A 14 point proposal for immigration law reform –”probationary presence” instead of amnesty

Now that we have a new Congress, do you think we might be able to get a bi-partisan solution to the illegal immigration problem?

It is foolish to think the US is going to kick out 12 million undocumented aliens currently living in the country.

We need a package that creates a path (that is not “amnesty” for those already in the country), increases the penalities for illegal entry or overstaying a visa, and secures the border so that we don’t continue having a flood of illegal immigrants crossing our border.

What are we going to do about people who want to cross our border to work?

How can we clean up the mess that is our immigration law without creating “amnesty”?

First…what do you mean by “amnesty’?

It seems like any proposal to resolve the immigration mess is called “amnesty”. As long as that is the position of Republicans, there won’t be any immigration law reform. The illegal immigration issue will continue to be used poilitically without any real progress.

The following proposals attempt to address the issues raised by all sides of the immigration debate.

Instead of “amnesty” …dealing with the existing pool of illegal aliens in the country needs to be seen as “probationary presence”. They will have to earn their right to stay.

First: Improve visa tracking system: Let’s understand the 10-12 million estimate of undocumented aliens in the country now… Estimates are that half of them – 5 or 6 million – entered the US legally, and overstayed their student or visitor visas. Remember all of the 9/11 terrorists got into the US legally.

The Immigration and Naturalization Service (INS) has utterly failed to keep track of people who got into the country legally. If banks can track us via our debit card use, and we can be tracked by our cell phone use, then certainly the US government can come up with a way to require people with student or guest visas to report in and keep track of them.

Any immigration law reform must have provision to improve tracking and reporting of legal entrants. Also, anyone on a legal visa who is convicted of a crime other than a routine traffic offense must be subject to deportation. That includes failure to report in as would be required. This will require a visitor or Guest Worker visa card with tracking capability and verification of reporting in monthly. Thus, a scan of the card would show whether they had checked in as required.

Second: “probationary preserce”  penalties for existing illegal entrants and visa overstays: Those who entered illegally cannot be rewarded for having broken the law. Everyone seems to agree on that. To do so only invites more illegal entry. Illegal entrants should not be granted a resident or work visa unless several things happen. They include:

–admitting the crime of illegal entry
–paying a big fine at least equal to what “coyotes” charge to smuggle people into the US
–going to the end of the line for citizenship eligibility
–having to wait twice as long to gain citizenship
–background check for criminal record
–demonstrating proficiency in English
–paying all back taxes owed

Those are elements most people agree to…but still refuse to go forward with.

How about adding that in order to get to stay in the country, someone who entered the country illegally also has to perform some amount of community service. This is “probationary presence”.

12 million illegal immigrants … a resource that should not be wasted

Third: Self-deportation option: If someone in the US is here illegally, admits their illegal entry and pays the fine, and deports themselves, they would then be eligible for legal entry and a citizenship path the same as others who enter legally. The difference (and incentive) would be they wouldn’t have to wait twice as long to gain citizenship. The other conditions and qualifications would still apply.

The problem with this is the INS processing takes so long there is no incentive to self-deport. Someone who self-deports needs to get their case resolved inside of a year.

No one with a felony conviction or a misdemeanor except routine traffic violations would be eligible in any case. The only exception would be them admitting to the crime of illegal entry, hence the fine. Note…the “crime” of illegal entry is a misdemeanor.

Fourth: Increase penalties for new  illegal entry and new  overstaying a visa: The penalties for illegal entry and overstaying a visa need to be increased. It is not even a crime to overstay a visa.

Illegal entry needs to be upgraded to a felony, as well as overstaying a visa for more than 60 days.

Immigration law reform—overstaying a visa should be a crime

Fifth: Establish a Guest Worker Visa Program: We need a Guest Worker Visa Program that allows people to enter into the US and work, provided they go back home. I suggest that whatever Mexico requires for a US citizen to get a worker visa to live and work in Mexico be identical to what we require.[Note: Mexico has very difficult requirements to get a worker visa in their country so they’d probably have to change their laws to allow more Americans to live and work in Mexico.]

A Guest Worker Visa would NOT be a path to citizenship. That would require a separate application. All people applying for a Guest Worker Visa should have a criminal record background check and be subject to effective tracking as proposed in item one. This of course assumes we cn fix our visa tracking system.

Sixth: Guest Workers must pay taxes and not be eligible for welfare benefits: A person allowed into the US on a Guest Worker Visa would be required to pay all taxes. They would not be eligible for federal funded health care and other US or state taxpayer funded benefits.

Seventh: No Social Security benefits for Guest Workers: Those on a Guest Worker Visa would be subject to a payroll tax like our Social Security and Medicare systems…but these funds should be repatriated to their home country. Thus if they wanted the benefits they paid for, they need to go home. They would not be eligible for a US Social Security number, they’d have a Foreign System Benefits number and program. The cost of this would come from the deductions from their pay checks.

This item hits an interesting spot in the debate, since many illegal workers pay into our Social Security System and don’t receive benefits, which is a windfall to the US system.

Eighth: Guest Workers protected as far as labor laws are concerned: Crucial to the success of a Guest Worker Visa system is providing worker protection rights to these guest workers. The benefits US companies get by not paying fair wages to guest workers must be eliminated. The illegal worker system is a kind of slavery, where companies take advantage of the illegal status of their workers, don’t pay for overtime and such, then call in “la migra” to deport workers who complain.

We must eliminate the abilities of employers to exploit guest workers at the expense of US citizens getting the jobs.

Ninth: Guest Workers must have real job waiting: An applicant for a Guest Worker Visa must show there is a real job waiting for them, and if they leave that job, that they are gainfully employed in another job within 60 days of notice of loss of their job, or be deported.

US companies actually recruit for workers in Mexico. But we cannot keep the slavery system going where if a company lays off a guest worker then that person faces immediate deportation.

Tenth: Increase penalties for hiring undocumented aliens, give states power to enforce this: The penalty for hiring undocumented aliens needs to be greatly increased, and states be allowed to pass laws punishing licensed business that hire undocumented aliens. We need to eliminate the litigation over state powers to use business licensing as a means to punish companies that hire illegal aliens.

Eleventh: Increase the pool of visas for Guest Workers: The pool for Guest Worker Visas needs to be bigger than currently exists, and the processing must be faster. Part of the incentive for illegal entry is it is almost impossible for a worker to get legally into the US in his or her lifetime. The cost of a faster process must be covered by the fees charged to applicants for a Guest Worker Visa.

The quota system that has been used needs to be dropped. We need as many construction workers as we need computer engineers. Do we really care whether they come from India or Mexico?

Twelfth: Change application for Citizenship: The process to apply for citizenship needs revision so that someone who really does want to join us, can. The same requirements for the Guest Worker Visa would apply such as proficiency in English and a clean criminal record. But additional requirements should be added like performing community service work.

Becoming an American is not about what color you are or what language you speak. It is about buying into our values of hard work and democracy. We were all once immigrants and our country is built on ideals and values, not race or religion or nationality.

When immigrants come to America to share in our freedom and opportunity, they choose a path to be one of us.

We should figure out a way so they can prove that commitment.

Thirteenth: Grant states and local governments defined immigration enforcement authority: The SB 1070 mess needs to be resolved. Certainly standards and guidelines can be passed and adopted by Congress that allow states and local law enforcement to enforce immigration laws without getting into issues like racial profiling. There has already been a program in effect where Customs and Border Protection assist local law enforcement and delegate some authority to them. If state and local governments want to use their law enforcement resources to chase down illegal aliens, then set up a franmework where this can be done, coordinated with US Customs and Border Protection and with appropriate guidelines so there are no issues or racial profiling.

Fourteenth: define what a “secure border” means and then do it: There is no appetite to pursue immigration law reform as long as we cannot agree whether or our border is actually secure.

Many fear legitimately that if immigration law reform goes forward before the border is secure, we will have another flood of illegal immigrants.

However, since no one can agree on what a “secure border” means there is obviously no way to then pursue immigration law reform. A “catch 22″.

We need an agreed upon definition of what a “secure border” means.

It obviously is not measured by how many Border Patrol agents there are on the payroll, as Department of Homeland Security claims.

As long as there are still gaps in the border where people and drugs can cross without an immediate (within 5 minutes) response from the Border Patrol or local law enforcement, the border is not secure.

We need to finish building the fence, and deploy Border Patrol agents right at the border so undocumented aliens and drug smugglers cannot enter the US illegally without at least a 90% chance of being caught.

In order to avoid a flood of illegal immigrants, the first step may be to raise the criminal penalities for illegal entry effective on a specific date like right now, and anyone who crosses after that date or overstays a visa will not be able to avail themselves of any provisions of the revised immigration laws.

[Note: Holub served as City Attorney for Nogales 1997-2000, He also represented applicants for legal status in the 1980’s legalization program. He currently works with border ranchers on the immigration problem. He lives 20 miles from the border.]


About Hugh Holub

Attorney and writer.
This entry was posted in border issues, border patrol, border patrol tucson sector, border security, department of homeland security, national politics. Bookmark the permalink.

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