C. Undocumented Migrants: Earned (and Final) Legalization Program

The imposition of strict limits on the number of migrants annually admitted into the United States has always carried unintended consequences.  The Acts of 1917 223, 1921 224 and 1924 225 led to a rise in illegal immigration, whereby Europeans would migrate first to Mexico and Canada, which at that time were exempt from the quota system, and then migrate into the United States.  An entire industry grew up around smuggling undocumented migrants and in 1926 the Border Patrol was established to combat illegal entries.  In 1986, after years of debate, Congress enacted the most comprehensive immigration legislation since the 1950s: the IRCA.  IRCA imposed penalties on employers who hire undocumented workers, granted permanent resident status to long-term undocumented migrants (the "amnesty" provision, referenced supra) as well as migrants who had performed agricultural labor in the United States (called "Special Agricultural Workers"), and protected citizens and permanent residents from employment discrimination through the authorization of employer audits and sanctions. 226  The latter half of the 1990s marked another turning point in immigration history as undocumented immigration again came to the foreground of political attention.  The INS budget more than doubled, with the majority of funds going to increased border enforcement and resources for the detention and removal of undocumented migrants.


Despite these intentions, a certain reality must be faced in that the location, apprehension and removal of all undocumented migrants (estimated in the literature at between 10 and 12 million individuals) is both impossible in terms of capability and undesirable in terms of the United States national interest.  The simple fact is that a sudden disappearance (i.e., removal) of these workers from the U.S. workforce would induce a collapse of large sectors of the American economy.  A cautious fear is of widespread marketplace chaos as entire industries fail, causing a domino-type effect throughout the service and knowledge sectors of the economy that the United States has come to comfortably embrace.  The Senate bill provides that undocumented workers who have been here for five years or more may remain, work another six years, and adjust to permanent resident status after meeting certain conditions.  Those who have been in the U.S. for two to five years may remain and work for three years, but then must depart the U.S. to apply for a visa abroad before reentering.  Agricultural workers who meet specified work requirements may receive a "blue card" and work for three more years before getting a green card.  Finally, certain undocumented school children may legalize their status in order to attend college. 227


Under equitable moderation, a final and earned legalization program should be implemented for those currently in the United States who entered the country outside of formal legal channels, inclusive of members of The Mexican Question as well as those from Central America, China and other sending states where large numbers of undocumented migrants originate.  Undocumented migrants from Mexico would qualify to have their status legalized to that of a GN nonimmigrant while those from countries other than Mexico would qualify for one of the H nonimmigrant visas, as determined by a migrant beneficiary’s individual skills.  In contrast to the Senate bill, these visas would treat all currently undocumented migrants as a single class, allowing for eventual adjustment to permanent resident status from within the United States based upon a petition filed by a qualifying employer or family member under the existing immigrant visa criteria, as modified herein.  The earned legalization program would be implemented in incremental stages and based upon an equitable economic-political exchange with the American public through appropriate longitudinal financial penalties rather than one-time fees.  The legalization program would combine incremental processing preferences based upon the uninterrupted amount of time a migrant has resided in the U.S., with a progressive penalty structure based upon that same length of time.  In this way, the program does not unfairly reward those who have been in violation of the law for longer periods of time.


Those who entered the country between 1986 and 1991 (and did not or were not eligible to take advantage of the IRCA "amnesty") would receive first preference for legalization and would pay the highest monthly penalty at $100.00 per month for as long as they remain in the United States or until such time as they qualify for naturalization, five years from the date upon which they obtain permanent resident status.  Those who entered the country between 1992 and 1996 (and did not or were not eligible to take advantage of 245(i)) would receive second preference and would pay a lower monthly penalty at $75.00 per month.  Those who entered the country between 1997 and 2001 (and did not or were not eligible to take advantage of 245(i)) would receive third preference and would pay a lower monthly penalty at $50.00 per month.  And those who entered the country between 2002 and 2006 would receive fourth preference and would pay the lowest monthly penalty at $25.00 per month.  Total approximate revenues to accrue to the United States over each five-year period would be $18 billion for first preference migrants ($100.00 per adjusted immigrant, multiplied by the estimated average number of undocumented entries in each five-year period over the entire applicable period of 1986 to 2006, at roughly 3,000,000 entries per five-year period), $13.5 billion for second preference migrants ($75.00 per adjusted immigrant x 3,000,000), $9 billion for third preference migrants ($50.00 per adjusted immigrant x 3,000,000), and $4.5 billion for fourth preference migrants ($25.00 per adjusted immigrant x 3,000,000).


All fees would be paid into the U.S. Treasury and redistributed to those who have "lost" the most from the immigration equation (i.e., domestic low-skilled workers and the public treasury) in three forms.  First, through direct monthly compensation payments to low-skilled workers who can document having been unemployed or underemployed as a direct result of his or her U.S. employer hiring an undocumented migrant to fill his or her job.  These payments would be paid to each displaced worker for as long as he or she had been unemployed or underemployed, up to a maximum of five years.  Second, through an adult education and training program administered through the USDOL, which would conduct courses in the STEM and health care occupational categories of such quality that they would be transferable into U.S. degree-conferring colleges and universities.  Participation in the education program would be mandatory for those receiving redistribution payments for prior work displacement though any individual can opt out of the program at any time by agreeing to forfeit future payments.  The program would be strictly voluntary for all other domestic low-skilled workers.  Third, through the annual retention of funds by the U.S. Treasury to compensate the public account for any social benefits obtained illegally by undocumented migrants throughout their tenure in the United States, calculated as the average annual expenditures for such benefits over the 20-year period (1986 through 2006), which would be earmarked toward the Social Security account to help bring it into balance.

223 Massey, Foolish Fences.


224 United States Department of Energy, Energy Information Administration, "Non-OPEC Fact Sheet."


225 Adriana Barrera, "World Bank urges crackdown on government corruption."


226 Washington Post, "Business in Brief."


227 Jorge Durand, Emilio A. Parrado, and Douglas S. Massey, "Migradollars and Development: A Reconsideration of the Mexican Case," International Migration Review (1996): 423-44.