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EXECUTIVE SUMMARY

Introduction

The U.S. Commission on Immigration Reform was created by Congress to assess U.S. immigration policy and make recommendations regarding its implementation and effects. Mandated in the Immigration Act of 1990 to submit an interim report in 1994 and a final report in 1997, the Commission has undertaken public hearings, fact-finding missions, and expert consultations to identify the major immigration-related issues facing the United States today.

This process has been a complex one. Distinguishing fact from fiction has been difficult, in some cases because of what has become a highly emotional debate on immigration. We have heard contradictory testimony, shaky statistics, and a great deal of honest confusion regarding the impacts of immigration. Nevertheless, we have tried throughout to engage in what we believe is a systematic, non-

partisan effort to reach conclusions drawn from analysis of the best data available.

Underlying Principles

Certain basic principles underlie the Commission's work. The Commission decries hostility and discrimination against immigrants as antithetical to the traditions and interests of the country. At the same time, we disagree with those who would label efforts to control immigration as being inherently anti-immigrant. Rather, it is both a right and a responsibility of a democratic society to manage immigration so that it serves the national interest.

It is both

a right

and a

responsibility

of a democratic

society

to manage

immigration

so that it

serves the

national interest.

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Challenges Ahead

The Commission believes that legal immigration has strengthened and can continue to strengthen this country. While we will be reporting at a later date on the impacts of our legal immigration system, and while there may even be disagreements among us as to the total number of immigrants that can be absorbed into the United States or the categories that should be given priority for admission, the Commission members agree that immigration presents many

opportunities for this nation. Immigrants can contribute to the building of the country. In most cases, they have been actively sought by family members or businesses in the U.S. The tradition of welcoming newcomers has become an important element of how we define ourselves as a nation.

The Commission is mindful of the problems that also emanate from immigration. In particular, we believe that unlawful immigration

is unacceptable. Enforcement efforts have not been effective in

deterring unlawful immigration. This failure to develop effective strategies to control unlawful immigration has blurred the public perception of the distinction between legal and illegal immigrants.

For the Commission, the principal issue at present is how to manage immigration so that it will continue to be in the national interest.

• How do we ensure that immigration is based on and supports broad national economic, social, and humanitarian interests, rather than the interests of those who would abuse our laws?

• How do we gain effective control over our borders while still encouraging international trade, investment, and tourism?

The

credibility of

immigration

policy

can be

measured

by a simple

yardstick:

people

who should

get in,

do get in . . .

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• How do we maintain a civic culture based on shared values while accommodating the large and diverse population admitted through immigration policy?

The credibility of immigration policy can be measured 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.

During the decade from 1980 to 1990, three major pieces of legislation were adopted to govern immigration policythe Refugee Act of 1980, the Immigration Reform and Control Act of 1986, and the

Immigration Act of 1990. The Commission supports the broad framework for immigration policy that these laws represent: a legal immigration system that strives to serve the national interest in helping families to reunify and employers to obtain skills not available in the U.S. labor force; a refugee system that reflects both our humanitarian beliefs and international refugee law; and an enforcement system that seeks to deter unlawful immigration through employer sanctions and tighter border control.

The Commission has concluded, however, that more needs to be done to guarantee that the stated goals of our immigration policy are met. The immediate need is more effective prevention and deterrence of unlawful immigration. This report to Congress outlines the Commission's recommendations in this area.

In the long term, immigration policies for the 1990s and beyond should anticipate the challenges of the next century. These challenges will be substantially influenced by factors such as the restructuring of our own economy, the establishment of such new trade relationships as the North American Free Trade Agreement [NAFTA], and changing geopolitical relations. No less importantly, immigration policy must carefully take into account social concerns,

. . . people who

should not

get in

are kept out

. . . and

people

who are

judged

deportable

are required

to leave.

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demographic trends, and the impact of added population on the country's environment.

Finally, current immigration is the first to occur in what economists call a post-industrial economy, just as it is the first to occur after the appearance of the modern welfare state. The Commission's report to Congress in 1997 will cover these issues in assessing the impact of the Immigration Act of 1990. The present report reviews the progress of the beginning implementation of this legislation.

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RECOMMENDATIONS

Serious problems undermine present immigration policies, their implementation, and their credibility: people who should get in find a cumbersome process that often impedes their entry; people who should not get in find it all too easy to enter; and people who are here without permission remain with impunity.

The Commission is convinced that unlawful immigration can be controlled consistent with our traditions, civil rights, and civil liberties. As a nation with a long history of immigration and commitment to the rule of law, this country must set limits on who can enter and then must credibly enforce our immigration law. Unfortunately, no quick and easy solutions are available. The United States can do a more effective job, but only with additional financial resources and the political will to take action. Our recommendations for a comprehensive, effective strategy follow.

Border Management

The Commission believes that significant progress has been made during the past several years in identifying and remedying some of the weaknesses in U.S. border management. Nevertheless, we believe that far more can and should be done to meet the twin goals of border management: preventing illegal entries while facilitating legal ones.

Land Borders

Credibility is a problem at U.S. land borders, given the ease of illegal entry and various obstacles to legal entry. These problems are particularly prevalent at the U.S.-Mexico border, as the Commission's visit to San Diego and El Paso demonstrated. The Commission

Far more

can

and should

be done

to meet

the

twin goals

of border

management:

preventing

illegal entries

while

facilitating

legal ones.

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believes that an underlying principle of border management is that prevention is far more effective and cost-efficient than the apprehension and removal of illegal aliens after entry. At the same time, the Commission believes that legal entry should be facilitated in order for the country to benefit from cross-border trade and tourism.

The Commission supports the strategy, now being tested as "Operation Hold the Line" in El Paso, that emphasizes prevention of illegal entry at the border, rather than apprehension following illegal entry. Prevention holds many advantages: it is more cost-effective than apprehension and removal; it eliminates the cycle of voluntary return and reentry that has characterized unlawful border crossings; and it reduces potentially violent confrontations on the border. The Commission recommends:

• Increased resources for prevention, including additional staff, such improved technology as sensors and infrared scopes, data systems that permit expeditious identification of repeat offenders, and such additional equipment as vehicles and radios.

• Increased training for border control officers to execute strategies that emphasize prevention of illegal entry.

• Formation of a mobile, rapid response team to improve Border Patrol anticipation of new smuggling sites and to augment their capacity at these locations. The Immigration and Naturalization Service [INS] must develop a capacity to respond quickly to changing patterns of unlawful immigration along the land border. Also, contingency plans should be developed to

San Diego border patrol

[INS photo]

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address increased boat arrivals that may arise from improved land border enforcement.

• Use of fences to reduce border violence and facilitate enforcement. However, the Commission does not support the erection of extraordinary physical barriers, such as unscaleable walls, unless needed as a last resort to stop violence when other means have proved ineffective. Fences have been used effectively in San Diego to reduce border violence, deter illegal aliens from running across the interstate highway that leads from Mexico, and facilitate enforcement.

• Systematic evaluation of the effectiveness of any new border strategies by INS. The typical measurements of Border Patrol effectivenessapprehension rateshave little meaning in assessing a prevention strategy. INS should develop new evaluation techniques that measure the effects of border management efforts in terms of the flow of unauthorized aliens and their impacts on U.S. communities.

The Commission supports efforts to reduce potentially violent confrontations between Border Patrol officers and those believed to be seeking illegal entry into the U.S. Such confrontations were reduced, for example, during "Operation Hold the Line," in terms of both reported human rights violations against suspected illegal aliens and attacks on Border Patrol officers.

The Commission supports efforts already underway to address complaints about human rights violations, including:

• Increased training and professionalism of Border Patrol officers to enable them to respond appropriately to potentially

violent situations;

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• Improved procedures for adjudicating complaints of Border Patrol abuses;

• Mechanisms to provide redress or relief to those subjected to improper actions; and

• More effective protection of Border Patrol officers from violence directed at them.

The Commission believes that port of entry operations can be improved. Legal entry at the border should be facilitated as the United States benefits from trade, tourism, family visits and consumer spending. More specifically, the Commission supports:

• Additional resources for inspections at land border ports

of entry.

• An expedited adjudication and issuance process for the Border Crossing Card [BCC]. Mexican nationals are required to have a visa (unlike Canadians). Because of the volume of BCC applications on the Mexican border, the Commission encourages negotiations between the U.S. and Mexico to amend the bilateral treaty to permit collection of fees to be used exclusively to expedite the issuance and adjudication of the card.

• Further steps to better ensure that the BCC is not misused by legal crossers who engage in unauthorized employment after entry. Each BCC should contain the legend indicating it is "not for work authorization," as currently appears on INS-issued cards.

Congestion at El Paso

port of entry

[INS photo]

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• Development of a land border user fee to pay for needed improvements in the inspection of border crossers, with fees to be used exclusively to facilitate land border management.

The Commission supports increased coordination on border issues between the governments of the U.S. and Mexico. The Commission views favorably the discussions underway between the U.S. and Mexican governments. These discussions promote greater cooperation between the two governments in solving problems of mutual concern. In particular, the Commission encourages:

• Continued cooperation in antismuggling efforts to reduce smuggling of people and goods across the U.S.-Mexico border.

• Bilateral discussions that take into account both U.S. entry and Mexican exit laws in devising a cooperative approach to regulating the movements of people across the U.S.-Mexican land border. Mexican law requires that Mexican nationals exit Mexico through official inspection stations. Thus, unauthorized migration into the United States generally violates not only U.S. law, but Mexican law as well.

• Cross border discussions and cooperative law enforcement efforts among federal, state, and local officials of both countries to develop cooperative approaches to combat violent crimes and auto and cargo theft along the border.

• Continued U.S. cooperation and support for Mexican efforts to address the problem of third-country nationals crossing Mexico to come to the United States.

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Airports

Each year about 50 million citizens and aliens enter the country through airports.

The Commission supports a combined facilitation and enforcement strategy that would prevent the entry of unauthorized aliens while facilitating legal admissions at U.S. airports as efficiently as possible, including:

• The use of new technologies to expedite the inspections process and improve law enforcement, including more efficient processing of travelers with Machine Readable Documents.

• Programs that enhance the capacity of airline carriers to identify and refuse travel to aliens seeking to enter the U.S. on fraudulent documents, including the Carrier Consultant Program and other coordinated efforts to maintain complete, accurate, and reliable Advance Passenger Information System [APIS] data and improved lookout data systems.

• Continued government-airline industry discussions on improving inspections that have led to innovative proposals.

• Development of a system for mitigation of penalties or fines for those carriers that cooperate in screening and other pro-

grams and demonstrate success in reducing the number of unauthorized aliens they carry.

• Making INS, not the carrier, responsible for the actual physical custody of inadmissible air passengers.

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O'Hare International Airport

[INS Chicago District photo]

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Interagency Coordination

The Commission expresses its dissatisfaction with the past lack

of coordination between the Customs Service and the INS at ports of entry. This has hampered effective border management by

both agencies.

The Commission recommends implementation of initiatives to

improve coordination between INS and Customs, as recommended by the General Accounting Office [GAO] and the National Performance Review. The Commission will monitor these efforts to

improve coordination of border management, particularly as they relate to immigration matters.

If these efforts prove ineffective, the Commission will recommend more extensive action, such as creating a new immigration and

customs agency or designating one agency as the lead agency

on inspections.

Alien Smuggling

Organized smuggling operations undermine the credibility of U.S. enforcement efforts and pose dangers to the smuggled aliens.

The Commission recommends an effective

prevention strategy that requires enhanced

capacities to combat organized smuggling

for commercial gain. Possible enhancements include:

• Expanded enforcement authorities, such as Racketeer Influenced and Corrupt Organizations Act [RICO] provisions, wire

Aliens on the ship

Chin Lung Hsiang

[INS photo]

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tap authority, and expanded asset forfeiture for smuggling aliens; and

• Enhanced intelligence gathering and diplomatic efforts to

deter smuggling.

Worksite Enforcement

The Commission believes that reducing the employment magnet

is the linchpin of a comprehensive strategy to reduce illegal immigration. The ineffectiveness of employer sanctions, prevalence of fraudulent documents, and continued high numbers of unauthorized workers, combined with confusion for employers and reported discrimination against employees, have challenged the credibility of current worksite enforcement efforts.

Verification

A better system for verifying work authorization is central to the effective enforcement of employer sanctions.

The Commission recommends development and implementation of a simpler, more fraud-resistant system for verifying work authorization. The current system is doubly flawed: it is too susceptible to fraud, particularly through the counterfeiting of documents; and it can lead to increased discrimination against foreign-looking or foreign-sounding authorized workers.

In examining the options for improving verification, the Commission believes that the most promising option for secure, non-

discriminatory verification is a computerized registry using data

provided by the Social Security Administration [SSA] and the INS.

Reducing the

employment

magnet

is the

linchpin

of a

comprehensive

strategy

to reduce

illegal

immigration.

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The key to this process is the social security number. For decades, all workers have been required to provide employers with their social security number. The computer registry would add only one step to this existing requirement: an employer check that the social security number is valid and has been issued to someone authorized to work in the United States.

The Commission believes the computerized system is the most

promising option because it holds great potential for accomplishing the following:

• Reduction in the potential for fraud. Using a computerized registry, rather than only an identification card, guards against counterfeiting of documents. It provides more reliable information about work authorization.

• Reduction in the potential for discrimination based on national origin and citizenship status, as well as inappropriate demands for specific or additional documents, given that employers will not be required to ascertain whether a worker is a citizen or an immigrant and will have no reason to reject documents they believe to be counterfeit. The only relevant question will be: "What is your social security number?"

• Reduction in the time, resources, and paperwork spent by employers in complying with the Immigration Reform and Control Act of 1986 [IRCA] and corresponding redirection of enforcement activities from paperwork violations to knowing hire of unauthorized workers.

The Commission recommends that the President immediately initiate and evaluate pilot programs using the proposed computerized verification system in the five states with the highest levels of illegal immigration as well as several less affected states. The Presi

A

computer

registry

to verify

that a

social

security

number

is valid

and

has been

issued

to someone

authorized

to work

in the U.S.

is the

most

promising

option for

eliminating

fraud and

reducing

discrimination, while

protecting

individual

privacy.

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dent has the authority to do so under Section 274A(d)(4) of the Immigration and Nationality Act. A pilot program will: permit the testing of various approaches to using the proposed verification system; provide needed information about the advantages, disadvantages, and costs of the various approaches; develop and evaluate measures to protect civil rights and civil liberties; and ensure that any potential obstacles, such as the quality of the data used in the registry, are addressed prior to national implementation. Assuming the successful results of the pilot program, Congress should pass the necessary statutory authorities to support more effective verification. Pilot program features should include:

• A means by which employers will access the verification

system to validate the accuracy of information given by workers. We have received conflicting testimony about the

best way to check the applicant's identity. We have heard

proposals for a more secure social security card, a counterfeit-resistant driver's license, and a telephone verification system that does not rely on any document. The pilot program presents an opportunity to determine the most cost-effective, fraud-

resistant, and nondiscriminatory method available.

• Measures to ensure the accuracy of and access to the specific data needed to ensure that employers have timely and reliable information when seeking verification of work authorization.

Improvements in the Social Security Administration and INS databases must be made to ensure that these data are available. Procedures must be developed to ensure timely and accurate entry, update, extraction, and correction of data. The Commission strongly urges INS and the Social Security Administration to cooperate in this endeavor, as the proposed registry would be built upon andonce implementedwould support the primary missions of those agencies.

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• Measures to ensure against discrimination and disparate treatment of foreign-looking or -sounding persons. The Commission believes that the least discriminatory system would have the same requirements for citizens and aliens alike. To reduce the potential for discrimination and increase the security of the system, the Commission also believes that employers should not be required to ascertain immigration status in the process of verifying authorization for employment. Their only requirement should be to check the social security number presented by each employee against the registry and record an authorization number to prove that they have done so.

• Measures to protect civil liberties. It is essential that explicit protections be devised against use of the databaseand any card or any other means used to gain access to itfor purposes other than those specified in law. The uses to be made of the verification system must be clearly specified. We believe the worksite verification system could be used, without damage to civil liberties, for verifying eligibility to receive public benefits [see p. 22]. However, it should be stipulated that no one should be required to carry a card, if one is used, or to present it for routine identification purposes. There also should be penalties for inappropriate use of the verification process.

• Measures to protect the privacy of the information included in the database. The Commission is aware of the proliferation of databases and the potential for the invasion of privacy by both government and private agencies. There need to be explicit provisions for protecting privacy; the resultant system should incorporate appropriate safeguards regarding authorized users' access to individual information. In establishing privacy safeguards, it is important to take into account that, while

access to any one piece of information may not be intrusive,

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in combination with other information such access may

violate privacy.

• Estimates of the start-up time and financial and other costs of developing, implementing and maintaining a national system in such a manner that verification is reliable.

• Specification of the rights, responsibilities, and impact on individual workers and employers, for example: what individuals must do; how long it will take for newly authorized workers to get on the system and to correct inaccurate data; and what will be required of employers and at what expense. Provisions must also be developed to protect both workers from denial

of employment and employers from penalties in cases where

the information provided by the computer registry may be missing or inaccurate.

• A plan for phasing in of the system. The Commission recognizes that the proposed verification system will result in

financial costs. The system should be phased in to lessen the immediate impact. The pilot programs should test various phase-in procedures. Given the required levels of accuracy, reliability, and convenience required, the evaluation should help measure the cost of phasing in the system nationally.

The Commission recommends evaluation of the pilot programs to assess the effectiveness of the verification system. The evaluation should include objective measures and procedures to determine whether current problems related to fraud, discrimination, and

excessive paperwork requirements for employers are effectively

overcome without imposing undue costs on the government, employers, or employees. The evaluation should pay particular attention to the effectiveness of the measures used to protect civil liberties and privacy.

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The Commission supports INS efforts to improve its Telephone Verification System/SAVE [TVS/SAVE] databasebut only as an interim measure. The improvements are essential for improving the data needed for the new, more effective verification process. The Commission is aware of the inadequacies of the current INS data that would be used in the proposed system. The Commission does not endorse the TVS/SAVE program as a long-term solution to the verification problem because use of TVS/SAVE requires the inadequate mechanism of self-attestation by workers as to their citizenship or alienage, thus making it easy for aliens to fraudulently claim U.S. citizenship. It also imposes requirements on legal immigrants that do not apply to citizens. Nevertheless, improvements in this database, as well as the Social Security Administration database, are essential to the development of a more secure, less potentially discriminatory verification system.

The Commission also recommends action that would reduce the fraudulent access to so-called "breeder documents," particularly birth certificates, that can be used to establish an identity in this country, including:

• Regulation of requests for birth certificates through standardized application forms;

• A system of interstate and intrastate matching of birth and death records;

• Making certified copies of birth certificates issued by states or state-controlled vital records offices the only forms accepted by federal agencies;

False documents

[INS photo]

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• Using a standard design and paperstock for all certified copies of birth certificates to reduce counterfeiting; and

• Encouraging states to computerize birth records repositories.

To address the abuse of fraudulent documents, the Commission

recommends imposition of greater penalties on those producing or selling such documents. Document fraud and counterfeiting

has become a lucrative and well-organized operation that may involve international networks that conspire to produce and sell the resulting fraudulent products. These documents are used in smuggling and terrorist operations, as well as for work authorization. RICO provisions designed to facilitate racketeering investiga-

tions should cover conspiracy to produce and sell fraudulent documents. Criminal penalties should also be increased for large-scale counterfeiting activities

Antidiscrimination Strategies

The Commission is concerned about unfair immigration-related employment practices against both citizens and noncitizens that may occur under the current system of employer sanctions. A more reliable, simpler verification system holds great potential to reduce any such discrimination because employers will no longer have to make any determination as to immigration status. Nevertheless, mechanisms must effectively prevent and redress discrimination.

The Commission recommends that the Office of the Special Counsel [OSC] for Immigration-Related Unfair Employment Practices in

the Department of Justice initiate more proactive strategies to identify and combat immigration-related discrimination at the workplace. OSC should target resources on independent investigations and on programs to assess the incidence and prevalence of unfair

immigration-related employment practices.

Mechanisms must

effectively

prevent

and redress

immigration-

related

discrimination.

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The Commission also recommends a methodologically-sound study to document the nature and extent of unfair immigration-related employment practices that have occurred since GAO's 1990 report. The new study should measure the effects of immigration policyas distinct from other factorson discrimination at the worksite. As noted above, the pilot programs should be evaluated to determine if they substantially reduce immigration-related discrimination at the workplace.

Employer Sanctions and

Labor Standards Enforcement

The Commission believes that enforcement of employer sanctions, wage/hour, child labor, and other labor standards can be an effective tool in reducing employment of unauthorized workers. The

Commission finds, however, that current enforcement efforts are inadequate. In addition, the Commission expresses its concern that current coordination efforts between the Immigration and Naturalization Service and the Department of Labor are insufficient.

The Commission supports vigorous enforcement of labor standards and enforcement against knowing hire of unauthorized workers as an integral part of the strategy to reduce illegal immigration. Labor standards and employer sanctions should be seen as mutually reinforcing. Specifically, the Commission recommends:

• Allocation of increased staff and resources to the enforce-

ment of labor standards to complement employer sanctions

enforcement.

• Vigorous enforcement, increased staff and resources, and full use of current penalties against those who knowingly hire unauthorized workers. If the new verification system proposed by the Commission substantially reduces inadvertent hiring of unauthorized workersas we believe will occurCongress

Enforcement

of employer

sanctions,

wage/hour,

child labor,

and other

labor standards

can be

an effective

tool in

reducing

employment of

unauthorized

workers.

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Garment industry violations

[Department of Labor photo]

should discontinue paperwork pen- alties and evaluate the need for in- creased penalties against violators and businesses that knowingly hire or fail to verify work authorization for all employees.

• Targeting of investigations to

industries that have a history of

using illegal alien labor.

• Enhanced enforcement efforts targeted at farm labor and other contractors who hire unauthorized workers on behalf of agricultural growers and other businesses.

• Application of employer sanctions to the federal government. At a minimum, the President should issue an Executive Order requiring federal agencies to abide by the procedures required of other employers. Alternatively, legislation should stipulate that federal agencies follow the verification procedures required of other employers and be subject to penalties if they fail to verify work authorization.

The Commission urges the Attorney General and the Secretary of Labor to review the current division of responsibilities between the Departments of Justice and Labor in the enforcement of employer sanctions and labor standards. INS and the Department of Labor have signed a Memorandum of Understanding [MOU] that spells out each agency's responsibility for enforcing employer sanctions and labor standards. Preliminary evidence indicates that few warnings have been issued to employers under the MOU. The implementation of the MOU should be closely monitored over the next twelve months. Should the monitoring demonstrate that the joint efforts

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have not resulted in effective enforcement, it may be necessary to designate a single agency to enforce employer sanctions.

The Commission recommends enhanced coordination mechanisms to promote cooperation among all of the agencies responsible for worksite enforcement. Strategies to promote coordination at headquarters and in field operations include:

• Establishment of a taskforce in Washington, D.C., to review and set policy;

• Local taskforces of worksite investigators to coordinate field operations; and

• Continued joint training for worksite investigators from all

applicable agencies.

Education

Thousands of new businesses begin operations each year. New workers enter the labor force each year as well.

The Commission recommends coordination and continuance of educational efforts by the Immigration and Naturalization Service, the Office of Special Counsel, and the Department of Labor regarding employer sanctions, antidiscrimination provisions, and labor standards. The Commission calls upon these agencies to develop and communicate a single message to all employers and employees. The Commission also recommends the development of new strategies, including the enhanced use of technology, to inform employers and workers of their rights and responsibilities under the law.

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Benefits Eligibility and

Fiscal Impact

The Commission believes a clear and consistent policy on immigrant eligibility for public benefits is needed. The Commission also believes that the federal government has a responsibility to mitigate the impacts of unlawful immigration on states and localities, particularly through renewed efforts to reduce illegal entries.

Eligibility

The U.S. has the sovereign authority to make distinctions as to

certain rights and responsibilities of various people subject to its jurisdictionillegal aliens, legal immigrants, and U.S. citizens. Policies regarding the eligibility of aliens for public benefits should be consistent with the objectives of our immigration policy.

The Commission recommends that illegal aliens should not be eligible for any publicly-funded services or assistance except those made available on an emergency basis or for similar compelling reasons to protect public health and safety (e.g., immunizations and school lunch and other child nutrition programs) or to conform to constitutional requirements. Illegal aliens are now eligible for few benefit programs. The Commission firmly believes that benefits policies should continue to send this message: if aliens enter the U.S. unlawfully, they will not receive aid except in limited instances. Federal legislation should permit states and localities to limit eligibility of illegal aliens on this same basis. Should illegal aliens require other forms of assistance, their only recourse should be return to their countries of origin.

• The pilot programs on work authorization also should test new procedures for verification of benefit eligibility. Verification of eligibility for federally-funded benefits is an essential

The eligibility

of aliens

for public

benefits

should be

consistent

with the

objectives

of our

immigration

policy.

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part of the overall strategy for maintaining a credible benefits enforcement policy. Many of the shortcomings of the eligibility verification process are parallel to those for employment. The proposed pilot programs will provide an opportunity to test new approaches to benefit eligibility verification.

• An equitable policy based on immigration status must be adhered to in cases of mixed households (households in which some members are legal residents and/or citizens and others are illegal aliens). Regardless of a family's economic situation, only citizen members or those legally authorized to reside and work in the U.S. should receive routine benefits. Some benefits could be prorated in order to provide them only to eligible recipients in a household.

The Commission recommends against any broad, categorical denial of public benefits to legal immigrants. The United States admits legal immigrants with the expectation that they will reside permanently in the United States as productive residents. Therefore, the Commission believes that:

• The safety net provided by needs-tested programs should continue to be available to those whom we have affirmatively accepted as legal immigrants into our communities. U.S. immigration law bars the entry of those who are likely to become a public charge [see below]. However, circumstances may arise after entry that create a pressing need for public helpunexpected illness, injuries from a serious accident, loss of employment, a death in the family. Under such circumstances, legal immigrants should be eligible for public benefits if they meet other eligibility requirements.

Migrant healthcare

[photo copyright

1992 Alan Pogue]

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• Sponsors should be held financially responsible for the immigrants that they bring to this country. In particular, the

Commission believes that the affidavits of support signed by sponsors should be legally enforceable, with contingencies made if the sponsor's financial circumstances change significantly for reasons that occurred after the immigrant's entry. Mechanisms should be developed that would ensure that sponsors actually provide the support they have promised. This would protect recent immigrants and close a loophole in current policy wherein the sponsor's income is "deemed," or taken into account, in calculating the immigrant's eligibility, regardless of whether such support is actually available to the immigrant.

• A serious effort to enhance and enforce the public charge

provisions in immigration law is needed to ensure that legal immigrants do not require public assistance within five years of entry for reasons that existed prior to entry. The Commission recommends modification in the procedures for deporting

such individuals. The sustained use of public benefits for reasons that existed prior to entry should become the basis for deportation. Current practices are unreasonable: the government is required to show that the benefit program requested repayment of the aid under a specific statute and that the immigrant has refused repayment.

The Commission recommends that comprehensive categories of aliens in the U.S. be defined in the Immigration and Nationality Act

to simplify determination of eligibility for public benefits. The

Commission believes that benefit eligibility determinations are complicated by the myriad legal statuses now afforded to individuals within this country. While the rights of lawful permanent residents,

refugees and asylees have been spelled out in the Immigration and

Nationality Act and/or benefit laws, it is also true that the Congress,

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Executive Branch, and the courts have created various other statuses that may or may not denote benefit eligibility. The Commission

recommends:

• Establishment of statutory categories of aliens according to their eligibility for work and benefits. Such categories could include those who are authorized to work and eligible for needs-tested benefits, subject to public charge and sponsorship provisions; authorized to work and eligible only for benefits that

accrue from employment; not authorized to work and not eligible for any but a circumscribed list of benefits.

• Placement of every alien who is permitted to remain in the country on a temporary or permanent basis (whether by legislation, court order, or administrative order) in one of the designated categories. The categories should reflect whether an alien has been affirmatively admitted to the United States, is awaiting a final decision on deportability, or has already been determined deportable and is awaiting removal.

Impact on States and Localities

Difficulties in enforcing U.S. immigration laws have created fiscal impacts that would not have occurred had enforcement strategies been more effective. The ineffective enforcement has been due,

in some measure, to a lack of political will on the part of decisionmakers, including officials and representatives of states now heavily affected by illegal immigration. Nevertheless, the federal government clearly bears a responsibility for alleviating these impacts, particularly through renewed efforts to reduce unlawful immigration.

The Commission supports in principle a short-term authorization

of impact aid to offset at least a portion of the fiscal burdens of

The federal

government

clearly

bears a

responsibility

for

alleviating

the impacts

of

unlawful

immigration.

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unlawful immigration until such time as better enforcement measures are in place. Any such aid should be provided contingent on the following conditions:

• Better data and methods to measure the net fiscal impact of illegal immigration. The Commission finds that weak data make it difficult to determine the extent of these burdens. The authorization of impact aid should follow a concerted effort to

develop better data on such impacts, with impact assistance

provided only to the extent that actual net costs are accurately identified.

• Provision of any impact aid authorized in a manner commensurate with the interim period of regaining control over

unauthorized immigration. Impact aid mechanisms should

be temporary and designed to ensure that governments do

not become dependent on impact aid as a continuing source

of funding.

• Appropriate cooperation of state and local governments receiving impact aid with federal authorities to enforce the immigration laws of the United States. The type of cooperation will vary depending on the assistance programs covered by impact aid and should be consistent with the federal laws and regulations that apply to the program in question. For example, law enforcement officers may be asked to provide information to identify convicted or arrested illegal aliens, whereas school officials would not be required to transfer information obtained from

their pupils.

The Commission supports an immediate authorization of impact aid aimed specifically at criminal justice costs. The Commission believes impact assistance for criminal justice and law enforcement is justified where there is a high incidence of illegal aliens in the

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criminal justice system. Specific costs attributable to the incarceration of illegal aliens can be reliably ascertained if state correctional departments cooperate with INS in identifying deportable illegal aliens in prisons. The federal government should assume responsibility for the costs of incarcerating illegal aliens through reimbursement, by incarcerating them in federal facilities, and/or by

negotiating with foreign governments to accept and incarcerate their

nationals who are criminal illegal aliens.

The Commission recommends further investigation of the costs of education and emergency medical assistance. The data currently available do not provide reliable estimates of the number of illegal alien children and the proportion of emergency medical assistance specifically associated with illegal aliens. While the Commission accepts in principle the need for enhanced federal funding to assist localities with the costs of providing elementary and secondary education to illegal alien children and of emergency medical care under Medicaid to illegal aliens, the Commission does not recommend that such a program be instituted until there is a workable method for accurately establishing actual costs.

Detention and Removal

of Criminal Aliens

An effective procedure for prompt removal of aliens ordered deported is an essential part of a credible deterrence policy. 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. The Commission is reviewing the full range of issues raised by U.S. exclusion and deportation procedures and plans to issue a separate report on this subject in FY 1995. For the present, the Commission limits its specific recommendations to

Prompt

removal

of aliens

ordered

deported

is an

essential

part of a

credible

deterrence

policy.

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the removal of criminal aliens who represent the most serious threat to public safety and national security.

The top priority of enforcement strategies should be the removal of criminal aliens from the U.S. in such a way that the potential for their return to the U.S. will be minimized. To help ensure the prompt and effective removal of criminal aliens, the Commission recommends:

• Increased resources for INS investigations to identify and initiate deportation of criminal aliens.

• Enhanced use of the Institutional Hearing Program [IHP]

as an effective mechanism to ensure that criminal aliens are identified and receive final orders of deportation while still serving their sentences. The IHP is cost-effective in that criminal aliens can be deported directly from state and federal prisons, alleviating INS' need to detain them during deportation proceedings. The Commission commends the negotiations taking place between INS, the Executive Office of Immigration Review [EOIR], and state correctional departments to enhance their efficiency.

• In the case of Mexico, repatriation of deported criminal aliens to the area of Mexico from which they came, rather than simply to the border. Removals should be done in coordination with Mexican authorities who may then determine if there is a warrant for the arrest of the criminal alien for crimes committed in Mexico.

• Use of bilateral treaties encouraging the transfer of criminal aliens to serve sentences in their own countries. The Department of State should monitor these cases to be certain that sentences are served.

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Immigration Emergencies

Since 1980, emergency circumstances in their home countries have prompted the migration of large numbers of people to the U.S. Their arrival, in turn, has created emergency circumstances within the United States. The exodus of Haitians and Cubans are only the most

recent examples. An emergency can overwhelm resources and create

massive problems that far outlast the emergency.

The Commission believes that a credible immigration policy requires the ability to respond effectively and humanely to immigration emergencies. Specific recommendations regarding emergencies will be the subject of a separate report in FY 1995 that will include discussion of contingency planning, interdiction, safe havens, refugee processing, asylum procedures, temporary protected status, aid to communities experiencing emergency arrivals of aliens, and other issues.

Haitian migrant interdiction

[Official U.S. Coast Guard photo]

An emergency

can overwhelm resources

and create massive problems

that far outlast the emergency.

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Curtailing Unlawful Immigration at the Source

Migrants enter and remain unlawfully in the United States for a variety of reasons. Few migrants take the decision to leave their countries lightly. Generally, a combination of "push" and "pull" factors contribute to these movements. Many of the recommendations in this report aim to reduce the pull of both jobs and of

ineffective immigration enforcement. On the push side, lack of

employment, low wages and poor working conditions, separation from family members, political, social and religious repression, civil conflict, and other problems motivate people to leave their homes. Any effective strategy to prevent unlawful migration must address these causes.

The Commission recommends that the United States give priority in its foreign policy and international economic policy to long-term reduction in the causes of unauthorized migration to the U.S. More specifically, the Commission supports:

• The recommendations of the Commission for the Study of

International Migration and Cooperative Economic Development related to trade with, and investment in, immigrant-

sending countries.

• Adoption of quick and effective strategies targeted at alleviating migration pressures in communities producing large

numbers of illegal aliens.

• Strengthening intelligence gathering capacities to improve early warning of unauthorized migration patterns.

• Coordinated efforts by the United States and other countries to address pressures for unlawful migration. The Commission

Any

effective

strategy

to prevent

unlawful

migration

must

address

both

"push"

and "pull"

factors.

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recommends a strengthening of those multilateral coordination efforts that prove effective in averting unauthorized migration, particularly within the Western Hemisphere.

Improving Data

Throughout the Commission's own inquiry, we have found it difficult to assess the effects of immigration policy and of immigration itself because of inadequacies in the data. The Commission commends the work of the InterAgency Working Group on Immigration

Statistics that is seeking to reform data collection efforts within the federal government. Reliable data is a

necessary ingredient for credible policy and its

implementation.

The Commission supports improved data collection

efforts in four major areas:

• Matching administrative data on immigrants collected by the INS, Social Security Administration, and other agencies to obtain a more accurate profile of their experiences in this country;

• Developing a methodology for better measuring the size of the illegal alien population and the flow of illegal aliens entering the United States;

• Developing new methods for estimating emigration from the United States; and

• Improving the estimates of the costs and benefits associated with people of different immigration status.

File room [INS Chicago District photo]

Reliable

data

is a

necessary

ingredient

for

credible

policy

and its

implementation.

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THE IMMIGRATION ACT

OF 1990 AND LEGAL IMMIGRATION

The Immigration Act of 1990 [IMMACT], which provided for the most comprehensive change in the legal immigration system since 1965, aimed to:

• Establish overall limits on legal immigration through adoption of a flexible cap on total numbers;

• Permit continued reunification of close family members (allowing increases above the cap if higher numbers of immediate relatives of U.S. citizens seek entry);

• Meet labor market needs by

increasing the number of immigrants admitted for employment-based reasons and giving higher priority to the entry of professionals and others who are highly skilled; and

• Provide greater diversity through new opportunities for migration from countries with relatively small numbers of immigrants to the United States.

IMMACT Effects on Migration

The principal provisions of IMMACT were not implemented until 1992, and with only two years worth of data, there is little experience to use in determining its effects. The Diversity

Naturalization ceremony

[INS photo]

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Table 1.

Immigrants Admitted by Major Category

Category of Admission Average Projected

1987-1991 1992 1993 1994

Subject to the Numerical Cap 511,427 655,541 719,701 683,350

Family-based immigrants 439,614 502,995 539,209 512,600

Immediate relatives of U.S.

citizens and children born

abroad to alien residents 227,551 237,600 257,089 252,900

Family-sponsored immigrants 212,062 213,123 226,776 225,300

Legalization dependents NA 52,272 55,344 34,400

Employment-based immigrants 58,341 116,198 147,012 128,750

Diversity programs 13,473 36,348 33,480 42,000

Not Subject to the Numerical Cap 131,926 155,094 160,313 150,100

Refugees and Asylees 98,858 117,037 127,343 131,000

Other 33,068 38,057 32,970 19,100

Total 643,353 810,635 880,014 833,450

Excludes persons granted legal permanent resident status under the provisions of the Immigration Reform and Control Act of 1986. Categories are arranged according to the limitations specified in IMMACT.

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