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Timing Immigration Reform

By T. Alexander Aleinikoff
Thursday, April 23, 2009

The Obama administration recently signaled interest in beginning a discussion on comprehensive immigration reform before year's end. It might seem that a severe economic downtown is not the best time for a major legislative initiative on immigration. But starting this conversation now makes sense for several reasons.

First, the level of undocumented migration into the United States has dropped because of the downturn; consider the significant reduction in the number of would-be crossers apprehended at the southwest border. Second, one of the major issues that served as an obstacle in 2007, the last time Congress debated comprehensive reform, appears to have been removed. The 2007 legislation included a large-scale temporary worker program, which most labor unions opposed. But immigrant advocacy groups have tabled these proposals, recognizing the difficulty of pushing such a program with unemployment approaching double digits.

The most difficult part of a discussion on immigration reform is what to do about the 10 million to 12 million undocumented workers and their families living in the United States. Republican opposition to an "amnesty" program was a major reason for the defeat of the 2007 reform proposal. The economic crisis is sure to fuel that same opposition: Why, it will be asked, should we give undocumented workers a legal status that permits them to compete for jobs with unemployed Americans?

Some of the short-term answers will be persuasive. A legalization program, by taking workers out of the shadows, will free up the entrepreneurial spirit of individuals who have already shown motivation and hard work in coming to the United States. Furthermore, a legal workforce will be better able to advocate for "legal workplaces," where employers comply with wage, safety and other labor laws.

A better answer focuses on the longer term. Comprehensive immigration reform should seek to accomplish two major goals: providing some form of legal status to undocumented workers who meet certain conditions (knowledge of English, payment of taxes, absence of a criminal record) and ensuring that we don't immediately see the build-up of a new undocumented population -- due to continued lax enforcement and the perceived likelihood of a future legalization program.

It is clear that we cannot credibly deter the hiring of unauthorized immigrants unless the government implements a system that can accurately verify the authenticity of documents that are presented to employers. Some members of Congress are urging the extension of the voluntary verification system -- called E-Verify -- to all U.S. employers.

But it is far too soon for this. E-Verify cannot, at this point, adequately protect against "false negatives" (when the electronic system, due to inaccurate information in government databases, fails to verify the status of a lawful worker). Even if E-Verify is correct 99 percent of the time, imposing the system nationwide on a workforce of 150 million means that hundreds of thousands of workers could still be denied jobs because of errors in the databases. Furthermore, E-Verify cannot detect identity theft or identity "borrowing" -- that is, when an employee presents the legitimate papers of another person.

Nor are federal agencies prepared for a massive legalization. A program that could provide legal status to 10 million or more people would require the hiring of a large number of federal employees; the forging of public-private partnerships; and the development of technology for online applications, systems of document verification and recordkeeping.

Immigration reform legislation could link these two goals, authorizing the start of a legalization program once a reliable verification system has been developed. Ultimately, that could result in a dramatic decrease in the undocumented population in the United States and fair reason to believe that future undocumented entry could be deterred.

Another benefit of beginning work on immigration reform now is that immigration raids on workplaces and communities could stop. Targeting employers who violate immigration laws with impunity makes good sense and is consistent with the long-term goal of legal workplaces. Less justifiable is disrupting communities and families by deporting workers who would be likely to receive legal status if Congress enacted a comprehensive reform package.

The substantial lead time needed for creating a credible verification system and an effective legalization program provides another argument for beginning the conversation on comprehensive immigration legislation soon. And by the time these new programs would come into force, improvement in the economy would probably make legalization efforts less controversial.

The writer is dean of Georgetown University Law Center and a member of the board of trustees of the Migration Policy Institute.

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