[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

                              ----------                              

                             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

                              ----------                              


               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



                                 
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