B. The Mexican Question: Good Neighbor Visas and Diasporic Development

Emigration from Mexico to the United States is currently the largest migratory movement on the planet and the phenomenal growth of Mexicans in the United States has become a far-reaching political issue. 198  In fact, many contemporary references to international migration and immigration policy reform in the United States are primarily Mexican in nature due to Mexico’s continual and dramatic percentage predominance of total measured migration into the United States.  Mexicans comprised 42 percent of all new immigrants during the 1990s 199 and amounted to 27.6 percent of the total foreign-born U.S. population in 2000 whereas the next largest contingents, Chinese and Filipinos, amounted to only 4.9 percent and 4.3 percent, respectively. 200  One out of every 10 Mexicans now lives in the United States 201 and according to a Fox News poll, which aired on the Fox News Channel on August 17, 2005, 40 percent of Mexico’s citizens stated that they would rather live in the United States than in their native homeland.  In 2004, Mexico was ranked seventh among countries of origin for international students in the United States, with large numbers of Mexicans attending colleges and universities in such non-traditional immigration states as Oklahoma, North Carolina, Minnesota and Ohio. 202


Mexico has its own unique story in the history of United States immigration.  Since the Treaty of Guadalupe Hidalgo was signed in 1848, which ended the Mexican-American War and ceded one-third of Mexico’s territory and natural resources to the United States, Mexicans have gone north in temporary, circular and permanent migration streams.  These flows into and out of the United States continued somewhat uninterrupted into the mid-twentieth century as Mexican workers crossed the newly constructed border in response to severe manpower shortages in United States agricultural sectors.  Economic crises in the United States in 1907, 1921, 1929 and 1939 led to massive expulsions of Mexican migrants 203 though their return was dramatically embraced as the United States entered into World War II.  This led to a large-scale temporary worker program in 1942 called the Bracero Program, through which Mexican laborers filled the wartime employment needs of the United States.  Over the program’s 22-year lifespan, more than 4.5 million Mexican citizens were legally hired for work in the United States, primarily in Texas and California.  Mexican ruralists, desperate for paid work, were willing to take agricultural jobs at wages scorned by most Americans, who had moved into the better-paid war industries. 204


The Bracero Program helped establish what became a common migration pattern: Mexican citizens entering the United States for work, returning to Mexico for a period of time, and returning again to the United States to earn additional wages, the so-called "circular migration pattern" of workers between Mexico and the United States. 205  When the program finally ended in 1964, the United States did not stop employing Mexican workers; it simply shifted from a de jure policy of active labor recruitment to a de factopolicy of passive labor acceptance, combining modest legal immigration with massive undocumented entry.  Despite successive amendments to the INA (in 1965, 1976, 1978 and 1980) intended in large part to restrict Mexican immigration, the number of legal immigrants rose from 38,000 in 1964 to 67,000 in 1986; and over the same period gross undocumented migration grew from 87,000 to 3.8 million entries per year. 206


In the years following World War II, as the proportion of Spanish-speaking residents increased, much of the lingering nativism in the United States was directed against those from Mexico and Central and South America.  The 1952 INA - in keeping with the "Good Neighbor" policy, as it was described by then-President Franklin Roosevelt - had not placed any limitations on immigration from these regions, whose seasonal laborers were crucial to the nation’s farmers. 207  However, by 1965, the pressure for such restrictions had mounted.  Giving in to these pressures as a price to be paid for abolishing the national origins system, Congress put into the 1965 INA amendments a ceiling on immigration from the Western Hemisphere that was designed to close the last remaining open door of United States immigration policy.  This provision, enacting a 20,000 per-country ceiling, went into effect on July 1, 1968.  Consistently, Mexican immigration has exceeded these limits creating long backlogs of adjudication for legalized migratory flows. 208  This created the beginnings of what would become the chronic undocumented flows from Mexico.


Chronic undocumented migration flows from Mexico into the United States (hereinafter, "The Mexican Question") have developed over the last several decades into considerable economic, social and political concerns in both the private and public sectors of a shared and growing bilateral space.  Approximately 80 to 85 percent of total migration from Mexico in recent years has been undocumented. 209  Some experts estimate that as many as three million out of the four million Mexican migrants who came to the United States during the 1990s were undocumented, 210 making over one in every two Mexican migrants undocumented, compared with about one in every six for the remainder of the foreign-born. 211  According to the Mexican Migration Project at Princeton University, the share of undocumented migrants likely to return home after five years in the United States declined from 86 percent in 1990 to 40 percent in 1998. 212


There were 8.4 million undocumented migrants living in the United States in April 2000 according to estimates derived from Census 2000. 213  Following several years of steady growth, the number of undocumented reached an estimated 10.3 million (29 percent of the total foreign-born population) in March 2004 with undocumented Mexicans numbering 5.9 million or 57 percent of the total.  The Mexican share of total undocumented migrants has remained constant over the course of the last decade, even as the size of the total undocumented population has grown to a historically high level.  As of March 2005, assuming the same rate of growth as in previous years (at approximately 485,000 per year), the undocumented population reached nearly 11 million, including more than six million Mexicans. 214


The phenomenon of The Mexican Question places considerable pressure on the national psyche of the United States - ingrained as it is in the "rule of law" or "law on the books" - and on the fiscal and political resources of the federal agencies charged with enforcing documented order pursuant to statutory mandates.  Moreover, undocumented migration, while greatly benefiting the domestic economy at large and certain private interests in particular, breeds incidental problems in the domestic polity such as reactionary nationalism, economic protectionism, and security fears related to borderless terrorism and the proliferation of transnational gang, smuggling and trafficking networks.  For these reasons, mass undocumented immigration from Mexico has been begging for a workable solution since its post-Bracero inception.  In fact, many of the assumptions that are now driving U.S. thinking about immigration reform are directly shaped, even inspired, by The Mexican Question.


Mexican development is a key factor in the success of any longitudinal policy proposal that addresses Mexican immigration, including those members of The Mexican Question as well as those still living abroad.  The current policy recommendation will apply to those Mexicans who have not yet entered the U.S., with members of The Mexican Question incorporated into the "Undocumented Migrants" section that immediately follows.  This is not a development piece; nevertheless, a surface treatment of the topic herein is an important component of a bilateral migration strategy in that the lack of opportunities for economic and social mobility in Mexico comprises the principal "push side" factors that have fueled a half-century of substantial migration flows between Mexico and the United States.  The wage gap between the two countries will not shrink as a result of migration alone and, in fact, migration may serve to exacerbate the wage differential (as the wage gap between natives and migrants shrinks within the U.S. labor market) in the absence of appropriate development strategies in Mexico.  An investigation into certain successful development strategies of the "Asian Tiger" markets is illustrative for designing a basest Mexican model.


The Asian Tiger countries and territories were noted for maintaining high economic growth rates and rapid industrialization between the early 1960s and 1990s.  By the early twenty-first century, the original four Asian Tiger states (Hong Kong, Taiwan, Singapore and South Korea) were at or near full developed status, and shared a range of fiscal policy characteristics including high levels of investment in education and infrastructure.  Since these nations were relatively poor during the 1960s, they had an abundance of cheap labor and, through significant educational reform, they were able to leverage this labor pool into a cheap albeit highly productive workforce.  The Asian Tigers singled out education as a primary means of improving national productivity with a heavy emphasis on ensuring that all children attended elementary education and compulsory high school education with additional investments made to improve their respective college and university systems.  Successful adaptations of the Asian Tiger model can be found in such other countries as India, which enjoys a large educated class capable of exporting intellectual services and attracting outsourcing revenues from the United States and around the world with the growth of its software and call-center industries.


While Mexico is still considered a developing state, its economy is quite dynamic and carries substantial potential for raising living standards across the board of its society and lowering the wage gap between itself and the United States by implementing an Asian Tiger model of internal development.  In fact, Mexico has a trillion-dollar economy, 215 containing a mixture of modern and outmoded industry and agriculture increasingly dominated by the private sector.  Recent administrations have expanded competition in sea ports, railroads, telecommunications, electricity generation, natural gas distribution and airports, and Mexico is the world’s largest producer of silver and one of the five major producers of oil (along with Saudi Arabia, Russia, the United States and Iran 216).  Private consumption, patterned after the United States model, has become the leading driver of growth, accompanied by increased employment and slightly higher wages.  However, Mexico still needs to overcome many structural problems as it strives to modernize its economy and raise living standards.  The Fox Administration is cognizant of the need to upgrade infrastructure, modernize the tax system and labor laws, and allow private investment in the energy sector, but has been unable to win the support of the opposition Congress led by the Partido Revolucionario Institucional (Institutional Revolutionary Party; hereinafter, "PRI").


The PRI maintained a monopoly over Mexican government through the 70-year period preceding President Fox’s election in 2000, and it still holds the majority of seats in the Congress and in local and state governments.  PRI leadership has historically involved the institutionalization of corruption, a key element of Mexico’s perpetual inability to make its final leap into "developed" status.  Billions of dollars have been embezzled by PRI officials in Mexico, according to the World Bank, with corruption making up as much as nine percent of Mexico’s GDP, exceeding the country’s entire spending on education. 217  Certain measures are being taken by Mexico’s business sector, including the formation of self-help associations like the "Alliance for a Legal Mexico," which in September of 2004 launched a campaign to stamp out Mexico’s vast corruption-led informal economy.  Heads of several major business chambers joined politicians and other activists in announcing the Alliance and calling for the government to push millions of Mexicans out of the underground black-market and into the legal, taxpaying sector. 218


Additional measures must be taken to invest in education, infrastructure and anti-corruption programs in Mexico, and the equitable moderate strategy recommends the investment of remittance revenues from the Mexican diaspora in the United States.  The prevailing counter-view is that Mexico-to-U.S. emigration discourages autonomous economic growth within Mexico, at both the local and national levels, and that it promotes economic dependency.  However, results estimated from a multiplier model developed by Jorge Durand (Research Professor of Anthropology at the University of Guadalajara) suggest that the inflow of "migra-dollars" stimulates economic activity, both directly and indirectly, and that it leads to significantly higher levels of employment, investment and income within specific communities and the nation as a whole.  The annual arrival of around $2 billion migra-dollars generates economic activity that accounts for 10 percent of Mexico’s output and three percent of its GDP. 219  According to President Fox, remittances are Mexico’s largest source of foreign income, bigger than oil, tourism or foreign investment, producing a gross product slightly higher than the $600 billion generated by Mexicans in Mexico. 220  It is no wonder, then, why President Fox referred to Mexican residents in the United States - formerly held in contempt by many Mexicans for betraying their national allegiance and community commitments - as "heroes." 221


GN and TN Visas


To assist with and facilitate the appropriate education, infrastructure and anti-corruption measures needed to fully develop Mexico, funded by migration taxes and remittances, a new Rooseveltian Mexico-specific nonimmigrant visa category (hereinafter, "Good Neighbor" or "GN") should be created and immediately implemented.  The GN visa would be earmarked for low-skilled workers while the existing "Trade NAFTA" (hereinafter, "TN") visas would remain an option for Mexican professionals with higher skill sets.  The allocation level for GN visas would be dramatically above any previous visa limits, calculated as the average annual number of undocumented temporary worker entries from Mexico between 1990 and 2006 (approximately 280,000 per year, according to the USCIS Office of Policy and Planning 222).  While this is a dramatic number of allocations for a single country, it has been established herein that the national interest of the United States would be well-served by providing U.S. employers with an appropriate pool of low-skilled labor from abroad as more and more Americans are making the transition into high-skilled professions.  Low-skilled Mexican nationals have been more than willing to fill this void in the domestic labor market as evidenced in part by those risking death to cross the border in the more remote and dangerous regions of the American southwest.  With low-skilled employment expected to lead total projected employment growth throughout the next decade due to a retiring domestic workforce and a declining birth rate, sufficient numbers of low-skilled migrant workers must be appropriated.  This is the underlying reasoning that justifies the new EB-3B immigrant visa and the expansion of current H-2A and H-2B quotas as recommended supra, and for the creation of a new GN nonimmigrant visa specific to Mexican low-skilled workers.


The TN visa should also be liberalized for Mexicans to the effect that Canadians and Mexicans are afforded completely equal treatment under applicable law with respect to applying for, and qualifying for, the TN visa.  Under prior law, Canadians were not subject to a numerical cap on TN visas whereas Mexicans were capped at a mere 5,500 per year.  Also, Canadians were able to apply for a TN visa at the border with a filing fee, letter of employment, proof of Canadian citizenship and other supporting documentation.  In contrast, Mexicans had to have a TN nonimmigrant petition (filed with the USCIS by a U.S. employer) approved by the USCIS, which in turn required an approved Labor Condition Application (hereinafter, "LCA") (filed by a U.S. employer with the USDOL).  Once the LCA was approved by the USDOL and the TN petition was approved by the USCIS, the Mexican professional then had to apply for a TN visa through one of the USDOS’s consulates in Mexico.  In sum, whereas Canadians could simply show up at the border and receive a TN visa, Mexicans had to apply through three separate federal agencies, an arbitrary and discriminatory practice that caused substantial productivity losses affecting both U.S. and Mexican businesses.  In 2004, procedures for obtaining a TN visa were simplified for Mexicans; however, Mexicans must still obtain a visa through a visa appointment at a U.S. Consulate in Mexico prior to presenting themselves at the border.  Therefore, the improved TN visa promulgated herein would eliminate this unnecessary red tape for Mexican professionals and conform all TN processes to the practice currently applicable only to Canadian TN professionals.


Moreover, the occupations list that qualifies an individual for a TN visa should be expanded to better conform to the realities of transnational labor in a conjoined bilateral space, and TN visas for both Mexicans and Canadians should replace the current one-year maximum albeit indefinitely renewable period of stay with a three-year, indefinitely renewable period of stay.  This revision would not only afford greater efficiency in the NAFTA market but would also free up USCIS personnel who would no longer be occupied by annual TN extension requests, thereby allowing adjudications officers to work on eliminating processing delays in other immigrant and nonimmigrant categories.  The GN and modified TN visas should require a U.S. employer to sponsor the nonimmigrant (a current requirement of the TN program) and the GN visa should be valid for a period of three years but with a requirement that the nonimmigrant return to Mexico for at least one year at the end of the three-year period before reapplying, thereby reorienting Mexican low-skilled migrant flows to their temporary, rotational Bracero Program foundations disrupted by U.S. policies over the last 20 years.  However, both GNs and TNs should be allowed to adjust their status from within the United States to that of permanent resident with the approval of an employment-based immigrant visa petition in one of the EB-1, EB-2 or EB-3A categories for TN adjustees or in the EB-3B category for GN adjustees, as filed with the USCIS by a self-petitioner or U.S. employer and subject to the fluid annual quotas recommended supra.


As with the new EB-3B immigrant and modified H nonimmigrant visa categories, a substantial fee (i.e., a progressive nonimmigrant tariff) would apply to Mexicans in the GN category and would have to be paid in private funds by the intending nonimmigrant rather than by a U.S. employer or the Mexican government.  In a now familiar pattern, the fee would be calculated against Mexico’s per-capita PPP GDP for the preceding year where the tax rate increases as Mexico’s GDP, to which the rate is attached, increases.  One-third of the nonimmigrant tariff would be given back to Mexico as "development revenue" for designing and implementing the education, infrastructure and anti-corruption programs addressed supra; one-third would be appropriated to the USCIS and earmarked for improving its adjudications processes; and one-third would be held in escrow and refunded to the nonimmigrant once he or she has completed their three-year stay and remained gainfully employed in the United States throughout the three-year period.  To receive its third of the nonimmigrant tariff, the Mexican government would have to reciprocate by lowering certain trade barriers on specified U.S. services in which the United States has a comparative advantage, as determined by the U.S. Trade Representative in bilateral negotiations, both within and outside of the existing NAFTA framework.  Mexico would also have to demonstrate to a bilateral oversight committee that these revenues are being directly reinvested in the country’s development programs.

198 Angela Kelley, "House ‘9/11’ Bill Targets Immigrants, Not Terrorists."


199 REAL ID Act of 2005 (Pub. L. 109-13).


200 Federation for American Immigration Reform, "Comparison."


201 Mark Curriden, "Run for the Border," Student Lawyer 31, no. 2 (2002).


202 Fragomen, "Summary."


203 Immigration Reform and Control Act of November 6, 1986 (IRCA) (100 Statutes-at-Large 3359).


204 Federation for American Immigration Reform, "Comparison."


205 Fragomen, "Summary."


206 Pelligrino, "Trends in International Migration," 397.


207 Paral, "Mexican Immigrant Workers," 6.


208 Huntington, "The Hispanic Challenge."


209 Jorge Durand, "From Traitors to Heroes: 100 Years of Mexican Migration Policies."


210 Institute of International Education, "Open Doors 2005 Fast Facts."


211 Durand, "From Traitors to Heroes."


212 Jorge Durand, Douglas Massey and Emilio Parrado, "The New Era of Mexican Migration to the United States," The Journal of American History 86, no. 2 (1999).


213 University of California, Berkeley, "California Heritage Project."


214 Durand, et al., "The New Era of Mexican Migration."


215 Cynthia Crossen, "How U.S. Immigration Evolved as the Nation Grew and Changed," The Wall Street Journal, January 9, 2006, B1.


216 Francisco Alba, "Mexico: A Crucial Crossroads."


217 Jeffrey S. Passel, "Estimates of the Size and Characteristics of the Undocumented Population."


218 Rob Paral, "Ties that Bind: Immigration Reform Should be Tailored to Families, Not Just Individuals," Immigration Policy in Focus 4, no. 4 (2005).


219 Jeffrey S. Passel, "Mexican Immigration to the US: The Latest Estimates."


220 Paral, "Ties that Bind."


221 Passel, "Undocumented Population" (citing Passel, Van Hook, and Bean (2004)).


222 Ibid.