The Carlisle Mosquito Online

Friday, May 26, 2006


Far from the borders: the immigration debate boils over

With immigration news in the headlines this week, the Mosquito asked Carlisle immigration attorney Roy J. Watson to share his views on the subject. Watson practices law in Bedford, advising corporate and business clients on immigration matters.

One thing can be said about immigration: there are few people who are indifferent on the issue. There also seems to be no shortage of talkmeisters eager to fan the flames of public passion on this very complex and counter-intuitive subject. Many of these conclusions are covered with a thin veneer of logic, but if you extend the argument more than one or two steps, the veneer begins to crack. Generally, this is where the yelling begins. Few will disagree that we have a system of immigration laws that is not working, or certainly not working well. The challenge is to craft a solution that will reasonably address critical issues in a meaningful way that will actually work. Over 80% of U.S. citizens believe that there is a middle ground between hermetically sealing all of our borders on one side, and hiring greeters to pass out goody bags on the other. So, what are the issues?

The U.S. has long had a love-hate relationship with immigration. In the late 1800s, we did not hesitate to "invite" tens of thousands of Chinese to come over ostensibly as "guest workers," to mine for gold and to literally work themselves to death to build the nation's railroads. Once they had served their primary purpose, however, we thanked them by passing the first immigration laws in this new nation The Chinese Exclusion Act of 1882, which as the name implies, was based solely on race discrimination. Sadly, as the old saying goes: "The more life changes, the more it stays the same."

Controlling our borders

Few issues are more fundamental to any system of government than whom we should allow in, under what conditions, and how they are to be treated once here. This is a far easier proposition in most other nations with a dominant population that is religiously, racially and ethnically homogeneous. The U.S. stands as a beacon to the world precisely because it is the antithesis of such a nation-state. However, before we can decide on who and how, we must be able to control our borders. This is not likely to be accomplished simply by passing more draconian laws. It is generally accepted in law, that the severity of the penalty is less of a deterrent than the likelihood of being caught and punished. Many critics believe that one of the most difficult immigration problems we face today large numbers of illegals living and working in our country was in large part caused by Congress the last time they tried to "fix" that same problem.

1986 Immigration Act

In 1986, Congress passed the Immigration Reform and Control Act that was intended to deal with the between 1.2 and 2 million illegals then estimated to be in the U.S. While it allowed those here before a certain cut-off date to be granted status, it also included harsh penalties intended to prevent others from coming. Contrary to popular myth, the majority of illegals do not enter over the southern border, but rather come in lawfully, on a visa, and then overstay. Congress, shocked to learn this, responded by passing the "Three and Ten Year Bar:" overstay by six months and you are barred for three years; overstay by more than one year, and you will be barred for ten years. This enforcement-oriented approach, coupled with increased penalties on employers who hire illegally, simply has not worked and may well have contributed to the dramatic increase of those here illegally.

Border security

No matter what legislation is passed, it will contain "strong border security." There are many legitimate reasons to have a secure border (and many ways to accomplish this goal), but I submit that the current discussions are beyond disingenuous. The president proposes spending almost $2 billion to build only a portion of a wall across our southern border. This is viewed as a political accommodation to the small but vocal exclusionists, but it has very little to do with the stated purpose of "National Security." A recent Internet article argued that if we really wanted to build a wall to protect against potential terrorists, then we should build it across the northern border. Since 1993, the U.S. has identified 373 "known or suspected terrorists" who have entered the U.S. Not one of those individuals entered across the southern border!

Like investment disclaimers, past pattern and practice does not guarantee a future result, but at the risk of invoking common sense, look at the facts. The overwhelming majority of illegals crossing the southern border are Mexican, and the rest are almost all from Latin America. Mexico is a fairly homogeneous, predominantly Roman Catholic society. No known Muslim extremist groups are identified as operating out of Mexico. Now, let's look North. At last count, the U.S. and Canadian governments have identified over 50 Muslim groups known or suspected to be terrorist organizations currently operating in Canada, together with a fairly sizeable Muslim population that has been (appropriately) welcomed into Canada's more heterogeneous society. Perhaps instead of a wall, a better use of our $2 billion might be to invest in better facial recognition software and other security measures for the airports.

Illegals in our midst

Most people mistakenly believe that the current immigration system provides a reasonable means for workers to lawfully enter the country. It does not. The reality is that the staggering backlogs in our current system effectively deny entry. The magnet is jobs that U.S. citizens are unwilling or unable to do, and the flood of illegals reflects that fact. Short of waiting eight to 12 years (the current processing period) to come in to work a lesser-skilled job, the only way to get in to work to enter illegally. The system has been described as a superhighway with a 25 mph speed limit that is unenforceable. We have a vast and growing demand for workers at all levels; the current system does not address how we fill this need. It is simply another, often arbitrary, hurdle that restricts or impedes those who are ready, willing and able to fill our need for skilled and unskilled workers.

This growing demand for workers, coupled with vastly increased penalties that discourage people from taking the risk of leaving their countries, has resulted in 11 million to possibly 20 million undocumented people. It is an estimate because most are deeply committed to not being identified.

What can we do? The easy answer is "Send 'em home. They broke the law!" But the Director of Homeland Security, whose office would be tasked with doing this, has said he will not. His comment is driven not by a lack of integrity or disloyalty; but by the common-sense recognition that this feel-good, righteous response of getting rid of the lawbreakers is simply not workable. Even if the voters could stomach such an inhumane response (and they have repeatedly made it clear they could not), and even if we were willing to suffer the staggering economic consequences (which we are not), the Director's position is he doesn't have the money to do it and even if Congress gave him the money, there are better ways to spend it that would better contribute to the safety of the U.S.A.

Setting aside the deeply ingrained need to punish transgressions that continues to motivate many lawmakers, there is the other problem of rewarding the "lawbreakers," while seemingly punishing those who followed the rules and are still stuck waiting in lines that are literally years long: "Why should someone who snuck in be given a green card (permanent residence) when I am still waiting?" One compromise solution offered in many of the proposed bills before Congress would provide that all persons now waiting in line must receive green cards before any undocumented person can be granted status. While not a perfect solution, remember that a compromise is both sides giving up a bit to come up with a workable solution. Efforts to continue to punish or restrictively limit illegals already here who may qualify will only result in many not coming forward, thus guaranteeing failure of the plan.

The broader issues

Oval Office speeches are a rare occurrence, and this is the first time that I can recall that any president has ever delivered one exclusively focused on the single issue of immigration. President Bush has used the "bully pulpit" to "call upon Congress to pass a comprehensive immigration bill." While this may be fascinating and interesting to discuss in the abstract, does it really touch any of us in Carlisle? The easy answer would be that we don't have any immigration issues in Carlisle, but this would be wrong. How immigration touches us goes far beyond the old, "But we are a nation of immigrants" response.

It would be short-sighted to think that immigration impacts Carlisle only through the people who do menial jobs such as cleaning houses and cutting grass. Carlisle is one of the richest towns in the U.S., and as such, whatever impacts the economy has a very direct impact on Carlisle. The wealthiest people in our town have generally gotten that way through industries that are either built on or critically dependent on science and high-tech. While there is little question that much of the work done by the existing pool of illegals requires less skill, immigration is not limited to those jobs. It is difficult to ignore the growing number and percentage of the "best and brightest" in our schools who are (or whose parents are) not native-born U.S. citizens or in some cases residents. The power of our great country is deeply rooted in our ability to attract the best and the brightest, and then include them as part of us. We lose each time we shut talented people out.

America's pride in its independence often clouds its judgment when it comes to immigration. Rather than admit that we could benefit from increased numbers of skilled (and unskilled) workers to help us build and expand our economy, we continue to insist that, "We don't need (or want) anyone." This pride, bordering on hubris, is reflected in restrictions on workers. Two-thirds of the foreign nationals lawfully admitted as permanent residents come in based on "Family" petitions. We admit fewer than 20% who enter expressly to work for an employer who has jumped through all of the costly, irrational and intentionally restrictive hoops to employ that person. We may want our children to lead the world in science, but the sad truth is that in spite of the most resources and best educational opportunities in the world, they do not. Restricting hard-working scientists, engineers, researchers, doctors and other health-care workers that we baby boomers are increasingly in need of will not help them to do so. In fact, this stubborn refusal to allow these qualified workers to join us will force them to take their energy and skills elsewhere, contributing to our falling further and further behind in the global race.

Last month Bill Gates urged Congress to change the immigration laws to abolish the shameful, arbitrary restrictions (caps) that hurt U.S. high-tech companies by denying them access to some of the most highly educated/skilled workers in the world. The H-1B category requires proof that the job requires a minimum of at least a bachelor's degree and payment of 100% of what the government claims is the prevailing wage for the job. These numbers are almost always too high and in no way reflect the current economy. Gates felt that the arbitrary cap that the government places on hiring skilled workers (allegedly to protect U.S. workers) is so destructive to the U.S. computer industry's ability to remain competitive that it was worth his time and effort to urge Congress to abolish these restrictions.

Possible solutions?

If the past is any indication, Congress will pass a confusing mix of "sweeping" changes that will alleviate some of the more egregious problems, create new problems and perpetuate most of the existing problems. Economics is all about allocating scarce resources, and one system of allocation might be a point system that would grant points for some of the more attenuated family" relationships, while allowing persons who have skills that are needed to compete more effectively for those limited spaces in the U.S. We need to abolish caps on temporary workers, increase employment slots, and facilitate entry of foreign doctors, nurses and other health professionals who our own government has deemed to be in critically short supply. The current visa lottery is a joke. Abolish it.

It is short-sighted to say that the solution is to pay more to U.S. workers. Even if we were to do so, the higher cost of consumer goods would be exhorbitant and in any case the existing U.S. labor supply could not fill all the available jobs. The same people who attack off-shoring also won't let companies bring in the workers they need to provide the services demanded, at the price point the consumers want. Bringing in workers not only fills the need, but it also means that their salaries will be taxed in the U.S., and the money will be spent buying houses, clothes, food, cars and everything else — in the U.S. But then, nobody asked me!

Roy J. Watson lives in Carlisle and practices immigration law in Bedford. For 31 years, he has advised his corporate and business clients on immigration matters.

2006 The Carlisle Mosquito