worker programs and allowing for more circular migration when work is available can also deter long-term unauthorized residence that has been engendered by the increased difficulty of crossing the border.
In addition, more efficient immigration enforcement in the interior of the country can reduce the major “pull” factor that attracts undocumented immigrants to the United States--the ability to gain work without authorization. Mandatory E-Verify, implemented along with reformed visa programs to allow employers, especially agricultural employers, to hire the workers they need, can prevent most unauthorized employment. Electronic employment verification can dry up the market for fraudulent documents that are used to overcome the current employment verification program, and impair the criminal networks that provide them. Changing the way our country deals with individuals who overstay their visas and creating additional efficiencies in the immigration court system will also improve interior enforcement efforts.
The cost of “enforcing current law” by removing the more than 11 million illegal residents in the United States today is prohibitive. Practical alternatives that incentivize undocumented immigrants to register and undergo criminal and security background checks will greatly help law enforcement focus on the remaining criminal element. It will also remove fears in immigrant communities of reporting crime and cooperating with law enforcement, enhancing the public safety of neighborhoods across the country.
Creating Economic Growth Through Immigration Reform
U.S. immigration laws can also boost economic growth, reduce deficits and create jobs if revised to match the needs of the economy. The most fundamental change is to adjust the number of visas available to those coming to work in the United States. By revising outdated caps on high-skilled and lesser-skilled workers, and streamlining visa programs to make them more usable, employers will be able to recruit the workers they need to compete and grow. This includes revisiting the caps for H-2B and H-1B visa programs, creating a new temporary visa program for year-round lesser-skilled workers, and revising the current H-2A agricultural worker program to make it viable for employers and workers.
Congress can also help employers better compete by modernizing the green card system. More green cards should be allocated to skilled immigrants and those coming to America to work. Further, reducing green card backlogs, particularly for nationals of large sending countries that are crucial sources of much-needed talent, would make American companies more competitive in the global marketplace. If the number of green cards issued each year were set by economic need rather than arbitrary static caps, the system would allow more workers when needed and fewer when they are not. There should also be a dedicated green card route for U.S.-educated graduate degree holders, which would allow them to remain in the country for the long term if they have found employment. It makes no sense that our schools invest in the education of foreign students only to send them abroad to enhance foreign competition.
Finally, it is necessary to recognize that the more than 11 million illegal residents currently in the country are not going to depart on their own. Removing such individuals would not only cost more than entire budgets of most federal cabinet departments, but would also have sever economic consequences, including reducing real gross domestic product (GDP) and the size of the labor force at a time when the native-born workforce is aging and shrinking, putting burdens on federal and state entitlement programs and leaving jobs unfilled in the future. A pragmatic solution would allow this population to earn a legal status, encouraging them to pay taxes and fully contribute to the economy.
The continued security and economic health of the United States can be supported by specific changes to the immigration system. Continued inaction will perpetuate the system that currently poses security risks and drags down economic recovery. Congress has the power to make these changes and lead on this important issue for the country.4
The push for Immigration Reform in a comprehensive approach has been a roadblock at addressing our out dated Immigration System in the country. We need independent but coordinated new laws that address legal immigration, border security and immigration law enforcement. Congress has failed over the past two decades to protect our national interests in regard to immigration and border security because we have tied these three issues together. We need solutions for each individually and move us toward a secure and strong nation that welcomes immigrants and deters criminals, terrorists and persons who seek to misuse our immigration system. First and foremost, our immigration laws and enforcement must protect our sovereignty and respect the rule of law.
Respect the Rule of Law
Increasingly, cities and state government have refused to enforce our Nation’s Immigration Laws. All cities and states must be brought into compliance. It is understandable that otherwise law-abiding persons should not be unduly prosecuted while Congress refuses to act on immigration reform, sanctuary policies that protect criminals cannot be allowed to continue. Withholding federal funding is the strongest tool Congress has, and federal funding must be leveraged to ensure our laws are enforced.
Implement a merit-based Immigration System.
A merit based immigration system means that we accept those persons who are most likely to contribute long term to the growth of the country. As James Madison said during the Constitutional Convention of 1787, we should, “invite foreigners of merit and republican principles among us. America is indebted to the emigration for her settlement and prosperity.” We can continue that welcoming attitude by adopting a merit based system.
A merit based immigration system should contain the following criteria:
Ability to speak, read and write the language of the receiving nation.
Level of education.
Professional or trade licenses/certifications.
Offer of employment in a certified shortage occupation.
Ability to support self and immediate family members.
Age (i.e., number of years an individual is likely to work before qualifying for government-funded retirement benefits.)
Record free of criminal convictions or national security concerns.
End Chain Migration and focus on the Nuclear Family
Immigration reform should allow only immediate relatives to remain uncapped. This means an emigrant’s spouse and minor children. U.S. citizens would continue to be able to sponsor parents for a renewable temporary visa upon proof of health insurance and financial support.
End the Lottery Program and Immigration Caps
Immigration law allows up to 50,000 visas per year to random persons from countries with low rates of immigration to the U.S. All immigrants should be evaluated for potential citizenship rather than leaving who gets permission to come to the U.S. by chance. Congress needs to adopt new laws that put merit first, not artificial allocations by country or chance. Employment based immigrants are now subject to per-country caps. This should end.
End Universal Birthright Citizenship
The universal granting of citizenship to all children born in the U.S needs to end. Persons coming to the U.S. illegally or travel visas, do not meet the intent of legislation adopted since the 14th Amendment. The legislation was to be bestow citizenship upon persons who owe their permanent, undivided allegiance to the United States. This misinterpretation of the 14th Amendment must be corrected. In short, persons who enter this country illegally, cannot bestow upon children born here, U.S. Citizenship. Further persons who travel to the U.S. for the sole purpose of giving birth here in the U.S. to gain citizenship for their off-spring needs end.
All nations have the right, which is recognized in both international and domestic law, to secure its borders. It has the right to control persons coming into its territory. America and its people have always been a generous people. Being generous does not mitigate our duty as a country to control who and how persons enter the United States. As we saw from the events of September 11, 2001, it is a matter of national security.
Congress must appropriate funding for a cost-effective border security system. This includes more “Wall”, technology and personnel.
Build a border security system that can focus all of our nation’s border assets into a security infrastructure the deploys the right assets to the right place and the right time.
Border staffing must be a deliberate approach by Congress and the Administration that properly assigns the level of personnel most effectively to enforce our border.
David Inserra, “House Border Security Bill a Strong Step Forward but Improvements Still Needed,” Heritage Foundation Issue Brief No. 4778, October 30, 2017,
The Coast Guard must be properly funded and provided the right mix of vessels, aerial systems and personnel to ensure fast response to critical situations.
Funding levels for Mexico and other Central and South American countries should contain agreements from those counties for cooperation in stemming the caravans of potential illegal immigrants to the U.S.
Expand the Bush Administration Screening Process
The Bush Administration instituted changes in the traveler vetting process after the 9/11 terrorists’ attacks. In 2017 alone these changes helped the Department of Homeland Security and Department of Justice identify 335 individuals on the Terrorist Screening Data Base attempting to cross into our borders. These screening processes need to be fully funded and increase investment in the use of technology should be made to further enhance this system.
U.S. Department of Homeland Security and U.S. Department of Justice, Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States, Initial Section 11 Report, January 2018, (accessed February 14, 2019)
Do not grant amnesty
Granting amnesty is not the policy that promotes a lawful immigration system. Amnesty tells those potential immigrants who respect our laws, that they are not who we value to come to our country. Further, granting amnesty will only encourage new waves of illegal immigration, and in future years, new amnesty bills to correct the wrongs. This short cut system to legal status and citizenship thwarts an immigration policy that promotes assimilation and patriotic citizenship.
1. “Independent Task Force Report No. 63: U.S. Immigration Policy.” Council on Foreign Relations Press, Aug 2009.
2. “White Paper: High-Skilled Immigration Policy Under President Trump.” Berry Appleman & Leiden LLP, 2016.
3. “Immigration Principles & Policies.” The White House, 8 Oct 2017.
4. U.S. Chamber of Commerce. “Restructuring the U.S. Immigration System to Increase Security and Promote Economic Growth.” June 2015.