[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
SHORTFALLS OF THE 1986 IMMIGRATION
REFORM LEGISLATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
CITIZENSHIP, REFUGEES, BORDER SECURITY,
AND INTERNATIONAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 19, 2007
__________
Serial No. 110-16
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
ZOE LOFGREN, California, Chairwoman
LUIS V. GUTIERREZ, Illinois STEVE KING, Iowa
HOWARD L. BERMAN, California ELTON GALLEGLY, California
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts LOUIE GOHMERT, Texas
LINDA T. SANCHEZ, California
ARTUR DAVIS, Alabama
KEITH ELLISON, Minnesota
Ur Mendoza Jaddou, Chief Counsel
George Fishman, Minority Counsel
C O N T E N T S
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APRIL 19, 2007
OPENING STATEMENT
Page
The Honorable Zoe Lofgren, a Representative in Congress from the
State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law.............................................. 1
The Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 5
WITNESSES
Mr. Stephen Pitti, Ph.D., Professor of History and American
Studies, Director of the Program in Ethnicity, Race and
Migration, Yale University
Oral Testimony................................................. 9
Prepared Statement............................................. 11
Mr. Muzaffar Chishti, Director, Migration Policy Institute's
Office, New York University School of Law
Oral Testimony................................................. 30
Prepared Statement............................................. 33
Mr. Stephen Legomsky, D.Phil., John S. Lehmann University
Professor, Washington University in St. Louis
Oral Testimony................................................. 50
Prepared Statement............................................. 52
Ms. Rosemary Jenks, Director of Government Relations, NumbersUSA
Oral Testimony................................................. 61
Prepared Statement............................................. 63
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Chairwoman,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 2
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 6
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 6
Prepared Statement of the Honorable Elton Gallegly, a
Representative in Congress from the State of California, and
Member, Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law......................... 7
APPENDIX
Material Submitted for the Hearing Record
Study entitled ``The Underground Labor Force Is Rising To The
Surface,'' by Robert Justich and Betty Ng, Bear Stearns,
submitted by the Honorable Steve King, a Representative in
Congress from the State of Iowa, and Ranking Member,
Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law................................ 106
Study entitled ``The Fiscal Cost of Low-Skill Households to the
U.S. Taxpayer,'' by Robert Rector, Christine Kim, and Shanea
Watkins, Ph.D., The Heritage Foundation, submitted by the
Honorable Steve King, a Representative in Congress from the
State of Iowa, and Ranking Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 120
Article entitled ``Enacting Immigration Reform, Again,'' by the
Honorable Romano L. Mazzoli and the Honorable Alan S. Simpson,
former Members of the United States Senate, submitted by the
Honorable Sheila Jackson Lee, a Representative in Congress from
the State of Texas, and Member, Subcommittee on Immigration,
Citizenship, Refugees, Border Security, and International Law.. 176
SHORTFALLS OF THE 1986 IMMIGRATION
REFORM LEGISLATION
----------
THURSDAY, APRIL 19, 2007
House of Representatives,
Subcommittee on Immigration, Citizenship, Refugees,
Border Security, and International Law
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:06 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Zoe
Lofgren (Chairwoman of the Subcommittee) presiding.
Present: Representatives Lofgren, Gutierrez, Berman,
Delahunt, Ellison, King and Forbes.
Also Present: Representative Conyers.
Staff Present: Ur Mendoza Jaddou, Chief Counsel; R. Blake
Chisam, Counsel; Benjamin Staub, Professional Staff Member; and
George Fishman, Minority Counsel.
Ms. Lofgren. This hearing on the Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and
International Law will come to order.
I would like to welcome everyone to the second Immigration
Subcommittee hearing on comprehensive immigration reform; and I
especially welcome the Subcommittee's Ranking Member, Mr. King,
the Members of the Subcommittee, our witnesses and the public
and press who have joined us here today.
Our opening hearing on comprehensive immigration reform at
Ellis Island provided us with an analysis of immigration in the
United States in the past and present and with an eye to the
future to help us better understand the need for comprehensive
immigration reform.
At Ellis Island, in the shadow of the Statute of Liberty
and amidst the Great Hall where 12 million immigrants were
processed in a controlled, orderly and fair manner, we heard
Border Patrol Chief David Aguilar tell us that we need
comprehensive immigration reform because a policy that relies
solely on enforcement is bound to fail.
We heard from a demographer, Professor Dowell Meyers, who
told us that because of the declining birth rate and an aging
population, future flows of new, young immigrants will be
critical to sustain a strong economic future in the United
States.
We heard from an economist, Professor Dan Siciliano, who
taught us that the more we look at the roles immigrants play in
our economy, the jobs they fill, the money they spend and the
jobs they create, the more we see immigration is good for the
economy, good for jobs and a critical part of our Nation's
future prosperity.
We also heard from a historian, Professor Daniel Tichenor,
who stated that our rich immigration history provides us with
important lessons for contemporary immigration reform. Our past
reveals that each wave of new immigrants has been scorned by
critics, only later to distinguish themselves among our most
loyal and accomplished citizens, and that the times we have
restricted immigration the most have only fueled future waves
of illegal immigration.
This macro view of immigration in America through the lens
of Ellis Island has set the stage for a series of hearings to
discuss the specific issues that concern this Congress and the
American public with regard to immigration reform. As we did
with our first hearing, it is important for us to learn from
the past in an effort to avoid mistakes in the future. This is
why we are turning our attention today to the shortfalls of the
1986 immigration reform legislation, the Immigration Reform and
Control Act, otherwise known as IRCA. Tomorrow, we will do the
same with 1996 immigration legislation at a 10 a.m. Immigration
Subcommittee hearing.
I very much look forward to the testimony of the expert
witnesses here to help us as we develop the appropriate
ingredients for comprehensive immigration reform. Although IRCA
was certainly a well-intentioned attempt to resolve the problem
of illegal immigration, we now have what many experts tell us
is 12 million undocumented immigrants in the United States 21
years after IRCA was signed into law by President Reagan. It is
clear that any attempt at immigration reform today should be
informed by the actual results of past efforts and not
resulting in an additional 12 million undocumented immigrants
20 years from now.
This hearing is to learn what went wrong and how we in
Congress can fix our broken immigration system now and for the
future. We hope with this and other hearings to learn what
legislation is necessary to end illegal immigration once and
for all. That is what comprehensive immigration reform is all
about.
[The prepared statement of Ms. Lofgren follows:]
Prepared Statement of the Honorable Zoe Lofgren, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
I would like to welcome everyone to the second Immigration
Subcommittee hearing on comprehensive immigration reform. I especially
welcome the Subcommittee's Ranking Member, Mr. King, the members of the
Subcommittee, our witnesses and the the public and press who have
joined us here today.
Our opening hearing on comprehensive immigration reform at Ellis
Island provided us an analysis of immigration in the United States in
the past and present, and with an eye to the future to help us better
understand the need for comprehensive immigration reform.
At Ellis Island, in the shadow of the Statue of Liberty and amidst
the Great Hall where 12 million immigrants were processed in a
controlled, orderly, and fair manner, we heard Border Patrol Chief
David Aguilar tell us that we need comprehensive immigration reform
because a policy that relies solely on enforcement is bound to fail.
We heard from a demographer, Professor Dowell Meyers, who told us
that because of a declining birth rate and an aging population, future
flows of new, young immigrants will be critical to sustain a strong
economic future in the U.S.
We heard from an economist, Professor Dan Siciliano, who taught us
that the more we look at the roles immigrants play in our economy, the
jobs they fill, the money they spend, and the jobs they create, the
more we see immigration is good for the economy, good for jobs, and a
critical part of our nation's future prosperity.
We also heard from a historian, Professor Daniel Tichenor, who
stated that our rich immigration history provides us with important
lessons for contemporary immigration reform. Our past reveals that each
wave of ``new'' immigrants has been scorned by critics, only later to
distinguish themselves among our most loyal and accomplished citizens,
and that the times we've restricted immigration the most have only
fueled future waves of illegal immigration.
This macro view of immigration in America through the lens of Ellis
Island has set the stage for a series of hearings to discuss the
specific issues that concern this Congress and the American public with
regard to immigration reform.
As we did with our first hearing, it is important for us to learn
from the past in an effort to avoid mistakes in the future. This is why
we are turning our attention today to the shortfalls of the 1986
immigration reform legislation, the Immigration Reform and Control Act,
otherwise known as IRCA. Tomorrow, we will do the same with 1996
immigration legislation at a 10:00 AM Immigration Subcommittee hearing.
I very much look forward to the testimony of the expert witnesses
here to help us as we develop the appropriate ingredients for
comprehensive immigration reform. Although IRCA was certainly a well-
intentioned attempt to resolve the problem of illegal immigration, we
now have what many experts tell us is 12 million undocumented
immigrants in the U.S. 21 years after IRCA was signed into law by
President Reagan.
It is clear that any attempt at immigration reform today should be
informed by the actual results of past efforts and not resulting in an
additional 12 million undocumented immigrants 20 years from now. This
hearing is to learn what went wrong and how we in Congress can fix our
broken immigration system now and for the future. We hope with this and
other hearings to learn what legislation is necessary to end illegal
immigration once and for all. That is what comprehensive immigration
reform is all about.
Ms. Lofgren. I would now like to recognize our
distinguished Ranking minority Member, Steve King.
Mr. King. Thank you, Madam Chair; and I appreciate the
witnesses coming forward to testify.
When President Ronald Reagan signed the '86 Immigration
Reform and Control Act, which we will refer to here in this
hearing probably as IRCA, into law, he said the legislation's
goal was to establish a reasonable, fair and orderly and secure
system of immigration into this country. Unfortunately, 20
years later, we have the exact opposite. There are an estimated
20 million illegal immigrants in the United States.
For many years, there has been virtually no interest in
enforcing the employer sanctions instituted under IRCA. There
are drug smugglers running 65 billion--that is billion with a
B--dollars worth of illegal drugs across our southern border
every year. American taxpayers are forced to pay the education,
welfare, healthcare and other costs of lawbreakers who ignore
the U.S. Immigration laws that are now demanding U.S.
citizenship.
The blame for the current disastrous policy rests on
several prongs, not the least of which is the '86 bill itself.
For instance, the IRCA amnesty for special ag workers, and that
is agricultural workers, or those illegal immigrants who have
lived in the United States since 1982, acted as an incentive
for new illegal immigrants to come to this country. The lesson
was if they could get here they would eventually be granted
amnesty. In fact, according to an INS report, the inflow of
illegal aliens averaged an incredible 716,000 in each of the
first five post-amnesty years; and the fact that IRCA's
employer sanctions were never enforced let employers know that
they would never be held accountable for hiring illegal aliens.
IRCA was supposed to be an exception to the rule, an
amnesty that would once and for all fix the Nation's illegal
immigration problem so we could seriously and effectively
control our borders. Senator Alan Simpson, who helped author
the legislation, called IRCA a ``one-time-only legislation
program.'' It was supposed to be covered with tough
enforcement, but that never happened.
Despite the IRCA promise of enforcing employer sanctions,
few employers have been fined or prosecuted for hiring illegal
immigrants. In fact, only 412 work-site enforcement cases were
imposed in 2005; and only four notices of intent--only four
notices of intent--to fine employers for violations were issued
in 2005. Thankfully, ICE Director Julie Myers is now showing
significant leadership in actually making concerted efforts to
enforce the law.
Despite the IRCA promise to secure the borders, there are
more people than ever before trying to enter our country
illegally. Over 1 million were apprehended trying to do so last
year. There was 1,188,000 by my memory. And it is estimated
that for every one apprehended two or three successfully enter,
according to testimony before this Committee just last year.
Despite the IRCA one-time-only amnesty promise, there have
actually been six amnesties since that time, including the 1994
245(i) amnesty that rewarded 600,000 illegal immigrants for
breaking U.S. laws and amnesties to Central America and Asian
refugees. And this year we are faced with a possibility of
another amnesty on this legislation of anywhere from 12 to 20
million illegal immigrants and maybe more than that. That
policy is the biggest most destructive amnesty in U.S. history,
Americans will pay dearly for it, and there is no rolling back
once we make a decision.
The 1986 bill not only created amnesty but also a large
market for fraudulent identity and employment eligibility
documents. According to University of California Professor
Philip Martin, up to two-thirds of the applications for the
IRCA agricultural worker amnesty were fraudulent. Illegal
immigrants submitted fraudulent affidavits and documents from
employers who substantiate their claim that they had been
engaged in the required prior agricultural employment, which
was 90 days. They also routinely used fraudulent documents to
obtain employment.
Even the 1986 Attorney General Ed Meese argues that IRCA
did not do what was intended. In May of 2006, in a New York
Times article, Mr. Meese noted: ``The '86 Act did not solve our
immigration problem.'' So, 20 years later, we are back to the
same problem, a lack of respect for the rule of law which some
things should be rewarded with amnesty, such as a pardon for
breaking immigration law and a reward of the objective for
their crime.
Without careful consideration, the issue before us is true
commitment to security; border and interior.
A number of the witnesses before Ellis Island did answer
some questions ``I don't know'' because they are not thinking
for the long term, they are giving us testimony for the short
term. I am looking for the long-term vision here in the
witness's testimony.
I appreciate it, Madam Chair; and I yield back the balance
of my time.
Ms. Lofgren. Thank you, Mr. King.
We are pleased to be joined by the Chairman of the full
Committee today. I will now recognize Chairman Conyers for any
opening statement he may wish to make.
Mr. Conyers. Thank you, Subcommittee Chair.
I am so happy to be here, and actually I better be here
because this is probably one of the larger bills that we are
going to handle in the Judiciary Committee. I must commend you
on the way you thought about lifting up some of the issues for
us to discuss in a frame of reference that doesn't have to work
around bill A or bill B or bill C, and what I wanted to do was
run through just a couple of things that occurred to me.
But Steve King, our Ranking Member, said that there were 20
million illegal immigrants living in our Nation. Now,
mistakenly, I have been using the number 12 million for all too
long, so after this hearing I am going to check with him and we
are going to match our research to see what is happening here.
Now, what has made the system that our Ranking Member
talked about so dysfunctional? Well, for one thing, we have
been approaching this from an enforcement-only approach. And
enforcement-only is wonderful, but what we are really talking
about is driving hard-working people underground in an economy
where they are even more subject to problems.
Second, the Mazzoli-Simpson Bill of 1986--and I all of our
colleagues remember it very well--it imposed sanctions for the
first time against employers for hiring unauthorized aliens.
Now, in the absence of enforcement of these sanctions, the
flow of illegal immigrants illegal increased. So this is
beginning to turn--we want to analyze the enforcement--illegal
enforcement-only approach, but, at the same time, we want to
have meaningful sanctions. They are like two ends of the same
issue. And I hope, as Chair, that you go into that really
carefully.
Now the next item that I lift up for your consideration is
the use of subcontractor arrangements which hurt everybody. The
laws document requirements and verification systems promoting a
widespread use of subcontract arrangements; and I think that,
with any examination, you will see that these were far less
than transparent because they put the immigrant workers at risk
by lessening employers' responsibilities to provide safe
workplaces and fair wages.
Then we have to look beyond legalization provisions which
amounted to amnesty. Now I know amnesty is going to be a big
theme here; and I would recommend that we all take a deep
breath, a couple of deep breaths, and try to put this amnesty
concept into some perspective.
When I find the Southern Baptist Ethics and Religious
Liberty Commission joining with Congress on rejecting the
reflective label on amnesty, I think we are onto something big
here, frankly. So what we need is an immigration system whose
features are controlled and fair. I am looking for that, I want
to work on it, I come with an open mind, and I congratulate the
Chairwoman and the Ranking Member for the kind of approach that
they are taking in this matter.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
America's immigration system is in disarray. Families coming to our
shores looking for a better life are caught in a tangle of confusing
requirements and traps for the unwary. The latest estimate is that 12
million illegal immigrants our living in our nation.
Employers risk serious business disruptions when law enforcement
officials conduct an unannounced sweep of their premises to round-up
their employees. Businesses that pay good wages to its employees must
compete with disreputable companies that essentially pay slave wages
and substandard working conditions.
Our immigration laws have created a dysfunctional system in dire
need of reform.
To begin the task of reform, we will first focus on the 1986 and
1996 laws, in particular--on what has worked and what has not--so we
hopefully can get it right this time.
Here are a few themes that I think will surface from today's and
tomorrow's hearings. First, an enforcement-only approach to illegal
immigration does not work. In fact, it promotes more illegal
immigration. It drives hardworking, otherwise law abiding individuals
into an underground economy and encourages fraudulent activities, like
identity theft.
Second, meaningful enforcement is absolutely essential. Although
the 1986 Act, for the first time, imposed sanctions against employers
for hiring unauthorized aliens, these sanctions have hardly ever been
imposed. In the absence of their enforcement, the flow of illegal
immigrants has surged given the availability of employment.
Third, the law's document requirements and verification systems
have promoted the widespread use of subcontractor arrangements. These
arrangements hurt both American citizens and immigrant workers. They
force Americans to compete with below-market laborers. They put
immigrant workers at risk by lessening employers' responsibilities to
provide safe workplaces and fair wages, and by weakening the ability of
these workers to organize.
When examining the 1986 law, we need to look beyond whether its
legalization provisions amounted to amnesty. As Richard Land of the
Southern Baptist Ethics & Religious Liberty Commission recently
suggested, we should reject the reflexive labeling of any good-faith
reform efforts as amnesty. That is a false argument, designed to
distract and delay. That is not what comprehensive immigration reform
is about.
What we do need is an immigration system that is controlled,
orderly, and fair. We need a system that puts an end to worker
exploitation and does not drive down wages. We need a system that helps
to unite families. We need a system where border crossings are orderly
and enforcement is vigorous, yet fair and humane.
It is my hope that as a result of today's hearing and others that
the Subcommittee will hold in the upcoming months, we will be able to
develop a workable package of immigration reforms.
So, let's roll up our sleeves and get to work solving these
problems.
Ms. Lofgren. Thank you very much, Mr. Conyers.
In the interest of proceeding to our witnesses and mindful
of our need to go to votes shortly when they are called, I
would ask that other Members submit their statements for the
record within 5 legislative days. Without objection, all the
witness's statements will be placed into the record; and,
without objection, the Chair will be authorized to declare a
recess of the hearing.
[The prepared statement of Ms. Jackson Lee follows:]
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law
Thank you Mr. Chairman for holding this important meeting. This
hearing will examine the shortfalls of the Immigration Reform and
Control Act of 1986, which is referred to as, ``IRCA.'' It also is
known as, the ``Simpson-Mazzoli bill.'' The co-authors of IRCA
expressed their opinion on IRCA's shortfalls in an op-ed last year.
According to Senator Alan Simpson (R-Wyo., ret.) and Senator Romano
Mazzoli (D-Ky., ret.), IRCA's shortcomings are not due to design
failure; they are due to a failure to execute the law properly.
IRCA was referred to as a ``three-legged stool.'' The first leg was
enforcement, improved border security and penalties against employers
who knowingly hire undocumented workers. The second was a temporary
worker program for agricultural workers which included built-in wage
and workplace protections. Current legislation, such as the STRIVE Act
of 2007, H.R. 1645, and my Save America Comprehensive Immigration Act
of 2007, H.R. 750, would employ a similar framework.
IRCA's key enforcement measure was to be employer sanctions. Work
was and still is a magnet that draws people from all over the world who
need jobs. The employer sanctions, however, were not enforced. Until
recently, the enforcement of employer sanctions has been a low priority
for the Bureau of Immigration and Customs Enforcement (ICE). This is
reflected in its record of initiating fine proceedings. Between FY1999
and FY2004, the number of Notices of Intent to fine that ICE issued to
employers decreased from 417 to only three.
One of the deterrents to vigorous enforcement of employer sanctions
has been the fact that it is difficult for an American employer to
determine whether a job applicant is an alien, and, if so, whether he
has work authorization. Comprehensive immigration reform must address
this problem. We are not likely to see effective enforcement of
employer sanctions until a system is in place that permits employers to
reliably and easily determine whether a prospective job applicant is an
alien, and, if so, whether he has work authorization.
One of the main criticisms of IRCA is that its legalization program
granted amnesty. ``Amnesty'' is defined by the American Heritage
Dictionary as a general pardon granted by a government, especially for
political offenses. It was derived from the Latin word ``amnesti,''
which means amnesia. The STRIVE Act and the Save America do not have
any provisions that would forget or overlook immigration law
violations.
Under IRCA, legalization eligibility depended on whether the
applicant had entered the United States before January 1, 1982, and
resided here continuously since that date. In contrast, the Strive Act
and the Save America Act provide for earned access to legalization. The
person seeking lawful status has to show that he or she has earned that
privilege.
The most serious shortcoming of IRCA, however, is that it was not
comprehensive. Although it had legalization programs and new
enforcement measures, it did not address all of the essential issues.
For instance, it failed to provide enough employment-based visas to
meet future immigration needs. American employers need foreign workers
to meet their labor needs.
Carlos M. Gutierrez, Secretary of Commerce, testified at a Senate
hearing on July 12, 2006, that, ``The reality is that our economy is
growing faster than any other large, industrialized nation. Our
unemployment rate is below the average of the past four decades. Our
economy--like other major industrial economies--faces the challenge of
an aging and increasingly educated workforce. The result is that we
have jobs that American citizens either aren't willing or aren't
available to do. I continually hear from industries that they are
having difficulty finding workers.''
On account of IRCA's failure to address this problem, the shortage
of visas that contributed to undocumented immigration prior to IRCA's
enactment continued to do so afterwards. Consequently, American
employers eventually returned to the practice of hiring undocumented
foreign workers, and the availability of these jobs encouraged foreign
workers who could not get visas to enter unlawfully.
We will not be able to secure are borders until enough visas are
available to meet our country's employment needs without having to
resort to employing undocumented workers. People from around the world
who need work will find some way of entering the United States without
documents so long as there are jobs waiting for them in this country,
and American employers will continue to hire them.
[The prepared statement of Mr. Gallegly follows:]
Prepared Statement of the Honorable Elton Gallegly, a Representative in
Congress from the State of California, and Member, Subcommittee on
Immigration, Citizenship, Refugees, Border Security, and International
Law
Madam Chairwoman, thank you for holding this hearing to explore the
Shortfalls of the 1986 Immigration Reform and Control Act (IRCA).
IRCA attempted to discourage illegal immigration through a
combination of increased border security, an employment verification
system, and granting amnesty and a path to citizenship for 3 million
people who had crossed our borders illegally.
Clearly, IRCA failed to deter illegal immigration. Twenty years
after IRCA, we have as many as 20 million illegal immigrants.
IRCA failed to turn off the ``job magnet.'' Successive
administrations have chosen to ignore worksite enforcement, as well as
other anti-immigration laws Congress has passed in the years since
1986--including many provisions that I authored.
More importantly, rewarding people who break the law only
encourages others to do the same.
Madame Speaker, until we demonstrate to the American people that we
are serious about enforcing our immigration laws, we should not
consider any provision that would reward law breakers. I look forward
to hearing from our witnesses. I yield back the balance of my time.
Ms. Lofgren. We have four distinguished witnesses here
today to help us consider the important issue before us.
I am pleased to welcome Dr. Steven Pitti, a Professor of
History and American Studies at Yale University and Director of
the Program in Ethnicity, Race and Migration. Professor Pitti
teaches an array of undergraduate and graduate courses at Yale,
ranging from 20th century immigration to courses in Latino
studies. Raised in Sacramento, California, Dr. Pitti received
his Ph.D from Stanford University in 1988.
We will next hear testimony from Muzaffar Chishti, the
Director of the Migration Policy Institute's Office at the New
York University School of Law. Mr. Chishti's work is focused on
the intersections between civil liberties immigrant
integration, and immigration and labor law. Mr. Chishti worked
as a labor organizer during the 1980's and became intricately
involved in the passage and implementation of the 1986
legislation.
I am also pleased to welcome Dr. Stephen Legomsky, the John
S. Lehmann University Professor at Washington University in St.
Louis. Professor Legomsky authored the standard tome in
American law schools, Immigration and Refugee Law and Policy--
thank you very much; we all use it--and has served as an
advisor to President George H.W. Bush's Commissioner of
Immigration, former President Bill Clinton's transition team,
and immigration officials from Russia and Ukraine. He currently
sits on the Board of Advisors for the United Nations
Educational, Scientific and Cultural Organization chair in
Migration and Human Rights.
Finally, we are pleased to have before us Rosemary Jenks,
the Director of Government Relations at NumbersUSA. Prior to
her tenure at NumbersUSA, Ms. Jenks worked as an independent
immigration consultant and as Director of Policy Analysis at
the Center for Immigration Studies. Ms. Jenks received her
bachelors degree from Colorado College and her law degree from
Harvard University School of Law.
Now, each of you have your written statements, and I have
read them all. They are lengthy and very informative. They will
all be made part of the record in their entirety. I would ask
that each of you summarize your testimony in 5 minutes or less
and stay within that time. There is a timing light at the
table. When 1 minute remains, the light will switch from green
to yellow; and then when it turns red it starts to blink.
Ms. Lofgren. If we could begin with Professor Pitti. Again,
thank you very much for being with us.
TESTIMONY OF STEPHEN PITTI, Ph.D., PROFESSOR OF HISTORY AND
AMERICAN STUDIES, DIRECTOR OF THE PROGRAM IN ETHNICITY, RACE
AND MIGRATION, YALE UNIVERSITY
Mr. Pitti. Thank you, Madam Chair, Members of the
Subcommittee. Thank you for inviting me to provide historical
perspective on IRCA.
My name is Stephen Pitti and I am Professor of History and
American Studies at Yale, where I direct the undergraduate
program in Ethnicity, Race and Immigration. I am here today to
urge this Congress to face some difficult truths about our past
and present in order to think differently about our future.
We have long lived in a migrant world, and today some 180
million people live outside of their home nation. Recent
migrations are products of history: the near continuous
movement of Latin Americans into the U.S. since the Gold Rush
in the 1840's, our Nation's long-term reliance on low-wage
immigrants in work forces in agriculture, forestry, food
processing, meat packing, mining, fishing, construction and
other industries during the 20th century, and the 20th
century's global economic and political restructuring, often
directed by the United States, which escalated in the late 20th
century.
Recent migrations to the U.S. were prompted by our foreign
policy in Central America in the 1970's and 1980's. They were
also prompted by our economic policies abroad. Migrants left
rural Mexico and other countries in massive numbers during
those years as their elected officials established new
austerity measures to service debts to U.S. banks.
With these fundamental facts in mind, we must think outside
the logic of border control which IRCA embodied. In the face of
massive global hemispheric and national development, that Act
sought to control immigration through new border enforcement
mechanisms--both a massive build-up of the Border Patrol and
new enforcement technologies, and new employer sanctions which
would deny undocumented residents jobs in the U.S.
If we are to avoid the growing animosity and spectacular
violence which erupted recently between noncitizen migrants in
Denmark, Germany, France and other European countries, we must
talk far more about why migrants leave their homeland and how
the U.S. might work in cooperative ways, new ways, with other
nations to address emigration, not just immigration. In this
spirit, we must remember that foreign debts and INS-dictated
fiscal policies during the 1980's and 1990's, eliminated large
segments of Mexico's middle class and made making a living far
more difficult in that country. They assured that 40 percent of
Mexico would live in poverty, some 25 percent in extreme
poverty by the late 20th century.
We must also understand while IRCA had a mild deterrent
effect on subsequent undocumented migration, its way of
conceptualizing border control brought new difficulties for all
of us. As unauthorized crossings from Mexico became far more
dangerous in the aftermath of IRCA, IRCA paradoxically led to
the dramatic rise in the power of militarized criminal
syndicates trafficking in drugs and people near the border. It
also led to the deaths of ever-larger numbers of border
crossers in the late 20th century who moved into more remote
desert regions to cross into the United States. It divided
families in Mexico and the United States and exposed a growing
number of female migrants to rape and other forms of sexual
exploitation at the border.
We must understand that IRCA had other unintended effects.
As the border became more dangerous, migrants within the U.S.
who had once hoped to return to Mexico felt trapped in the
U.S., unable to move back and forth across the border.
We must understand IRCA as a labor bill that changed the
nature of workplaces throughout the U.S. Sanctions helped drive
down real wages, promoted discrimination on the basis of race
or nationality in the workplace, and encouraged subcontracting
arrangements in many industries, all of which hurt both
immigrants and the U.S. born. What is more, employer sanctions
put undocumented workers at greater risk of deportation or job
loss if they complained about wages or working conditions,
making them more vulnerable to mistreatment on the job and less
inclined to stand up with U.S. workers to better everyone's
circumstances.
We need also to remember that IRCA, in fact, established
guest worker programs that have been, to echo one American, a
shame of our Nation. Congressman Charles Rangel has called
these IRCA programs, quote, the closest thing I have seen to
slavery. These H2A guest worker systems imported 125,000 guest
workers to the U.S. in 2005, 32,000 of them in agriculture and
89,000 in forestry, seafood processing, landscaping,
construction and other nonagricultural industries.
Like the Act's employer sanction provision, the H2 program
encourages a growth of subcontracting and low pay. We must
investigate the past and present circumstances of guest workers
in advance of formulating new policies and control. H2A and 2B
deserve far greater governmental scrutiny and far greater media
attention.
Human rights groups have documented some of these abuses in
North Carolina. The New York Times recently brought greater
attention to Guatemala H2A workers imported by Imperial
Nurseries to North Carolina and Connecticut.
I urge all Members of the Committee to read the Southern
Poverty Law Center's recent report, Close to Slavery: Guest
Worker Programs in the United States.
Finally, we must understand why migrants have left their
own counties to work in the United States. History provides a
useful guide toward new policies responding to global dynamics
and the basic human needs. Thank you.
Ms. Lofgren. Thank you very much, Dr. Pitti.
[The prepared statement of Mr. Pitti follows:]
Prepared Statement of Stephen Pitti
Ms. Lofgren. Mr. Chishti.
TESTIMONY OF MUZAFFAR CHISHTI, DIRECTOR, MIGRATION POLICY
INSTITUTE'S OFFICE, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. Chishti. Thank you very much, Madam Chair and
distinguished Members of the Subcommittee. I am so glad to be
back at the Subcommittee.
My name is Muzaffar Chishti. I am a lawyer. I direct the
Migration Policy Institute's office at NYU Law School. Before
that, I ran the Immigration Project of UNITE, and in 1986 I
helped implement the illegalization program of this union. So I
bring that perspective as I discuss the shortfalls of IRCA, and
I will make my comments in three groups, very quickly.
The first is one good failure about IRCA in terms of
predicting future labor needs of the country. Ultimately, I
think the big failure of IRCA was it was a narrow piece of
legislation, focused exclusively, almost exclusively, on the
issue of undocumented immigration.
The backdrop of this is that IRCA's informative background
came from the Select Commission on Immigration and Refugee
Policy. It showed the demographic picture of the 1980's. By the
time the Judiciary Committee here was looking at the needs of
the labor market, it was based on the assumption of 1981. It
was actually in 1987 that we had a major study by the
Department of Labor called the Workforce 2000 Report which
started establishing the long-term demographic needs of the
labor market trends across the country. So, in 1986, we were
actually looking at assumptions that were 5 years old about the
needs of the labor market.
What everyone failed to look at was at how we are going to
be increasingly dependent on the immigrant labor force in our
labor market, especially in the low-wage sector of the labor
market. And today the evidence is compelling. If you look at
the growth of the labor market between 2000 and 2005, about 60
percent of that is due to new immigrants.
What is more important is to look at the aging of our
society and, also, the educational levels of our society. We
have fewer and fewer workers available to fill the jobs that
are going to be generated in our economy.
We all know baby boomers are retiring in big numbers in
2012. The Bureau of Labor Statistics has stated that we will
have about 56 million jobs created in this country by 2014.
About more than half of them require less than a high school
diploma. So who is going to fill the jobs? Obviously,
immigrants. But we don't have any legal channels for them to
come. In fact, after IRCA, we have actually reduced the legal
channels for immigrants to come to fill these jobs. There are
only about 5,000 visas available to fill these jobs in the low-
wage sector of the economy.
So the laws of supply and demand are actually working very
well, except that illegal channels are being used to fill that
demand instead of legal channels. We obviously need to have a
new channel for illegal workers to come. And, as I propose in
my testimony, we have a program which is of a different form, a
temporary and permanent worker program for people who would
come to work for employers but they would have mobility to move
between employers. Both U.S. workers and immigrant workers
would have protections. People would have the ability to go
back to their counties if they choose to or they have the right
to remain in our society.
Let me just quickly do the lessons of sanctions. There is a
huge legacy here. Sanctions had a compelling dual promise. They
were going to reduce illegal immigration and help change and
improve the wages and working conditions of U.S. workers.
Neither happened.
We heard today how illegal immigration has grown, and we
also know that employers will circumvent the letter of the law
by putting people off the books, by using independent
contractors, by using employment agencies and by a huge use of
fraudulent documents.
We also know by various studies since 1986 that IRCA has
led to significant discrimination in the work place, and it has
been used systematically by many employers to circumvent the
labor laws and employment laws of our country. I think evidence
of that has been compelling since the 1980's.
Now we all know the verification system now that has been
in practice since 1997 called the Basic Pilot. It is a small
program, but evaluation of it by independent evaluators show
that it is fraught with problems, both with respect to accuracy
of the data in the database of the Social Security
Administration and the DHS; and that it has been abused by
employers in a variety of ways, from looking at accessing the
records before people actually are hired and other forms of
abuse, which I have highlighted in my testimony.
We obviously need an expanded verification program because
we need new ideas to control the level of immigration; but we
have to do it in a very thoughtful and gradual way.
Today, there are about 15,000 employers in the Basic Pilot
system. If we want to make it universal and mandatory, we are
looking at 8 million employers and 144 million workers; and 50
million hiring decisions made every year. To scale it up to the
level that, obviously, is a huge, massive amount of commitment;
and I think we should do it in a very systematic time line,
where we first sort out data inaccuracies and look at the
validation in terms of the abuses of the Basic Pilot.
Let me just go, lastly, to the legalization program, of
which I know a little bit. It was actually one of the most
successful components of IRCA. A large number of people did get
legalized, but it had some important lessons for us to teach,
and I will just quickly outline two or three of them.
This legalization program should be as inclusive as
possible and should invite as little fraud as possible. Which
means if you have various tiers of people who qualify, it only
increases the tendency of people to get into a better tier and
use the fraudulent documents to do that.
And, second, the regulations that are going to be
implemented should be extremely unambiguous and clear.
Regarding those fees, litigation would result often to
immigration in America; and they should be avoided. Family
members of people who get legalized should be included.
Otherwise, we split families. And I think there is a huge role
here for the private sector. The private sector played a very
critical role in 1986 in both the outreach to the communities,
and it actually helped the INS.
Lastly, the States where people are going to be immigrated
should be compensated for their costs.
Thank you.
Ms. Lofgren. Thank you very much.
[The prepared statement of Mr. Chishti follows:]
Prepared Statement of Muzaffar A. Chishti
Ms. Lofgren. Dr. Legomsky.
TESTIMONY OF STEPHEN LEGOMSKY, D.PHIL., JOHN S. LEHMANN
UNIVERSITY PROFESSOR, WASHINGTON UNIVERSITY IN ST. LOUIS
Mr. Legomsky. Madam Chair and Members of the Subcommittee,
thank you very much for the privilege of appearing before you
to talk about the shortfalls of IRCA.
In my view, the single largest gap in both IRCA and
subsequent legislation is in the failure to update the criteria
for legal immigration into the U.S. Families have to be
reunited, and employers have to have practical ways in which to
fill their labor needs. Until those goals can be achieved
legally, illegal immigration will continue to be the path that
we choose, whether we like it or not.
I would like to devote these few minutes to just one of the
issues covered in my written testimony.
If you are a U.S. citizen, and you either marry a
noncitizen or have a child overseas who is not a citizen, your
new spouse or child would be classified as immediate relative.
Immediate relatives are admitted as permanent residents without
numerical limits and therefore may come in fairly quickly.
In contrast, if you are a lawful permanent resident--a
green card holder--and you marry a noncitizen or have a child
who is not a citizen, your new spouse or your newborn child
will have to wait to join you. Currently, it is more than 5 or
6 years. These are the so-called 2As, and the current statute
caps the number of these 2As whoh can be admitted in any one
fiscal year.
These long waiting periods cause massive problems. The most
obvious are the humanitarian ones. Husbands and wives are
separated for the first 5 or 6 years of their marriages.
Newborn children are separated from one or both of their
parents for the first 5 or 6 years of the child's life.
Whatever one's views on immigration preferences for extended
families, prolonged separations of newlywed, husbands and wives
and newborn children from their parents are heartbreaking. If
we are going to talk about family values, then I think this is
a problem we have to fix.
Humanitarian concerns aside, these long separations
practically beg people to violate the immigration laws.
Countries expect people to obey their laws. But human nature
will have to be remade before husbands and wives willingly
separate for the first 5 or 6 years of their marriages, amd
before parents willingly separate from their newborn children
for the first 5 or 6 years of a child's life. For too many
people, illegal immigration is an irresistible temptation.
In 1990, Congress did raise the 2A numerical ceilings,
which wass a very good step. For a while, the waiting periods
for the 2As did drop sharply as a result. But, inevitably, they
began to creep up again to the current level of 5 or 6 years.
Some of the current bills, including the STRIVE Act
introduced by Representatives Gutierrez and Flake, would
further raise the total ceiling on family sponsored immigrant
visas generally and on 2As in particular. I very much applaud
those steps, but I would respectfully urge Congress to go one
step further. I submit it is not enough simply to increase the
statutory ceiling, as was done in 1990, and just hope the new
number proves to be optimal in the long run. Better, I would
suggest, is to make these 2As immediate relatives, just like
the spouses and the children of U.S. citizens. This would
exempt them from the numerical ceilings and would finally end
the prolonged waits that not only cause needless hardship but
also encourage illegal immigration.
At first glance, I realize the proposal might seem like one
to greatly increase total legal immigration, but in fact it
shouldn't. Because every single person who would benefit from
the proposal is somebody who is going to be admitted in a
future year anyway. The total number of immigrants in the long
term is unaffected. The only change is one of timing. Instead
of making you wait overseas for several years while the rest of
your family is here, we admit you now. There would be more 2As
immediately after enactment but fewer later. And if Congress
wished to minimize any short-term interruption, it could always
phase in such a change over several years.
So, to be clear, this is not a proposal to increase legal
immigration, although for independent reasons Congress might
very well wish to do precisely that.
Anyway, this, however, is just a proposal to expedite the
admission of those nuclear family members who eventually will
be admitted in any case. It would solve the humanitarian
problem and as a bonus, it would remove one of the most
powerful incentives for illegal immigration.
I'm in the uncustomary position of having time left, so I
will actually stop right here.
Ms. Lofgren. Thank you, very much, Doctor.
[The prepared statement of Mr. Legomsky follows:]
Prepared Statement of Stephen Legomsky
Ms. Lofgren. Ms. Jenks, you are doing clean-up here.
ROSEMARY JENKS, DIRECTOR OF GOVERNMENT RELATIONS, NumbersUSA
Ms. Jenks. Madam Chairwoman, Ranking Member King, Members
of the Subcommittee, thank you for the opportunity to appear
before you today to talk about the shortfalls of the 1986 IRCA.
I commend you for holding this hearing to examine the lessons
we can learn from past legislation so that we may avoid the
same mistakes in future legislation. We inside the Beltway too
rarely engage in this kind of exercise.
My organization, NumbersUSA, is a nonprofit, nonpartisan,
grassroots immigration reduction organization representing
close to 300,000 Americans from every State and congressional
district in the country.
Not having read the provisions of IRCA for several years,
I, like most people, had come to think of IRCA as being
comprised of three main elements: employer sanctions, the
general amnesty and the Special Agricultural Worker, or SAW,
amnesty. In fact, though, IRCA had all the same basic elements
as the comprehensive immigration reform proposals we have seen
coming out of the Senate, the White House and even the House.
In addition to employer sanctions, IRCA included several
enforcement provisions, including increased Border Patrol
resources. It increased legal immigration by creating a visa
lottery and adding a new category of special immigrants. It
added a new guest-worker program for temporary agricultural
workers, and then it had the two amnesties: those who had been
illegally present since before January 1st of 1982 and one for
illegal aliens who claim to have performed agricultural work
during a specified period.
There seems to be almost universal agreement now on two key
things: one, IRCA was in fact an amnesty; and, two, IRCA failed
to accomplish its purpose, which was to wipe the illegal
immigration slate clean and deter future immigration by
removing the jobs magnet.
I think the American public understands intuitively
something that seems elusive here in Washington and that is
what constitutes amnesty. Amnesty is pardoning immigration
lawbreakers and rewarding them with the objective of their
crimes. Any legislation that rewards illegal aliens who came
here for jobs by giving them a work permit is amnesty. It makes
no difference whether they are granted temporary residence or
green cards, whether they have to pay a fine or back taxes,
whether they have to learn English or civics or whether they
have to touch back across the border to launder their status.
If the end result is that they get legal permission to work, it
is amnesty.
One of the more interesting twists in the debate inside the
Beltway is the fact that some elected officials hold out IRCA
as the big, bad amnesty which they repeatedly insist they
oppose. In the next minute, though, they have signed onto or
introduced a bill that is just as much an amnesty as IRCA.
The White House's latest proposal is a good example of
this. The very first page of the document states that one of
the first principles is to, quote, bring illegal workers out of
the shadows, offering them what we call a Z visa, without
amnesty.
First, I would point out that the public no longer buys the
out-of-the-shadows argument, since they saw huge groups of
self-identified illegal aliens marching in the streets last
year. More importantly, though, offering illegal aliens a Z
visa or any other kind of visa is, by definition, amnesty,
rewarding the lawbreaker with the objective of his crime.
In the end, it is all about perceptions. If people outside
the United States believe that Congress has changed the law in
such a way that illegal aliens are legally permitted to stay
and work, the message to all of those people is that we are not
serious about our immigration laws. We have seen this play out
in real life over and over again. The chart on page 5 of my
written statement shows a significant spike in illegal
immigration immediately following passage of IRCA.
Perhaps most noticeable in our post 9/11 world is the fact
that the spike in other than Mexicans, or OTM, entries exceeded
the spike for Mexico, even though Mexicans made up a majority
of those actually legalized under IRCA. None of these illegal
entrants would have qualified for either amnesty, and yet they
perceived an advantage in entering illegally following its
passage, and so they did.
In the past decade, we have seen sustained high levels of
illegal immigration that have not only replaced the entire
estimated illegal population of 1986 but have exceeded that
population by more than two times over. During the same period,
Congress enacted five additional amnesties. The message these
actions send is clear. If we are to deter future illegal
entries, we have to change the message so that people around
the world perceive we are serious about our immigration laws
and those who violate them will be penalized, not rewarded.
There are a number of specific reasons why IRCA failed, the
most obvious being the Government's failure to enforce the
employer sanctions system and the resulting growth of the
fraudulent documents industry. Another was the fact that it
suddenly and dramatically increased the workload of a Federal
agency that was unprepared and ill-equipped to handle it.
The sheer numbers of applicants bogged down INS processing
almost immediately. Pressure on the agency to speed up
processing led to shortcuts being taken; and the shortcuts led
to widespread fraud and national security breaches, including
the legalization of terrorists like Mahmud Abouhalima, who was
involved in the 1993 bombing of the World Trade Center.
Clearly, there are a number of reasons why IRCA failed to
solve the illegal immigration problem that existed in 1986.
Primarily, though, IRCA failed because it was an amnesty. We
will never solve illegal immigration by rewarding illegal
aliens.
The late Congresswoman Barbara Jordan had it right when she
said the credibility of immigration policy can be measured by a
simple yardstick. People who should get in, do get in; people
who should not get in are kept out; and people who are judged
deportable are required to leave.
Thank you.
Ms. Lofgren. Thank you very much.
[The prepared statement of Ms. Jenks follows:]
Prepared Statement of Rosemary Jenks
Ms. Lofgren. As everyone is aware, the bells have rung.
What that means is that we have a vote on the floor of the
House. Luckily, it is only one vote. So I would ask Members to
go cast their vote and then immediately return. We will not
have another vote for at least 2 hours, so we will have an
uninterrupted opportunity to pose our questions to the
witnesses.
So we will recess for the next 15 minutes.
[Recess.]
[4:12 p.m.]
Ms. Lofgren. The Committee will return to order, and we
will begin our question process. As with your testimony, we
will attempt to limit our questions and answers to 5 minutes,
but as the Members have already noticed, I don't have a very
heavy hand on the gavel but let's try and stick within our 5
minutes.
Let me ask Dr. Pitti, first, in your testimony you talk
about some of the economic impacts, and thinking about the
Bracero program, the Federal Government really failed to ensure
that employers complied with protections that were built into
the program. And as a result, I think it is widely acknowledged
that the individuals in the Bracero program received lower
wages than native workers and had substandard living and
working conditions. There is discussion now, and the White
House in particular has been discussing a new worker program, a
temporary program, as part of any immigration reform. What
lessons do you think we could learn from the Bracero program to
avoid if we were to do a temporary worker program as part of
comprehensive reform?
Mr. Pitti. Thank you for the question. I think of a few
things off the top of my head. It is important to remember that
the Bracero program was commonly understood by the early
1960's, by the late 1950's as driving down wages for U.S.
resident workers, for displacing many U.S. resident workers and
keeping Bracero workers who were imported in very low wage
positions. They were not paid the amount of money that they
were supposed to have been paid under the terms of the
contract. The other thing that is important here is the terms
of the contract were actually quite generous.
So I think it is important in any discussion of another
guest worker program to really think critically and clearly
about enforcement mechanisms because the terms of the contracts
under which Bracero came were actually quite explicit that they
were not to be used to undermine domestic labor, they were not
to be used--they were not to be paid less than the prevailing
wage, and so forth. But in fact in the enactment of the Bracero
program and the way it was carried out, it was anything but
that.
So I would say this about any new efforts to think about a
contract labor program, a guest worker program. First of all, I
think portability is very important. I think workers need to be
able to move from job to job. That was denied in Bracero and it
kept them trapped under the thumb of employers and really
vulnerable to a particular employer. I think portability is
very important. I think that the ability--the guaranteed
ability to join local organizations, including that collective
bargaining is a very important part of any new guest worker
program. And I think scrutiny, I think we need to think a lot
about Department of Justice, the funding for the Department of
Justice, funding for OSHA to investigate complaints among guest
workers, and I think actually also nongovernmental agencies
ought to be brought into this, whether that is churches,
citizens groups or others, also to play a role in monitoring
working conditions among employed workers.
Ms. Lofgren. Thank you very much. Mr. Chishti, in your
testimony you state that a major failure of IRCA, what you call
this narrow focus; namely, that it dealt almost exclusively
with legalizing the people who are here, and then deterrence,
border deterrence, and failed to provide for continuing market
forces, for lack of a better word, and continuing demand for
workers. But we have heard the IRCA also was basically in a
sense a comprehensive bill in that it provided for future flows
to the H-2A seasonal worker program. Now we have heard
criticism of that program, but why was H-2A insufficient to
meet the market demand in your opinion?
Mr. Chishti. Thank you so much for that question. I think
it is a complete misrepresentation, I think, of IRCA with
respect to the future flows. I think in this Committee no one
knows this more than Congressman Berman that IRCA did not
create a new program for temporary workers. We already had a
temporary worker program since 1952 in the context of H-2
program. All that IRCA did was to split the H-2 program into H-
2A and H-2B. H-2A is precisely meant for what it says, seasonal
agricultural workers. So you can't use seasonal agricultural
work for anything that is nonseasonal and nonagricultural. So
obviously we didn't create any new channels in IRCA for future
flows. That is basically positive and comprehensive in that
regard by creating another channel.
Ms. Lofgren. Finally, Dr. Legomsky, you have testified as
to the family reunification issue. But you are a huge expert on
immigration law, and I thank you for that. Some Members have
recently said that IRCA is exactly like what we are
considering, what is being discussed today, there were fines
then and there was--they went to the back of the line. But what
are the differences between--not to say that we would do--you
know we don't have a bill before us, but what are the
differences between say what the President is proposing as you
know it and IRCA?
Mr. Legomsky. As a couple of people have noted, IRCA
imposed no fines or any other penalties whatsoever on the
legalization beneficiaries. There were application fees to
cover the cost of the process, but there was no punishment
whatsoever. And as a result I think it is fair to call IRCA an
amnesty. In my view, I don't know how anything else could be an
amnesty if it involves punishing the person for what the person
has done. Normally when you hear the word amnesty, it means you
violated the law but for some particular policy reason, we will
forgive you and not punish you in any way. The present
legislation, most of the bills that have been introduced in
both Houses, contain specific provisions for stiff fines.
People could quibble about how severe the fines should be or
whether these are severe enough but there was clearly a
punishment. And the idea is that after you have suffered that
punishment, then you are free to apply through regular channels
like anyone else. And if you meet a long list of requirements,
which are then laid out in the proposed bills, you will be
permitted to become a permanent resident, but even then you go
to the back of the line.
Ms. Lofgren. I am going to interrupt you because I am going
to live by the lights myself if I am going to ask others to try
to keep within that rough time frame. So I will--we may have a
second round if time permits and you are able to stay. So Mr.
King.
Mr. King. Thank you, Madam Chair. I do appreciate the
testimony by the witnesses here today, and it piqued my
curiosity for each of you. First, I should reference the issue
raised by the esteemed Chairman of the Judiciary Committee as
to where I might come up with a number of 20 million illegals
in America. And I would reference Bear Stearns study here that
I am referring to that was dated January 3, 2005 and ask
unanimous consent to introduce it into the record.
Ms. Lofgren. Without objection.
[The information referred to is available in the Appendix.]
Mr. King. Thank you. And then I direct my first question
then to Dr. Pitti. And as I listened to your testimony, Dr.
Pitti, it occurs to me that there is a certain amount of focus
on the compassion of America and what kind of Nation that we
could and should become. My point comes down to, how many are
too many? At what point does the geographical boundaries and
their natural resources and the assimilation ability of the
United States get saturated to where it sinks the lifeboat, so
to speak; how many would be too many?
Mr. Pitti. Thank you for the question. With respect, I
don't feel that I or most people can answer that sort of
crowded lifeboat question. I think it really comes down to a
subjective analysis of what we think are the relative
capacities of different sorts of immigrants and the relative
desirability of different groups in American society. What I
often say to people who ask me that sort of question is that we
have long lived with these sorts of questions in the United
States. As I think you know from the hearings at Ellis Island,
that there have long been concerns in the United States that
the number of immigrants in this country is far too many
already, far disproportionate to the number that we want,
wheter be they Italian, too many Italians, too many Chinese,
too many Japanese.
Mr. King. You wouldn't speculate to that answer but
wouldn't that be the very first question they would advocate
for a policy that couldn't be undone or redone? Wouldn't that
be the principle question if we were to deduct a reasoning path
down through this immigration question?
Mr. Pitti. What I tried to offer in my testimony,
Congressman, as you know, is the reminder that we need to think
about sending countries and about solutions that brings sending
countries into a real vibrant part of the discussion of how we
are going to solve immigration migration problems in the 21st
century, to note that migration problems are global problems
that they develop out of U.S. policies, out of the policies of
governments and economies.
Mr. King. I also admit again, that is a central question. I
turn to Ms. Jenks. First of all, in the definition of amnesty
that we just heard from Dr. Legomsky, would you agree with that
definition?
Ms. Jenks. I wouldn't. I don't think that some or any kind
of penalty is sufficient here if you are giving the person who
broke the law what they broke the law for. If someone comes
here for a job and they get the job but they have to pay
$2,000, $5,000, $10,000, they still get the job. That is what
they came for, and therefore the message that goes out is if
you want to go to the United States for a job, you can go
illegally and you will get your job.
So I think the strings that are attached are much less
important and the people--I mean, the whole point of amnesty--
we are not opposed to amnesty because it is the word
``amnesty.'' We are opposed to it because of the message it
sends and results that it has. I mean that message has
consequences. Other people are going to come.
Mr. King. And undermine the rule of law?
Ms. Jenks. Absolutely.
Mr. King. You also in your written testimony, I noticed you
referenced a study done by Robert Rector of the Heritage
Foundation. Would you care to expand on that a little bit?
Ms. Jenks. He has just in the last couple of weeks released
the first of three studies that he is working on that looks at
the cost to taxpayers of households headed by high school
dropouts. There are 17\1/2\ million of those households in the
United States, native born and foreign born, and those numbers
he looked at include all expenditures and all revenues,
Federal, State and local, and using the same methodology as the
National Academy of Sciences did in the late nineties, for all
U.S. households he found that these households cost $394
billion a year; the net average cost is about $22,500 per
household. He is now working on a study that breaks out the
foreign born portion of those households and he has given me
some of the new numbers he has come up with. The average net
annual cost is $18,500 of these high school dropouts, foreign
born headed households. So if you are looking at, for example,
the people who are legalized under IRCA, the annual net cost of
that population would be roughly $19.4 billion.
Mr. King. Thank you, Ms. Jenks. I would ask unanimous
consent to introduce the Rector study into the record.
Ms. Lofgren. Without objection, the study will be made part
of the record.
[The information referred to is available in the Appendix.]
Mr. King. Thank you, Madam Chair. And then would I turn to
Mr. Chishti. In your written testimony I noticed that you
discussed Social Security and how we are going to fund the baby
boomer generation. If we bring in a massive number, tens of
millions of new immigrants into the United States, who funds
their retirement?
Mr. Chishti. The generation of people who come after that?
I mean, the critical thing about the number is that by the year
2030 I think really more than--pretty close to one-third of our
population is going to be more than 55 years old. That is a
huge, staggering number. So if you are going to have that many
retirees, we need active workers to contribute to the Social
Security system. That is our more urgent problem. We can't
solve the more urgent problem unless we get a new flow of
workers into that.
Mr. King. I would submit we need to look a few generations
down the road.
Mr. Chishti. We need a continuing supply of workers to be
able to do that.
Mr. King. Thank you, Mr. Chishti, and thank you, Madam
Chair.
Ms. Lofgren. Thank you. I would turn now to the Chairman of
the full Committee, Mr. Conyers, for 5 minutes.
Mr. Conyers. Thank you. In the spirit of which the second
hearing was called, I wanted to look at the Simpson-Mazzoli
bill, IRCA, and from the perspective of worker exploitation.
And that seems to be something that we need to be cognizant of
as we try to put together the legislation in 2007. Now,
Simpson-Mazzoli, one-time fix, no consequences, no fines, we
concede--this is the one time I will concede amnesty was
applicable here, folks. Remember that limitation. There was
amnesty involved. But what about what happened there, the
subcontractor relationships, the fictitious relationships? What
do you think about that? I want to ask Dr. Legomsky about that.
And all of you, as a matter of fact.
If you weren't following the question----
Mr. Legomsky. I think I understand. The question is really
what went wrong with employer sanctions and some of the related
provisions?
Mr. Conyers. And to the worker exploitation. It is the
exploitation that I am really trying to get at is how that
happened.
Mr. Legomsky. Yeah. I think----
Mr. Chishti. As I said early on, Congressman, there are
various ways in which employers have circumvented their
liability under employer sanctions. The one you point out is
one of the most charged ones. People use independent
contractors and get away from the definition of an employee.
Now that problem is a huge problem in our country, not just
related to sanctions. I think the Department of Labor itself
has found out that like 30 percent of companies in the U.S. use
independent contractors or people who normally should be called
employees.
Mr. Conyers. Even now.
Mr. Chishti. Even now. Even now. Then we know people use
fraudulent documents. We have a growth industry in fraudulent
documents so that people can comply with the letter of the law
while they are actually hiring undocumented workers. So we have
paper compliance but a huge prevalence of undocumented
population at the same time, and that is obviously not good for
the rule of law. And then employers have used middlemen, as we
call them, the employment agencies, to hire people. Wal-Mart
had a very celebrated big case last year. Wal-Mart settled for
$11 million because they were using janitors in their stores
which were supplied by some other company. Wal-Mart finally
gave up and they settled for $11 million. It was one of the
largest awards in this country where an employer has paid,
admitting essentially that they use undocumented workers.
So all these ways in which people have circumvented this
law should be stopped. And my suggestion about this is
threefold. With respect to the employment agencies, we should
make employers directly liable for hiring undocumented workers
and not let them take the refuge in using employment agencies.
If the employer-employee relationship is with the actual
employer, that employer has to be responsible. With respect to
independent contractors, I respectfully say that this Congress
should revisit the definition of an employer of an independent
contractor. We had a very important commission all of you are
familiar with, in 1995, look at this issue and basically said
we should be honest about who an independent contractor is.
Unless these people are willing to take risks for their own
jobs, if they work for multiple employers, only in those kind
of contexts we should treat someone as an independent
contractor and not just let an ordinary employee be called a
contractor. And I think those things are very important. The
first thing is people are off the books. And people are off the
books because we have stopped enforcing minimum wage laws in
our country. There is less enforcement of wage in our laws
today in the United States than there was in 1975.
Mr. Conyers. Attorney Chishti, has worker exploitation
increased since Simpson-Mazzoli days?
Mr. Chishti. I mean Simpson-Mazzoli as you full know,
Congressman, was intended to improve wages and working
conditions. We now know that about 8 million people in this
country live below the poverty level. That is not--it certainly
hasn't helped the--we know there are industries out there,
especially labor intensive industries where DOL has
demonstrated that there is huge violation of wage and law
provisions, overtime law, health and safety law. It clearly has
not improved, and unionization has clearly gone down since
IRCA. And we know especially in the unionizing context,
employers have very effectively used sanctions as a way to
avoid a union.
Mr. Conyers. Well, thank you so much.
Ms. Lofgren. Thank you, Mr. Conyers. I would turn now to my
colleague from California, former Attorney General Mr. Lungren.
Mr. Lungren. I thank the Chair for the time. And as one of
those who worked on the 1986 bill, I am very interested in your
comments. There was an expressed concern on many of our parts
that the SAW program was a program that would potentially be
subjected to fraud. And it was not our first choice, but it
looked like that that is the one that ended up with the most
fraud. I was interested in Ms. Jenks' comments that there was a
spike in illegal immigration immediately after the signing of
the bill. That is not quite accurate. If you look at the
figures, the bill was in 1986, you will see the numbers in 1987
were down actually, and they were down for about, as I recall--
and I am doing this from memory--for about 14 months. And then
when it became clear that employer sanctions were not going to
be imposed and the SAW program was rather fraudulently
exploited, then the signal was very clear. We were going to
have the legalization but we weren't going to do the other
part, which was supposed to be the balance of the program that
we all signed off on. We would have enforcement, and that is
not a criticism of any Administration or any Congress, that was
followed through by both Democrat and Republican
administrations and Congresses. We didn't have the will to do
it.
So it seems crystal clear to me that we had better have the
will to have enforcement and we had better have meaningful
enforcement if we are going to have any type of legislation
whatsoever. Now, our first two witnesses--I am sorry I was not
here to hear your testimony, but in the written testimony it
appears that you were suggesting exploitation of the workers as
a result of some of the programs we had. It seems to me one of
the worst parts--well, the real negative part of the Bracero
program, for instance, was that it tied you inextricably to a
particular employer. So that if you wished to make a complaint
about that employer, you would probably find yourself back in
Mexico before that could be heard. And it seems to me if we
were able to have another temporary worker program, maybe it
would make more sense to identify a geographic region and a
particular line of work, make the determination as to how many
jobs may be necessary, and allow people to come into a
geographic region for a particular type of work but not
necessarily tie them to a particular employer so they do have
some mobility and the argument that you would find exploitation
would be lost.
I would just like the four panelists to answer this
question, and that is, with the legalization program we had
before, what is your opinion with respect to the argument that
therefore, that is based on the history of the 1986 program, we
cannot entertain any thought of any program that would
regularize those who have been here illegally for a substantial
period of time even if you were not to have citizenship as part
of that because it would be tantamount to amnesty?
Mr. Pitti. I will try to answer that quickly. I don't think
that is the lesson of IRCA. I think in fact that the
regularization of residents who were in the United States prior
to 1986 by providing them with amnesty and what might in the
future of course might not be amnesty but some sort of
regularization was the success of IRCA in some real way. That
part of it allowed members of the U.S. society to come out of
the shadows, to use 21st century parlance, to join with workers
who were U.S. born and U.S. citizens.
Mr. Lungren. Well, we made it very clear at the time that
it was to be one time only. That is the way we broadcast it
internally and externally.
Mr. Pitti. You are asking me if the U.S. Congress cannot
afford to be inconsistent on this question?
Mr. Lungren. I am saying, what would the future hold for us
if we enacted some sort of program to regularize those who are
here short of citizenship? Would that set up the same scenario
that we see now where we legalize 20 years ago 3.5 million
people, now we have by your estimates I think 12, or whatever
the number is that you are talking about.
Mr. Pitti. I will just quickly say that you know my
testimony was designed to argue that in fact flows northward
from Latin America through the United States are so systemic
and institutionalized that it is hard to imagine--one has to
imagine very, very stringent enforcement to stop that migration
from coming in the future. And I don't think that another
legalization program would encourage further migration.
Mr. Lungren. So it is irrelevant?
Mr. Pitti. I am sure it is relevant, but I don't see it as
a dominant problem.
Mr. Chishti. Well, first of all, I mean it really depends,
it is all nomenclature. I think the A word, that the concept of
amnesty I think sort of diffuses the discussion of what we are
trying to do in terms of integration of people here. I think
most of them as you know full well, Congressman, have engaged
in civil infractions. These are civil violations of our law. It
is perfectly fine to have civil fines and have large civil
fines exactly to punish people for large civil violations. I
think if we do a heavy fine, I think that would not in my mind
be called amnesty.
The second question isn't going to create a precedent, so
we keep on doing this again and again. This was what was wrong
with IRCA, and you were in the middle of that charged debate.
What we didn't do with IRCA was provide a mechanism for people
to come for labor market needs in the future, and I said that
while you were not in the room today. If as part of a
comprehensive immigration reform we create more channels for
people to come through for the labor needs of our country, we
won't have the need to do the amnesty in the future that we are
doing now 20 years later.
Ms. Lofgren. Dr. Legomsky and Ms. Jenks. Be very quick if
we could, please.
Mr. Legomsky. As a proponent of legalization, I have to
acknowledge that I don't think legalization will solve the
undocumented problem any more than I think most backers of
legalization in 1986 really thought that this would solve the
entire problem of legal immigration once and for all. It was
never designed to accomplish anything that ambitious. But it
does take into account the practical reality that today we have
12 million undocumented immigrants in the United States who
clearly are not going to leave voluntarily. And therefore, if
there is no legalization, the question becomes, what do you do
with these 12 million people?
Now one option is to simply do nothing and to say, okay, we
have 12 million undocumented folks here in the United States.
But there are real disadvantages in doing that. One is that
these people are living in underground subcultures that are not
healthy for anyone. They certainly aren't healthy for the
immigrants themselves or for their children who live in daily
fear that 1 day they or their parents are going to be
apprehended or deported. Many of these children are U.S.
citizens.
Second, in this post-9/11 era, it is much better for the
Government to know who people are, where they are, to have
photographs, to have biometric information, et cetera, than for
people to be underground.
And third and last, illegal status renders you extremely
vulnerable to exploitation by employers, which is bad not only
for you but also for American workers who don't get hired as a
result.
Ms. Lofgren. Ms. Jenks.
Ms. Jenks. I would say that if we have another
regularization program of any sort where illegal aliens get
legal status, temporary or permanent, we will see more illegal
immigration. And we will be sitting here again 10 years from
now 20 years from now, and there are additional issues if you
make it no citizenship in the path because then you essentially
create a second class of people in this country. Essentially we
are importing a servant class if that is--if these people can
stay for any length of time and not get on the normal path to
citizenship. But yes, absolutely we will see additional illegal
immigration.
Ms. Lofgren. Thank you very much. I am going to call now on
the gentleman from Illinois, our colleague, Mr. Luis Gutierrez.
Mr. Gutierrez. Thank you. Mr. Pitti, I would like to ask
you a question. In IRCA, the year everybody seems to know
around here, 1986, what year did you have to be in the United
States and be able to prove you were in the United States if
you were not an agricultural worker? I mean, you were washing
dishes or some other function in our economy in order to
benefit from the 1986 legislation?
Mr. Chishti. January 1 of 1982.
Mr. Gutierrez. January 1, 1982. And isn't it true that the
first offices that were opened by the Federal Government did
not open until about mid-1987?
Mr. Chishti. They opened on June 1, 1987.
Mr. Gutierrez. Good. I was guessing. Actually, Mr. Berman
helped me quite a bit in figuring out that day. Congressman
Berman helped me quite a bit. So we passed the legislation in
1986. What do you think the figure was of undocumented workers
that were locked out, that were here in the United States on
June 1, 1987, when the Government said, come on down, bring us
your documents, we are going to take some fingerprints, make
sure you are not a security risk, we want you to legalize. What
do you think between 1982 and that date, how many people do you
think didn't make it because of that?
Mr. Chishti. Again these are all estimates. At that point
we had about 4 million people.
Mr. Gutierrez. About 4 million people.
Mr. Chishti. And 3 million, as we know, got legalized.
Mr. Gutierrez. So about a million, a fourth of them?
Mr. Chishti. Three-fourths of them did get legalized.
Mr. Gutierrez. So a fourth of them didn't make it because
of the time lapse.
Mr. Chishti. Time, yeah. And in response to Congressman
Lungren's question about the SAW fraud, this was I think what I
was trying to point out in my earlier testimony, the fact that
we had this huge 5-year gap from the enactment to eligibility.
It created a huge incentive for people who were not eligible to
try to be SAWs. SAWs fraud was created by people who became
ineligible because of the long line. Then they found all kinds
of fraudulent documents to become SAWs.
Mr. Gutierrez. Thank you. And because the Chair may not be
as generous with extra time for me----
Ms. Lofgren. I am very even-handed.
Mr. Gutierrez. So if we do it--if we overhaul our
immigration system, there should be a date closer to the date
we pass the legislation and actually open up the offices and
the legislation so we don't have that gap again?
Mr. Chishti. As I said, the lesson from 1986 was the
program should be as inclusive as possible because that is the
way to avoid fraud.
Mr. Gutierrez. Because that is the way to avoid fraud. And
it also helps to bring the undocumented----
Mr. Chishti. Otherwise you would have split families
because one family member would be eligible, the other would
not, and we are not going to deport the spouse. In fact, that
is what created the backlog in our present family immigration
system.
Mr. Gutierrez. I don't know because this is a little bit
outside, but given your expertise in this matter maybe you
could help this Committee understand. Ms. Jenks says they are
all here illegally, we shouldn't give them any benefit, any
right to regularize because it will cause another massive wave
of illegal immigration.
Let me ask you, of the 12 million undocumented workers that
exist in this country, if those are workers, are we talking--
when we use the figure 12 million, are we talking about the
children and spouses that aren't working? Is that the total
number?
Mr. Chishti. It is the total number. The best guess about
workers is about 8 million.
Mr. Gutierrez. And I have found that in my practice as a
Member of Congress, as people come to my office, on a number of
occasions that undocumented workers come with seventh, eighth
grader, high school, even college children to my office, coming
and seeking--I have the case regularly, I am 21 years old, you
know, I was born in the United States. I would like to legalize
my parents' status and petition for them. But they can't
because there is a 10 and the 3-year bar; even if they are
employed and can meet the other things, they can't. And I ask
them well, why didn't you regularize before? And actually they
were born after January 1 of 1982. What do you think the
number--if we were to do a massive--if we were to use all the
power of the Federal Government that could come and we had the
political will and the requisite resources to deport them, how
many American citizen children would have to be deported with
their parents in order to keep that family unit?
Mr. Chishti. Like 3.1 million in households where at least
one member is undocumented.
Mr. Gutierrez. So the question of undocumented workers has
an impact on American citizens. And if we are going to do a
comprehensive immigration reform, we stress many times our
immigration, we always stress the undocumented, the
undocumented, the undocumented. But I think, as Mr. Legomsky
said, it impacts those of us that are here legally. Mr.
Legomsky, do you know how many years it would take if I were a
Filipino to petition my brother from the Philippines? Could you
share how many years it would take?
Mr. Legomsky. I believe it is somewhere between 15 and 20.
The estimates are not exact because all the visa bulletins will
tell us is how many years those who are now receiving visas had
to wait. We don't necessarily know how many years a person who
applies now would have to wait. But 15 to 20 I think would be a
reasonable estimate.
Mr. Chishti. I think for the Philippines it is exactly 22
years.
Mr. Gutierrez. Okay. 22 years. That is to reunite--and I
will end with this. That is to reunite, Ms. Jenks, an American
citizen at their Thanksgiving table, and they have one brother
still outstanding from the Philippines to bring him to America.
Those are American citizens who did it the right way. So our
immigration policy and our reform also has an impact on those
of us who are here legally in the United States and the family
unity and basis and the roots and the stability of our Nation.
Thank you very much, Madam Chairwoman.
Ms. Lofgren. Thank you. And now we will turn to Mr. Forbes.
Mr. Forbes. Thank you, Madam Chairman. And let me thank all
of you for being here. I heard the distinguished Chairman of
the full Committee mention the fact that we had an enforcement-
only approach, but as I travel around and talk to people, we
don't have an enforcement-only approach. We basically have an
enforcement-when-you-feel-like-it approach. And that is what we
feel are the most complaints about. We also hear a lot about
nomenclature, and I know people don't like words but as my good
friend from California says over and over again, at some point
in time, words really do mean something. And basically we look
and we have immigrants that are here and some of them are here
legally and some of them are here illegally.
I had a friend one time who would never balance his bank
account. And what he would do is each time he would get in
trouble, he would close the bank account and then he would go
to another bank and open up a new account and say he had solved
the problem. And sometimes that is what we do. We come in here
and one of the easiest things we can do to get rid of an
illegal immigration problem is change the name and say that
everybody who is here illegally is here legally.
I have heard all this talk today about workers, but the
problem is not just workers. One of the things we have heard
testimony in here about are criminal gang members that are here
criminally and under TPS are actually protected where they
could be out on the sidewalk in front of somebody with a
placard that says, I am here illegally and I am a member of the
most violent criminal gang in America, and we can't even reach
down pick them up and get them out of the country. We don't
need a lot of hearings to do that. We could do something about
that today. We have individuals who are here that are driving
under the influence illegally, and they kill innocent people
who are here legally. And you know, as I look at this problem
20 years ago by all the testimony I heard, we had 3 million
people. Today we have four to seven times that number, 12 to 20
million. I don't know how you ever get that number exact. There
is no directory out there that tells how many people are here
illegally. But 20 years from today if we do the same process
that everybody is arguing to do and we fail again, we will have
between 48 million to 140 million illegal immigrants in the
country. And just like a Casablanca movie, we will round up the
same witnesses and we will come back and say let's just change
the bank account, let's change the name and do it all over
again.
Ms. Jenks, this is the question I have for you. Go back to
1986. Look at the 3 million illegal aliens that were in the
country. We paid $1 billion for 4 years to basically compensate
for the reimbursement to States for public assistance, health
and education costs resulting from that legalization. Was that
$4 billion sufficient? And then given the fact that we are
looking at today based on whichever numbers you want to pick,
the 12 million or 20 million, how much would it cost us today
if we began to reimburse the States for those costs?
Ms. Jenks. Well, the $1 billion didn't even come close to
the actual cost. And according to Robert Rector's numbers from
the Heritage Foundation, if we are looking at a population of
12 million illegal aliens, conservatively 6 million households
at a 49 percent high school dropout rate, according to DHS
numbers, the average annual cost of this population to
taxpayers right now is $54.4 billion.
Mr. Forbes. $54 billion per year?
Ms. Jenks. Per year.
Mr. Forbes. And that is the annual cost today?
Ms. Jenks. Right. That is Federal, State and local, so not
just State.
Mr. Forbes. Mr. Pitti, did I misread your testimony or did
I read in there and basically hear you indicate that you think
the poverty and crisis in Mexico was caused by the policies of
the United States officials?
Mr. Pitti. Certainly not exclusively U.S. officials,
Congressman. That would be a real misreading of history and I
would not like to be accused of that.
Mr. Forbes. You might want to reread your testimony again.
It kind of indicates that when you look at the testimony in
there on page 3. But maybe I am just misreading that.
Just to finish up with you, Mr. Chishti. I notice in your
testimony you say the legalization program in hindsight was the
most successful element of IRCA legislation. Yet only 3 years
after that bill--here is the headlines that were in the papers.
In 1989. ``Border Patrol Losing Ground''--that is The
Washington Post--3 years after the signing of landmark
immigration reform law designed to bring the border at San
Diego under control, the nightly rush of illegal immigrants has
begun again to overwhelm U.S. border patrol.''
In 1989, New York Times, ``Migrants' False Claims, Fraud on
Huge Scale. In one of the most extensive immigration frauds
ever perpetrated against the United States Government,
thousands of people who falsified amnesty applications will
begin to acquire permanent resident status next month under the
1986 immigration law.''
Finally, 1989, Los Angeles Times, ``Border Arrests Rising
Rapidly.'' And then it says that there is a sweeping increase
along U.S.-Mexico border has begun to surge, signaling a
possible renewed wave of illegal entries, according to
officials.
How do we find success?
Mr. Chishti. Thank you. That is a long question though. I
think success means--I am talking about the legalization
component of IRCA. That is why I say compared to other
components.
Mr. Forbes. So was I.
Mr. Chishti. Yeah. That the people who were the--who were
supposed to get legalized under that program about in the
general legalization program, I think most evaluations thought
that there was very little fraud. The fraud that happened was
in the SAWs program. And as I said before, there was reason for
the fraud in the SAWs program because the way we wrote that
SAWs program and wrote this long time between the eligibility
date and the implementation date. That is what created.
Mr. Berman. Not in the SAW. In the regular program.
Mr. Chishti. Exactly. Sorry. In the regular program, that
created incentive for the fraud in the SAWs program. So
legalization as a program I think was very successful both in
terms of people it was supposed to legalize, and two, in terms
of very effective, actually collaborative relationship between
the Government and the not for profit sector. It was one of the
best collaborative roles.
Mr. Forbes. But not effective in stemming the tide of
illegals?
Mr. Chishti. I didn't say anything about border enforcement
or--sorry. I wanted to say that if we had provided for future
flows by increasing legal channels, we would not have had those
kinds of pressures from the border that you point out.
Mr. Forbes. Because we would have defined them as legal
instead of illegal.
Ms. Lofgren. Thank you, Mr. Forbes.
Mr. Berman.
Mr. Berman. Well, that is--the last point Mr. Forbes made
is an interesting one because in my way of thinking that is why
the comprehensive approach is so important. I would never
suggest that a legalization program will result in there not
being future illegal immigrants. I don't buy Ms. Jenks' notion
that it will incentivize it because it seems quite incentivized
already. I don't think passing a legalization program will do
much more than--it is about availability of jobs and whatever
else might be available and the ability to do it.
Simply creating new legal avenues for people to come isn't
enough because whatever new avenues we create, there will be
more people who want to come than slots we allow. So then you
get to two other issues, one of which I think was the single
biggest failure of IRCA was the fraud of--we know about the SAW
fraud, but the fraud of employer sanctions was the big fraud.
And I think Mr. Chishti spoke to that issue, and the
importance----
If we want to be straight with the American people, we have
to devise something which essentially tells them that because
of things like a meaningful effectively implemented and very
difficult to implement employer verification program involving
biometrics and the ways in which an employer can quickly learn
that the particular worker is authorized to work--by the way,
the existing voluntary pilot program that some of my colleagues
like to rave about, yeah, it tells you if you have a Social
Security number that is a real Social Security number. It
doesn't tell you if you are the person who should be using that
Social Security number. So you need a very sophisticated
verification program. And then you need to do the things like
holding the--sure, employers should be able to use labor
contractors and employment agencies and all these other things.
But they have to be accountable in the context of the employer-
employee relationship for the decisions of their agents in
those capacities.
We know what happened in agriculture after 1986. A bunch of
people were legalized. But the flow of illegal immigrants
continued. Employers a little nervous about employer sanctions
delegated whatever direct hiring they were doing to farm labor
contractors, who in many cases were--I mean it was a total
sham. And those new workers were cheaper than the ones who had
been legalized, in part because there is a natural progression
out of agricultural work and in part because they were pushed
out by the availability of cheaper labor. You create a whole
new wave of illegal immigrants. So I think--I mean that is the
essence of it.
And to Ms. Jenks, I don't accept your definition of amnesty
because it would seem to me if all the people who tried to rob
banks and were arrested, and in one decree we released them all
from jail, they may not have gotten the money from the bank but
I would call that an amnesty. So in other words,--and secondly,
under--but accepting your definition for these purposes. So
even a person who introduces a bill that says if they came here
illegally, if they go back home they can come in as a legal
guest worker, for you that would be an amnesty as well because
in the end they would be part of a process which allowed them
to get that for which they committed the illegal act.
Ms. Jenks. If they could bypass the 3- or 10-year penalty
that is an amnesty. Waiving that penalty is an amnesty. It is
not a tax amnesty.
Mr. Berman. When my friend from Virginia, Mr. Goodlatte,
introduces a bill for agricultural guest workers to be
eligible, you could have come here illegally, but if you go
back and come through that program that is an amnesty, too.
Ms. Jenks. I have had this discussion with his office in
fact that, yes, that is waiving the penalty.
Mr. Berman. What about the amnesty of doing nothing?
Ms. Jenks. Absolutely horrible.
Mr. Berman. What about the amnesty of allowing 12 million
people with all of the conditions of exploitation, the
paralysis of the Congress unable to figure out how to deal with
this, scared of words like ``amnesty,'' unable to find that
kind of common ground to reach a sensible and effective
solution, doing nothing because whatever those newspaper
articles Mr. Forbes read about 1989 and illegal immigration,
the numbers for many years later were much, much higher than
they were in 1989. And why doesn't that just continue? Why
isn't the biggest amnesty of all the amnesty of doing nothing?
Ms. Jenks. It isn't. I certainly would not say that this is
what we want. We don't advocate doing nothing at all. But in
fact, the numbers were the highest that we have seen--that we
saw for about a 10-year period in 1989. I mean, they spiked
after the amnesty.
Mr. Berman. When they really got high was after we passed
that tough 1996 law that was going to stop illegal immigration
with the 3- and 10-year bar. Then we really saw the number of
illegal immigrants--I don't think you would call the 1996 law
an amnesty.
Ms. Jenks. No. But the 245(i) provisions that Congress was
passing every 2 years were.
Mr. Berman. In 1996 they repealed the 245(i) provisions, as
a matter of fact.
Ms. Lofgren. Thank you, Mr. Berman. The gentlelady from
Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I thank the Chairwoman very much. I think
these methodical building block hearings are both important for
the thoughtful testimony that the witnesses have given and that
we are allowed to share, and also it indicates the seriousness
of the effort that we intend to engage in in this Congress. I
have said on a number of issues, I think this takes a number
one position in that, that this is the year, frankly, that you
have to address a question that becomes a mounting crisis
because of the inactivity.
Just for the record, I want to make sure that the idea of
amnesty is clearly defined, as I noted to be in the dictionary,
because one of the main criticisms of IRCA is that its
legalization program granted amnesty, and I have heard both
humorous and other definitions of amnesty. But by the American
Heritage Dictionary, it is considered a general pardon granted
by Government, especially for political offenses. And it was
derived from the Latin word ``amnesti'' which means amnesia.
The STRIVE Act, which is a bill that has been introduced
and the Save America Comprehensive Immigration Reform Act that
I authored that has been introduced, and what I have heard from
the leadership of this Congress, the leadership of this
Committee does not suggest that any underlying bill will have
adopted the definition of amnesty. None of those will have any
provisions that would forget or overlook immigration law
violations.
In addition, out of some respect for history, because
certainly Senator Simpson and Senator Mazzoli obviously wanted
to do the right thing, and I believe that as they have
described the shortcomings were not necessarily due to design
because they were looking at maybe a more limited picture of
immigration, but really due to the failure to execute the law
properly. So my frame of questions will be in that context to
be able to try and address where we need to go.
And might I also say to Ms. Jenks, I think the value of
America is that we have diversity and diversity of opinion. But
I couldn't help analyze the 17 million high school graduates
or, I am sorry, those who had not graduated from high school.
And it cost about $300 billion, a small pittance to the
billions upon billions of dollars that the war in Iraq is
costing. And I would imagine you know if there was a group that
was the NumbersUSA on poverty if they had indicated that these
folk are really costing the country and what next train can we
put them on, these are not helpful answers because out of those
non-high school graduates, I would imagine there are any number
of laborers that are doing constructive work.
One of the failures that amounts to the $354 billion,
whatever the number is that you have given us, is a systemic
societal problem of a lack of access to health care. We don't
have universal health care. So we have poor Americans and poor
others not because they are poor with a lack of education not
working, it is because we don't have a system to give them
access to health care. So therefore, there is an enhanced
burden on the system for the cost of their health care. But
that is a cost of poverty as well.
Let me go to Mr. Pitti on my overall framework and say to
you, if we had had a better enforcement system under the
Mazzoli-Simpson, would we have been more effective? And isn't
that what you see or perceive that we are trying to do now,
measures of enforcement that work alongside the border but also
work internally?
Mr. Pitti. I think that had Simpson-Mazzoli had a more
effective enforcement mechanism or set of mechanisms, indeed
there might have been gains made in the 1980's and in the
1990's. And I certainly recognize that that is what this
Congress is trying to think very carefully about as we move
forward into the 21st century. These are labor market issues.
As you know, they are regional, international labor market
issues. They are difficult ones because, as we know,
undocumented residents have come despite the enforcement
mechanisms that we have put in place. And what I tried to call
Congress' attention to again, as it has been in the past, are
the difficult--the real costs on migrants in trying to pass
through the border in the era of the 1980's and 1990's.
Ms. Jackson Lee. This question to Mr. Chishti and Mr.
Legomsky. I hope I have it almost correct. Ms. Jenks, why do we
demonize the system of immigration and immigrants? And my red
light. But if you could all each try to answer that. Why do we
all try to demonize this issue?
Mr. Legomsky. I think that ``demonize'' is the right word
because there are individuals and organizations who demonize
the undocumented population. There are clearly harms associated
with illegal immigration, and we shouldn't sweep those under
the rug. But by and large, we are talking about a population of
fairly hard-working folks who come here because they want a
better opportunity for themselves and for their children. That
is not to say that we have an obligation to give people
whatever they want. But at the same time I think we need to
take pains not to exaggerate the harms associated with illegal
immigration or to ignore the benefits.
Many of the studies that have been done on the economic
impact, and the one that Ms. Jenks mentions is just one of
many, many studies, come up with very different conclusions.
Undocumented immigrants do cost taxpayers money in services.
But of course they also pay taxes. They pay Federal and State
income taxes, they pay property taxes indirectly when they
rent. They pay sales taxes. They pay gasoline taxes. Whether
the total amount they pay exceeds the amount they receive in
services is an issue on which economists are very much in
disagreement. So I think we need to be very careful on this.
Ms. Lofgren. Mr. Chishti.
Mr. Chishti. I think it raises really to me very compelling
moral issues. I mean, people who prepare our food, people who
take care of our children, people who take care of our
grandparents, we find it okay for them to do it. But we don't
want to award them with membership in society. I mean that to
me I think is fundamentally immoral. And you know, and that
level of understanding I think on this issue has sadly been
lacking.
Ms. Jenks. I actually agree with that. I think it is
absolutely wrong that anyone would blame the individual
immigrants who are here illegally. They have only done what we
have invited them to do. You know, we should be blaming our
Government, blaming the people who are not willing to make the
enforcement decisions that have to be made. But the fact is we
are a country of laws, and we need to expect people, all
people, Americans, foreign born, everyone to obey our laws. And
of course we should not be blaming the immigrants. We should
be--anyone who comes to our country as a legal immigrant should
be welcomed with open arms. But the fact is we can't do that
economically or socially or any other way unless we have
limits. It is the limits that allow us to spend the money that
is needed to be spent. And I didn't bring up the $394 billion
to say that we shouldn't be paying those costs. Of course these
are--you know, the majority are America's poor. Yes, we should
be paying those costs, but do we need to add to the costs? Does
the Government want--should the Government have a policy of
adding to poverty in this country? I think the answer is no.
Ms. Jackson Lee. Thank you, Madam Chair. I just want to say
we are a Nation of laws and immigrants, and I think we can do
both enforcing of laws and providing a vehicle for immigrants.
Ms. Lofgren. Thank you. The gentlelady's time has expired.
I turn to our colleague from Virginia, Mr. Goodlatte, for 5
minutes.
Mr. Goodlatte. I thank the Chairman, and I thank her for
holding this hearing. Back in 1986 she and I may be the only
current Members of Congress who were practicing immigration law
at the time, and I think it is a very pertinent----
Ms. Lofgren. Actually, I had given it up by then.
Mr. Goodlatte. Well, I was still practicing immigration law
and quite frankly very concerned what we did then, both from
the standpoint of giving amnesty to millions of people and also
from the standpoint of imposing sanctions on employers but not
enforcing them.
So I guess the first question I would like to ask of Ms.
Jenks, do you believe that the granting of amnesty in 1986
created an incentive that has encouraged more illegal
immigration across the border in the hopes these new illegal
immigrants would 1 day receive amnesty as well?
Ms. Jenks. I do. And I know Congressman Berman disagrees
with me on this. But yes, I think amnesty does create an
incentive to come. We have seen it bear out in the numbers.
Every time there has been an amnesty, whether it is 245(i),
whether it is the 1986 amnesty, there has been an increase in
illegal immigration. And every time there has been major talk
in Washington of an amnesty, when the President first announced
his plan in January 2004, the Border Patrol first saw a spike.
So yes, I think it creates an incentive.
Mr. Goodlatte. Well, I agree with you and I certainly saw
that as well. Congress vowed then that it would crack down on
illegal immigration following the massive grant of amnesty.
Obviously we haven't done so. Have we ruined our credibility on
this issue, or do you believe it is possible to craft
immigration reform that does not again encourage a flood of new
aliens?
Ms. Jenks. I think it is possible and it is necessary. But
the thing we have to focus on is changing the message we are
sending to the rest of the world. If we send the message that
they will eventually get amnesty, they will eventually--they
can come here now and get a job, that message will increase the
number of people trying to come. If we send the message that we
are going to take our immigration laws seriously, that we are
going to enforce those laws, that there will be serious
consequences, you will have to leave the country if you are
here illegally, things will change.
Not everyone will stop. I mean, we are not going to stop
all attempts at illegal immigration. But we can certainly stop
the majority of it just by changing that message.
Mr. Goodlatte. Let me ask the other members of the panel if
they would like to respond to that as well, but also ask them
if they feel that we have consistently through the last three
Administrations, if you will, enforced those new employer
sanctions and other aspects of our immigration law within the
interior of the country, and rather than simply focusing on the
border because 40 percent of our illegal aliens enter the
country legally on student visas, visitor visas, business
visas. Obviously, what enables them to stay, what draws them to
violate the terms of their visa or to come across the border is
employment. And I am wondering if you would just simply tell us
whether you think we should have been more strongly enforcing
our immigration laws over the last 20 years. This problem
wasn't created overnight, was it, Dr. Pitti?
Mr. Pitti. The problem of nonenforcement of immigration
laws?
Mr. Goodlatte. Of having 12 million or more people
illegally in the United States.
Mr. Pitti. No. Of course. There were of course many people
on the American side in the early 20th century from Europe who
under 21st century parlance would qualify as illegal aliens. So
no, this is not something that does not have a history.
Mr. Goodlatte. No. But in 1986 we came up--I wasn't here.
Ms. Lofgren wasn't here. Mr. Lungren was here, but that is
another story. In 1986 we came up with a solution to this
problem. We said for the first time we are going to impose
sanctions on employers and we are going to give amnesty to
millions of people who are here illegally. So therefore, the
illegal immigration problem is going away. There will no longer
be a magnet to draw them here and those who are already here
have been taken care of. It obviously did not work out that
way. Now there are those who are asking for amnesty, and I know
there is a difference of opinion on how to define amnesty. But
basically I would define it as not requiring somebody to leave
the country to adjust their status before they can come back
and gain a lawful status in the country. But be that as it may,
I would like to have each of you address that. Should we be
enforcing our current immigration laws much more aggressively
than we are now?
Mr. Pitti. Excuse me. As I tried to say in my testimony, I
think that the enforcement of employer sanctions brings
benefits, but it also brings costs to American workers. Those
that have employer sanctions run the risk and have run the risk
of creating a workforce that is more vulnerable to
exploitation, to creating subcontracting relationships that
hurt American workers.
Mr. Goodlatte. Well, I agree with that. I think illegal
immigration undercuts the wage base of our current workforce,
and I think there are sectors of our economy--clearly I have
identified one in the agriculture sector where I was Chairman
of this Committee and have introduced and reintroduced
legislation to address the shortage of workers in that sector
of our economy.
However, the fact of the matter is, having workers here
illegally does cause problems with the workforce. That is not
my question. The question is, should we be doing it? Should we
be enforcing our immigration laws? Would that help to drive us
toward a better policy? Would that help get us back to the kind
of better credibility that we need internationally? And would
it help get the kind of confidence that we do not have today
with the American people?
Ms. Lofgren. If the three remaining witnesses could very
quickly answer.
Mr. Chishti. Quickly. Of course we should. I think employer
sanctions has built in problems. I distinctly remember the
great colloquies between Congressman Frank and Congressman
Lungren in the debates during those days. We gave a huge
loophole to the employers first by saying, we are going to hold
you guilty only if you knowingly hire undocumented workers.
They have found so many ways of using the loophole of the
knowing definition that has created a huge incentive. We have
stopped enforcing our labor laws, Congressman. We enforce our
labor laws much less today than we did in 1975. There are like
796 inspectors in the Wage and Labor Division. There is one
inspector for like every 11,000 employers. We have to enforce
our labor laws better. We have to enforce our employer
sanctions, and I think you missed part of the colloquy between
me and Congressman Berman. We have to improve our verification
system, and that may get us to where we need to go in terms of
the enforcement you are talking about.
Mr. Goodlatte. I agree with all of that. Thank you.
Mr. Legomsky. It is really a two-part question. On the
credibility issue that Mr. Goodlatte has raised, I think it is
a fair question to ask, but my view is that no Congress can
bind future Congresses, and everyone knows that no Congress can
bind future Congresses. And therefore, even though there is a
legitimate debate about whether legalization is a good idea, I
would counsel against opposing legalization simply because
there are some Members of a Congress 20 years ago who said this
would only be a one-time affair. It seems to me it is up to
each Member of Congress to decide, given where we are now, how
the pros outweigh the cons. On the issue of enforcement--would
you like me to stop?
Ms. Lofgren. I think we--actually out of fairness to the
other Members, we will thank you. And Ms. Jenks has waved off
her answer. She says yes. And we will call on the gentlelady
from Los Angeles, my colleague, Ms. Maxine Waters.
Ms. Waters. Thank you very much, Madam Chairwoman. I am
very pleased that you are our leader on this issue. I know of
your long experience, and it is going to help get us to
comprehensive reform. I think it is going to happen.
Just a word about the employer sanctions. I don't think
that employer sanctions will ever work. I hear the discussion
about better verification, but America will not fine in any
significant way or jail the business leaders of this country
who violate the laws over and over and over again. And they
will have the protection of the Chamber of Commerce, who on the
one hand will rant and rave about illegal immigration, but on
the other hand will protect the business sector from any real
sanctions.
So I am not going to even really deal with that because
that is simply what I believe.
But what I am fascinated with is this. I hear the numbers
about what the cost has been to this country for illegal
immigrants, and I wonder how these numbers are compiled, how do
we get the bottom line, how do we get to the numbers? I have
also heard some information over a period of time about the
amount of revenue that is brought into our economy and the
strengthening of the economy by undocumented workers, and I am
anxious to see how we can get to some real facts about this.
Because right now I don't believe much of what I hear. But I
would like some comments from the members of our panel about
something that is happening right now.
[5:05 p.m.]
Ms. Waters. I read an article recently where there are some
accountants who have developed a niche, and the niche is
helping undocumented workers file Federal income taxes. And the
offices are springing up all over and out in Los Angeles, and
they had a line of undocumented workers filing their income
taxes. Can I get some discussion on that? Are we not counting
revenue and monies that are being brought into this economy by
undocumented? What is going on?
Mr. Legomsky. I can say a couple of small things about
that. One is that the newspaper accounts to which Congresswoman
Waters has just referred often make the point that much of this
is happening in anticipation of legalization. So that is one
thing to consider.
The other thing, though, is that in most studies of the
fiscal impact of immigration, of illegal immigration, I should
say, it is very common, depending on the ideological slant of
the particular researcher, either to ignore some of the
services that have to be provided for immigrants on the one
hand or to ignore the tax contributions of immigrants on the
other hand.
In addition to that, there are many other indirect positive
impacts. One of them is that undocumented migrants, like anyone
else present in the United States, consume goods and services.
They create jobs in that way, in the same way that you and I
do, and it is very difficult to quantify what the effect of
that is. They also help in many cases to sustain marginal
business enterprises that also employ Americans. And in
addition, they give rise to economic growth, which increases
demand, which in turn creates jobs. So it is very difficult for
any serious researcher to piece all of this together, and that
is why I would suggest that most of the studies are very
difficult to draw hard conclusions from.
Ms. Jenks. I would say that it is estimated that about 50
percent of illegal workers do actually pay taxes. They use
ITINs to pay taxes. That is what the ITIN is generally used
for, for illegal aliens. So clearly there is a contribution of
income taxes.
And I can tell you that the Heritage Foundation study looks
at all revenues and all expenditures, and if you add up all the
revenues that it looks at and all the expenditures, you get
total Government spending and total Government revenues,
Federal, State and local. That is sort of how he started out.
But in any case, the problem is that the incomes are very low.
So therefore, income taxes are very low. They also pay sales
taxes. And they buy lottery tickets, it turns out quite a lot
of lottery tickets, according to the Heritage study.
So there are a lot of ways they can contribute, but there
are also a lot of services. If you also take into account the
services that have to increase as population increases,
highways, infrastructure, things like that, then they have to
pay a share of that as well. So when you add all that up, there
tends to be the net loss that the Heritage study has found.
Ms. Waters. Is there an underground economy that you can
quantify that we really don't know what is going on with that
underground economy?
Ms. Jenks. You can quantify it to some degree because of
census data. Obviously there is an undercount, and they try to
add some number for the undercount. So there is a small portion
of it that would probably be lost.
Ms. Waters. I am sorry, are you saying that the census will
document the number of undocumented migrants?
Ms. Jenks. Yes. The Census Bureau essentially is collecting
data on everyone out there. You don't just get a census form if
you are here legally; you get a census form if you are living
at a particular address.
Ms. Waters. And you think undocumented migrants are filling
out census forms?
Ms. Jenks. Some of them are.
Ms. Waters. What percentage of Americans don't fill out the
form?
Ms. Jenks. Very few people who get the form actually fill
out the form. The Census Bureau is getting data that is--I
mean, it is all self-reported, so they are getting data that
says it is from illegal immigrants, and they are also factoring
in that the undercount would be greater for illegal aliens than
for citizens.
Mr. Chishti. First, just on the study. There are a number
of studies completely on the other side of the cost/benefit
analysis which say that the net contribution of immigrants is
much larger, estimates have said $30 billion larger, than the
benefit they receive. So that is not the only study on the
table. And we will be glad to provide the Subcommittee with
other studies on that issue.
[The information referred to was not received by the
Subcommittee prior to the printing of this hearing.]
Mr. Chishti. When I read the tax study, there are three
things that went through my mind. First of all, these people
pay taxes, they actually pay taxes. That is good news to me.
Second is that of all the immigrants in the country, the
people who are eligible for the least benefits are
undocumented. They get almost no benefits. They get basic
public education and emergency healthcare. So they are the
least drain among all immigrants and are paying taxes.
The third good news for me was if so many of them are
actually paying taxes, that means they are on a payroll. That
means we have actually a way of getting through the employment
verification system to the employer sanctions regime, which has
been very good news to me.
Ms. Lofgren. I wonder if we could ask Mr. Ellison to take
this.
Mr. Ellison. Thank you, Madam Chair. I want to join with
the other Members of this Committee in applauding your efforts,
and let me begin.
Ms. Jenks, thank you for your presentation. Earlier when
you made your opening remarks, I think you made the observation
that amnesty is giving the criminal the rewards, the sought-
after thing that they wanted, which is a job. And to use the
word ``criminal'' and ``crime'' sort of struck me because I
wasn't aware that being in the United States without the proper
documentation constituted a criminal offense. Did you mean to
imply that it does, or maybe I am not informed?
Ms. Jenks. No. Illegal presence is not a crime; however,
entering the country without inspection is a misdemeanor the
first time, a felony thereafter. So that is a crime.
Mr. Ellison. I guess what I am wondering is when you were
using the term ``crime,'' that was just really kind of a
rhetorical device in order to make your point; is that right?
Ms. Jenks. No, not really. I am saying that if you have
entered the country illegally, you have committed a crime. If
you have overstayed a visa, you have committed a civil
violation.
Mr. Ellison. Right. Ma'am, I do know what a civil violation
is, but that is not a crime. You will agree with me, right?
Ms. Jenks. I agree with you.
Mr. Ellison. So the term ``crime'' was sort of a loose use
of the term; would you agree with that?
Ms. Jenks. Sure.
Mr. Ellison. Because in this case being precise is
important; wouldn't you agree?
Let me ask you this question. I think it was Representative
King who was relying on a number of 20 million undocumented
people in the United States. And Chairman Conyers said he heard
the term 12 million. I heard the term 12 million. It doesn't
really matter which one, but is it your view that those
individuals must be deported from the country in order to have
what you would view a fair and just resolution to the problem
here?
Ms. Jenks. It is my view that they need to leave the
country, not that they need to be deported. But, yes.
Mr. Ellison. But one way or another out, right?
Ms. Jenks. Yes.
Mr. Ellison. Now, you have made some interesting
observation about cost. What would it cost to do that?
Ms. Jenks. That is why I am saying that we are not
proposing that there be mass round-ups to pick up all these
people and make them leave the country. What we are saying is
that if you start to enforce employer sanctions, if you
actually take away the jobs--we know that the vast majority are
coming for jobs. Take away the jobs, they have no choice but to
go home. Not all of them will go, clearly. There will be some
residual population here. At that point we can decide as a
Nation what to do with those people. But we can start a process
of, yes, we need to ramp up enforcement so the number of
deportations would increase, but then you also provide
incentives essentially for self-deportation, and that would be
the vast majority.
Mr. Ellison. But you would agree that for the United States
to input resources, buses, trains, planes, whatever, to get
everybody out, whether it is 12 million or 20-, that would be
cost-prohibitive?
Ms. Jenks. Sure. And I have not heard anyone propose that.
Mr. Ellison. Well, you said they have to go, so I was just
thinking, assuming they are not all going to walk.
Ms. Jenks. Well, they got here somehow.
Mr. Ellison. Right. Sure. They certainly did. And if they
are going to get out, they are going to have to get out
somehow, right, and that is going to cost something, right?
So anyway, my next question is you cited some studies
focusing on the expenses to our Government to have undocumented
people here. Can you tell me, did those studies incorporate the
contributions that these individuals make to our society, or
were they simply just an assessment of the expense?
Ms. Jenks. Well, it is an assessment of fiscal impact. So
in terms of contributions, they are considering taxes paid,
lottery tickets bought, you know, all of the fiscal
contributions. If you are talking about adding to diversity,
adding to ethnic flavor, things like that, no, of course not.
But I don't know how you would quantify those things. But on
the other side of that there are costs that are nonquantifiable
as well.
So how does the Government make those decisions? I would
suggest that the Government would be best off making decisions
largely on the basis of things that it can quantify and are you
as taxpayers going to be willing to continue to foot this bill.
Mr. Ellison. Thank you, ma'am.
Now, Dr. Legomsky, you did mention, and I was going to
bring it up, but I think you beat me to it, that there have
been a number of studies, not just one. Could you kind of talk
about what some of the other studies have found in terms of
this question of whether or not undocumented people are a drain
to the American economy or not?
Mr. Legomsky. I suspect that Dr. Chishti is probably more
familiar with some of those studies than I am, but over the
course of the past 20 or 30 years, there has been a
proliferation of studies, as he has said. Many of them have
found that the fiscal contributions of undocumented immigrants
exceed the money that is spent on services, in large part
because of some of the reasons that he mentioned. One of them
is even though undocumented immigrants are subject to the same
taxes as everyone else, they receive almost nothing in the way
of Government assistance. They do by adding to the population,
I suppose, increase the need for more roads, more
infrastructures, et cetera. But the two main expenditures that
States and local governments have been the most concerned about
are public education and emergency medical care. They are
eligible for almost nothing else. Moreover, and I don't think
this point has been mentioned yet, while they contribute
tremendously to the Social Security System, they are ineligible
to receive anything from it, so they have a very positive
fiscal impact in that sense.
Mr. Ellison. Could you offer your views on the advisability
of permitting students who have been educated in American high
schools to be able to take advantage of in-State tuition in the
States from which they graduated from those high schools
without regard to their status, immigration status? Could you
comment on that?
Mr. Legomsky. Thank you for the question. I would love to
comment on that. I think this is one of the more heartbreaking
issues. The vast majority of the students who are undocumented
and who wish to attend a State college or university in the
United States are kids who came to the United States typically
at a very early age. They were in no position at the time to
say to their parents, I am sorry, I can't come with you, it
would be wrong. They have committed no more wrong than anyone
in the United States, and yet in many cases, no matter how hard
they work in high school, they are being deprived of any
practical opportunity for a college education.
The reason I assume that if they can't go to State public
universities, they will be deprived of an education is that
undocumented kids are also ineligible for almost all forms of
financial aid. So if, in addition to both those things, we have
the current law which seems to say that a State may not regard
an undocumented student as an in-State resident for tuition
purposes, unless it also regards all U.S. citizens from other
States in the same way, which, of course, they are not going to
do, the combination makes it almost impossible for very
deserving children to be able to go to college.
Mr. Ellison. The last question, if I have any time left.
One of the things that has been sort of marketed in some of the
communities of color that I represent--I represent the Fifth
Congressional District of Minnesota, and we have communities of
color there, as we all do, I guess, some of the ones that are
native born and maybe been in the United States for many
generations--is that somehow undocumented workers are taking
their jobs. And it is interesting to me because some people who
on the political spectrum seem to demonstrate not too much
concern for these communities of color now all of a sudden want
to champion their cause in terms of enlisting them in the fight
against undocumented people. And my question is, is there any
validity to that point of view? Do you understand my question?
Mr. Legomsky. Yes, I think.
Mr. Ellison. Should I make it tighter?
Is there any validity to the idea that, for example,
native-born Hispanics and African Americans are being displaced
by undocumented workers?
Mr. Legomsky. With all respect, I think there is some
validity to that observation. There are distinguished
economists who otherwise support liberal immigration rules who
will say that one negative effect could be the impact on low-
skilled American workers. There are other studies that say such
an impact does not exist. But there really are credible points
of view on both sides of that issue.
Mr. Ellison. Mr. Chishti, would you like to weigh in on
that point?
Mr. Chishti. I would be glad to.
Again, I think what Dr. Legomsky said is true. Studies on
this issue are all over the map, to be honest. But I think the
best study shows the extent is minimal, and it is in pockets.
African American workers should not get discriminated by
immigrants taking these jobs. There is discrimination some
places against African Americans, and we must enforce our
discrimination laws to make sure that doesn't happen.
The second most important thing is the jobs that we should
be training African Americans for, we have cut out a lot of
training expenditures, and that is where we need to put more of
an effort, because the jobs of the future are going to be more
in the high end of our labor market, and some of the African
Americans can't compete in these labor markets because they
don't have the access to that training, and we should beef up
on those programs.
Mr. Ellison. Thank you.
Ms. Lofgren. Thank you, Mr. Ellison. And thanks to all of
you for a very extensive and useful hearing. The witnesses,
thank you so much for your testimony, both your written
testimony, which as I said earlier will be part of the record,
as well as your oral testimony.
Without objection, Members will have 5 legislative days to
submit any additional written questions to any of you, which we
will forward and ask that you answer as promptly as you can to
be made part of the record. Without objection the record will
remain open for 5 legislative days for the submission of any
other materials.
Our hearing today I think has helped to illuminate some of
the issues concerning the 1986 immigration reform legislation.
I hope that this information will guide us and be of value to
us as we move forward on looking at comprehensive immigration
reform.
I thank all of you and note tomorrow morning we will be
here at 10 looking at shortfalls in the 1996 Act. And so thank
you again, and this hearing is adjourned.
[Whereupon, at 5:36 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Study entitled ``The Underground Labor Force Is Rising To The
Surface,'' by Robert Justich and Betty Ng, Bear Stearns, submitted by
the Honorable Steve King, a Representative in Congress from the State
of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law
Study entitled ``The Fiscal Cost of Low-Skill Households to the U.S.
Taxpayer,'' by Robert Rector, Christine Kim, and Shanea Watkins, Ph.D.,
The Heritage Foundation, submitted by the Honorable Steve King, a
Representative in Congress from the State of Iowa, and Ranking Member,
Subcommittee on Immigration, Citizenship, Refugees, Border Security,
and International Law
Article entitled ``Enacting Immigration Reform, Again,'' by the
Honorable Romano L. Mazzoli and the Honorable Alan S. Simpson, former
Members of the United States Senate, submitted by the Honorable Sheila
Jackson Lee, a Representative in Congress from the State of Texas, and
Member, Subcommittee on Immigration, Citizenship, Refugees, Border
Security, and International Law