Current immigration levels should be sustained for the next several years while the U.S. revamps its legal immigration system and shifts the priorities for admission away from the extended family and toward the nuclear family and away from the unskilled and toward the higher-skilled immigrant. Thereafter, modest reductions in levels of immigration —to about 550,000 per year, comparable to those of the 1980s— will result from the changed priority system. The Commission continues to believe that legal admission numbers should be authorized by Congress for a specified time (e.g., three to five years) to ensure regular, periodic review and, if needed, change by Congress. This review should consider the adequacy of admission numbers for accomplishing priorities.

• Family-based admissions that give priority to nuclear family members —spouses and minor children of U.S. citizens, parents of U.S. citizens, and spouses and minor children of lawful permanent residents— and include a backlog clearance program to permit the most expeditious entry of the spouses and minor children of LPRs. The Commission recommends allocation of 550,000 family-based admission numbers each year until the large backlog of spouses and minor children is cleared. Numbers going to lower priority categories (e.g., adult children, siblings, and diversity immigrants), should be transferred to the nuclear family categories. Thereafter Congress should set sufficient admission numbers to permit all spouses and minor children to enter expeditiously.

Since the Commission first reported its findings on legal admission, the problems associated with family-based admissions have grown. In 1995, the wait between application and admission of the spouses and minor children of LPRs was approximately three years. It is now more than four and one-half years and still growing. Moreover, various statutory changes made in 1996 make it all the more important that Congress take specific action to clear the backlog quickly to regularize the status of the spouses and minor children of legal permanent residents in the United States. In an effort to deter illegal migration, Congress expanded the bases and number of grounds upon which persons may be denied legal status because of a previous illegal entry or overstay of a visa. An unknown, but believed to be large, number of spouses and minor children of LPRs awaiting legal status are unlawfully present in the United States. While the Commission does not condone their illegal presence, we are cognizant of the great difficulties posed by the long waiting period for a family second preference visa.

• Skill-based admissions policies that enhance opportunities for the entry of highly-skilled immigrants, particularly those with advanced degrees, and eliminate the category for admission of unskilled workers. The Commission continues to recommend that immigrants be chosen on the basis of the skills they contribute to the U.S. economy. Only if there is a compelling national interest —such as nuclear family reunification or humanitarian admissions— should immigrants be admitted without regard to the economic contributions they can make.

Persons come to the United States for limited duration stays for several principal purposes: representation of a foreign government or other foreign entities; work; study; and short-term visits for commercial or personal purposes, such as tourism and family visits. These individuals are statutorily referred to as "nonimmigrants." In this report, however, we refer to "limited duration admissions [LDAs]," a term that better captures the nature of their admission: When the original admission expires, the alien must either leave the country or meet the criteria for a new LDA or permanent residence.

For the most part LDAs help enhance our scientific, cultural, educational, and economic strength. However, the admission of LDAs is not without costs and, as explained below, certain reforms are needed to make the system even more advantageous for the United States than it now is.

The Commission believes LDA policy should rest on the following principles:

• Clear goals and priorities;
  
• Systematic and comprehensible organization of LDA categories;
  
• Timeliness, efficiency, and flexibility in its implementation;
  
• Compliance with the conditions for entry and exit (and effective mechanisms to monitor and enforce this compliance);
  
• Credible and realistic policies governing transition from LDA to permanent immigration status;
  
• Protection of U.S. workers from unfair competition and of foreign workers from exploitation and abuse; and
  
• Appropriate attention to LDA provisions in trade negotiations to ensure future immigration reforms are not unknowingly foreclosed.

Each year, more foreign workers enter the United States as LDAs for temporary work than enter as skill-based immigrants. In FY 1996, the Department of State issued almost 278,000 limited duration worker visas, including those for spouses and children. By contrast, only 118,000 immigrant visa issuances and domestic adjustments of status in worker categories were recorded in FY 1996, far less than the legislated limit of 140,000.

• Those exempt by law from labor market protection standards because their admission will generate substantial economic growth and/or significantly enhance U.S. intellectual and cultural strength and pose little potential for undermining the employment prospects and remuneration of U.S. workers. These include:

Individuals of extraordinary ability in the sciences, arts, education, business, or athletics, demonstrated through sustained national or international acclaim and recognized for extraordinary achievements in their field of expertise.

Managers and executives of international businesses. The global competitiveness of U.S. businesses is enhanced by the capacity of multinational corporations to move their senior staff around the world as needed.

Professors, researchers and scholars whose salary or other compensation is paid by their home government, home institution, or the U.S. government in a special program for foreign professors, researchers, and scholars.

Religious workers, including ministers of religion and professionals and other workers employed by religious nonprofit organizations in the U.S. to perform religious vocations and religious occupations.

Members of the foreign media admitted under reciprocal agreements. The U.S. benefits from the presence of members of the foreign media who help people in their countries understand events in the United States. Just as we would not want our media to be overly regulated by labor policies of foreign governments, the United States extends the same courtesy to foreign journalists working in the U.S.

• Foreign workers whose admission is subject to treaty obligations. This includes treaty traders, treaty investors, and other workers entering under specific treaties between the U.S. and the foreign nation of which the alien is a citizen or national. Under the provisions of NAFTA, for example, Canadian professionals are not subject to numerical limits or labor market testing; Mexican professionals continue to be subject to labor market tests, but will be exempt from numerical limits in 2003.
  
• Foreign workers subject by law to labor market protection standards. These are principally:

Professionals and other workers who are sought by employers because of their highly-specialized skills or knowledge and/or extensive experience. Included in this category are employees of international businesses who have specialized knowledge but are not managers or executives.

Trainees admitted to the United States for practical, on-the-job training in a variety of occupations. Trainees work in U.S. institutions as an integral part of their training program.

Artists, musicians, entertainers, athletes, fashion models, and participants in international cultural groups that share the history, culture, and traditions of their country.

Lesser-skilled and unskilled workers coming for seasonal or other short-term employment. Such worker programs warrant strict review, as described below. The Commission remains opposed to implementation of a large-scale program for temporary admission of lesser-skilled and unskilled workers.

The employer will pay the greater of actual or prevailing wage and fringe benefits paid to other employees with similar experience and qualifications for the specific employment in question. Actual wage rates should be defined in a simple and straightforward manner.

The employer has posted notice of the hire, informed coworkers at the principal place of business at which the LDA worker is employed, and provided a copy of the attestation to the LDA worker.

The employer has paid a reasonable user fee that will be dedicated to facilitating the processing of applications and the costs of auditing compliance with all requirements.

There is no strike or lockout in the course of a labor dispute involving the occupational classification at the place of employment.

The employer has not dismissed, except for cause, or otherwise displaced workers in the specific job for which the alien worker is hired during the previous six months. Further, the employer will not displace or lay off, except for cause, U.S. workers in the specific job during the ninety-day period following the filing of an application or the ninety-day periods preceding or following the filing of any visa petition supported by the application.

The employer will provide working conditions for such temporary workers that are comparable to those provided to similarly situated U.S. workers.

• Certain at-risk employers of skilled workers (described below) should be required to attest to having taken significant steps —for example, recruitment or training— to employ U.S. workers in the jobs for which they are recruiting foreign workers. We do not recommend, however, that current labor certification processes be used to document significant efforts to recruit. These procedures are costly, time consuming, and ultimately ineffective in protecting highly-skilled U.S. workers.
  
• Employers requesting the admission of lesser-skilled workers should be required to meet a stricter labor market protection test. Such employers should continue to be required to demonstrate that they have sought, but were unable to find, sufficient American workers prepared to work under favorable wages, benefits, and working conditions. They also should be required to specify the plans they are taking to recruit and retain U.S. workers, as well as their plans to reduce dependence on foreign labor through hiring of U.S. workers or other means. Employers should continue to be required to pay the highest of prevailing, minimum, or adverse wage rates, provide return transportation, and offer decent housing, health care, and other benefits appropriate for seasonal employees.

• The employer's extensive use of temporary foreign workers. Extensive use can be defined by the percentage of the employer's workforce that is comprised of LDA workers. It also can be measured by the duration and frequency of the employer's use of temporary foreign workers.
  
• The employer's history of employing temporary foreign workers. Those employers with a history of serious violations of regular labor market protection standards or of specific labor standards related to the employment of LDA workers should be considered as at risk for future violations.
  
• The employer's status as a job contracting or employment agency providing temporary foreign labor to other employers. Risk of labor violations increases as responsibility is divided between a primary and secondary employer.

To ensure adequate protection of labor market standards, such employers should be required to submit an independent audit of their compliance with all statements attested to in their application. The independent audits should be done by recognized accounting firms that have the demonstrated capacity to determine, for example, that wages and fringe benefits were provided as promised in the attestation and conformed to the actual or prevailing wages and fringe benefits provided to similarly situated U.S. workers.

• Allocating increased staff and resources to the agencies responsible for adjudicating applications for admission and monitoring and taking appropriate enforcement action against fraudulent applications and violations of labor market protection standards. Increased costs required for more efficient adjudication of applications can be covered by applicant fees. However, additional costs incurred for more effective investigations of compliance with labor market standards will require appropriated funds.
  
• Barring the use of LDA workers by any employer who has been found to have committed willful and serious labor standards violations with respect to the employment of LDA workers. Further, upon the recommendation of any federal, state, or local tax agency, barring the use of LDA workers by any employer who has been found to have committed willful and serious payroll tax violations with respect to LDA workers. The law currently provides for such debarment for failure to meet labor condition attestation provisions or misrepresentation of material facts on the application. Implementation of this recommendation would enable penalties to be assessed for serious labor standards violations that are not also violations of the attestations.
  
• Developing an enforcement strategy to reduce evasion of the LDA labor market protection standards through contractors. U.S. businesses' growth in contracting-out functions has raised questions of employment relationships and ultimate liability for employment-related violations, including those related to temporary foreign workers. A uniform policy for dealing with these situations is desirable for the enforcement agencies involved, as well as for employers, contractors, and workers.
  

A credible immigration system requires the effective and timely removal of aliens who can be determined through constitutionally-sound procedures to have no right to remain in the United States. If unlawful aliens believe that they can remain indefinitely once they are within our national borders, there will be increased incentives to try to enter or remain illegally.

Our current removal system does not work. Hundreds of thousands of aliens with final removal orders remain in the U.S. The system's ineffectiveness results from a fragmented, uncoordinated approach, rather than flawed legal procedures. The Executive Branch does not have the capacity, resources, or strategy to detain aliens likely to abscond, to monitor the whereabouts of released aliens, or to remove them.

Establishing a more effective removal system requires changes in the management of the removal process. More specifically, the Commission recommends:

• Establishing priorities and numerical targets for the removal of criminal and noncriminal aliens. The Commission encourages headquarters, regional, and local immigration enforcement officials to set these priorities and numerical goals.
  
• Local oversight and accountability for the development and implementation of plans to coordinate apprehensions, detention, hearings, removal, and the prevention of reentry. With guidance on priorities, local managers in charge of the removal system would be responsible for allocation of resources to ensure that aliens in the prioritized categories are placed in the system and ultimately removed. Local managers also would be responsible and accountable for identifying effective deterrents that reduce the likelihood that removed aliens would attempt to reenter the U.S.
  
• Continued attention to improved means for identifying and removing criminal aliens with a final order of deportation. The Commission reiterates the importance of removing criminal aliens as a top priority. Our recommendation regarding the importance of removing noncriminal aliens with final orders is not intended to shift the attention of the removal system away from this priority.
  
  Rather, both criminal and noncriminal aliens must be removed to protect public safety (in the case of criminals) and to send a deterrent message (to all who have no permission to be here).
  
• Legal rights and representation. The Executive Branch should be authorized to develop, provide, and fund programs and services that educate aliens about their legal rights and immigration proceedings. Such programs also should encourage and facilitate legal representation where to do so would be beneficial to the system and the administration of justice. Particular attention should be focused on aliens in detention where release or removal can be expedited through such representation. Under this approach, the alien would not have a right to appointed counsel, but the government could fund services to address some of the barriers to representation.
  
• Prosecutorial discretion to determine whether to proceed with cases. Guidelines on the use of prosecutorial discretion should be developed, local Trial Attorneys trained, support staff provided, and discretion exercised with the goal of establishing a more efficient and rational hearing system. Trial attorneys should focus their efforts on trying cases that are likely to result in the removal of the alien upon completion of the proceedings.
  
• Strategic use of detention and release decisions. Detention space, always in limited supply, is in greater demand as the government has focused more on the removal of criminal aliens and as Congress mandates more categories to be detained. Detention needs to be used more strategically if removals are to be accomplished. Alternatives to detention should be developed so that detention space is used efficiently and effectively. The Commission fully supports the three-year pilot program, created with and implemented by the Vera Institute, to help define effective alternatives to detention for specific populations.
  
• Improved detention conditions and monitoring. Detention cannot be used effectively unless the conditions of detention are humane and detainees are free from physical abuse and harassment by guards. We have no doubt that appropriate criteria for all facilities can be promulgated, based on sound governmental judgment and consultation with concerned nongovernmental organizations. But most importantly, a system to monitor facilities on a regular basis must be developed. Inspections must occur more than once annually.

Further, the Commission recommends that the Department of Justice consider placing administrative responsibility for operating detention centers with the Bureau of Prisons or U.S. Marshals Service. An immigration enforcement agency should not be shouldered with such a significant responsibility that is not part of its fundamental mission or expertise.

• Improved data systems. Current data systems are unable to link an apprehension to its final disposition (e.g., removal, adjustment of status). This significantly limits the use of apprehension and removal data for analytical purposes. The Commission urges development of data systems that link apprehensions and removals and provide statistics on individuals.
  
• The redesigned removal system should be managed initially by a Last-In-First-Out [LIFO] strategy to demonstrate the credibility of the system. Once a coherent system is organized and appropriate resources are assigned to removing deportable aliens—not simply to put aliens through proceedings —removals should proceed in a Last-In-First-Out mode. In this way, the government can send a credible deterrent message to failed asylum seekers, visa overstayers, users of counterfeit documents, and unauthorized workers, that their presence in the United States will not be tolerated. Such a well-organized system can establish control over the current caseload and quickly prioritize the backlog for enforcement purposes. The deterrent effect of LIFO has been shown in the asylum system where new procedures were adopted in a LIFO mode.