Coming to America: Finally Fixing Illegal Immigration

The recent election offers our leaders an opportunity to reform our broken policies on illegal immigration

By Daniel Griswold

During the 2020 campaign, one of the starkest differences between President-elect Joe Biden and President Donald Trump was over immigration policy, especially what to do about illegal immigration. For Trump, it has always been about building walls and “securing the border.” For Biden, the focus has been on deporting criminal aliens while creating a path to legalization for millions of hard-working, otherwise law-abiding unauthorized immigrants already in the United States.

As president, Biden will have a window of opportunity to reduce illegal immigration in a lasting way. To achieve a goal that has eluded policymakers so far, the next president will need to work with Congress to create more opportunities for workers to enter the United States legally as an alternative to illegal immigration, and to bring the millions of unauthorized immigrants in the United States out of the shadows and into the full light of civil society and the legal labor market.

A Persistent Problem

The problem of illegal immigration is not going away. Even after four years of the Trump administration’s hardline approach, more than 10 million unauthorized immigrants remain in the United States. According to the Pew Research Center, about two-thirds of unauthorized immigrant adults in 2017 had lived in the United States for more than 10 years, half of them for more than 15 years. They are settled in our communities and workplaces, many with children in their households who were born in the United States and thus are American citizens. More than 7.6 million were employed in the US workforce before the coronavirus pandemic.

Increased border enforcement under the Trump administration, including refurbished sections of border wall, has not made a dramatic difference in controlling illegal immigration. Indeed, apprehensions of immigrants at the border have long been on the decline—since 2000. And most new unauthorized immigrants coming into the United States do not enter illegally between ports of entry but legally, and then overstay their visas. (Ironically, the number of annual deportations under Trump remains well below the peak of 432,000 in 2014 under the Obama-Biden administration.)

In his campaign manifesto on immigration, candidate Biden said that as president he would seek to legalize more than 10 million unauthorized immigrants in the United States. This includes “Dreamers,” the more than 1 million who came to the United States as minors and who have been eligible for temporary legal status under the 2012 Obama-Biden executive order on Deferred Action for Childhood Arrivals (DACA).

The DACA population must be included in any new immigration reform legislation. As I’ve written elsewhere, DACA-eligible immigrants by definition came to this country when they were minors, so they are not guilty of violating immigration laws themselves. Because they came here at a young age, they are fluent in English and assimilated into American culture. For many of them, America is the only real home they have known. By DACA rules, they are in school, employed or serving in the military without any serious criminal or security violations on their records. Broad support exists among the public to offer them legal status.

DACA was a good-faith effort by the Obama-Biden administration to avoid deporting a low-risk, high-reward group of immigrants. It also freed enforcement resources to focus on criminals who do pose a threat to public safety. But an executive order is not sufficient to provide the security and predictability that these young people need to thrive in the United States. Congress needs to exercise its rightful authority and enact legislation legalizing all eligible Dreamers.

Expanding Avenues of Legal Immigration

Legalization of unauthorized immigrants already in the United States will be a necessary step—although not the ultimate solution—for ending illegal immigration. Opponents will call it “amnesty,” but it will really be a recognition of reality that the US economy needs these workers and that our immigration system has failed to accommodate the legitimate demand of the US labor market. Under the Biden plan, newly legalized workers would be vetted for security and be required to pay any back taxes owed. Biden’s plan calls for a path to citizenship, although that isn’t necessary and could be a point of compromise.

In 1986, Congress tried to fix the problem with the Immigration Reform and Control Act (IRCA). Signed by President Ronald Reagan, IRCA combined increased enforcement with what was true amnesty—the legalization of 2.7 million unauthorized immigrants who had lived in the United States for five years or more. IRCA failed to solve illegal immigration, not because its enforcement was inadequate, but because it lacked the necessary component of expanded channels for future legal entry of needed workers, especially those in lower-skilled occupations.

US experience has proven that expanding avenues of legal immigration is the single most effective policy tool for reducing illegal immigration. If immigrants had the option of entering the United States to work legally and enjoy the full protections of the law and a competitive labor market, they wouldn’t choose to risk their lives crossing the border illegally and living an underground existence in society.

In the 1950s, when the US government dramatically expanded the number of Mexican workers allowed in under the Bracero program, illegal border crossings and apprehensions dropped dramatically. When the Bracero program was eliminated in 1964, illegal entries and apprehensions rose steadily for four decades. In the past decade, an increase in temporary work visas for lower-skilled Mexicans has caused a downward trend in border crossings and apprehensions.

Any bill legalizing the unauthorized immigrants already in the United States must expand opportunities for future legal entry. Congress could achieve that most readily by expanding existing temporary seasonal visas, such as the H-2A for agricultural workers and H-2B for nonagricultural workers. Caps on visa numbers should be lifted and the application process streamlined so that these visas can be more widely used by family farmers and small businesses.

The usefulness of the visas should be expanded further by allowing them for year-round, nonseasonal work. That would allow H-2A visas to be used on dairy farms, which by their nature operate 365 days a year. It would allow H-2B visas to be used in year-round, nonfarm sectors, such as construction, restaurants, and meatpacking plants, as David Bier of the Cato Institute has outlined in detail.

Temporary workers should enjoy the full protections of the law, but Congress should avoid job-killing regulations that demand above-market wages or confer too much leverage to labor unions. The ability of workers to change employers in a competitive labor market remains the best worker protection.

If a new Biden administration can work with Congress to both legalize unauthorized immigrants already in our country and to sufficiently expand opportunities for future workers to enter legally, it would utterly transform the issue of illegal immigration. Building more miles of ugly, expensive, and environmentally damaging walls would be unnecessary. Immigrants would be able to come legally through regular ports of entry without fear of getting turned back.

Workplace raids, family separations, and increased regulatory burdens on American citizens and employers would no longer be justified. Instead of trying to suppress an economically beneficial flow of immigrant workers, the US government could focus its efforts on managing that flow in the best interests of the nation.

A Window of Opportunity

Can a new Congress and president work together to both curb illegal immigration and reform and expand the legal immigration system in a way that is politically acceptable to the American public? A more favorable public attitude toward immigration and past experience with immigration reform efforts indicate a window of opportunity may open enough in 2021 to achieve real progress.

Congress has come close in the past to enacting the kind of comprehensive immigration reform outlined in these two essays. In May 2006 the Senate passed S 2611, the Comprehensive Immigration Reform Act, by a bipartisan majority of 62-36. In June 2013 the Senate approved S 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, by an even larger bipartisan majority of 68-32. The bill contained many of the major elements outlined here, including a pathway to citizenship for illegal immigrants and Dreamers.

Both immigration reform bills passed with the support of the incumbent president—in 2006 under President George W. Bush, and in 2013 under President Barack Obama—only to die in the GOP-controlled House. In 2021, Congress could again take up a more comprehensive immigration reform package, this time with a supportive president, a nearly evenly divided Senate, and a Democratically controlled House that would be unlikely to block a bipartisan bill approved by the Senate. Nothing is guaranteed in our politically polarized environment, but this recent legislative history indicates it would be worth another try.

Meanwhile, a majority of Americans appear to be supportive of immigration reform. A Gallup Poll earlier this year found that a record 77 percent of Americans believe that, on the whole, immigration is a good thing for the country today, compared to 19 percent who believe it is a bad thing. The same poll found that, for the first time in more than 50 years of polling, a larger share of Americans support an increase in the level of immigration (34 percent) than a decrease (28 percent), while 36 percent want to maintain the present level.

All this may indicate that, four years after the surprise election of Donald Trump in 2016, the pendulum may be swinging back in a more pro-immigration direction. Starting in January 2021, a new president and a new Congress will have the opportunity to reverse a raft of misguided executive orders and enact legislation to reduce illegal immigration and modernize and expand the US legal immigration system.

This is the second of two essays laying out an immigration agenda for the new administration and Congress. The first piece focuses on changes in legal immigration, while this essay tackles the long-standing challenge of reducing illegal immigration.