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Sustainable Society:  A society that balances the environment, other life forms, and human interactions over an indefinite time period.

 

 

 

 

 


 

Framework for Immigration Policy

Becoming an American:

Immigration and Immigrant Policy

USCIR*

Executive Summary
1997



Legal Permanent Admissions
Limited Duration Admissions
   
The Commission believes LDA policy should rest on the following principles
    The definitions and objectives of the five limited duration visa classifications would be
   
Short-Term Visitors
   
Foreign Workers
    Admission should be contingent on an attestation that
   
The risk factors that should be considered in determining whether regular audit requirements must apply include
    More specifically, the Commission recommends
Curbing Unlawful Migration
   
Deterrence Strategies
   
Removals
Notes



In our previous reports, the Commission defined a credible immigration policy "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." By these measures, we have made substantial, but incomplete, progress. What follows are the Commission's recommendations for comprehensive reform to achieve more fully a credible framework for immigration policy.

Legal Permanent Admissions

The Commission reiterates its support for a properly-regulated system for admitting lawful permanent residents.3

Research and analyses conducted since the issuance of the Commission's report on legal immigration support our view that a properly-regulated system of legal permanent admissions serves the national interest. The Commission urges reforms in our legal immigration system to enhance the benefits accruing from the entry of newcomers while guarding against harms, particularly to the most vulnerable of U.S. residents —those who are themselves unskilled and living in poverty.

More specifically, the Commission reiterates its support for:

  • A significant redefinition of priorities and reallocation of existing admission numbers to fulfill more effectively the objectives of our immigration policy. The current framework for legal immigration —family, skills, and humanitarian admissions— makes sense. However, the statutory and regulatory priorities and procedures for admissions do not adequately support the stated intentions of legal immigration—to reunify families, to provide employers an opportunity to recruit foreign workers to meet labor needs, and to respond to humanitarian crises around the world. During the two years since our report on legal immigration, the problems in the legal admission system have not been solved. Indeed, some of them have worsened.

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.

Research shows that education plays a major role in determining the impacts of immigration. Immigration of unskilled immigrants comes at a cost to unskilled U.S. workers, particularly established immigrants for whom new immigrants are economic substitutes. Further, the difference in estimated lifetime fiscal effects of immigrants by education is striking: using the same methodology to estimate net costs and benefits, immigrants with a high school education or more are found to be net contributors while those without a high school degree continue to be net costs to taxpayers throughout their lifetime.4

The Commission also continues to recommend changes in the procedures used in testing the labor market impact of employment-based admissions. Rather than use the lengthy, costly, and bureaucratic labor certification system, the Commission recommends using market forces as a labor market test. To ensure a level playing field for U.S. workers, employers would attest to having taken appropriate steps to recruit U.S. workers, paying the prevailing wage, and complying with other labor standards. Businesses recruiting foreign workers also would be required to make significant financial investments in certified private sector initiatives dedicated to improving the competitiveness of U.S. workers. These payments should be set at a per worker amount sufficient to ensure there is no financial incentive to hire a foreign worker over a qualified U.S. worker.

  • Refugee admissions based on human rights and humanitarian considerations, as one of several elements of U.S. leadership in assisting and protecting the world's persecuted.5 Since its very beginnings, the United States has been a place of refuge. The Commission believes continued admission of refugees sustains our humanitarian commitment to provide safety to the persecuted, enables the U.S. to pursue foreign policy interests in promoting human rights, and encourages international efforts to resettle persons requiring rescue or durable solutions. The Commission also urges the federal government to continue to support international assistance and protection for the majority of the world's refugees for whom resettlement is neither appropriate nor practical.


The Commission continues to recommend against denying benefits to legal immigrants solely because they are noncitizens.

The Commission believes that the denial of safety net programs to immigrants solely because they are noncitizens is not in the national interest. In our 1994 and 1995 reports, the Commission argued that Congress should address the most significant uses of public benefit programs —particularly, elderly immigrants using Supplementary Security Income— by requiring sponsors to assume full financial responsibility for newly-arriving immigrants who otherwise would be excluded on public charge grounds. In particular, the Commission argued that sponsors of parents who would likely become public charges assume the responsibility for the lifetimes of the immigrants (or until they became eligible for Social Security on the basis of work quarters). We also argued that sponsors of spouses and children should assume responsibility for the duration of the familial relationship or a time-specified period. We continue to believe that this targeted approach makes greater sense than a blanket denial of eligibility for public services based solely on a person's alienage.

Limited Duration Admissions

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.

The Commission recommends a reorganization of the visa categories for limited duration stays in the United States to make them more coherent and understandable.

The Commission recommends that the current proliferation of visa categories be restructured into five broad groups: official representatives; foreign workers; students; short-term visitors; and transitional family members. This reorganization reflects such shared characteristics of different visa categories as entry for like reasons, similarity in testing for eligibility, and similar duration of stay in the United States.

The definitions and objectives of the five limited duration visa classifications would be:6

  • Official representatives are diplomats, representatives of or to international organizations, representatives of NATO or NATO forces, and their accompanying family members. The objective of this category is to permit the United States to admit temporarily individuals who represent their governments or international organizations.
  • Short-term visitors come to the United States for commercial or personal purposes. In 1995 alone, millions of inbound visitors from other countries spent $76 billion on travel to and in the United States (on U.S. flag carriers, lodging, food, gifts, and entertainment).
  • Foreign workers are those who are coming to perform necessary services for prescribed periods of time, at the expiration of which they must either return to their home countries or, if an employer or family member petitions successfully, adjust to permanent residence. This category would serve the labor needs demonstrated by U.S. businesses, with appropriate provisions to protect U.S. workers from unfair competition.
  • Students are persons who are in the United States for the purpose of acquiring either academic or practical knowledge of a subject matter. This category has four major goals: to provide foreign nationals with opportunities to obtain knowledge they can take back to their home countries; to give U.S. schools access to a global pool of talented students; to permit the sharing of U.S. values and institutions with individuals from other countries; and to enhance the education of U.S. students by exposing them to foreign students and their cultures.
  • Transitional family members include fiancé(e)s of U.S. citizens. These individuals differ from other LDAs because they are processed for immigrant status, although they do not receive such status until they marry in the U.S. and adjust. The Commission believes another category of transitional family members should be added: spouses of U.S. citizens whose weddings occur overseas but who subsequently come to the U.S. to reside.

Short-Term Visitors

The Commission recommends that the current visa waiver pilot program for short-term business and tourist visits be made permanent upon the implementation of an entry-exit control system capable of measuring overstay rates.

A permanent visa waiver system requires appropriate provisions to expand the number of participating countries and clear and timely means for removing those countries that fail to meet the high standards reserved for this privilege. Congress should extend the pilot three years while the control system is implemented.

        Foreign Workers

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.

The Commission recommends that the limited duration admission classification for foreign workers include three principal categories: those who, for significant and specific policy reasons, should be exempt by law from labor market protection standards; those whose admission is governed by treaty obligations; and those whose admission must adhere to specified labor market protection standards. Under this recommendation, LDA worker categories are organized around the same principles that guide permanent worker categories.

Accordingly, the Commission proposes different subcategories with labor market protection standards commensurate with the risks to U.S. workers we believe are posed by the foreign workers.

  • 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 Commission recommends that the labor market tests used in admitting temporary workers in this category be commensurate with the skill level and experience of the worker.

  • Employers requesting the admission of temporary workers with highly-specialized skills or extensive experience should meet specific requirements.

    Admission should be contingent on an attestation that:

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 Commission recommends that categories of employers who are at special risk of violating labor market protection standards —regardless of the education, skill, or experience level of its employees— be required to obtain regular, independently-conducted audits of their compliance with the attestations made about labor market protection standards, with the results of such audit being submitted for Department of Labor review. Certain businesses, as described below, pose greater risk than others of displacing U.S. workers and/or exploiting foreign workers.

The risk factors that should be considered in determining whether regular audit requirements must apply include:

  • 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.

The Commission recommends enhanced monitoring of and enforcement against fraudulent applications and postadmission violations of labor market protection standards. To function effectively, both the exempt and nonexempt temporary worker programs must provide expeditious access to needed labor. The Commission's recommendations build on the current system of employer attestations that receive expeditious preapproval review but are subject to postapproval enforcement actions against violators.

More specifically, the Commission recommends:

  • 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.

Curbing Unlawful Migration

In its first interim report to Congress , the Commission recommended a comprehensive strategy to curb unlawful migration into the United States through prevention and removal.7 Despite the additional resources, new policies, and often innovative strategies adopted during the past few years, illegal migration continues to be a problem. The Commission continues to believe that unlawful immigration can be curtailed consistent with our traditions, civil rights, and civil liberties. As a nation committed to the rule of law, our immigration policies must conform to the highest standards of integrity and efficiency in the enforcement of the law. We must also respect due process.

    Deterrence Strategies

The Commission reiterates its 1994 recommendations supporting a comprehensive strategy to deter illegal migration.

More specifically, the Commission continues to support implementation of the following deterrence strategies:

  • An effective border management policy that accomplishes the twin goals of preventing illegal entries and facilitating legal ones. New resources for additional Border Patrol officers, inspectors, and operational support, combined with such new strategies as operations "Hold the Line," "Gatekeeper," and "Safeguard," have improved significantly the management of the border where they are deployed. The very success of these new efforts demonstrates that to gain full control, the same level of resources and prevention strategies must be deployed at all points on the border where significant violations of U.S. immigration law are likely to occur.
  • Reducing the employment magnet is the linchpin of a comprehensive strategy to deter unlawful migration. Economic opportunity and the prospect of employment remain the most important draw for illegal migration to this country. Strategies to deter unlawful entries and visa overstays require both a reliable process for verifying authorization to work and an enforcement capacity to ensure that employers adhere to all immigration-related labor standards. The Commission supports implementation of pilot programs to test what we believe is the most promising option for verifying work authorization: a computerized registry based on the social security number.8
  • Restricting eligibility of illegal aliens for publicly-funded services or assistance, except those made available on an emergency basis or for similar compelling reasons to protect public health and safety or to conform to constitutional requirements. Although public benefit programs do not appear to be a major magnet for illegal migrants, it is important that U.S. benefit eligibility policies send the same message as immigration policy: Illegal aliens should not be here and, therefore, should not receive assistance, except in unusual circumstances. The Commission recommended drawing a line between illegal aliens and lawfully resident legal immigrants with regard to benefits eligibility, in part to reinforce this message. We continue to believe that this demarcation between legal and illegal aliens makes sense. The Commission urges the Congress to reconsider the changes in welfare policy enacted in 1996 that blur the distinctions between legal and illegal aliens by treating them similarly for the purposes of many public benefit programs.
  • Strategies for addressing the causes of unlawful migration in source countries. An effective strategy to curb unauthorized movements includes cooperative efforts with source countries to address the push factors that cause people to seek new lives in the United States. The Commission continues to urge the United States government to give priority in its foreign policy and international economic policy to long-term reduction in the causes of unauthorized migration.
  • Mechanisms to respond in a timely, effective, and humane manner to migration emergencies. A credible immigration policy requires the ability to respond effectively and humanely to migration emergencies in which large numbers of people seek entry into the United States. These emergencies generally include bona fide refugees, other individuals with need for protection, and persons seeking a better economic life in the U.S. Failure to act appropriately and in a timely manner to determine who should be admitted and who should be returned can have profound humanitarian consequences. Further, an uncontrolled emergency can overwhelm resources and create serious problems that far outlast the emergency.9


Removals

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.

The Commission urges immediate reforms to improve management of the removal system and ensure that aliens with final orders of deportation, exclusion, or removal are indeed removed from the United States.

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.


The Commission urges Congress to clarify that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA] and the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] do not apply retroactively to cases pending when the new policies and procedures went into effect.

As a matter of policy, the Commission believes that retroactive application of new immigration laws undermines the effectiveness and credibility of the immigration system. Applying newly-enacted laws or rules in an immigration proceeding that has already commenced results in inefficiency in the administration of the immigration laws. It also can raise troubling issues of fairness. Finally, it invites confusion, adds uncertainty, and fosters a lack of trust and confidence in the rule of law.

________
3 For a full explanation of the Commission’s recommendations see Legal Immigration: Setting Priorities, 1995. See Appendix for summary of Commissioner Leiden’s dissenting statement.
4 National Research Council. 1997. The New Americans: Economic, Demographic, and Fiscal Effects of Immigration. Washington, DC: National Academy Press.
5 For a full explanation of the Commission’s refugee-related recommendations, see U.S. Refugee Policy: Taking Leadership, 1997.
6 The current system includes the J visa for cultural exchange, which is used for a variety of purposes, ranging from short-term visits to study and work. The workers include scholars and researchers, camp counselors, au pairs, and various others. Some work activities under the J visa demonstrate a clear cultural or education exchange; other work activities appear only tangentially related to the program’s original purposes. Protection of U.S. workers by labor market tests and standards should apply to the latter group in the same manner as similarly situated temporary workers in other LDA categories. The Department of State should assess how better to fulfill the purpose of the Mutual Educational and Cultural Exchange Act of 1961 [Fulbright-Hays Act]. Such an analysis is particularly timely in light of the merger now being implemented between the Department of State and the United States Information Agency, which is responsible for administering the J visa.
7 For a full explanation of the Commission’s recommendations see: U.S. Immigration Policy: Restoring Credibility, 1994.
8 The Concurring Statement of Commissioners Leiden and Merced can be found in the Commission’s 1994 report.
9 For a fuller discussion of the Commission’s recommendation on mass migration emergencies, see U.S. Refugee Policy: Taking Leadership, 1997.
_______
* United States Commission on Immigration Reform
Report to Congress, 1997. Appointment of President Bill Clinton.

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