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RECOMMENDATIONS

Border Management

Each year U.S. land and air borders face inspection of approximately 500 million people seeking entry. In 1993, approximately 409 million people were inspected at U.S. land ports of entry, 55 million at airports, and 9 million at seaports. This number does not include illegal entrants or individuals apprehended while attempting to enter illegally. The Immigration and Naturalization Service [INS] estimated in 1992 that there were 3.4 million "permanent" illegal aliens in the U.S. Of this population, roughly one-half entered legally by air and overstayed their visas and the other one-half entered without inspection by land or sea.

Management of land and air borders, an enormous task, is the primary responsibility of the INS, a division of the Department of Justice [DOJ]. Enforcement responsibility is further divided by INS into the Border Patrol and the Office of Inspections. Additionally, other divisions within the INS, the Department of Justice, and other federal agencies have responsibilities for, or are affected by, border enforcement, including the Executive Office for Immigration Review [EOIR], the Department of State, the U.S. Department of Agriculture [USDA], U.S. Customs Service [Customs], and the Coast Guard.

The Border Patrol manages U.S. international boundaries at land, air, and sea ports of entry. Their objective is to detect and prevent the entry of illegal aliens and to interdict narcotics and other contraband by patrolling the boundaries and carrying out checkpoint

inspections. In addition, the Border Patrol investigates employer hiring practices, interdicts and arrests aliens who have committed serious crimes, and investigates drug and alien smuggling rings.

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The responsibilities of the Office of Inspections at land, air, and sea ports of entry are twofold: facilitation of entry of citizens and eligible aliens into the United States; and prevention of entry of ineligible aliens, including criminals and drug traffickers, among others. INS performs two main inspection operation functions, classified as primary and secondary inspections. Primary inspection determines admissibility at initial contact with the applicant and grants admission when no further action or documentation is needed. INS guidelines provide inspectors two to sixty seconds in primary inspection in which to decide the identity and admissibility of a traveler applying for entry into the United States. Secondary inspection occurs if the admissibility of an applicant cannot be determined during

primary inspection.

The key component of a credible immigration policy is one that curbs illegal entries while also facilitating legal entry of people who have a right to be in the country. The Commission believes that significant progress has been made during the past year 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 its twin goals. The Commission's emphasis so far has been on the southern border and its recommendations are based on our research and observations in that region. Study and evaluation of the northern border will begin next year and further recommendations, if needed, will follow.

Land Borders

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.

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.

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The Commission believes that an underlying principle for land border management is that prevention is far more effective and cost-efficient than the apprehension and removal of illegal aliens after entry. Traditional policy, focused on apprehension of illegal aliens, has many shortcomings. For example, too many illegal aliens are able to elude the Border Patrol; too many violent confrontations occur between the Border Patrol and those suspected of being illegal aliens as officers pursue and aliens attempt to evade capture; and the border is a revolving door with apprehended aliens attempting a new entry within hours of release. Further, when Border Patrol operations focus on apprehensions, coordination with inspections operations suffers. Yet, the resulting barriers to legal entry may be a factor in causing illegal movements. Because the waits at bridges and other ports of entry on the southern border are sometimes hours long, even some Mexican residents with valid Border Crossing Cards [BCCs] cross the border illegally to avoid the delay in entry.

The Commission believes that the prevention strategy, such as that utilized by "Operation Hold the Line," holds many advantages over such an apprehension approach and recommends that it be the prevalent form of border enforcement along the southern border.

The Commission was favorably impressed with the pilot "Operation Hold the Line" program in El Paso. Originally conceived by Border Patrol Sector Chief Silvestre Reyes, this two-week pilot

program was tested on the El Paso, Texas and the Ciudad Juarez, Mexico border as "Operation Blockade." In the twenty-mile section of the Rio Grande River that separates the two cities, the Border Patrol stationed 450 agentstriple the normal numberon an around-the-clock watch. This new strategy, which began in September 1993, saturated the border with Border Patrol agents to prevent entries without inspection. Previously, the strategy in El Paso (as is the case in many border areas) was to allow movement across the border and to apprehend illegal crossers once they were in the coun

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try. The old strategy took advantage of the rugged terrain around El Paso that makes it difficult for long-distance migrants to move to interior destinations but allowed easy access to El Paso for local illegal migrants. The new strategy substantially reduced illegal crossings and, thereby, substantially reduced the need for Border Patrol

apprehension operations.

Following the expiration of the two week operation, the Border Patrol decided to continue the strategy but renamed the operation in

response to criticism of the negative connotation of the term "Blockade." The strategy continued as "Operation Hold the Line." Increased Border Patrol presence on the border was made possible by posting agents normally stationed in the interior at the border, although the number of agents on the line was less than the 450

deployed during the initial operation.

The Commission funded a University of Texas study on the effects of "Operation Hold the Line" on El Paso/Juarez from September 1993 through April 1994. The study used a wide variety of quantitative and qualitative methods to gauge the operation's scope and effectiveness. The quantitative evidence includes border crossing and apprehensions data, police and crime data, birth and hospital data, education and school attendance statistics, and sales tax and general sales data. The qualitative evidence includes ethnographic and in-depth interviews and provides information about motivations and other factors not evident from official statistics on either illegal or legal crossings.

The study found that "Operation Hold the Line" affected the immediate border area in three ways. First, it substantially deterred illegal crossings into El Paso, thereby eliminating the cycle of voluntary return and reentry that has characterized unlawful border crossings. Second, due to reduced interaction between the Border Patrol and would-be crossers, the number of charges of Border Patrol human

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rights violations declined substantially. Third, seizures of illegal drugs, illegal agricultural products, and other contraband increased.

The Operation had a number of beneficial side effects, particularly for the downtown El Paso area. There was a reduction in illegal workers engaging in street vending in downtown El Paso and

a substantial decrease in criminal activity. Decreases in petty

crime appeared directly linked to reductions in the number of

illegal alien entries; decreases in more serious crime occurred because police were able to redirect their resources towards investigation of these crimes.

Although many people in the business communities on both sides of the border feared that "Operation Hold the Line" would affect their livelihood, the study found that business activity in El Paso and Juarez was not substantially harmed. Other effects were small declines in school enrollment and in the number of reported births.

Although no independent surveys of public opinion were undertaken during this period, interviews by University of Texas researchers with residents of El Paso generally indicated high levels of

public support for the operation. Elected officials reported that many residents supported the operation because it signaled a reduction in petty crime and the removal of street vendors from downtown El Paso. Additionally, the respondents agreed that the operation greatly diminished complaints of Border Patrol and police harassment of Mexican Americans and legal Mexican residents and that daily illegal crossings were disrupted.

However, the Commission's investigation indicated that some

improvements are needed for the type of prevention strategy

embodied in "Operation Hold the Line" to work nationally. Foremost, a strategy of this type will not work in isolation. Border

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management must be comprehensive in its approach.1 The study of "Operation Hold the Line" showed that unless a similar strategy is utilized across the entire border, illegal crossings will move to other sections. "Operation Hold the Line" changed crossing patterns. Long-distance crossers shifted their crossing points from El Paso to elsewhere on the border and daily illegal crossings were minimized. Control of aliens into and through El Paso, an urban area, forced the illegal traffic to use other routes outside of the city that were less accessible to public transportation.

The evaluation further affirms that a prevention strategy must be combined with an effective work deterrent as employment is the primary magnet for people wanting to cross illegally. Those who cross to work may extend their stays instead of taking the chance of crossing back and forth. Illegal workers with valid crossing documents for entering the U.S. are even more free to work illegally because of decreased Border Patrol presence in the city of El Paso. The study concluded that, once they were across the border, illegal crossers were less likely to be apprehended by the Border Patrol than they were before the Operation.

The evaluation further demonstrated that relying on staff alone to "hold the line" has diminishing returns because of growing boredom of Border Patrol agents undertaking this type of guard duty and, thus, the need both for retraining of Border Patrol officers to meet the new challenges of a prevention strategy and for new performance measures. Agent interviews revealed concern about job skill erosion. Specifically, because of less diverse activities, agents had little opportunity to gain experiences, improve their powers of ob


1In August 1994, the Border Patrol released its national strategy for systematic and effective border control for 1994 and beyond. The concept behind this new strategy is "prevention through deterrence." Under the plan, the Border Patrol intends to raise the risk of apprehension to a level that will deter illegal aliens from attempting entry. The plan is to be phased in, beginning in San Diego and El Paso and then extending to other border locations.

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servation, and enhance their investigative and interrogative abilities. Opportunities to excel, be promoted, or receive beneficial transfers were substantially diminished, causing low morale and self esteem among agents. Agents believed that their job performance ratings and grade justifications were jeopardized by lack of adequate

criteria for supervisors to assess performance or identify and reward high achievers.

"Operation Hold the Line" further demonstrated that a prevention strategy both affects and is affected by strategies to facilitate legal entry. Ports of entry were faced with increased numbers of individuals wanting to cross legally. Local commuters applied in greater number for border crossing cards to facilitate their entry. Some of those who routinely entered without inspection had border crossing cards but found unlawful entry more convenient, given the long lines at the ports of entry.

Finally, "Operation Hold the Line" demonstrates the importance of the terms used to convey the objectives of the enforcement strategy. As noted, there was considerable concern about the label "Operation Blockade." Some of the witnesses who testified before the

Commission noted that there would have been even greater public support in El Paso, as well as in Mexico, had the pilot been called "Operation Good Neighbor" and included a component to reduce the waiting time at the bridges across the Rio Grande.

The Commission believes that a strategy of prevention is desirable and that "Operation Hold the Line" lessons should be heeded. The Commission, therefore, recommends a combination of tools to prevent illegal entries and facilitate legal ones:

Increased resources for a comprehensive border-wide strategy to prevent illegal entry. The prevention strategy should be replicated throughout the border. To ensure the capacity to

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prevent illegal entries, the Commission recommends increased staff, improved technology such as sensors and infrared scopes, data systems that permit expeditious identification of repeat offenders, and such additional equipment as vehicles and radios. The technology and equipment is particularly important because personnel alone are insufficient to prevent illegal entry. Border Patrol officers must have the proper equipment to do their jobs.

The Violent Crime Control and Law Enforcement Act of 1994 provides authorization for 1995-1998 to increase the number of agent positions and necessary support positions to control unlawful immigration, including not less than one thousand Border Patrol positions in each of the fiscal years. The Commission supports this effort to increase staff.

Increased training of border control officers to fulfill this new role. Officers must be trained primarily to execute and emphasize the strategy of prevention as opposed to primarily apprehension. As indicated in the evaluation of "Operation Hold the Line," Border Patrol experienced morale problems related to the changed role required by a prevention strategy. Officers became bored with what was in essence guard duty and the lack of diverse activities. Training programs will need to take this new function into account.

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 INS must develop a capacity to respond quickly to changing patterns of unlawful immigration along the land border. A rapid response team could handle fluctuations in illegal alien movements. Using such technology as strategically placed sensors, INS could identify zones with increased illegal entries and deploy rapid response teams

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to prevent further entries. A mobile team also could be deployed to patrol areas along the border that would vary to prevent smugglers and others seeking entry without inspection from predicting the site of INS presence. The team should be well-trained and able to respond efficiently to border emergencies.

The rapid response capability could be provided by permanent full-time Border Patrol officers and/or through a specially enlisted reserve. The reserve could consist of former Border Patrol agents, other law enforcement personnel, or interested citizens who annually receive at least two weeks training in how to deal with border management and other basic training. The reserve could also be available to the Border Patrol for emergency

operations.

Contingency plans also should be developed to address increased boat arrivals that may arise from improved land border enforcement. If illegal entry across the land border is reduced substantially, Mexicans and others seeking access to the United States may use sea routes instead.

Use of fences to reduce border violence and facilitate enforcement. However, the Commission does not support the erection of extraordinary physical barriers, such as unscalable walls, unless needed as a last resort to stop violence when other means have proved ineffective. Chain-link fences have long been used to mark the U.S.-Mexico border. During the past several years, however, more substantial barriers have been constructed to help the Border Patrol more effectively control illegal entries. Section 542 of IMMACT authorizes an appropriation for the "repair, maintenance, or construction on the United States border, in areas experiencing high levels of apprehensions of illegal aliens, of structures to deter illegal entry to the United States." A January 1993 report prepared by Sandia National Laboratories urged greater use of heavily patrolled

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barriers. Additionally H.R. 2519, which passed on October 14, 1993, instructed the Border Patrol to work with certain border communities on the design and construction of barriers that are acceptable to all interested parties. Construction of border barriers must be coordinated with the International Boundary and Water Commission [IBWC]. This body is responsible for the marking of the boundary with monuments and giving guidance to agencies on where structures can be built. The IBWC has offices on both sides of the border and works jointly with Mexico, U.S. Customs, and the INS. The IBWC also has the responsibility to assess environmental impacts on the building of structures on the land border.

More substantial barriers have been used effectively in San Diego to reduce border violence and to deter illegal aliens from running across the interstate highway that leads to Mexico. Fourteen miles of solid fence now runs along the border between San Diego and Tijuana. Additionally, in October 1993, U.S. Army and Navy construction personnel began to lay the foundation of an additional 450-foot extension west onto Imperial Beach and into the Pacific Ocean. Barriers assist the Border Patrol in channeling and directing aliens to locations where they can be

deterred or apprehended more easily, while at the same time reducing crime and violence at the border.

The Commission believes that fences, such as those erected

in San Diego, have a role in aiding in the deterrence of illegal crossers. However, it is important to minimize any negative messages and strained relations with Mexico and "sister" communities that might result if physical barriers are of extraordinary size. Such barriers could falsely signal U.S. isolationism during a period of growing economic interdependence and enhanced binational relations.

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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. The most effective border control strategy would produce an apprehension rate of zero. So, too, would a complete failure of border control. As the INS begins to test new strategies aimed at prevention, new evaluation techniques should be developed to measure the effects of border management efforts. The evaluation will need a range of other measurement criteria, including not only the flow of unauthorized aliens across the border, but also their effects on U.S. communities. The research methodology developed in assessing "Operation Hold the Line" provides an example of the type of analysis that will be required in the broader evaluation.

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.

An apparent benefit of "Operation Hold the Line" was a reduction both in allegations of human rights violations against suspected illegal aliens and attacks upon Border Patrol officers. The Commission is disturbed by reports of patterns of human rights abuses along the southwest border. We recognize that the Border Patrol has a difficult and frustrating mission. Officers are victims of assaults and abuse. Bearing increased responsibility for drug interdiction, Border Patrol officers do not necessarily know if they are dealing with unarmed migrants or well-armed drug traffickers. These factors make it all the more necessary that respect for human and civil rights must be an integral part of effective management of the southwest border.

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

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.

The Commission supports efforts already underway

to address

complaints about human rights

violations.

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• Increased training and professionalism of Border Patrol officers to enable them to respond appropriately to potentially violent situations. INS management must demonstrate clearly and decisively, both in policy and in administrative response to misconduct, that abuse of human and civil rights will not be tolerated. INS officers must receive comprehensive training on human and civil rights. There must be careful screening of job applicants, expanded training on civil rights, human relations, and general arrest authority, and strong managerial support for respect of human rights.

Improved procedures for adjudicating complaints of Border Patrol abuses. The most effective way to monitor the success or failure of policies designed to eliminate human rights abuses is a credible, effective complaint procedure that provides speedy resolution to complaints of misconduct. The credibility of the system requires careful selection of investigators and use of sound investigation procedures. The system must also be open to public monitoring to insure its independence.

Prior to recent regulations, there was no clear line of authority for the processing of civil and human rights complaints against the INS, and agencies within the Department of Justice viewed their roles in the complaint process differently. Section 503(a)(5)(B)(iv) of the Immigration Act of 1990 required the Attorney General to publish final regulations that "establish an expedited, internal review process for violations of such standards [for use of deadly force and enforcement activities of the INS], which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations." Final regulations were published in August 1994 for establishing an expedited internal review process for alleged violations of standards for enforcement activities such as use of force, interrogations, arrests, transportation and detention. The

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INS' Office of Internal Audit [OIA] has responsibility to coordinate the disposition of allegations referred to the Service. Investigations are also conducted by the Department of Justice's Office of Professional Responsibility and the Office of Inspector

General. The regulation also provides procedures for lodging complaints, for expedited processing of complaints, and for handling unsubstantiated complaints.

Mechanisms to provide redress or relief to those subjected to improper actions. In February of 1994, the INS announced the establishment of a Citizen's Advisory Panel [CAP] to address allegations of abuse by INS employees, to provide recommendations to the Attorney General on ways to reduce the number of complaints of abuse made against employees of the INS, and to review systems and procedures in the INS for responding to complaints of abuse. The panel will be comprised of thirteen voting members. Four, including the INS Commissioner (who chairs the panel) will be from the Department of Justice, and the remaining members will be private citizens concerned about civil rights, human relations, immigration issues, and ethics in public service. The CAP also consists of two nonvoting members: the INS Director of the Office of Internal Audit as the INS liaison representative; and a Mexican Consulate or Embassy official, representing the government of Mexico in a permanent advisory capacity.

CAP meetings will be held at least semiannually and CAP will prepare an annual report to include all statistics regarding the number and type of civilian complaints accepted and reviewed. The Citizen's Advisory Panel is to terminate two years from the date of its establishment and it is anticipated that it will complete its objectives within that time. The Commission will observe the operation of the CAP and report on its progress in addressing allegations of abuse.

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More effective protection of Border Patrol officers from violence directed at them. Among those with whom the Border Patrol comes into contact are individuals who will use all means, including violence, to enter the United States. Violence is particularly high when those attempting illegal entry are engaged in other illegal activities such as drug smuggling. The traditional enforcement strategies often increased the risk to Border Patrol officers because they focused on the pursuit, apprehension and interrogation of those suspected to be illegal aliens. One of the most significant results of a prevention strategy, such as, "Operation Hold the Line," is reduced interaction or encounters between the Border Patrol and suspected illegal border crossers. Nevertheless, Border Patrol officers will continue to be targets of violence. Steps should be taken to reduce this risk as much as possible, for example, through continued efforts to deter illegal entry and reduce confrontation, enhanced training of Border Patrol officers, selected use of barriers (as discussed above),

and diplomatic activities aimed to enlist the Mexican government in the arrest of smugglers and others who may engage in violent actions.

The Commission believes that port of entry operations can

be improved.

Legal entry should be facilitated for the country to benefit from trade and commerce, tourism, and visits of family and friends. The Commission believes that an integral part of controlling illegal entry is facilitating legal entries. On its site visits to San Diego and El Paso the Commission witnessed firsthand congested ports of entry. We believe that more can, and must, be done to overcome the problems that impede legal entry. More specifically, the Commission supports:

Additional resources for inspections at land border ports of entry. The Commission believes that additional resources should

The Commission believes that

port of entry

operations

can be

improved.

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be used to staff land ports of entry with sufficient inspectors to open all needed booths during peak periods. Although new staff positions were authorized and appropriated in FY 1995 to augment INS inspections capacity along the land borders, still more personnel is needed to alleviate congestion and facilitate legal movement. In addition, INS and Customs should assess where additional ports of entry should be opened.

As with the prevention of illegal entry, the facilitation of legal entry would benefit from improved technology. Additional information on this subject is presented in our recommendations on inspections at airports.

Commuter lanes, now being tested along the U.S.-Canadian border, should be pilot tested along the southern border as well. The purpose of the Dedicated Commuter Lane [DCL] pilot program is to find a better way to deal with congested ports of entry and facilitate legal entries. Under this program, low-risk commuters who cross the border at least once a week (people who live in Canada and work in the United States, for example) can purchase $25 stickers that are placed on the windshield of their automobiles, allowing them to use the DCL. Low-risk commuters are persons who enter the United States legally and have no immigration or customs violations and no criminal record. The INS agent or Customs officer has a record of the make and model of their cars and descriptions of the drivers and registered passengers, if any. Although, prior to FY 1995, appropriations language prohibited DCLs on the southern land border, efforts by San Diego government and business leaders have persuaded Congress to permit a pilot program in Otay Mesa. The Department of Justice appropriations for 1995 allow INS and the Customs Service to test the feasibility of a

commuter-type lane in the San Diego area. These programs should be assessed systematically to ensure that they meet the

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twin tests of border management: facilitation of legal entry and deterrence of illegal entries.

An expedited adjudication and issuance process for the Border Crossing Card [BCC]. Residents of Mexico and Canada who have occasion to enter the U.S. frequently may qualify for a Border Crossing Card that may be issued by a consular or immigration officer.2 The card authorizes the holder to visit within twenty-five miles of the border for up to seventy-two hours without further documentation. Persons holding an INS BCC and wishing to go further or stay longer must apply for and be granted an additional authorization, an I444 form that allows them to stay up to thirty days and to travel freely in Arizona, California, Nevada, New Mexico and Texas. BCCs facilitate legal entry because INS or the Department of State prescreen those holding the cards. In Mexico, the State Department tends to issue a B-1/B-2/BCC that allows the visitors to travel further into the U.S. without an additional permit. Qualifications for this combination card and for a BCC are the same.

The task of adjudicating applications for BCCs is assigned to certain Department of State posts and INS land border ports of entry [POE]. INS issues BCCs at all land border POEs on the Mexican border in the following way: an applicant submits an application with evidence of Mexican citizenship and residence; an INS officer conducts a personal interview, completes a record check, obtains a signature and fingerprint data, and forwards these forms to the Immigration Card Facility, which produces the card and mails it to the POE for issuance. Most POEs pro


2Unlike Mexicans, Canadian citizens and landed immigrants from Commonwealth countries are not required to have a visa to enter the U.S. BCCs are sometimes requested by Canadian truckers or other commercial drivers to expedite their admission. The Department of State also issues BCCs to non-Commonwealth landed immigrants in Canada. Resources for adjudication of INS Canadian BCCs are not an issue as annually only approximately 2,000 Canadian BCCs are issuedas opposed to 200,000 Mexican BCCs.

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cess applications by appointment only. Due to insufficient staff at the POEs and the fluctuating traffic levels, BCCs are not adjudicated and issued expeditiously. Although interviews occur daily, many Mexicans must wait months to be scheduled.

The INS is currently taking steps to reduce the waiting time in issuing BCCs. Attempts are being made to streamline and partly automate the issuance process. (The Department of State has same-day turnaround in issuing its BCCs.) INS issued 173,533 BCCs in 1992 and 165,349 in 1993. Approximately 21 percent of the applications were denied for various grounds of excludability, including fraud or insufficient evidence of residence or economic solvency. Some districts have up to a seven-month wait for an interview. Additionally, there is an average three to six month wait for the card to be returned from the Immigration Card Facility. Some districts do issue temporary cards on the approval of the application. Though INS BCCs may take longer to acquire, their issuance is popular with many Mexicans because a passport is not required. The Department of State requires a valid Mexican Federal Passport, which many people do not have and are not willing to pay for, to cross the border.

To address the problem of issuing the BCCs in a more expeditious manner, the Commission encourages negotiations between the U.S. and Mexico to amend the bilateral treaty and permit collection of fees to be used exclusively for the issuance and adjudication of the card. The existing Agreement on Passport Visas between the U.S. and Mexico bars the U.S. from charging Mexican citizens a fee when they apply for the issuance of a border crossing card. The agreement is silent on whether a fee may be charged for the replacement of lost, stolen, or mutilated cards. It is also not clear if a fee can be charged on a voluntary basis to individuals who wish to have expedited processing of their application. To charge such a fee requires negotiation of

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an amendment to the treaty by the Secretary of State. The Department of State appropriations for 1994 also prohibit charging a fee to a citizen of a NAFTA signatory country. The appropriations language provides authority for collecting a fee to process machine-readable documents with the prohibition for NAFTA partners. This legislation would also require amendment.

Further steps to ensure better that the BCC is not misused by legal crossers who engage in unauthorized employment after entry. The Commission is troubled by evidence of substantial misuse of border crossing cards. In 1993, 24,236 cards were intercepted after issuance for counterfeiting, alteration, use by impostors, or violations of the conditions of usage. Prior to 1990, INS BCCs did not have an expiration date and these continue to remain valid until revoked. Since 1990, INS BCCs are valid for ten years. Beginning in January 1995, all Department of State BCCsboth new BCCs and BCCs issued prior to January 1995will be valid for ten years from the date of issuance. Given the long waiting time for issuing BCCs, revoking older ones may be impractical for INS. INS should, however, assess the time and resources that would be necessary to get all BCC holders onto the ten-year cycle.

To further combat unauthorized work by BCC holders, the Commission suggests that each BCC contain the legend indicating it is "not for work authorization," as currently appears on INS-issued cards. Although the machine-readable visas do indicate that they are not a work permit, the Department of State combination BCCs, which are stamped in a Mexican passport, do not contain the legend. Additionally, because some INS BCCs have no expiration date, some older ones also do not have the legend.

Development of a land border user fee to pay for needed improvements in the inspection of border crossers, with fees to

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be used exclusively to facilitate land border management.

Section 286 of the Immigration and Nationality Act [INA] authorizes the Attorney General to establish a pilot land border inspection fee on the northern border. The Office of Management and Budget [OMB] Circular A-25 has been interpreted to provide INS the authority to collect a land border fee that is directly related to the inspections services and benefits provided to an identifiable recipient. The fee level must cover the total cost of land border inspection, meaning INS and U.S. Customs costs.

There is no existing statutory authority to collect fees on the southern border. Presently, three immigration bills have been introduced in the Senate that would establish land border user fees, ranging from $1-$5 to an amount necessary to maintain and operate facilities and services.

The Commission supports the concept of a user fee at both borders if the fee revenue is used exclusively to facilitate land border management and does not disrupt the flow of traffic at ports of entry. A land user fee as small as $1 has the potential to generate millions of dollars for improved land border inspections.

Moving forward with instituting a land border user fee requires addressing the following issues. First, the amount of the fee must be set. The fee could be set to cover costs or for a set amount. If the fee is cost-based, setting it must take into account not only the funding needed for current inspections, but also additional funds to facilitate legal entry. Also to be determined is whether the fee should be charged on a per-capita basis (that is, covering every individual entering the country regardless of their means of entry) or on a vehicle basis (that is, one fee to cover all persons within a vehicle). In addition, consideration should be given to setting a commuter rate for individuals or vehicles that cross regularly.

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Second, logistical issues related to the collection of fees must be addressed. A land user fee will speed entry only if the collection is designed in a way that does not itself become an impediment. It would be unfortunate if the additional funds available for facilitating inspections went into the collection of fees rather than the opening of new booths and ports of entry. Also to be determined is who should collect the feesthe INS or Customs inspector, an independent contractor working for the government, or others. The placement of toll booths must also be determined.

Third, the impact of fees on our relations with Canada and Mexico must be assessed. NAFTA does not appear to bar user fees for the inspection of nationals from Canada and Mexico. The legislation implementing NAFTA explicitly removed the exemption from customs user fees originally granted to raise funds to offset lost tariffs for airline passengers from these countries. Bilateral treaty arrangements with Mexico preclude certain types of fees, however. In addition, a land border user fee poses greater burdens on border crossers than do airport fees, particularly for daily commuters. Nevertheless, since the purpose of the fee is to facilitate movements across the land borders, it may well be in all three countries' interest to cooperate in devising a mutually beneficial fee arrangement. An international arrangement or treaty could be drafted to have revenue from a land user fee shared among the three countries to support improved inspections capacity at ports of entry. Arrangements could also be made that would permit border crossers to pay in one direction only, as is done to reduce congestion at many highway, bridge, and tunnel tollbooths.

Fourth, the use of technology should be assessed. The Dedicated Commuter Lane pilot program in Blaine, Washington, employs a sticker that is purchased and placed on the wind

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shield. A similar windshield card that automatically deducts the fare could be investigated for use.

The Commission realizes that the fee issue is politically and diplomatically delicate. Residents of border communities would resent paying a fee without assurance that they would, in return, benefit from improved border management. As a border fee affects their nationals, Canadian and Mexican officials must be consulted. Nevertheless, the Commission believes it worthwhile to work through these logistical, political, and diplomatic constraints because such a fee represents the best way to raise revenues to facilitate legal border crossings.

The Commission supports increased coordination on border issues between the governments of the U.S. and Mexico.

Presently there are a number of efforts to increase coordination between the United States and Mexico on immigration matters. The Bi-National Commission, in which representatives from the U.S. and Mexico meet to discuss border issues, is one such effort. The Commission views these discussions favorably. They 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. Alien smuggling is a concern on both sides of the border. Some smuggling is related to the issue of third-country nationals discussed below. Other smuggling operations focus exclusively on Mexicans. Smugglers often put migrants' lives in danger, something that neither country can tolerate. The United States and Mexico should continue to cooperate in identifying smuggling rings, to share intelligence about the smuggling of third-country nationals, and to collaborate in efforts to stop smuggling.

The Commission supports

increased

coordination

on border issues between the

governments

of the U.S.

and Mexico.

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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. Both the governments of the U.S. and Mexico require that all entries into their countries be made through legal ports of entry. The Mexican General Law of Population also requires that all departures from Mexico be made through established ports of entry/departure. The Commission encourages binational cooperation in dealing with unauthorized crossings between the two countries in light of this legislative history and the mutual interest in resolving problems related to unauthorized migration.

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. Border violence is another U.S.-Mexican mutual concern where substantial progress has already been made. Five border liaison groups (Tijuana/San Diego; Hermosillo/Nogales; Ciudad Juarez/El Paso; Nuevo Laredo/Laredo and Matamoros/Brownsville) have been set up to deal with such border problems as violence, accidental police incursions, and auto theft.

The Border Patrol and the San Diego Police Department work with a Mexican border law enforcement team called Grupo Beta. The U.S. and Mexican agencies communicate with each other daily and cooperate to combat murder, rape, robbery, drug trafficking, and rock throwing incidents. Since the coordination

of these units began a few years ago, violence along the border has diminished.

Auto and cargo theft is a major issue among border communities. Cooperative efforts here also produce results. For example,

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in Texas under the Automobile Theft Prevention Authority, U.S. and Mexican authorities develop strategies for specialized auto theft prevention and coordinate information to solve these thefts. These cooperative efforts have slowed down auto thefts in certain border areas. The Commission supports continuation of these programs and urges the formation of other cooperative approaches, such as ones to address train cargo theft.

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. Residents of a number of countries, particularly Central American, first enter Mexico and then try to enter the United States. It is in neither country's interest to have large numbers of illegal aliens entering Mexico solely for the purpose of attempting to gain entry to our

country. Such movements present Mexico with her own problems in border enforcement. An unknown number of these third-country nationals remain in Mexico because they are unable to make it to the United States. A still larger number are believed to reach and enter this country. The U.S. and Mexico are already cooperating in programs designed to deter entry of third-

country nationals into Mexico. The two governments also

cooperate in the repatriation of illegal aliens from Mexico

to their home countries. The Commission supports these

cooperative endeavors.

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.

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.

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As in land border management, the principal inspection responsibility at airports is to identify and prevent the entry of inadmissible persons while simultaneously expediting the entry of authorized travelers.

In 1993, some fifty-five million travelers were inspected at U.S. airportstwenty-five million citizens and thirty million aliens. The vast majority of these aliens were admissible; they came as tourists, business travelers, permanent residents, students, etc. A smaller number of aliens seeking entry at airports do so with fraudulent or no documents or are otherwise inadmissible. In 1993, a total of 45,095 aliens was denied admission at U.S. airports. The size of the inspection workload shows the importance of maintaining an

efficient approach to the facilitation and enforcement at air ports

of entry.

In addition to the federal agencies, the INA imposes on transportation lines bringing aliens to the U.S. specific statutory responsibilities. These include: preventing unauthorized landing any time or place other than as designated by the Attorney General; detaining and deporting alien stowaways and transits without visas [TWOVs]; furnishing a complete list or manifest of arriving passengers to an INS officer, at the port of entry and upon departure; and preventing inadmissible passengers, such as aliens not in possession of valid passports and visas, persons excludable because of public health reasons, and aliens previously excluded or deported and not eligible to apply for readmission from entering the U.S.

The Commission's recommendations offer ways in which the inspection agencies and the airline carriers can enhance their current approach to air passenger operations and inspections. Their operations are moving toward incorporating more advanced technologies as they become available. The successful implementation of these new inspections mechanisms depend on the coordinated efforts between

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federal government inspections, document-issuing agencies, and the airline industry. More specifically, the Commission supports the following:

The use of new technologies to expedite the inspections process and improve law enforcement including more efficient processing of travellers with machine-readable documents. Technological advancements provide an opportunity to speed travelers through the inspection process while still identifying individuals who should be refused admission. The Commission supports the following technological initiatives already being developed or actually used in the nation's airports.

Interagency Border Inspection System. At airports, INS inspects and performs a database query for all individuals arriving on common carriers. The database for this query is the Interagency Border Inspection System [IBIS] that provides an integrated communications support system for the U.S. border security agencies with inspection responsibility. IBIS has consolidated lookout records for more than twenty-five federal agencies into a national automated border lookout database and provides on-line access to the National Crime Information Center and the National Law Enforcement Telecommunications System. Approximately 90 percent of arriving air passengers were processed through IBIS-equipped ports of entry during FY 1993.

Advanced Passenger Information System. Some airlines and foreign governments currently use a subsystem of IBIS to collect passenger information before departure. This database is the Advanced Passenger Information System [APIS] that provides an electronic check of air passengers before their arrival in the U.S. The airlines electronically transmit their passengers' names and passport details to INS and the

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Customs Service where they are checked against the "lookout" (IBIS) databases. INS inspectors at U.S. international airports then access the electronic passenger manifest and IBIS results before each flight arrives.

The electronic transmission of passenger information to the INS prior to an airliner's arrival in the U.S. permits pre-arrival screening of the passengers, helps expedite bona fide travelers, and provides many advantages to the U.S. inspections agencies. It saves a considerable amount of inspection time and processing by INS and Customs as they no longer have to do a full computer query at the airport; it serves as an early warning mechanism to apprehend terrorists, drug traffickers, fugitives, and other aliens ineligible for admission; and it improves security at the busiest international airports. As APIS proved successful in helping INS to process passengers more efficiently at U.S. airports, its use was expanded by INS to provide dedicated primary inspection lanesBlue Lanesfor arriving passengers prechecked into the APIS database.

Since the Blue Lanes provide generally quicker, more efficient inspections, there are international passengers who have not been prechecked but go to the Blue Lane for processing because it is shorter. The INS and carriers are cooperating to develop a process that limits Blue Lane access only to qualified or APIS-prechecked passengers.

Currently, approximately 24 percent of all air passengers are processed through APIS. Blue Lanes are used at twenty-four U.S. international airports for more than three hundred flights daily. Additionally, seventeen airlines and the governments of Australia and New Zealand use APIS for advanced passengers information gathering.

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Automated Inspections. Automated inspections are also being developed and expanded. Currently INS has a pilot Passenger Accelerated Service System [INSPASS] program that uses a card encoded with identifying biometric information to facilitate the entry of frequent fliers into the U.S. at designated airports of entry. This program is being tested at three airports: New York's JFK International, Newark International, and a preclearance facility at Toronto International. To participate, applicants must be citizens of the U.S., Canada, Bermuda, or a Visa Waiver Pilot Program [VWPP] country, and they must travel on business to the United States three or more times per year. Applications may be obtained from participating airlines (e.g., British Airways and Delta Airlines), from INSPASS enrollment centers at participating airports, or from INS through the mail. Applicants are interviewed at INSPASS enrollment centers where their "hand geometry" is electronically recorded. Approved applicants are given an INSPASS card valid for one year. When the traveler arrives at an INSPASS airport kiosk equipped with a card reader and a hand geometry scanning device, the previously captured biometric data establishes identity and admission to the U.S. in a fraction of the time it normally takes to be inspected and admitted to the U.S.

As of July 29, 1994, 29,928 people were enrolled in the INSPASS. INS expects to complete an evaluation of the program by September 30, 1994, and to make recommendations on a final prototype.

Electronic Arrival and Departure Records. In addition to supporting these technological innovations, the Commission supports efforts to computerize the Form I-94 landing card. INS requires all air and sea arrivals to complete a Form I-94, the arrival and departure record. This paper form acts as a

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manifest and also documents a nonimmigrant's arrival and departure record. The I-94 must be filled out by all passengers except U.S. citizens, lawful permanent residents of the U.S., and aliens with immigrant visas.

At the port of entry, each nonimmigrant passenger presents a visa (unless a national from a visa waiver country) and the completed I-94 to an INS inspector; the inspector stamps the class of admission and port of entry on the form, and tears off the arrival portion and sends it to a central data processing facility; the departure section of the form is usually stapled into the passport and collected at departure to transmit to the data processing facility for matching to the arrival section of the form.

Legislation (H.R. 3363) to eliminate the paper landing card and save manpower and administrative costs to both INS and the airlines has been introduced in the Congress. Computerizing arrival and departure informationrather than relying on the paper formpresents many advantages. Most importantly, computer checks will make determination if individual passengers have left the country prior to their required departure date easier than labor-intensive paper form matching to determine if individual visa holders have departed or have overstayed the terms of their visa. Exit controls are now one of the weakest parts of the inspections process. The computerization of the Form I-94 and other initiatives to improve exit control for aliens should be explored as a high priority.

Automated Machine-Readable Documents. The Commission supports expansion of the automated, machine-readable document system that examines passports, visas, and alien resident cards of all individuals arriving at U.S. airports to

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include those aliens departing as well. Installing and supporting such a system allows for efficient handling of many passengers in a short time, facilitates border inspections through more computerized and less manual passenger inspections, and reduced time needed to inspect and verify passenger status.

The installation of Machine Readable Visas [MRVs] technology has become a high priority for the U.S. government. According to the Department of State, 57 percent of the nonimmigrant visas currently issued by the U. S. are

machine-readable. Public Law 103-236 signed by President Clinton aims at a 100 percent issuance rate.

Issuance of machine-readable documents is the first step in improved inspection; the capacity to read the documents is the second step. Through an innovative loan policy of the Customs Service, INS and the airlines have increased the available number of document readers. The major U.S. airlines have the equipment and INS currently has 1,200 document readers at 98 ports (124 sites). During 1995-1996, another 12,000 readers are scheduled to be installed at all overseas and U.S. domestic sites. Using document readers to access the database-stored information facilitates coordinated efforts between agencies and all airports of entry can process travelers more efficiently.

• Programs that enhance the capacity of airline carriers to identify and refuse travel to aliens seeking to enter the U.S. on fraudulent documents. The Commission supports the Carrier Consultant Program and other coordinated efforts to maintain complete, accurate, and reliable APIS data and improved lookout data systems. Under the Carrier Consultant program, INS trains foreign government officials and airline personnel to screen

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passengers to detect fraudulent or no U.S. immigration documents. In some instances an experienced immigration officer may be assigned to foreign airports boarding high volumes

of inadmissible passengers for arrival in the U.S. to monitor

flights and assist airline personnel in screening passengers

and documents.

A common problem for carriers has been document flushingthe in-flight destruction of documents used by a passenger to board an airplane. Upon arrival in the United States, the individual can then request asylum, voluntarily return to the point of embarkation for the U.S., or continue efforts to illegally enter the country. The air carriers are fully responsible for bringing these inadmissible aliens to the U.S., regardless of whether or not their staff reviewed the passenger's documents prior to departure for the U.S. Before 1991, the INS considered these arriving passengers stowaways and the carriers were also liable for their detention. Since 1991, however, the INS policy has been that these aliens are not considered stowaways if the airlines reviewed the documents. Air carriers remain liable for fines. Some air carriers departing from high risk foreign airports instruct employees to duplicate the visas and passports of all passengers prior to departure, collect and hold all documentation once passengers board, or take other precautions to screen out document flushers and establish that the passenger is not a stowaway. Virtually all U.S. carriers and many foreign carriers instruct employees to duplicate passenger documents.

Continued government-airline industry discussions on improving inspections that have led to innovative proposals. Currently, the U.S. border inspection agencies meet periodically with the air travel industry to discuss issues ranging from training programs, to improving awareness of changes in immigration

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law and border enforcement practices, to carrier fines that result from the transport of inadequately documented aliens.

The U.S. government and the air travel industry have developed a strategy"International Air Passenger Operations 2000"for improved operations in the next century, including expanded access to lookout databases, expanded use of image technology, and development of electronic capture of arrival and departure information in lieu of paper documents.

Working groups, such as the Annual User Fee Advisory Committee [AUFAC] have been established by statute. Other groups have grown out of necessity and airline and federal agency willingness to address inspection concerns as they arise and to develop strategies to best handle changes in policy or procedure. Federal agencies also meet with carriers on an impromptu basis, for example, when an air carrier voices specific concerns.

The Commission encourages these continued discussions between the government and the airline industry.

• Development of a system for mitigation of penalties or fines for those carriers that cooperate in screening and other programs and demonstrate success in reducing the number of unauthorized aliens they carry. Although a carrier is not responsible for detention of an alien without travel documents when it is determined that the alien is not a stowaway, the carrier can still be fined for bringing the passenger to the U.S. without proper documents. The responsibility of air carriers for the delivery and arrival of an inadequately documented alien is one of strict liability. When a passenger arrives without valid documents, the carrier shall be liable to pay the fine or attempt to prove that the violation did not occur. Under section 273 of the INA, they are required to pay a $3,000 fine for each of these

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aliens to whom they grant transit to the United States. No

mitigation provisions exist for the fines described in the INA

on bringing alien passengers without valid documents to the United States.

The airline industry has filed a petition with the INS that proposes INS development of a regulation clearly defining guidelines that airlines must follow to screen boarding passengers. The petition proposes that carrier compliance with the standard would alleviate penalties. INS has taken the position that more government regulation is not needed, suggesting that the airlines devise more responsive, creative, and flexible procedures and standards to prevent improperly documented passengers from boarding their flights.

One legislative proposal, the Carrier Cooperative Initiative, offers cooperating airlines relief from the fine system in a "carrot and stick" fashion: the airlines agree to assist INS more actively in preventing the entry of improperly documented aliens, e.g., checking travel documents twice before boarding and/or immediately before deplaning. Other examples of airline initiatives that could warrant mitigation of fines include training personnel to prevent/deter passengers from boarding with improper travel documents and instituting airline remedial or corrective measures to prevent recurrence after a fine was imposed. If the statute is not amended to allow mitigation, INS could agree to exercise prosecutorial discretion and not impose the $3,000 per person fines if improperly documented aliens were still able to enter despite reasonable airline prevention efforts. Proposed legislation to amend the statute would provide for mitigation and includes a modification of this initiative. It would require INS and airlines to sign a memorandum of understanding [MOU] and conduct a six-month review to determine if fraud was re

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duced before fine mitigation was allowed. Large-scale fraud recurrence would cause fines to be reinstated.

The U.S. Customs Service currently has explicit statutory authority to mitigate or remit penalties for violations. The Customs guidelines allow mitigation when the fine is incurred without negligence or intent to defraud or where circumstances warrant relief, for example, carrier record of infrequent occurrence of violations about traffic volume, contributory government error (bad advice).

The Commission supports the concept of mitigation of penalties and believes that the standard for mitigation should be evidence that the airline is actively cooperating in efforts to refuse travel to inadmissible passengers and demonstrating a low number of inadmissible passengers actually carried.

• Making INS, not the carrier, responsible for the actual physical custody of inadmissible air passengers. Section 237 of the INA outlines carrier responsibilities for detaining, delivering, or deporting alien passengers when ordered. Carriers are not only fined, but are liable for detaining unauthorized alien passengers. The INS requires that carriers must keep in custody (i.e., detain) certain categories of arriving passengers who request political asylum pending determination of their claims. Before 1986, the INA held carriers liable for all detention costs of "inadmissible" passengers they brought to the United States. Carrier responsibilities of detention were generally relieved with the passage of the 1986 user fee amendments to the INA. The original $5 user fee to fund the INS inspection program has been increased to $6.

INS continues to impose detention responsibility on airlines for two types of excludable air travelers: stowaways pursuant to

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the statute; and passengers pursuant to contractual obligations who were boarded as a transit without visa [TWOV] passenger and do not depart the U.S. within the prescribed period. The TWOV program is based on an agreement the air carrier signs in order to carry passengers in immediate and continuous transit through the U.S. without visas. The program has been in existence for forty years and produces significant revenues for the carriers. INS relies on a clause in the transit program contract that outlines carrier obligations to control transit passengers until departure from the U.S. on their transit flight. The INS position is that user fee revenues do not include costs for detention of stowaways and TWOVs. The airlines contend that the Congressional intent of the 1986 Immigration User Fee provision was to absolve carriers of responsibility for detention costs of all

excludable aliens. These detention costs issues are currently being litigated in Air Transport Association v. McNary, Civ. Action

No. 92-0181.

Currently air carriers are reluctantly serving as jailers for international passengers. These air passengers are undocumented asylum seekers, and as disposition of these cases can take months, the associated costs are estimated to be $9 million per year. The Commission was presented cases of two to six months detention costs that include hotel and private, twenty-four-hour security guards where the costs exceed $27,000 to $150,000. Ironically, the penalty if the air passenger escapes is $3,000. In addition to the high costs, the Commission believes it is inappropriate for hotels to serve as jails and for airlines to serve as jailers, maintaining twenty-four-hour watches, taking care of routine housing, food, and medical needs.

Detention of aliens in exclusion hearings is more properly a federal responsibility. While the government has the authority to pass some or all of the costs of detention onto airline carriers,

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perhaps through fines, we believe it inappropriate for these private companies to have actual physical custody of aliens.

Interagency Coordination

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 expresses its dissatisfaction with the past lack of coordination between Customs and INS, particularly at land ports of entry. This has hampered effective border management. The border congestion problem at San Diego and El Paso appeared to be caused in part by lack of coordination between the two inspection agencies. Staffing imbalances between Customs and INS, coupled with independent decisionmaking by the two agencies in how to deploy staff, creates traffic backups and operating inefficiencies at ports of entry. Given the increased flow of people and goods between the United States and Mexico, and expected further increases under NAFTA, it is imperative that coordination problems be

resolved quickly.

Much of the border management issue involves efficiency in the current structure. The INS is responsible for inspecting persons seeking to enter the U.S. to prevent entry of inadmissible or excludable aliens. Customs is responsible for inspecting articles to ensure that applicable duties and taxes are collected on importations. At land ports of entry Customs and Immigration inspectors are cross-

designated to perform the functions of both agencies during primary inspections. The process allows travelers to be screened by

one federal officer to determine if there is any reason for either agency to conduct a more extensive examination of the traveller or

the vehicle.

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.

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In the past twenty years, numerous studies and reports have identified fragmented border control programs and interagency rivalries, conflicts, and jurisdictional disputes. The Commission for the Study of International Migration and Cooperative Economic Development (Asencio Commission) report, published in July 1990, recommended funding efforts to increase coordination and grant the appropriate authority to support successful resource allocation to best meet the needs of the inspections facilities, their personnel, cross-border travelers, and surrounding communities.

Similarly, a June 1993 GAO report outlined efficiency and other management problems with the dual INS-Customs primary inspection structure at land border inspection stations. Among these

they cite: poor coordination; lack of updated "refresher" cross-

designation training; lack of joint performance assessments; no coordinated approach for addressing staffing imbalances and traffic backups; substantial interagency rivalry; and weakened operational

accountability due to the dual structure. Even though the report focused on land border ports of entry, some of these border management problems may also be observed at airports of entry.

GAO and other agencies have raised the possibility of combining INS Inspections and Customs into a single, separate border management agency. Since 1973, eight studies have recommended such a unified management structure for ports of entry. This unified approach would establish one independent immigration and customs agency charged with overseeing all inspections operations, thus providing for greater operational efficiency and less conflict between the two inspections operations. Communication with the Mexican government and the public awareness of Mexicans who work and reside along the U.S. border would also be coordinated uniformly through a single agency.

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The idea of a complete reorganization of the agencies has not been supported by either Customs or the INS. The United States Department of the Treasury [DOT] oversees the Customs Service's activities; the Department of Justice [DOJ] has responsibility over the INS. The potential conflicts and issues encountered when attempting

to combine an agency from DOT with an agency from DOJ is

an important organizational point to be considered. The agencies (and others) argue that greater coordinationnot consolidation

is needed.

Most recently, the Vice President's National Performance Review noted that a reorganization of the agencies at this time was too extreme and recommended that the agencies should continue to work in the existing structure with the assistance of present interagency work groups. In two years, the existing structure will be reevaluated. Interagency working groups, in conjunction with other organizations affected by their activities, would assess and communicate the problems and successes of each agency. Coordination and the efficient allocation of resources, i.e., staff, funding, and the infrastructure in which to work, were identified as vital to the success of any border management strategy.

Subsequent to the National Performance Review, OMB, DOT and DOJ, and Customs and INS management committed to continuing to improving cooperation and collaboration. Interagency work groups, coordination committees, and joint studies will identify and analyze options for improved dual border management.

Customs and INS have reached consensus on five areas of proposed actions: developing measurable joint performance standards and indicators in cross-designated duties; increasing emphasis on joint basic and refresher training; establishing local quality improvement committees that include federal agency managers to resolve problems at the local level; coordinating shift scheduling to increase

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overall availability of primary inspectors; and improving coordination and joint planning of special enforcement operations.

The Commission will monitor these efforts to improve coordination of border management. 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.

The Commission believes that the new coordination mechanisms should be permitted time to operate. The two-year time frame suggested in the National Performance Review is a realistic one for determining if needed improvements have been made and have led to more effective inspections. The Commission plans to continue monitoring land and airport activities in order to arrive at an independent judgment of the efficacy of these efforts. Should they not prove successful, the Commission will issue recommendations for more extensive changes in the INS-Customs relationship.

In our deliberations, we have already considered several options for improving inspections. One possibility is to designate one agency, either Customs or the INS, as the lead for primary inspections. This option is appealing because it would eliminate the problems in coordinating the staffing of the primary inspection lanes. One agency would take lead responsibility for the enforcement operations and traffic flows at the ports of entry. Resource requests also would be coordinated through one department, one OMB budget examination branch, and one set of Congressional appropriation subcommittees. According to the June 1993 GAO report, this option was supported by "some special interest groups" and Customs and INS if their agency was selected to lead primary inspections. However, to boost efficiency and facilitation of inspections, both INS and Customs seemed willing to negotiate which agency would take the lead.

The Commission

will monitor

these efforts

to improve

coordination

of border

management.

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.

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The Commission also reviewed an option to create a function-

specific, i.e., inspections, agency that would combine the inspections functions of INS, Customs, and the USDA, but not other functions, such as those of the Border Patrol. The benefits of this option were similar to the "designated" agency approach: coordinated staffing; resource requests; and budgets. However, the organizational foundation would be a new function-specific agency instead of one of two preexisting agencies taking the lead at primary inspections.

While the Commission is not prepared at present to recommend either of these options, we will monitor continuing efforts to improve coordination. If such efforts do not prove successful, the Commission will reopen its investigation of options and recommend more extensive changes in institutional structures.

Alien Smuggling

The Commission recommends an effective prevention strategy that requires enhanced capacities to combat organized smuggling for commercial gain.

Organized smuggling operations undermine the credibility of U.S. enforcement efforts and pose profound dangers to the smuggled aliens. The smuggling of aliens into the United States for profit has intensified in recent years, with enormous impact on the immigration process. It has undermined public confidence in the security of our borders. Organized smuggling results from several forces: the many aliens wanting to come to the U.S. outside the legal immigration process; the ability of organized rings of alien smugglers to evade U.S. immigration laws and exploit these aliens; and the low legal risks and consequences of smuggling offenses. This is evidenced by the Chinese aliens smuggled into the country by criminal organizations that profited both from transporting them and exploiting their indentured labor once in the U.S.

The Commission recommends

an effective

prevention

strategy

that requires

enhanced

capacities

to combat

organized

smuggling

for commercial

gain.

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The alien smuggling enterprises have abused the U.S. asylum process by encouraging the filing of some frivolous asylum claims. If the smuggled alien applies for asylum, he or she may then be released and instructed to return for an exclusion hearing months later. Under current procedures, the asylum, applicant is given work authorization. Given a backlog of about 400,000 asylum cases, applicants are able to remain for extended periods.

The Violent Crime Control and Law Enforcement Act of 1994 increases the penalties for most alien smuggling offenses. Persons who knowingly bring illegal aliens into the U.S. are subject to a possible imprisonment term of ten years (and/or fines) per alien. The penalty remains at five years per alien for persons who transport, harbor, or conceal such aliens once they have entered the U.S. The maximum penalty is increased to twenty years per alien when bodily injury occurs or life is placed in jeopardy in connection with the smuggling offense. Additionally, when death results, the death penalty or life imprisonment is allowed. While these enhanced penalties provide punishment more commensurate with the seriousness of the smuggling crime, penalties alone will not eliminate the smuggling operation of most concernthose engaged in smuggling for commercial gain.

The Commission, therefore, recommends:

• Expanded enforcement authorities, such as the Racketeering Influenced and Corrupt Organizations [RICO] enforcement authority provision, wiretap authority, and expanded asset forfeiture for smuggling aliens.

Additional enforcement mechanisms are needed to curb the growing alien smuggling enterprises and to increase the ability of the INS to prosecute alien smugglers. The Commission supports the

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expanded enforcement authority included in antismuggling legislation under consideration by Congress:

The RICO statute would be amended to provide that the crime of organized alien smuggling would trigger RICO's penalty and forfeiture provisions. This would allow law enforcement officials to forfeit the proceeds of illegal alien smuggling, such as cash and bank accounts.

INS would be provided wiretap authority for alien smuggling investigations. Clandestine means of investigation are generally needed to develop cases against alien smuggling rings.

With judicial authorization, this provision would permit INS

to intercept wire, electronic, and oral communications of

alien smugglers.

INS authority would be expanded to seize and forfeit property used in or facilitating the smuggling or harboring of illegal aliens. This provision is important in cases where RICO penalties cannot be triggered because of insufficient evidence to prove conspiracy to smuggle. The expanded authority would include all propertyreal or personalused or intended to be used to smuggle aliens or property traceable from the proceeds of the smuggling operation.

The Commission supports these initiatives even though it is aware that expanding the enforcement authority, i.e., wiretap, increases the already overburdened investigative time of INS officers. INS Investigations Branch is responsible for operations involving criminal aliens, fraud, and employer sanctions in addition to antismuggling. Increasing the workload of INS investigators also affects their mission of locating and apprehending deportable aliens. Preventing smuggling operations from

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bringing unauthorized aliens to the U.S. should, however, reduce the need for these other investigative activities.

Enhanced intelligence gathering and diplomatic efforts to deter smuggling. The U.S. intelligence community can identify areas where international smugglers and other organized criminal networks operate. The Commission encourages the exchange of information between the appropriate law enforcement officials and concerned countries to identify such networks of procurers for targeted enforcement and possible extradition.

Diplomatic efforts should also continue to make the elimination of smuggling rings a priority and to encourage foreign governments to prosecute smuggling operatives for illegal activities in their countries. The specialized agencies and intergovernmental organizations should consider mechanisms for enhancing international cooperation to combat alien smuggling.

Worksite Enforcement

The Commission believes that reducing the employment magnet is a crucial component of a comprehensive strategy to reduce illegal immigration. The ineffective enforcement of employer sanctions, prevalence of fraudulent documents, and continued high numbers of illegal aliens, combined with reports of confusion for employers and discrimination against potential employees, have challenged the credibility of current worksite enforcement efforts.

Employment opportunity is commonly viewed as the principal magnet which draws illegal aliens to the United States. Since the beginning of U.S. history, foreigners have come to the United States in search of a better life. Whatever initially motivated them to come here, they often ended up seeking and finding employment. For

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years, U.S. policy tacitly accepted illegal immigration, as it was viewed by some to be in the interests of certain employers and the American public to do so.

The idea of making it unlawful to hire illegal aliens was discussed in 1951 by the Truman Commission on Migratory Labor. In 1952, Section 274 of the Immigration and Nationality Act made the willful importation, transportation, or harboring of illegal aliens a felony. Congress defeated an amendment to that legislation that would have made it illegal to hire illegal aliens. In the 1970s, the House Judiciary Committee reconsidered employer sanctions legislation. Congress adopted the imposition of sanctions against agricultural

employers who hired unauthorized workers in the Farm Labor Contractor Registration Act of 1974, later amended in the Migrant and Seasonal Agricultural Workers Protection Act of 1983. In 1981, the Select Commission on Immigration and Refugee Policy strongly advocated broad employer sanctions.

In 1986, Congress attempted to address illegal immigration directly and comprehensively through passage of the Immigration Reform and Control Act [IRCA] that: (1) made it unlawful to hire unauthorized workers and imposing penalties for doing so; (2) increased border enforcement; and (3) legalized undocumented aliens who had resided continuously in the U.S. since before January 1, 1982. Supporters of IRCA hoped that sanctions against employers, combined with enhanced border enforcement, would reduce the incentives for undocumented aliens to enter the U.S. and for employers to hire these unauthorized workers. Curbing illegal movements into the country would, in turn, benefit the wage structure, working conditions, and employment opportunities of U.S. citizens, legal permanent residents, and other authorized workers. Sanctions that would make legal immigration status an employment standard would help to eliminate the subclass of employees whose labor is

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often exploited. Supporters also hoped that curbing illegal immigration would foster continuation of a generous policy of legal

immigration.

The IRCA amendments to the INA prohibit any person or entity from knowingly hiring, recruiting, or referring for a fee an alien who is unauthorized for employment; and it further prohibits them from continuing to employ an individual after learning that he or she is not work authorized. The legislation requires every employer to verify that employees hired after November 6, 1986, are authorized to work through completion of the Employment Eligibility Verification Form (Form I-9). Employees must present documentation that identifies who they are and evidences work eligibility. Employers must then attest that they have examined an original document or combination of documents that establish identity and employment authorization. Employers who comply with verification procedures have an affirmative good faith defense against charges of noncompliance. Violators are fined through civil and criminal penalties.

Recognizing that employer verification requirements potentially could precipitate discriminatory practices, IRCA also contained provisions banning unfair immigration-related employment practices and created an office to investigate and prevent any discrimination based on national origin or citizenship status.

Current worksite enforcement mechanisms have proved less effective than anticipated in deterring illegal immigration and the hiring of unauthorized workers, as well as in preventing unfair immigration-related employment practices. This has been demonstrated by the rise in the estimated number of illegal aliens to nearly pre-IRCA levels, despite IRCA's legalization of 2.7 million aliens, and the

documentation of government and private studies of discriminatory practices against foreign-sounding and foreign-looking applicants for employment. (These studies do not have baseline data on pre-

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employer sanctions discrimination, however, and debate continues about the extent to which the discriminatory patterns result from immigration policy or other factors.) Additionally, employers have found the verification process time-consuming and confusing. Further reasons for the apparent failure include lack of a comprehensive, simple, and realistic worksite enforcement plan, ineffective

enforcement of potentially viable laws, and an inefficient use of resources.

Based on these problems with employer sanctions, some critics have urged the law's repeal. While the Commission agrees that these problems do need to be addressed, it has concluded that the best way to do so is through improving the system, not repealing it. The Commission believes that the credibility of the immigration system depends on reducing employment opportunities for unauthorized workers, thus encouraging those who are here illegally to leave and discouraging others from entering. The Commission further believes that employer sanctions could be a viable mechanism for

reducing the employment magnet and that the Commission's recommendations will enhance the effectiveness of the system and remedy its current deficiencies.

The Commission further believes that an effective worksite strategy also requires enhancement of labor standards enforcement. While some illegal aliens obtain employment through the use of fraudulent documents, others are employed in the underground economy by businesses that do not even check documentation. Many of these businesses violate other labor standards as well. The presence of unauthorized workers may be the very factor that enables those employers to break other labor laws. Because they have few avenues of redress if their rights to fair wages and working conditions are denied, illegal aliens are particularly vulnerable to abuse.

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The Commission has identified a number of problems that have constrained the effectiveness of worksite policy and enforcement efforts and that the Commission believes must be addressed for more effective deterrence of illegal immigration. The problems fall into three main categories discussed in further detail below: the current verification system; discrimination based on national origin or

citizenship status; and enforcement of employer sanctions and

labor standards.

Verification*

The Commission recommends development and implementation

of a simpler, more fraud-resistant system for verifying work

authorization.

A better system for verifying work authorization is central to the effective enforcement of employer sanctions. The current system of verification 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 and foreign-

sounding authorized workers.

IRCA stipulates that all employers are required to verify all employees' identity and authorization to work. Employers are responsible for examining documentation establishing identity and employment eligibility and ensuring that the documents presented reasonably "appear" to be genuine and relate to the individual. This information is documented on the Employment Eligibility Verification Form [I-9 Form]. Under these verification provisions, employees can use a combination of more than twenty-nine different documents to prove identity and work eligibility.

The Commission recommends

development and implementation

of a simpler,

more

fraud-resistant

system

for verifying

work

authorization.


*See Appendix for the concurring views of Commissioners Leiden and Merced.

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The current process of employment verification has not functioned as the law intended to deter the hiring of undocumented aliens. The system may be thwarted easily by fraud. Widespread counterfeiting of documents that can be used for verification of identity and employment authorization has been reported since IRCA's implementation. Moreover, it is relatively easy to obtain genuine documents, such as birth certificates or drivers licenses, by fraudulent means. The ease of obtaining fraudulent employment eligibility documents has resulted in their increased use to satisfy I-9 requirements. Because numerous documentsmany of which may be unfamiliar to any given employermay be shown to verify employment authorization, employers may have difficulty in determining if these documents meet the verification test, that is, that they "reasonably appear on their face to be genuine and to relate to the person presenting them."

Employer sanctions also have created problems for employees, who, if they are foreign-looking or foreign-sounding, may find themselves subject to unfair immigration-related employment practices. A

number of government and private studies, including the Congressionally-mandated General Accounting Office [GAO] study of discrimination have documented practices that put a greater burden on foreign-sounding and foreign-looking applicants for employment. These include employer demands that such employees provide additional or different documentation, or that employers selectively use Form I-9 for presumed aliens but not for U.S. citizens. Even some well-meaning employers are confused by the requirements under IRCA and, as a result, violate the terms of the law.

While the completion of a Form I-9 is a good faith defense against allegations of knowing hire of illegal aliens, in some cases, employers may be found to have constructive knowledge of the illegal status of their worker if they do not follow up on anomalies uncovered in the I-9 process. If they press for additional documentation

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because they think they have reason to believe an employee is an unauthorized worker (for example, the document does not appear to be the same as the one reproduced in the INS Handbook) and their reasoning is faulty, they may violate the antidiscrimination provisions of IRCA.

In explaining their concerns about the current verification process, employers also cite what they consider to be excessive administrative and paperwork requirements. As a recent addition to tax records and other compliance and recordkeeping requirements, the I-9 is seen by employers as one more paperwork burden. Oftentimes employers photocopy all documents presented to satisfy the

I-9 process as evidence to avoid a knowing hire challengea

formidable increase to their paperwork volume. Further, the technical complexity of the requirement places significant demands on the employer in the form of compliance instructions, training of staff, and contact time with candidates for employment.

The sheer number of documents available for use in verification [Chart 1] presents challenges for effective implementation of employer sanctions. Some efforts are underway to correct this situation. INS has proposed regulatory changes that would reduce the number of documents to be used for verifying work authorization for aliens. The Commission believes that these efforts will not solve the problems inherent in the current verification process for several reasons. Reducing the long list of documents by a few documents would still leave too many documents for effective verification; it would also be unlikely to reassure employers sufficiently about the security of the system and may even add to employer confusion and lead to a potential increase in differential treatment. Counterfeiting or the fraudulent use of documents would still continue.

The Commission reviewed options that would reduce the number of acceptable documents even more stringently. The proposals that all

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Chart 1.

List of Acceptable Documents

LIST A

Documents that Establish Both Identity and Employment Eligibility

1. U.S. Passport (unexpired or expired

2. Certificate of U.S. Citizenship (INS Form N-560 or N-561)

3. Certificate of Naturalization (INS Form N-550 or N-570)

4. Unexpired foreign passport, with I-551 stamp or attached INS Form I-94 indicating unexpired employment authorization.

5. Alien Registration Receipt Card with photograph (INS Form I-151 or I-551)

6. Unexpired Temporary Resident Card (INS Form I-688)

7. Unexpired Employment Authorization Card (INS From I-688A)

8. Unexpired Reentry Permit (INS Form I-327)

9. Unexpired Refuge Travel Document (INS Form I-571)

10. Unexpired Employment Authorization Document issued by the INS which contains a photo

LIST B

Documents that Establish Identity

1. Driver's license or ID card issued by a state or outlying possession of the U.S. provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address

2. ID card issued by federal, state, or local government agencies or entities provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address

3. School ID card with a photograph

4. Voter's registration card

5. U.S. Military card or draft record

6. Military dependent's ID card

7. U.S. Coast Guard Merchant mariner card

8. Native American tribal document

9. Driver's license issued by a Canadian government authority

For persons under age 18 who are unable to present a document listed above:

10. School record or report card

11. Clinic, doctor, or hospital record

12. Day-care or nursery school record

LIST C

Documents that Establish Employment Eligibility

1. U.S. social security card issued by the Social Security Administration (other than a card stating it is not valid for employment)

2. Certification of Birth Abroad issued by the Department of State (Form FS-545 or Form DS-1350)

3. Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the United States bearing an official seal

4. Native American tribal document

5. U.S. Citizen ID Card (INS Form I-197)

6. ID card for use of Resident Citizen in the United States (INS Form I-179)

7. Unexpired employment authorization document issued by the INS (other than those listed under List A)

Employees must present one document from List A or one each from Lists B and C.

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aliens use an INS-issued document and all citizens present one of a limited number of documents, such as a passport, birth certificate, social security card, and/or driver's licenses, still contain a basic flaw: the employee would still have to self-identify as an alien or citizen. Such proposals would continue to permit considerable amounts of fraud if illegal aliens declare themselves to be citizens and present counterfeited documents. They also would potentially permit perpetuation or increase of current levels of differential treatment if employers question whether foreign-looking or -sounding citizens are citizens and require an INS-issued document.

Recognizing the problems inherent in strategies to reduce documentation but not to change the overall system of verification, the Commission set a number of criteria by which it measured the potential impacts of more comprehensive reform.

First, a new system would have to be potentially more reliable and less susceptible to unfair immigration- related employment practices than the present one. Any solution would have to take into account that most documents can now be counterfeited within a relatively short time and for a cost that would be recoverable from the sale of the counterfeit documents. Employers generally do not have sufficient expertise to recognize counterfeit documents and, therefore, require a simple, effective means of validating the information presented by new workers. Moreover, the new system would need to apply not only to aliens, but also to U.S. citizens; otherwise, problems of fraud could continue (illegal aliens could claim to be U.S. citizens) and/or unfair immigration-related employment practices may increase (employers could set different documentation standards for all

foreign-looking and -sounding individuals).

Second, the new system would have to meet civil liberties and

privacy standards. The new verification process should provide protection against use of the system for purposes other than those speci

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fied in law. The verification system should protect the privacy of the information to be used in verifying work authorization.

Third, the system would have to lessen the time, resources, and paperwork spent by employers in verifying work authorization. The Commission is persuaded that the current I-9 process requires excessive commitment of time and resources because of the complexity of the verification process. Any new system should be simple to use and require as little paperwork as possible for employers.

It should also be simple in overall design, so that enforcement

may focus on substantive violations and not become preoccupied with paperwork violations rather than knowing hire of unauthorized workers.

Fourth, the new system would have to be as cost-effective as possible. Given that illegal aliens represent at most a very small portion of the total U.S. labor force, the Commission does not think it appropriate to recommend strategies with costs out of proportion to the problem to be solved. To improve verification without undue costs is possible, we believe, if a new verification system builds to the extent possible on the existing responsibilities, capabilities,

and data systems of federal agencies rather than if it were to create

new mechanisms that would be used only for verification of

immigration-related work authorization.

Fifth, more effective verification likely would require a companion initiative for improvements in the integrity of the underlying or "breeder documents" (such as birth certificates) used to establish identity in this country. Birth certificates are easily counterfeited or easily obtained through counterfeit means. As counterfeiting operations have become multimillion dollar businesses, meaningful penalties would be needed to deter the counterfeiting of documents.

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New enforcement measures, commensurate with the scale of

these operations, are needed to identify and destroy the counter-

feiting rings.

The Commission believes that the most promising option for secure, nondiscriminatory verification is a computerized registry using data provided by the Social Security Administration [SSA] and the Immigration and Naturalization Service [INS].

Having assessed dozens of options for verification of work authorization, the Commission believes that the proposed computerized registry best meets the criteria described above. As envisioned by the Commission, the computerized registry would be used to verify that a social security number is valid and has been issued to the individual who is being hired. This database would be created and updated from SSA and INS files, but not connected to either. From SSA would come a limited set of data: name; social security number; and several other identifiers, such as date of birth and mother's maiden name. From INS would come information about the immigration status of lawfully admitted immigrants, nonimmigrants, and other aliens permitted to remain temporarily or permanently in the United States. The INS data would also contain information about the duration of work authorization for aliens granted temporary employment permits.

The Commission believes 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 computerized 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 that

the most

promising option

for secure,

nondiscriminatory verification

is a

computerized

registry

using data

provided by

the Social Security Administration [SSA] and the Immigration and Naturalization Service [INS].

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Most citizens obtain a social security number before age eighteen, and the majority obtain it immediately after birth because it is required if a parent requests a tax exemption for a child. SSA has programs with all but four states to issue social security numbers at birth to U.S. citizens. According to SSA, among the forty-six states that participate in the Enumeration at Birth system, 85 percent of the parents of newborns elect to participate.

SSA has already taken steps to make it more difficult for unauthorized aliens to obtain social security numbers by requiring any individual over age eighteen who requests a social security number to have a face-to-face interview. SSA checks immigration status before issuing the social security card to anyone who did not receive a social security number as a child because they immigrated to this country. SSA also keeps information that designates whether the alien has full work authorization or is temporarily authorized to work with permission of INS. SSA will give social security numbers to individuals not authorized to work if needed to open up bank accounts or for other reasons not related to work, but the social security cards issued to these individuals clearly state that they are ineligible for employment.

Under the proposed verification system, the employer would not ask individuals if they are citizens or aliens. Instead, the individuals would be asked for a name and social security number. This information could then be verified with the computerized registry. The employer would be given a confirmation number if the information given by the employee matches the database information. This verification number would be kept by the employer and could be used as an affirmative defense if the employer is accused of knowingly hiring an illegal alien. If, for any reason, a match is not found within the system, the employer would receive acknowledgement that the verification process was carried out but that, as confirmation could not be made within the system, the

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employee should check with the local Social Security office to correct the problem. It would not be necessaryor possiblefor the

inquiry to give to the employer information about the reason why a match was not effected.

Table 2.

Example of Verification Data Elements

Name

Social Security Number

Date of Birth

Place of Birth

Mother's Maiden Name

Status Code

+Reverification Date

*Employer Identification Number [EIN] of enquiring employer

*+Confirmation Number

*Confirmation Date

________________________________________________________________

+ Output limited strictly to these data elements

* These elements assigned at time of enquiry and retained in record

Also under this approach, in situations where the worker has temporary authorization to work, the employer could be told the individual has work authorization but to reverify as of a particular date when the eligibility expires. By the time of reverification, the information would be updated to include the individual's current employment eligibility status. The computer registry could also verify that an alien granted authorization to work for a specific employer, for example, under certain nonimmigrant visas, is not seeking employment elsewhere. Some of the costs of the new system may be offset by savings if the computer system allows extension of work eligibility to be done through updating of the database rather

than through issuance of a new INS employment authorization

document [EAD].

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The Commission believes a computerized registry based on the social security number is the most promising option for verification because it holds great potential for accomplishing the following:

Reduction in the potential for fraud. Using a computerized registry rather than only documents, as in the I-9 process, guards against counterfeiting. 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 believed 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 and corresponding redirection of enforcement activities from paperwork violations to knowing hire of unauthorized workers. Through use of this system, employer confusion will be greatly reduced as employers will not need to rely on faulty documents.

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 President has the authority to do so under Section 274A(d)(4) of the Immigration and Nationality Act. The Commission recommends that the President exercise this authority immediately. A pilot program will: permit the testing of various approaches to using the

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.

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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 results are positive, Congress should pass the necessary statutory authorities to support more effective verification.

In 1986, Congress anticipated the need to explore alternative mechanisms for verifying work authorization. The President was given the authority to monitor, evaluate, and make improvements as needed. According to the law, if the President recommends major changes in verification, he is to provide notice to Congress before implementing these improvements. In addition to providing needed information as to the best mechanism for verifying employment, the Commission recommendation for a pilot program has the added benefit of providing immediate help in states now affected by high rates of illegal immigration. More than 80 percent of all unauthorized immigrants are in five states: California, New York, Texas, Florida, and Illinois. The Commission recommends also including a sample of lower-impact states in the pilot program.

The pilot program should incorporate a number of features:

• 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. Several different options could be tested simultaneously in different states. The pilot program presents an

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opportunity to determine the most cost-effective, fraud-resistant, and nondiscriminatory method available.

Counterfeit-resistant driver's license or state-issued identification documents. An almost universal identification document is the driver's license or identity document issued by Departments of Motor Vehicles [DMVs]. These documents are obtained in most states with a birth certificate, social security number, driver's license from another state, or other documents. During the past few years, there has been significant progress in increasing the security of these documents, pointing to further improvements that could be made. In the issuance of drivers' licenses, states are typically using secure paperstock, lamination, and other security features with a four to five year cycle for license replacement. Several states are issuing licenses made of hard plastic with a magnetic stripe. Alteration of the card is difficult and an operation for mass producing of replicates would be very expensive. The use of a smart-card chip and a biometrics identifier on the license is currently being explored through the Department of Transportation. Digital imaging, a new technology currently used for Virginia drivers' licenses, allows for automated capture, display, and comparison of current and previously recorded signatures and photographs. Employers would not be required to assess the validity of the drivers' licenses, however. The computer registry would tell an employer if the name and social security number on a license are valid. In this way, even a very good counterfeit would not pass muster.

Social Security Cards. Existing social security cards cannot serve as effective identifiers of the holders of those cards. While currently issued cards are more resistant to counterfeiting than earlier versions, many easily counterfeited cards

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remain in circulation. There are forty-four versions (twenty-six original and eighteen replacement) of the social security card. As of June 1993, 63 percent of the total number of active card holders had been issued the new counterfeit-resistant card, still leaving a substantial number of valid older documents in use. (There is no way of knowing how many counterfeit cards are currently in use or how many illegal aliens may have obtained valid social security numbers through fraudulent means.) Even the new cards have problems as identifiers; these cards do not have any identifying information other than the individual's name. A number of proposals have been put forth in Congress and elsewhere for the development and reissuance of a more counterfeit-

resistant social security card. Even apart from the immigration-related reasons for a more secure social security card, arguments in favor of reissuance point to the need for greater integrity in the social security system itself. Some question, however, whether this is best accomplished through reissuance of the social security card given likely cost and inconvenience. Further, if a photograph is used on the new issuance, it will be necessary for cards to be reissued periodically. SSA estimates the initial cost would be in the range of $2.5 billion. The pilot program would provide an opportunity to determine the cost-effectiveness of proposals to reissue the social security card.

Telephone Verification. Some experts testified that a stand-alone telephone verification system could work to verify identity if workers are asked for information that they alone know. Many credit card and bank companies use a Personal Identification Number [PIN] to verify identity. Under this proposal, employers would enter individuals' social security numbers and workers would enter a PIN which only they knew. Alternatively or in conjunction with the PIN, employ

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ees could provide a set of identifying information: for example, name, social security number, mother's maiden name, and date of birth. The pilot would test whether a telephone verification process that requires no documentation affords sufficient protections against fraud and discrimination.

Experts note that under any of these systems, the computer system could have a built-in process for logging and auditing inquiries to identify likely fraud. For example, if the same social security number was used too often or in too many locations, the computer system would record the incidence. The system then could inform the employer that the employee must reconfirm the information in the database. The authorized worker would benefit from learning that others were using his or her social security number. The social security number might then be canceled and the authorized worker issued a new number. The unauthorized worker could not reconfirm the information and, therefore, would not be able to continue in that employment. The process would also permit estimates of likely fraud to use in determining the efficacy of the verification system.

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 to the Social Security and INS databases must be made to ensure that these data are available. Both the INS and SSA are already improving their data systems.

Both houses of Congress have already earmarked funds in the INS FY 1995 appropriation to enable the agency to undertake such needed reforms. INS is currently completing the process of combining several databases into one integrated system. Nonimmigrant and refugee data are now integrated into the

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Alien Status Verification Index [ASVI] database, that is used in the benefits verification process, the System for Alien Verification of Eligibility [SAVE], and the Telephone Verification System [TVS] pilot for employment eligibility verification. In FY 1995, the INS information systems division will almost double

its budget, from $110 million to $200 million, to improve the infrastructure of the data systems. The Commission welcomes these steps.

Even with these improvements in the source data for the computerized registry, procedures must be developed to ensure timely and accurate extraction as well as updating and correcting the needed data. The Commission urges INS and SSA to cooperate in this endeavor as the proposed registry would be built upon andonce implementedwould support the primary missions of both those agencies. Each agency has a vested interest in ensuring that its data are accurate, even apart from their common interest in ensuring that unauthorized workers do not obtain jobs. It is unacceptable that neither agency's records can currently provide needed information quickly. Resources requested and used for employment and benefit authorization purposes can largely be seen as enhancing or parallel to the resource needs of the larger mission of these agencies.

• 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 the

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employee against the registry and record an authorization number to demonstrate 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. 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. Putting these provisions in law, rather than regulation, would make it more difficult to later change them in a manner that would evade protection of civil liberties.

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. The computer registry recommended by the Commission will be drawn from an existing national database, the Social Security computer system. Given the scope of the registry, it is essential to build in explicit provisions for protecting privacy. As with other aspects of our recommendations related to civil liberties, these safeguards should be made by law not just regulation. The resultant computer system should incorporate appropriate technical 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, in combination with other information such access may violate privacy. In particular, safeguards must ensure that

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information about specific individualsother than the limited information to be provided as a part of the verification process itselfcannot be obtained from the database. To create a viable system, institutions and individuals with expertise in privacy matters should be involved in the development and assessment of the pilots. For example, the Computer System Security and Privacy Advisory Board created by the Computer Security Act of 1987 to identify and advise on security and privacy safeguard issues relating to federal computer systems should be involved in this process.

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. The establishment of the proposed computer registry is the top priority during the pilot process and the key to the effectiveness of the process. While the record structure is simple, ensuring the quality of the source data is essential. Updating the information in a timely way is another basic, but very important, requirement. The database would contain only a half-dozen data elements (name, social security number, date of birth, place of birth, mother's maiden name, immigration status code, for example), and therefore would be quite straightforward from a programming viewpoint. However, ensuring that these elements are complete and correct for all records will require significant start-up costs in making the necessary improvements to existing databases, particularly for INS.

Informal estimates by the Social Security Administration indicate that the cost of design and development of the combined SSA/INS database is $4 million over a two year period. Annual cost of maintaining and operating the verification system is estimated at about $32 million. This figure maintains the computer registry itself, the costs of operating the automated system

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for checking social security numbers against it, operator costs for calls that cannot be handled automatically, and telephone lines for an 800 number to be used by employers.

Correcting errors in the INS and SSA databases will require the largest financial input. Discrepancies referred to SSA for resolution will cost approximately $122 million initially with an annual cost of $30 million. The cost of resolving discrepancies in the INS database will be additional. INS is already taking steps to improve its recordkeeping, but under the current plan, these improvements will take several years to accomplish. Additional appropriations will be needed to speed that process and ensure that accurate information will be available in a timely manner. Correcting discrepancies in the existing SSA and INS databases would be a good investment however, even if the computer registry were not at issue.

Specification of the rights, responsibilities, and impact on individual workers and employers. The pilot program will need to determine a number of important issues related to the rights, responsibilities, and impact upon the users of the verification system. These include, 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.

Even with major improvements in the reliability of the data, the pilot programs will require mechanisms for timely manual secondary verification and an appeal when there is no match.

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Experience with existing databases, such as SAVE, indicate a sufficiently high error rate to merit further review. If the error rate is too high, the result may be discrimination against employees who come up as false negatives. To deter such discrimination, employers could be required to retain in employment those individuals until the employment authorization is confirmed (as in the current law, verification is a post-hire process). The current pilot project on telephone verification [TVS] has

this provision.

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 fiscal 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. In carrying out the various components of the evaluation, study designs should be capable not only of identifying the degree to which the pilot alternatives achieve defined goals, but also of identifying why certain outcomes have occurred. In particular, the evaluation should assess the extent to which any identified strengths and weaknesses in the pilot programs are attributable to the computerized registry itself and/or the mechanisms used to access

The Commission recommends

evaluation

of the

pilot programs

to assess the

effectiveness

of the

verification

system.

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it. This information is essential to determining if the computerized registry should be maintained as a cost-effective mechanism

for verification and, if so, what means of access should be

used nationally.

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 current Telephone Verification System builds on the ASVI database that was established for the SAVE program. SAVE was designed for verification of legal status as it pertains to eligibility for federal assistance programs.

The following information is contained in the ASVI database: alien identification number; verification number; last name; first name; and an employment eligibility statement. The time-consuming aspect of the ASVI database is that often the system, for any number of reasons (e.g., files are not updated, there is a systems error, or the number provided is not functioning) cannot provide a response to

The Commission supports

INS efforts

to improve

its Telephone

Verification

System/SAVE

[TVS/SAVE]

database

but only

as an

interim

measure.

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A-number queries. When this happens the system refers the case for secondary verification. In FY 1994, (September - July) there was a 17 percent secondary referral rate for the SAVE system. A study of Phase I of the TVS pilot reported a 28 percent secondary referral rate. INS is already in the process of improving its system and is working to upgrade the ASVI database and reduce the need for secondary verifications. The Commission endorses INS initiatives to improve the SAVE/ASVI system as this step is necessary before a more secure system can be achieved.

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.

The issue of birth certificate fraud is twofold: either the birth

certificate itself is altered (lack of standardization makes it easy to counterfeit birth records); or the document is obtained through fraudulent means (obtaining birth records of someone other than the person making the request). Experts point to the need for a system which could control access to birth certificates while not impinging a registrar's ability to serve the public.

There are currently seven thousand local registrars, in addition to state registrars, issuing certified copies of birth certificates. The majority of requests for birth certificates are by mail and most are made for administrative or legal purposes (to verify age, citizenship, or parental relationship for social security cards, passports, driver's licenses, etc.). Another common reason for requesting birth records is genealogy. The volume of requests is quite high and some state offices are already months behind in issuing certified copies.3

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.


3In the Montgomery, Alabama state office alone, on average, there are one thousand certified copies of birth certificates issued daily.

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Most states have restricted access to birth records, meaning that requests can be made only by certain individuals. Requests for certified copies are handled either in person or by mail. In-person requests are handled differently by each state. Twelve state registrars require both a picture ID and that the applicant be either named on the birth certificate or be a designated representative of the person named. Although many states require that certain identification information be sent in along with mail-in requests, fraudulent

access is easier by mail than in person. It is relatively easy for someone seeking a legal identity to scan the obituary section of any newspaper for a name and birth date of someone of similar age, request a certified copy of the deceased's birth certificate, and automatically acquire a new identity.

Moreover, there are thousands of different types of birth certificates, many of which are easily obtained and easily altered. Currently, most states utilize specialized paper and markings, seals, and other features. Controls have not been put into place in most local registrars, however. There is no standard form for certified copies of birth certificates and there is no national standard for issuance of birth certificates. Lack of secure paperstocks and inks in local registrars' offices increases the ability to alter or counterfeit birth certificates.

To reduce fraudulent access to birth certificates, the Commission recommends:

Regulation of requests for birth certificates through standardized application forms;

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

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

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.

The Immigration Act of 1990 significantly expanded provisions regarding document fraud and established civil penalties to facilitate enforcement. Criminal penalties of up to five years imprisonment continued for fraud and misuse of visas, permits, and other documents. Nevertheless, document fraud and counterfeiting continues as lucrative and well-organized operations that may involve international networks conspiring to produce and sell the fraudulent

documents. These documents are used in smuggling and terrorist operations, as well as for work authorization. Documents that are forged include passports, visas, such INS authorization documents as "green cards" or employment authorization documents [EADs], social security cards, and drivers' licenses. RICO provisions designed to facilitate racketeering investigations 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 the unfair immigration-related employment practices against both citizens and noncitizens that may occur under the current system of employer sanctions. The Commis

To address

the abuse

of fraudulent

documents,

the Commission recommends

imposition

of greater

penalties

on those

producing

or selling

such documents.

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sion expects that the new verification system will reduce such practices because employers will no longer have to make any determination as to immigration status. Nevertheless, other mechanisms must also be used to effectively prevent and redress such unfair employment practices.

The Immigration and Nationality Act defines unfair immigration-related employment practices to include (1) national origin discrimination, when an employee or potential employee is treated differently because of his or her place of origin or ancestors' place of origin, or because of physical, cultural, or linguistic characteristics that appear foreign to an employer; (2) citizenship status discrimination, when an employee's citizenship or legal immigration status is the cause of not receiving a job or being fired from a job; and since 1990, (3) abuse of the documentation requirements in verifying work authorization, when an employer requires more or different documents from a potential employee or refuses to accept documents that reasonably appear to be genuine and relate to the individual.

Although citizens and all work authorized aliens are generally protected from national origin discrimination and abuse of documentation requirements, only U.S. citizens or nationals, lawfully admitted permanent or temporary residents, refugees, or individuals who have been granted asylum are protected from citizenship status discrimination. Unlike employer sanctions, which apply to all employers, the antidiscrimination provisions apply only to those employers with four or more employees for citizenship status and between four and fourteen employees for national origin. Title VII of the Civil Rights Act of 1964 addresses national origin discrimination for employers of fifteen or more employees; it does not cover citizenship status discrimination.

In addition to prohibiting discrimination on the basis of national origin or citizenship status, the INA created the Office of Special

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Counsel for Immigration-Related Unfair Employment Practices [OSC] to monitor, investigate, prevent, and remedy such practices. It also mandated reports to study the impacts and implementation of employer sanctions. The law further established a process for early repeal of the sanctions law if widespread discrimination were proven. Many in Congress at that time felt that current law was inadequate to protect individuals from immigration-related discrimination, especially since there were no existing protections based on citizenship status. Even some of those who doubted that significant discrimination would occur felt that efforts should be made to minimize

possible discrimination. Others opposed the creation of these

provisions, believing that fears of discrimination against foreign-

appearing individuals were unfounded and doubted that employers would discriminate rather than comply. Further, they believed existing laws against national origin discrimination would suffice if there were discrimination.

Since the passage of IRCA, numerous studies and anecdotal evidence have concluded that unfair immigration-related employment practices do occur. In particular, a March 1990 GAO report mandated by IRCA found that "a widespread pattern of discrimination has resulted against eligible workers," while also stating that "it is difficult to prove or disprove" whether widespread discrimination has resulted solely from the law. Based primarily on responses to an employer survey about hiring behavior, GAO believes that a substantial amount of the discrimination was due to IRCA and that IRCA-based discrimination, "while not pervasive, does exist at levels that amount to more than just a few isolated cases and constitutes a serious pattern of discrimination."

A key weakness of the GAO study is the absence of preemployer sanctions baseline measures of discrimination. There is no way to be certain that the reported discrimination can be attributed directly to the employer sanctions provisions, rather than to preexisting dis

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crimination. Moreover, there was no comparison group which was not subject to these new provisions. Further, although the reports tend to use the phrase "widespread" discrimination, there is little agreement as to the definition of "widespread"the only mention of the term found in the legislative history referred to "a serious pattern of discrimination" rather than "just a few isolated cases of discrimination."

The GAO study, nevertheless, pointed to a number of problems in the way in which the employer sanctions system was designed and implemented that contributed to a high potential for discriminatory behavior. GAO reported that many of the employers who engaged in prohibited practices did so because the verification system is neither simple nor reliable (78 percent of employers said they wanted a simpler or better verification system) and that discrimination could be decreased with more education and a better verification system.

According to the Department of Justice, focus groups have also revealed employer confusion about both the employment verification process and antidiscrimination provisions. Private groups, such as the National Network for Immigrant and Refugee Rights [NNIRR], have also found employer confusion to be a serious problem. NNIRR conducted a spring 1992 survey of more than 400 randomly selected employers (employing between 4 and 251 employees) in Los Angeles, San Francisco, Chicago, and New York. The study, focused on the effectiveness of employer education, the extent of employer knowledge of Form I-9 requirements and possible documents, and the effect of foreign-appearance or accent on hiring, concluded that many employers misunderstood the verification procedures and, accordingly, engaged in unfair immigration-related employment practices. Employers with fewer than 100 workers (small and medium size) were found to be more likely to engage in prohibited practices than larger companies. Noncompliance existed even among those who had received the INS Handbook for Employers. Approximately

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two-thirds of those surveyed said they were very or somewhat familiar with the Form I-9, but more than one-half of the employers had engaged in one or more unfair employment practices.

Despite the methodological issues noted above, the studies together offer some insight into the forms of discrimination reported. Some employers adopt exclusionary hiring practices, choosing only those whom they believe to be citizens. A reverse form of exclusionary hiring practices has also been documented: for example, some employers fired workers who legalized their status under IRCA and discriminated against citizens and other authorized workers by hiring illegal aliens to replace them. Some employers may rely on their existing workforce to recruit new workers. Where their existing workforce is composed of one ethnic group or only immigrants or citizens, this recruitment process may give the appearance of and, at times, result in discrimination on the basis of national origin or citizenship status. Likewise, employers who are themselves immigrants have been alleged to discriminate against those outside their ethnic group.4 In any event, the pattern of subjecting foreign-appearing workers to different or additional requirements appears most prevalent: employers selectively verify employment authorization for some, but not other, employees, refusing to accept valid documents, requiring specific documents from certain workers (such as a green card from everyone they believe to be an immigrant), and accepting only a limited number of documents, such as a driver's license and social security card.

A number of factors contribute to such unfair immigration-related employment practices, including confusion regarding the process itself (e.g., not knowing which documents are acceptable, whom to verify, when to reverify, which questions may be asked regarding status); reaction to the prevalence of fraudulent documents and lack of a


4See, e.g., Roger Waldinger, "Black/Immigrant Competition Re-assessed: New Evidence from Los Angeles," October, 1993, pp. 5-7.

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simple and secure verification system; fear of hiring an unauthorized worker; lack of awareness of the antidiscrimination provisions; and the tension felt in trying simultaneously to comply with the verification requirements and the antidiscrimination provisions. The Commissioners believe that employers often find themselves caught in the middle between employer sanctions enforcement and antidiscrimination enforcement. If employers do not ask for additional information, they may be guilty of knowingly hiring an illegal alien; if they do ask for additional information, they may be guilty of prohibited practices.

Following issuance of the GAO report and other studies, continued attempts, beginning with an Inter-Agency Task Force, were made to address unfair immigration-related employment practices that apparently arose because of employer sanctions. As mandated in the INA, the Task Force, consisting of the Attorney General, the Chair of the Commission on Civil Rights, and the Chair of the Equal Employment Opportunity Commission [EEOC], reviewed the GAO findings and submitted its own report in September 1990. The three main recommendations to deter or remedy the discrimination found by GAO should employer sanctions continue to exist were: (1) strengthening the mechanisms for enforcing antidiscrimination provisions through the establishment of OSC field offices, changes in statutory provisions, and increased Department of Labor authority; (2) clarifying and simplifying the verification process; and (3) increasing efforts to educate employers and employees, including coordination with federal, state, and local agencies and organizations.

Provisions in IMMACT further attempted to address IRCA-based discrimination. In recognition that substantial abuse of the documentation requirements of IRCA was occurring, IMMACT explicitly made it a violation of the law to ask for more or different documents or to refuse to honor documents that reasonably appear to be genuine and to relate to the individual. IMMACT also included Special

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Agricultural Workers in the category of protected workers; conformed discrimination penalties to employer sanctions penalties; prohibited retaliation against those who file charges; made it easier to prosecute for unfair documentary practices through civil penalties; and eliminated the requirement that the alien who submits a discrimination charge based on alienage have filed a declaration of intent to become a citizen.5

IMMACT increased the civil monetary penalties for an employer who has engaged in unfair immigration-related employment practices to make them commensurate with the penalties under employer sanctions. These penalties range from $250 to $2,000 per individual for the first offense, $2,000 to $5,000 per individual for the second offense, and $3,000 to $10,000 per individual for subsequent offenses. In addition, asking for more or different documents or refusing to accept valid documents carries a penalty of between $100 and $1,000 per individual. The employer may be required to take specific action such as: stopping the prohibited practice; hiring or reinstating (with or without back pay) the individuals involved; lifting any restrictions on the employee's assignments, work shifts, or movements; posting notices about employee rights and employer obligations; educating all relevant personnel about employer sanctions and antidiscrimination requirements; and removing false performance reviews or warnings from an employee's file.

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.

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.


5Some of these provisions, such as making penalties for unfair immigration-related employment practices equivalent to those for employer sanctions and prohibiting retaliation against individuals who allege discrimination, were a direct response to the GAO and Task Force reports.

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OSC should target resources on independent investigations and programs to assess the incidence and prevalence of unfair immigration-related employment practices.

The Office of Special Counsel investigates and prosecutes charges brought by those alleging discrimination based on national origin or citizenship status in connection with hiring, firing, or referring for a fee. While most of OSC's cases are charge driven, OSC may also initiate investigations and file complaints. Changes implemented by IMMACT, such as the prohibition against intimidation or retaliation and asking for more or different documents, are also handled by OSC. Unlike sanctions, which apply to all employers, the antidiscrimination provisions apply only to those employers with four or more employees. In addition, OSC engages in public education efforts.

OSC's staffing level has grown modestly since its creation, increasing from approximately thirty to thirty-six appropriated positions, while the budget has almost doubled from $2,345,000 in FY 1988 (the first full year of funding) to $4,389,000 for FY 1994. The

additional funds were earmarked for grants to community-based organizations' education campaigns to inform workers, employers, and the general public of their rights under the antidiscrimination provisions.

Although there are no regional OSC offices, the staff is divided into Northern, Southern, and Western regions to promote familiarity with state and local officers and community leaders. In addition, OSC has attempted to work with existing local, state, and federal offices through Memoranda of Understanding [MOUs]. OSC also has an MOU with the Equal Employment Opportunity Commission.

The process of establishing an unfair immigration-related employment practice generally begins with the filing of a formal charge

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with OSC. OSC may be contacted by telephone or in writing with allegations of unfair immigration-related employment practices. In some cases, these problems are resolved informally with a phone call to an employer and are not counted as a charge. A formal charge consists of a written statement alleging an unfair immigration-

related employment practice. Charges must be filed within 180 days of the occurrence. They may be filed by the individual who claims having experienced an unfair immigration-related employment practice, a person acting on behalf of the individual, or an INS officer who has reason to believe that such a practice occurred.

Once a complete charge has been filed, OSC has ten days to notify the employer of the charges. The office then begins an investigation of the alleged activities. OSC requests information from the employer, continues contact with the alleged victim, inspects Form I-9s,6 and interviews other individuals who may provide evidence in the case.

If OSC has not filed a complaint within 120 days after receiving the charge, OSC must notify the person who filed the complaint. The person then has 90 days to file a complaint with an Administrative Law Judge [ALJ] who conducts a hearing and issues a decision. Unlike employer sanctions and document fraud, there is no administrative review of the ALJ's decision, but ALJ decisions may be appealed directly to the U.S. Court of Appeals. Employer retaliation against the accuser or a witness is a violation of both the antidiscrimination provisions and Title VII of the Civil Rights Act of 1964.

OSC may also initiate investigations and file charges with an ALJ. The regulations specify that such investigations may occur "when there is reason to believe that a person or entity has engaged or is engaging" in unfair immigration-related employment practices." Independent investigations often begin through leads from local orga


6OSC's access to Form I-9s was clarified by Section 538(a) of IMMACT.

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nizations that are involved with members of the workforce, the Department of Labor, or investigations of want ads in local newspapers. According to the statute, as interpreted by Department of Justice regulations, OSC must investigate and file its complaint within 180 days of the occurrence of the unfair immigration-related employment practice. Thus, if OSC learns of a problem four months after it occurs, it has only two months in which to take action. By contrast, OSC has about four months to investigate and file a complaint when someone else makes a charge, as long as the charge is received by OSC within 180 days of the event's occurrence.

As of September 13, 1994, OSC had received 3,769 charges of alleged discrimination. Of these, 3,410 have been closed and 359 are pending. Most of the closed cases were dismissed after the employer was notified of the charge and remedied the situation. Others were dismissed due to lack of jurisdiction, lack of timeliness, or apparent lack of merit. More than 340 charges were settled with some remedy for the alleged victim. OSC has filed a total of eighty-four complaints based on these charges, and thirteen received

final adjudicated decisions. The remainder were settled or are still pending.

Also, as of September 13, 1994, OSC has opened 784 independent investigations and filed 7 complaints. Of these, 715 have been closed and 69 are pending. Most were closed due to lack of merit, and others were closed when an employer agreed to change policy or there was a settlement agreement.

In this same time period, OSC had assessed over $1.5 million in backpay. OSC had also assessed $373,000 in charge-related penalties and $175,000 in investigation-related penalties, for a total of $548,000. Approximately one-half of the penalties were assessed during 1993 alone, due to a policy change that required OSC to assess a penalty in all cases unless there were compelling grounds

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to waive a penalty. This change in policy came about, in part, because of criticism that by settling cases without issuing fines, OSC could not create the appropriate deterrent effect on employers.

The Commission believes that OSC should be more proactive and aggressive in its investigation of unfair immigration-related employment practices. The Commission urges OSC to focus its efforts on independent, targeted investigations of industries and in geographic areas where immigration-related discrimination is likely and to implement assessment programs that will provide the information to

enable better targeting of its activities. This recommendation is consistent with those of previous groups that have examined this issue. The Task Force on IRCA-Related Discrimination found that such behavior is greater in certain geographic regions, in businesses of a particular size, and in industries that employ a large number of Hispanics and Asians.

To permit OSC to conduct independent investigations, it should be given the full 120 days to conduct the review and file a complaint, as long as the investigation commences within 180 days of the occurrence of the discriminatory behavior. The time period for investigation should be consistent, regardless of whether the review is based on a charge filed by the individual victim of discrimination or on information that OSC learns independently.

The capacity to engage in effective, independent investigations will be enhanced by better information about the behavior under review. One recognized mechanism to obtain such information is testing. Employment testing involves sending two comparably qualified individuals to a job interview, with the only difference being the characteristic, such as race or gender, to be tested. Such testing has played an important role in the enforcement of civil rights laws in housing and public accommodations. In 1990, the EEOC issued a policy guidance to its regional offices endorsing testing as an accept

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able enforcement technique. This means that EEOC will accept charges brought by testers and that individuals who test for and discover discriminatory employment practices have standing under Title VII of the Civil Rights Act of 1964. Testing can be used as an enforcement technique to investigate allegations of employment-

related discrimination, collect information to substantiate or dismiss claims, monitor compliance with injunctive relief, and target limited investigative resources.

The use of testing as an enforcement tool, particularly in the employment context, has been a matter of some controversy. Critics challenge some of the methodologies that have been used regarding the appropriate sampling frame, the number of testers, and tester attributes. Some also challenge the legal soundness of claims by arguing that testers who experience discrimination are not truly

injured and that it is unethical to pose deceptively as a potential employee or housing applicant. The courts have rejected such arguments. Testing to detect and challenge discrimination has served as a powerful tool for the enforcement of civil rights laws in such areas as housing for thirty years.

Apart from its enforcement role, testing surveys of the workforce can determine whether discrimination influences hiring decisions and can document the incidence of unfair immigration-related employment practices. The results of testing can be used to educate the community and policymakers about the existence and extent of employment discrimination. Policymakers can also use testing to assess the effectiveness of existing antidiscrimination laws and to determine whether appropriate resources are devoted to addressing employment discrimination.

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 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.

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Debate continues as to the nature and extent of unfair immigration-related employment practices, including whether discrimination is inherent in employer sanctions, results from a faulty verification process, or exists apart from employer sanctions. The most recent large-scale study regarding IRCA-related discrimination was published by the GAO in March 1990. Some private groups have done smaller, more recent studies, but there is no definitive answer as to the current levels of IRCA-based discrimination or whether the level has increased, decreased, or remained steady since 1990. In September 1990, the Task Force Report on IRCA-Related Discrimination recommended that there be a new evaluation of the extent of unfair immigration-related discrimination if Congress retained sanctions and enhanced remedial measures.

The Commission agrees with this recommendation. A new study should not be used to postpone other recommended actions but is needed to continue to measure whether the employer sanctions law enforcement has discriminatory effects. The Commission recommends that the new study measure the effects of immigration policyas distinct from other factorscausing worksite discrimination. While the earlier GAO report has been criticized because it had no baseline data or comparison group, its own findings can serve as a baseline for future studies. The new study should seek to distinguish discrimination on the basis of national origin, citizenship status, and document requirements.

The Commission further recommends that the pilot programs testing the proposed verification system include provisions for evaluating the programs' impact on discrimination against foreign-appearing or -sounding authorized workers. The evaluation should measure the level and type of unfair immigration-related employment practices identified at the start of implementation of the pilot programs and compare these results to the employer behavior that occurs during the pilot program.

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Enforcement of Employer Sanctions

and Labor Standards

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.

In 1986, the principal strategy established to deter the hiring of illegal aliens and thereby reduce their incentive to come to or remain in the United States was to impose sanctions against employers who knowingly hire unauthorized workers. The Commission firmly believes that an effective employer sanctions system is needed to reduce the employment of unauthorized workers and to establish a credible immigration policy. As discussed previously, the effectiveness of employer sanctions is linked primarily to a more effective verification system. As improvements are made in verification, improvements must also be made in enforcement of the employer sanctions provisions against knowing hire.

Employer sanctions alone will not effectively deter unlawful employment practices. The Commission also firmly believes that

enhanced enforcement of labor standards must be seen as a complement to employer sanctions enforcement and an integral part of the strategy to reduce illegal immigration. Employers who violate one labor standard are more likely to violate others, including the hiring of unauthorized workers. Moreover, the very presence of illegal aliens permits unscrupulous employers to violate these other standards. Unauthorized workers are more vulnerable than the average U.S. citizen to a variety of workplace abuses, as they fear that protesting or reporting violations will lead to apprehension and deportation. The Commission believes that labor standards enforcement can be an effective tool in reducing unauthorized work. Requiring

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.

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employers to adhere to a set of labor standards for all workers can ensure that businesses have no economic incentive to hire illegal aliens rather than authorized workers.

For reasons discussed below, the Commission finds that enforcement efforts in both employer sanctions and labor standards have been inadequate and makes specific recommendations to address those inadequacies.

Employer Sanctions

Employer sanctions prohibit any person or entity from knowingly hiring, recruiting, or referring for a fee an alien who is unauthorized for employment and from continuing to employ individuals after learning that they are not authorized for employment.7 Although users of contract labor are not responsible for verification, they do violate employer sanctions if they know a contractor or its employee is an alien not authorized to work in the United States.

INS regulations (8 C.F.R. Section 274a.1(I)) provide that "knowing" includes not only actual knowledge, but also "knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition." Examples of such constructive knowledge in the regulations include: (1) failure to complete the Form I-9; (2) having information available indicating the alien is not authorized to work; or (3) acting with reckless or wanton disregard for the consequences of permitting someone else to introduce an alien into the work force or to act on the employer's behalf.

If an employer shows compliance with the basic requirementsproper completion and retention of the Form I-9s and making the


7This provision does not apply to persons who were employed at the time of enactment of IRCA.

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forms available for inspection to authorized agency officialsthe law presumes that the employer acted in "good faith." However, if the government discovers, for example, that the documents did not appear to be genuine on their face, that the verification was a pretext, or that there was collusion in the presentation of false documents, then the law has been violated and the "good faith"

presumption does not protect the employer from sanctions. Random investigations by INS show 89 percent compliance with these basic provisions. Noncompliance is higher, however, in selected industries.

Actual knowledge can arise in a number of different ways. For example, it is quite common for apprehended aliens to state that their employers knew of their unauthorized status.8 Actual knowledge might also be found when an alien is employed after expiration of work authorization or when an employer has filed an application for the legal admission of an employee known to be working illegally.9

The absence of an effective procedure for verifying work authorization has been a major factor in limiting the enforceability of

employer sanctions. In addition, shifting priorities and reduced funding have led to a greatly reduced emphasis on employer sanctions as part of the overall strategy for enforcing immigration laws. Moreover, employer sanctions enforcement competes with other investigations that at times have had higher INS priority. These include antismuggling efforts and removal of criminal aliens, both legislatively mandated priorities for INS. Sanctions funding may have

8In a survey of apprehended aliens, GAO found that 42 percent stated that their employers had been aware that they did not have work authorization and that 56 percent of the 42 percent had themselves informed their employers. The aliens further reported that about 57 percent of their most recent employers had not requested work eligibility documents. The President's First Report on the Implementation and Impact of Employer Sanctions, p.23 (July 1993).

9Some INS offices have had a practice of investigating sanctions violations based on such applications.


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been less than anticipated because of the problems encountered by the current verification system and the sense of both Congress and the INS that large sums for employer sanctions enforcement would be throwing good money after bad.

Beyond resources, other problems may remaineven with an improved verification process. Employer sanctions added a new challenge to the INS mission. In the enforcement of employer sanctions, it was necessary for INS's investigations unit to change its mindset from a police unit, conducting raids and apprehending illegal aliens, to a regulatory agency with responsibility for modifying employer behavior and imposing fines on those violating employer sanctions. INS had little experience with a role that involved a shift in thinking about its mandate. This shift has not always been successful, particularly where investigators see apprehension and deportation of illegal aliens as their principal mission even when such action impedes their ability to bring complaints against employers out of compliance with labor standards.

Relatively significant employer sanctions enforcement efforts are focused on paperwork violations, despite the fact that the worst violators are employers who knowingly hire unauthorized workers. Comprehensive strategies to ferret out these offenders through targeting their industries and locations have yet to be devised. Current penalties for unlawful employment are not fully imposed. Some employers in industries that have traditionally relied on unauthorized workers consider potential penalties under employer sanctions merely a cost of doing business.

As discussed above in the verification and antidiscrimination sections, many employers are confused about their obligations under IRCA. While much of that confusion may result from the current verification system, some of it suggests that new strategies for educating employers may be warranted.

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Labor Standards

A number of different workplace standards must be maintained by employers. Each is enforced by a specific federal agency, often in cooperation with state agencies. Federal enforcers include the Department of Labor [DOL], the Occupational Safety and Health Administration [OSHA], the Internal Revenue Service [IRS], and the Environmental Protection Agency [EPA].

The Department of Labor's Wage and Hour Division of the Employment Standards Administration [ESA] enforces a number of labor standards statutes, including the Fair Labor Standards Act (minimum wage, overtime, child labor), various government contract prevailing wage statutes, the Migrant and Seasonal Agricultural Workers Protection Act, the "whistleblower" provisions of various environmental statutes, and the Family and Medical Leave Act. IRCA added responsibility for Form I-9 inspections. Wage-Hour also enforces the labor standards requirements of various nonimmigrant programs.

Wage-Hour enforces an ever-increasing number of labor standards statutes with diminishing resources that seriously weaken its ability to investigate the industries and employers where labor standards are likely to be violated.

To ensure that employers respect the labor standards laws, Wage-Hour inspectors need the cooperation of workers to come forward with respect to violations. That cooperation is more difficult to gain when unauthorized workers know that one of the labor standards enforced by Wage-Hour aims to deter their employment.

Employers complain that each government agency comes into the workplace separately to investigate each different labor standard. While some efforts to improve coordination among agencies have

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occurred, such lack of coordination creates a number of problems: limited enforcement resources are not used efficiently; numerous investigations disrupt those employers who are not in violation; and, perhaps most importantly, employers violating various labor standards and employer sanctions laws are not pursued with multiple penalties arising out of coordinated enforcement.

The Commission believes that a complementary employer sanctions and labor standards strategy can effectively deter unlawful immigration. Specifically, the Commission supports:

• Allocation of increased staff and resources to the enforcement of labor standards to complement employer sanctions enforcement. Increased resources for the range of investigations undertaken would ensure that employers comply with such labor

standards as Wage and Hour requirements, tax withholding,

Occupational Safety and Health requirements, environmental standards, and, if enacted, mandates to provide health insurance. The Wage-Hour Division, in particular, requires augmented resources for enhanced enforcement of wage and hour, child labor, and other labor standards. In FY 1993, almost $95 million was appropriated, and 1,340 FTEs authorized for all of the activities of the Wage-Hour Division. In FY 1994, Congress appropriated $97 million and authorized the same number of FTEs (this included 804 investigators). The FY 1995 request was for approximately $103 million and 1,343 FTEs, but the appropriation is currently in conference and has already been reduced. Wage-Hour currently completes approximately 60,000 worksite visits per year. Increased funding for labor standards enforcement would help reduce utilization of illegal alien labor by those employers who are seeking an exploitable workforce. By removing an incentive to hire illegal aliens, this increased enforcement effort could result in increased hiring of U.S. workers.

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• Vigorous enforcement, increased staff and resources, and full use of current penalties against those who knowingly hire unauthorized workers. A credible policy requires that violators of the law be punished. Targeting should penalize the worst of the violators: those who knowingly hire illegal aliens. The Commission has found that resources and staff for investigations are well below the level necessary to target knowing hire of illegal aliens effectively, particularly in light of the Commission's recommendation for pilot programs that, we believe, will increase the reliability of verification procedures.

IRCA authorized a 70 percent increase in INS's budget for the years immediately following its passage, more than $100 million of which was intended to be used annually for employer sanctions. In reality, employer sanctions received $34 million in 1987, $59 million in 1988, and by FY 1994, only about $23 million was spent on employer sanctions enforcement (with the amount expected to increase to about $29 million in FY 1995). This level of expenditure for employer sanctions enforcement is approximately 14.5 percent of the total Investigations budget. Employer sanctions currently comprise just over 2 percent of the total Enforcement budget. While the Commission recognizes that employer sanctions enforcement competes with other legislatively-mandated investigative INS priorities, investigations of knowing hire of illegal aliens should receive more staff and resources as improvements are made in verification.

The INA provides significant penalties, both civil and criminal, for knowing employment of illegal aliens. It also includes graduated penalties for repeat offenders. The Commission recommends vigorous and consistent application of current penalties in cases of knowing hire of unauthorized workers. Under current law, employers who have hired, or who continue to employ, unauthorized aliens may be assessed between $250 and $2,000

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per alien for their first offense, between $2,000 and $5,000 per alien for the second offense, and between $3,000 and $10,000 per alien for subsequent offenses. In addition, the employer may be ordered to cease and desist the violations, to comply with the verification requirements for all employees hired during a three-year period, and to take other appropriate remedial actions. If the employer required a bond or indemnity from an employee to prevent employer sanctions liability, the employer may be assessed $1,000 per violation and be required to return the monies to the individual.

Employers who engage in a pattern and practice of knowingly hiring, or continuing to employ, unauthorized workers are subject to an action enjoining future violations,10 and to criminal penalties of up to $3,000 per employee and/or six months imprisonment. INS is aware of about fourteen cases in which persons were charged with, and in almost all cases pled guilty to, the misdemeanor offense of engaging in a pattern of knowingly hiring or continuing to employ unauthorized workers. Most of these cases also involved charges of such felonies as harboring, inducing and encouraging unlawful entry, or hiring and recruiting unauthorized workers for a fee, which were reduced in the final plea.

Those employers who consider potential employer sanctions penalties as a cost of doing business may not find multiple penalties based on knowing hire and labor standards violations to be so affordable. The payment of back wages is a significant Wage-Hour tool. Under the Fair Labor Standards Act, Wage-Hour can seize "hot goods" to prevent interstate movement of goods


10Cases brought against employers for knowingly hiring illegal aliens and other immigration-related employment practices are heard by Administrative Law Judges at the Office of the Chief Administrative Hearings Officer, housed in the Department of Justice's Executive Office for Immigration Review.

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manufactured in violation of labor standards. Civil money penalties can be assessed for child labor violations up to $10,000

per violation.

While the Commission is convinced that full use of penalties against knowing hire and labor standards violations is justified, we do not support such an approach regarding paperwork

violations. While some paperwork violations in the Form I-9 process relate to the knowing hire of unauthorized workers, others occur because of innocent mistakes made by employers. We do not believe that INS or DOL should expend resources in extensive investigation of such cases; nor do we believe that substantial penalties are called for where paperwork violations are inadvertent.

The new verification system proposed by the Commission should, we believe, substantially reduce paperwork and, thus, paperwork violations. It should also substantially reduce inadvertent hiring of unauthorized workers. If the pilot programs prove successful and the computerized registry is used nationally, Congress should consider eliminating paperwork violations altogether and assess the need for increased penalties against knowing hire violators and businesses that fail to verify work authorization for all employees.

• Targeting of investigations to industries that have a history of using illegal alien labor. The Commission is convinced that the most effective use of limited resources is targeting resources to investigate likely violations. Agriculture continues to be a major employer of illegal aliens, as well as a violator of other labor standards. A 1989 GAO report on employer compliance with IRCA found that five major nonagricultural industries also regularly employ illegal aliens: construction companies; manufacturers of food products; manufacturers of apparel and textiles; eat

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ing and drinking establishments; and hotel and lodging services. A significant number of employers in these same industries are also involved in a variety of labor law violations, placing law-abiding employers at a serious competitive disadvantage. If employers were forced to comply with labor laws and reduce their reliance on unauthorized workers, it is likely that wages and working conditions would improve for the legal workforce.11

When employer sanctions began, there was considerable interest in Congress and elsewhere in determining the level of compliance with its features. Currently, the INS undertakes random investigations of employer compliance, approximately 2,500 per year, to determine an overall compliance rate. These investigations are part of the General Administrative Plan [GAP] adopted by INS in July, 1988. GAP includes the general inspection

program that randomly selects sites from all employers and a special emphasis inspection program that randomly selects employers from sectors that tend to employ unauthorized aliens. (Other investigations are to be lead-driven, that is based on complaints or referrals.)

Eliminating the INS random investigations would enable the agency to target more resources on investigation of tips and in industries with a record of hiring unauthorized workers. The Commission heard arguments that eliminating or reducing the random investigations would make it more difficult to arrive at an overall compliance rate as all investigations would be gener


11The President's Second Report on the Implementation and Impact of Employer Sanctions (1991) suggested that a firm's compliance with government regulations depends on: understanding the requirements of the law or regulations; perceived costs and the administrative burden of compliance or noncompliance; risks of detection; aversion to risk; ethics of the firm; number of employees and formality of personnel procedures; location, prevalence of illegal aliens, and presence of enforcement personnel; characteristics of the industry, including applicability of the Fair Labor Standards Act, level of enforcement in the industry, unionization, strength of immigrant networks, skills required, wages, turnover, and working conditions.

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ated by a suspicion of violation. Given that employer sanctions have been in operation for several years, however, and that random investigations show a high compliance rate (89 percent in 1992) while the compliance rate for targeted or lead-driven investigations is just over 40 percent, the Commission feels that the need for continuing to develop a national compliance rate may be diminished.

DOL's Wage and Hour Division already conducts investigations on the basis of leads (usually employee complaints of labor violations) or as part of a directed enforcement effort against problem employers/industries. Two FY 1995 Wage and Hour goals are to increase the proportion of directed investigations, rather than those that are complaint driven, and to target low-wage industries, particularly agriculture, garment, janitorial/custodial, and guard services. A program that targets industries that hire illegal aliensthe Special Targeted Enforcement Program [STEP], began in the early 1980s. STEP calls for a specified number of directed investigations in industries and areas where illegal aliens are likely to be employed, testing the theory that enhanced labor standards enforcement in industries with unauthorized workers will deter the hiring of such workers. It appears that more STEP than non-STEP firms are in apparent violation of both work verification and Fair Labor Standards requirements. When STEP began, Labor Department resources were steadily declining, a trend that continued through the 1980s. Insufficiency of funds should not block an efficient program, however. The Commission strongly endorses the concept behind STEP and calls for a restatement of the priority of such targeted enforcement efforts.

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

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number of dilemmas in the enforcement of employer sanctions and other labor standards.12 A company can be held liable for contracting for the labor of an alien if the company knows that the alien is not authorized to work. The company is not required to take steps to verify status of independent contractors, however, making it difficult to establish that the company knew the contractor was engaged in unauthorized employment. Nor are there effective provisions for penalizing a firm whose contractors utilize illegal aliens or for enlisting the cooperation of companies to monitor the hiring practices of their contractors. In many cases, the company using contractors does not have control over the contractor employees, but the company may have indications, if not knowledge, that a contractor uses illegal labor, particularly if a contractor is able to undercut the costs of competitors.

Agriculture is one industry particularly reliant on illegal labor where contractors are a problem. In November 1992, the Commission on Agricultural Workers [CAW] reported that, although farmers who hire labor contractors can be jointly liable for labor violations, problems exist in collecting judgments. They also found that use of farm labor contractors has increased, particularly in the absence of collective bargaining agreements.

A number of tactics hold potential for addressing the contractor problem. For example, CAW recommended that "persons who knowingly use the services of an unlicensed farm labor contractor should be solely liable for any claim arising from any violation of the applicable federal protective labor statutes or regulations." The Department of Labor enlists the cooperation of


12Under current law, IRCA, in common with the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, and the National Labor Relations Board [NLRB], has a "joint employer" concept for both employer sanctions and discrimination. The test to determine joint employment is whether the entities jointly exercise control over the employee's employment.

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manufacturers in monitoring the hiring behavior of their contractors. The "hot goods" provision, for instance, allows DOL to seize goods manufactured in violation of labor standards. DOL returns the goods if the manufacturer signs a compliance agreement to monitor contractors and make other remedies. DOL has used this provision primarily in the garment industry that makes significant use of contractors and illegal alien labor. The Commission believes that INS and DOL should investigate the applicability of such strategies to the enforcement of employer sanctions provisions against knowing hire.

• Application of employer sanctions to the federal government. The Commission recommendation would require the federal government to abide by employer sanctions provisions. This is consistent with current policy in most federal agencies, but the Commission is concerned about inconsistencies we have identified in the application of employer sanctions within the federal government. Our own Commissioners and staff have been subject to varying requirements that are at odds with IRCA's current provisions. Some of us were not required to fill out a Form I-9 at all; others were told that a driver's license was sufficient evidence of work authorization.

Sovereign immunity prevents an action against the U.S. if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration . . . or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act." Courts have held that unless a statute specifically waives sovereign immunity, the statute does not apply to the federal government.

The applicability of IRCA to the federal government depends on whether the government is a "person or other entity." The phrase is not defined in IRCA, and the Department of Justice

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has concluded that the phrase should not apply to the federal government without evidence that such was the intent. Generally, a waiver of sovereign immunity requires a specific statement that the federal government is subject to the provision.

At a minimum, the President should issue an Executive Order requiring federal agencies to abide by the procedures required of other employers. In the alternative, 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 and use the statutory mechanisms in doing so.

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.

In the present system, INS and DOL jointly enforce employer sanctions. Until 1992, INS had primary responsibility for the enforcement of employer sanctions, investigating violations and educating employers. The role of the Department of Labor's Employment Standards Administration [ESA] simply consisted of inspecting Form I-9s during the course of their labor standards investigations and referring findings to INS. In 1990, the Task Force on IRCA-Related Discrimination recommended broadening the Department of Labor's verification role. They found that limitations on DOL's enforcement authority "may lead to duplicated recordkeeping enforcement efforts between DOL and INS, inefficiency and missed compliance opportunities." Since IRCA, in effect, created a labor standard similar to others already enforced by DOL, the Task Force asserted that DOL authority to inspect Form I-9s should be expanded to include the authority to seek civil penalties or other appropriate remedies to enforce employment verification. INS would retain the authority

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.

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over substantive violations (hiring an unauthorized worker). The Task Force suggested that "mutually agreed enforcement guidelines" be created in a Memorandum of Understanding between the two agencies prior to implementing any changes. Further, it was recommended that the same DOJ administrative law judges who hear cases brought by INS hear all cases which involve IRCA violations, including those which would be brought by DOL.

On June 9, 1992, a Memorandum of Understanding was signed by the two agencies, expanding the Department of Labor's role in enforcing sanctions, though not to the extent proposed by the Task Force. Under the MOU, DOL inspects Form I-9s during their worksite inspections. After coordination with the INS, DOL inspectors may issue warning notices when they find violations of the employment eligibility verification requirements. They must provide INS with copies of the warnings and supporting documentation and refer all suspected substantive violations or serious verification violations to INS. For its part, INS is required to follow up and inform ESA of the results. INS investigators who identify wage and hour violations are to report these to DOL. Joint training between INS investigators and ESA officers began in February 1993, and implementation of the MOU began in October 1993. This increased the number of investigators who are trained and knowledgeable about both employer sanctions and labor standards. However, preliminary evidence indicates that few, if any, warnings have been issued under the MOU.

The Commission is concerned that current coordination efforts between INS and DOL are insufficient. The Commission intends to closely monitor the implementation of the MOU over the next twelve months based on criteria that will indicate the success or failure of the joint effort. Should the monitoring demonstrate that the joint efforts have not resulted in effective enforcement, it may be necessary to designate a single agency to enforce employer sanctions.

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The Commission

recommends

enhanced

coordination

mechanisms

to promote

cooperation

among all

of the agencies

responsible

for worksite

enforcement.

The Commission recommends enhanced coordination mechanisms to promote cooperation among all of the agencies responsible for worksite enforcement.

There are a number of agencies performing worksite investigations. Just as improved coordination between INS and DOL should make it more difficult for employers to employ unauthorized workers, better coordination among all the agencies has the potential to contribute to reducing the immigration magnet of jobs. Enforcement of tax, safety and health, environmental, and antidiscrimination lawsin coordination with employer sanctions and labor standards lawsis needed to ensure that the hiring of illegal aliens is not seen as merely a cost of doing business.

The following coordination mechanisms should help promote

cooperation:

• Establishment of a taskforce in Washington to review and set policy. A Washington taskforce could identify enforcement strategies that would target industries where there are multiple violations of labor law, including the hiring of illegal aliens. It could also assess the various mandates and legal constraints of each agency to determine how cooperation could best be achieved. Further, a taskforce could identify legislative changes needed to increase cooperative efforts. For example, IRS is currently unable to participate in some joint activities because

legislation precludes them from disclosing investigations. The taskforce would also be an encouragement for increased intra-agency coordination in preparing for the discussions with other departments. Directions from headquarters that promote cooperative efforts would help establish the practice more firmly in locations where joint operations are not currently underway. Headquarters direction also could help determine how best to use resources and could set policies to be carried out at the local

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level. It is also more likely that employers would change their behavior if there were a coordinated effort among several agencies.

• Local taskforces of worksite investigators to coordinate field operations. Local taskforces allow those who are more familiar with local businesses and practices, state and local investigators, to help determine how best to utilize available resources to meet their goals. In a number of localities, joint operations are already underway with considerable effectiveness. The models established in these communities could be useful for other sites. For instance, since November 1992, Wage-Hour has worked closely with the state of California in conducting garment industry investigations through joint taskforces known as the Targeted Industries Partnership Program [TIPP], a two-year project aimed at maximizing federal and state enforcement efforts in the garment and agriculture industries and increasing the level of voluntary compliance through education. This program has been mostly successful, although there are rough spots in determining the roles of corresponding agencies and in controversies with migrant worker advocacy groups. In the Los Angeles area, a multiagency underground economy group, including Wage-Hour, INS, IRS, the state taxation agency, the state labor commissioner's office, and the state worker's compensation fund, has been meeting to coordinate agency information gathering for each other and to conserve limited resources.

• Continued joint training for worksite investigators from all applicable agencies. INS and Wage-Hour have already signed an MOU that provides for joint training. Investigators from other agencies should also participate in the training programs. Joint training of worksite investigators makes them aware of what constitutes violations of laws other than their own agency's that they might spot in the course of their own investigation. Further training could be done and similar joint training could

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be arranged with other workplace standards enforcement agencies. Despite the fact that training investigators in laws and procedures other than their own agency's may strain already-limited resources, joint training does enhance the effectiveness of enforcement efforts by increasing the number of referrals among agencies and, in effect, increasing the number of investigators looking for violations.

Education

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.

Thousands of new businesses begin operation and new workers enter the labor force each year. It is essential that they understand the rights and responsibilities of both employers and employees under INA employer sanctions and antidiscrimination provisions. It is also essential that INS, OSC, and DOLeach of whom has responsibility regarding employer sanctionscommunicate a single message to all employers and employees.

When the employer sanctions program began, there was an intensive education effort, in both monetary resources and personnel, to enhance awareness of employer sanctions and antidiscrimination provisions and to encourage voluntary compliance. This included development of an employer handbook and the establishment of the INS Office of Employer and Labor Relations [ELR] to make public understanding of employer and employee responsibilities under IRCA an ongoing effort. ELR helped develop innovative approaches to education, served as an outreach and education liaison at the regional, state, and national levels, and contributed to the antidiscrimi

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.

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nation education strategy. The March 1990 GAO report found that employers indicated that INS education efforts helped familiarize them with the law.

OSC also established education activities to help employers and employees understand their rights and responsibilities under IRCA. IMMACT gave OSC the right to contract with public and private organizations for outreach and authorized up to $10 million for each fiscal year beginning in FY 1991. OSC received $1 million in start-up funds, then $3 million from funds in the State Legalization Impact Assistance Grant [SLIAG] program to undertake education. OSC provided grants to community-based organizations and other nonprofit groups to conduct the education activities. Other OSC efforts included publications, a training video, and a media campaign.

Changing priorities, retargeted resources, and problems in coordination raise questions about the extent and effect of current outreach and educational efforts. ELR has been transferred numerous times and is currently located in the newly created Office of Public Affairs. Since 1991, educational resources and personnel have diminished as they have been redirected toward enforcement. Most districts have no ELR-specific officers, although district offices continue to respond to a variety of questions and requests for presentations through former ELR officers, investigators, clerks, special agents, field agents, and public information officers. Employers complain that they have no single point of contact within district offices to whom they can direct questions about employer sanctions.

Employers also complain that they receive mixed messages from INS and OSC. If employers accept suspected forgeries as legitimate documents, they may be violating the knowing hire provisions employer sanctions; if they request additional or different documents, they may be violating the antidiscrimination provisions. Both the GAO report and the September 1990 Task Force Report on IRCA-

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Related Discrimination recommended increased educational efforts on how to comply with these provisions. The Task Force report included OSC, INS, DOL, EEOC, the Small Business Administration [SBA], the private sector, and other federal and state agencies as those who could or should be involved in outreach and education.

Employers point to confusion about the requirements under IRCA as a major reason for apparent noncompliance. While an increase in education and outreach would not reduce deliberate violations, the Commission believes that, as compliance requires an understanding of both, joint education on employer sanctions and antidiscrimination provisions would be more effective than separate education on each topic. Such outreach would improve employer compliance by clarifying employer rights and responsibilities and would also better inform potential employees of their rights and responsibilities. In addition, every year there are hundreds of thousands of new businesses and new personnel managers who have not specifically been educated about employer sanctions or about changes in immigration documents and/or regulations. With the implementation of the pilot programs testing a simplified verification system recommended by the Commission, new educational efforts will be needed. In combination with a new verification system, coordinated and ongoing education truly could reduce employer confusion and increase the effectiveness of the educational efforts, regardless of which agency is doing the educating.

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 creative use of technologies, to inform employers and workers of their rights and responsibilities under the law. Examples of such technologies might include interactive educational tools, videos, and teleconferencing. Investigators should continue to educate employers as they identify specific problems resulting from employer

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confusion about responsibilities under the law. In addition, however, procedures should be formulated by which investigators identifying more prevalent mistakes made by employers can transfer that information to the applicable education units for development of an appropriate educational campaign. Investigators should revisit some of the employers who previously expressed confusion to determine whether they are in compliance, and thus, determine the effectiveness of the new educational efforts.

Benefits Eligibility

and Fiscal Impact

The intersection of immigration policy and public benefits policy is a complex topic that episodically captures national attention, both among policymakers and the general public. In times of great labor force needs and abundant opportunity, there tends to be little attention to the domestic context of immigration. In times of slow or uncertain growth, restricted budgets, and reduced opportunity, sensitivity to domestic impact is heightened.

This year, with the economy emerging from an extended low growth period and with reform efforts underway on several major domestic policies, the effect of immigrationparticularly illegal immigrationhas been questioned. Immigration policy is viewed as yet another area ripe for reform. In this context, the Commission has examined closely the existing relationship between immigration and public benefit policies and their impact. The primary cause of concern to both the public and to the Commission is the lack of effective enforcement at our borders and the resulting presence of many aliens who have entered illegally. The Commission found that inconsistencies in immigration and benefits policy undermine the credibility of both. The Commission believes that to have a credible national policy in either arena, we must have public benefit policies that are

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parallel to, and consistent with, our immigration policies. This section of the Commission report addresses those inconsistencies with specific recommendations.

The presence of illegal aliens, particularly of large numbers in a few areas, has dominated state-federal relations this year and is the subject of lawsuits brought by several states. States and localities point out that, although immigration policy is a federal responsibility, they pay for the effects of failed or weak enforcement. There have been specific complaints regarding the fiscal effects of federal benefits policy. These complaints are about both unfunded mandates

federal requirements to provide services without appropriating funds to do soand the cost shift that comes from the use of state and local services when such benefits are denied under federally-funded or -assisted programs.

The presence of illegal aliens in those same communities has not, however, always been of such concern to public officials, employers, or the general public. Illegal immigrants have lived and worked in many of these jurisdictions with the tacit approval of many holding responsible positions in those communities. Many private citizens and businesses have taken advantage of the presence of illegal workers and have effectively encouraged their migration by employing them at low wages. The cost-shifting effect is not merely created by federal eligibility rules, but also created by those who have taken advantage of our weak enforcement policies for their own political or financial benefit; they contribute to the problem by shifting costs onto fellow taxpayers through higher public benefit costs at all levels of government.

Specific remedies to our border enforcement problems and the problems of illegal employment are addressed in the first two sections of this report. This section provides recommendations to resolve the

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effects of benefits eligibility problems consistent with our overall immigration policy.

Eligibility

The Commission believes a clear and consistent policy on immigrant eligibility for public benefits is needed. The U.S. has the

sovereign authority to make distinctions as to the rights and responsibilities of various categories of those residing on its territoryillegal aliens, legal immigrants, and U.S. citizens. Decisions about the eligibility of aliens for public benefits should be consistent with the objectives of our immigration policy.

Immigrant eligibility for public benefits has become a major focus of debate in the United States. A number of major policy issues have arisen in this context regarding such benefits as health care, public assistance, unemployment insurance, earthquake relief, and education programs. Many of the questions raised are about illegal immigrants receiving benefits, but there have also been questions raised about which, if any, benefits legal immigrants should be eligible for, and under what conditions.

The Commission believes that decisions on benefit eligibility should be consistent with and support the objectives of immigration policy. Legal immigrants enter the United States under U.S. law because their admission is considered to be in the national interest. The INA delineates several categories of admission, most of them defined by the immigrant's connection to a U.S. resident or employer. Even in the category most characterized by humanitarian rather than strict national interestrefugee admissionspriority is given to individuals facing persecution because of their ties to the U.S. government, a U.S. resident, or a U.S. company. The Commission believes that benefits policy should reaffirm that the nation considers legal immigration to be in the national interest. Both the immigrants them

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selves and the broader society have responsibilities towards ensuring that immigrants are, and continue to be, productive members of our social community who, if they need help, can benefit from the established safety nets.

By contrast, illegal aliens enter and/or remain without the express approval of the U.S. governmentwithout inspection across a land or sea border, or overstay nonimmigrant visas and/or abuse the terms of their entry. Except in limited circumstances where humanitarian principles prevail, benefits policy should not reward aliens who enter or remain illegally.

The objectives of benefits and immigration policy are quite clear for these two categories of aliens. More complicated is the situation of aliens who enter illegally but are permitted to remain by the government, sometimes for extended periods, as their specific circumstances dictate. For example, some aliens are granted temporary protection in the U.S., others are granted stays of deportation, and still others are allowed to delay a voluntary departure. The Commission believes we must establish coherent eligibility policy regarding various public assistance programs for such aliens.

In Mathews v. Diaz the Supreme Court has held that "it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens." The ruling implies that as long as the distinctions between citizens and aliens are not wholly irrational, the Congress may draw such distinctions. Through legislative and regulatory actions, distinctions have since been made between aliens residing permanently and legally in this country and undocumented aliens. The former have been eligible for federal assistance while the latter have generally been barred from these programs.

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Other distinctions in benefit eligibility have been made between different types of immigrants. For example, refugees have special eligibility rules applied to them because circumstances surrounding the resettlement of refugees are different than circumstances surrounding the admission of other classes of immigrants. For example, those refugees not eligible for regular Aid to Families with Dependent Children [AFDC] or Supplemental Security Income [SSI] benefits may be eligible for special cash and medical assistance provided under the refuge resettlement program. These different rules recognize that refugees, by definition, usually arrive under duress and are often separated from family members, making eligibility for family-oriented assistance rules inappropriate. Different eligibility rules apply to sponsored immigrants and employment-based immigrants [see discussion of sponsors and deeming rules below].

The complexity of the many issues raised by the general question of benefit eligibility for immigrantsboth legal and illegalis due

not only to the various differences between immigrants and immigrant statuses, but also to important differences in the benefit programs. For example, there are programs that provide cash benefits to recipients (such as SSI and AFDC), programs that pay for services provided to recipients (such as Medicaid), and programs that provide services to recipients (such as child care and social services). Some programs (such as Food Stamps) provide vouchers to be used for certain specified goods. Some benefit programs are wholly financed and administered by the federal government (such as SSI and Food Stamps), while others are jointly financed by the federal and state governments but administered by the states and localities (such as Medicaid and AFDC). Still other programs are wholly financed and administered by states and localities (such as the state/local general assistance programs that provide cash and/or medical assistance). Finally, there is a major distinction between means-tested entitlement programs for which a primary eligibility criteria is that the recipient must be needy (such as SSI, AFDC, Medicaid,

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and Food Stamps) and social insurance entitlement programs for which a primary eligibility criteria is that the recipient has contributed sufficiently to the trust fund that finances benefits (such as social security retirement and disability insurance, Medicare, and unemployment compensation).

For the most part, policies establishing the eligibility rules for immigrants under the various benefit programs have evolved in an ad hoc fashion, often through specific benefit program statutes and in response to specific circumstances or perceived problems. There has been no concerted federal effort to establish a coherent and comprehensive policy with respect to benefit eligibility for all the various programs and all the various immigrantslegal and illegal. Neither has there been a serious effort in immigration law to address

the issue of which immigrants should be potentially eligible for

which benefits.

Data on the utilization of benefits by immigrants are limited and imprecise. The two primary sources for such information are census data and program data. Neither source provides unambiguous information on the specific immigration statuses of immigrants receiving various forms of public assistance and benefits. However, in spite of these limitations, some general conclusions on immigrant utilization of benefits can be drawn. Most legal immigrants do not receive public assistance; the utilization rate for these immigrants as a group is less than the utilization rate for the general population. However, within this broad group there are relatively high utilization rates for two particular types of legal immigrants: refugees; and elderly legal permanent residents [see discussion below on sponsors' financial responsibility].

The utilization rates self-reported by illegal aliens also appear to be quite low compared to the general population, which is consistent with current policies that deny most forms of public assistance to

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illegal aliens. For example, a survey of legalized aliens (conducted under an INS contract ) asked about their use of services during the year prior to amnesty. Slightly less than 2 percent of the families reported receiving AFDC and slightly less than 4 percent food stamps, and these data likely measure benefits received by the citizen children of illegal alien parents. Higher proportions appeared to have obtained publicly supported medical care, with about 21 percent financing a hospital stay through Medicaid or Medicare. Such reported data cannot be verified given the limitations of available identification procedures (see verification discussion below).

The issue of immigrant eligibility requires clear definitions of the rights and responsibilities of governments (federal, state, and local), as well as individuals (citizens and immigrants). The complexity of the issue of immigrant eligibility challenges policymakers to develop a solution that is both comprehensive and flexible.

Illegal Immigrants

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 currently can not, and should not, receive public assistance except in very unusual circumstances: where there is an emergency need for specific assistance; where there is a public health, safety or welfare interest; and where eligibility is constitutionally protected. Benefit eligibility policies should send the same message as immigration policies: aliens should not enter the U.S. unlawfully and, if they do, should not generally receive public assistance.

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.

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Current law provides that illegal aliens are not eligible for federal benefits under the following programs: Aid to Families with Dependent Children; Medicaid, except for emergency conditions; Supplemental Security Income; Food Stamps; public housing, legal services, unemployment compensation, postsecondary financial aid, and job training. In general, these programs limit eligibility to U.S. citizens, legal permanent residents, and others who are legally permanently residing under "color of law" [see discussion of PRUCOL below]. In the case of job training and unemployment compensation, eligibility is also determined by work authorizationthat is, individuals are ineligible for these benefits if they are not authorized to work in

the U.S.

In other program areas, immigration status is not a criteria for eligibility. For example, public education must be made available to children regardless of immigration status. In 1982, the U.S. Supreme Court ruled in Plyler v. Doe, 457 U.S. 202, that states may not deny children access to public elementary and secondary education on the basis of alienage. Children are also eligible for the national school lunch program without regard to alienage status. There are other federal health, education, and social service programs for which illegal aliens may be eligible, as the eligibility requirements of these programs do not specifically include alien status. Such programs include, for example, the Special Supplemental Food Program for Women, Infants, and Children [WIC], community and migrant health centers, and social service programs authorized under Title XX of the Social Security Act.

Still other programs make distinctions in eligibility depending on the type of assistance requested. Emergency medical services must be provided under state Medicaid plans, an exception to the broad prohibition of illegal aliens from eligibility for that program. Response to the recent earthquake in Los Angeles resulted in similar distinctions for disaster relief. The disaster-relief package that passed

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Congress permits only emergency assistance to illegal immigrants, but denies them long-term aid (for example, Department of

Housing and Urban Development [HUD] eighteen-month housing vouchers).

By restricting eligibility of illegal aliens for federally-funded assistance programs to emergencies and other compelling situations, U.S. eligibility policy clearly spells out a distinction between the rights of illegal aliens and of other residents. Such a benefits policy reaffirms U.S. immigration policy, while recognizing certain basic humanitarian concerns accepted as a matter of principle in the United States, that allowonly under certain limited circumstancesbenefits for the illegal alien population.

The Commission recommends that federal legislation should clearly permit states and localities to limit benefit eligibility for illegal aliens on the same criteria as the federal government. Due to various judicial decisions, states and localities are presently prohibited from making alienage an eligibility factor in their benefit programs. Thus, restrictions on illegal alien use of federal assistance programs can shift costs to states and localities. However, if the authority to limit eligibility is extended to states and localities, the use and the cost of such benefits for illegal immigrants can be reduced. Implementation of this recommendation will mean that illegal aliens may not be eligible for any public assistance benefitsfederal, state, or local. For illegal aliens who require assistance, their only recourse should be return to their countries of origin.

This recommendation is critical to achieving a fair, effective, and enforceable national policy with regard to illegal alien benefit eligibility. If states are not given the authority to deny eligibility to undocumented immigrants for state public assistance benefits, there can be no adequate enforcement of a policy that seeks to limit the payment of assistance benefits to unauthorized immigrants. Instead,

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states will be forced to continue to assume the costs avoided by the federal government and undocumented immigrants will still be eligible to receive public assistance benefits in this country. Such a result may jeopardize the federal/state partnership necessary to implement fair and effective national immigration policy.

It should be noted that this recommendation may raise judicial issues. Until 1971, states were generally permitted to set their own citizenship and alienage requirements when administering state authorized and funded programs. Some states did deny eligibility on the basis of alienage. The Supreme Court in the 1971 case Graham v. Richardson held these state restrictions to be unconstitutional because they violated the equal protection clause of the 14th Amendment and encroached upon the exclusive federal power to regulate immigration. It is not entirely clear whether federal legislation granting states authority to limit the eligibility of illegal aliens for benefits consistent with federal policies would be sufficient to overcome the 14th Amendment's equal protection clause. However, previous court rulings imply that, where it is established that national interests are supported by such delegation of authority, Congress can delegate specific authority to states to determine benefit eligibilityif anyfor illegal aliens.

In order to improve procedures for ensuring that only authorized persons receive public benefits, the Commission recommends that:

The pilot programs on work authorization also be used for verification of benefit eligibility. Identification and verification of alien status is an administrative necessity in programs where alien status is relevant to an individual's potential eligibility for a publicly-funded program. Through verification of status, illegal aliens are denied benefits for which they are ineligible and legal immigrants are identified for those benefits they are entitled to receive. An effective eligibility verification system

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is, therefore, a critical component of a credible immigration benefits policy.

Currently, the primary mechanism for establishing that an alien applicant is in a legal status that permits eligibility for federal assistance programs is the Systematic Alien Verification for Entitlement [SAVE] process. SAVE was established by IRCA to provide a means for ensuring that aliens who are not in a status that permits eligibility for key federal assistance programs do not receive benefits under those programs. As part of the eligibility determination for any of the six federal programs for which SAVE is mandated, applicants are required to identify whether or not they are citizens. Those not declaring U.S. citizenship are required to provide information about their current immigration status, and this information is verified via electronic communication with a dedicated database administered by INS. Programs currently verify citizenship in a manner designated under their particular statutes and regulations, but most require a birth certificate or other valid identification of citizenship (such as a passport).

The six federal programs mandated by IRCA to participate in SAVE (AFDC, Medicaid, Food Stamps, unemployment compensation, federal housing programs, and Title IV Educational Assistance programs) are programs funded wholly or in part by the federal government and through which the federal government provides essential subsistence support to those in need. Three of the programs (AFDC, Medicaid, and Food Stamps) are means-tested entitlement programsapplicants must establish that they meet eligibility criteriaand appropriations are available in whatever amount necessary to serve all eligible applicants. Because of the nature of these programs, the rights of potential recipients to apply for benefits and to receive assistance if found eligible are extensively protected. The ability of

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the SAVE process to perform in an accurate and timely manner is of critical interest to program officials and those concerned about the rights of needy families and individuals in this

country.

IRCA allows a state to request a waiver of the requirement to use SAVE if it can verify immigration status through some other competent and more efficient procedure. It has been suggested that federal agencies may see an increase in waiver requests with the advent of reduced federal shares for administrative costs. Effective April 1, 1994, the full federal reimbursement provided as an incentive for states to implement SAVE ceased and the standard 50/50 sharing of administrative costs was restored. Regardless of the motivation for requesting a waiver, however,

it is unclear whether alternative verification mechanisms

can make a quick, accurate verification and avoid discriminatory practices based on legal status, ethnic identity, or language skills. With similar concerns raised about employer hiring practices

as a precedent, this is a legitimate concern for eligibility

determination.

While the SAVE system has been an improvement over prior verification procedures, the experience with SAVE provides reasons for further improvements. Critics have noted several effectiveness and efficiency problems with the SAVE system. For example, applicants claiming citizenship are not processed in SAVE, setting up separate procedures and systems for determining immigrant and citizenship status.

The Commission recommends that the proposed approach to verify work authorization [discussed in the previous section] be applied to verification of benefit eligibility. The system would enable benefit programs to use the database to confirm

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citizenship or immigration status in order to make eligibility determinations.

As discussed above, the new verification system requires improvements in the database currently used by the SAVE program. Some critics claim that the INS database is not kept up to date, leading to false negative matches (not affirming a

correct claim of lawful status) and/or making necessary a secondary verification of the claim. Secondary verifications are conducted by hand and are time consuming and administratively costly. These problems must be solved if a verification process is to be credible.

As most public assistance programs already use applicants' social security numbers in developing each application for assistance, the Commission's recommendation would result in no significant increased workload requirements on program administrators nor additional requirements on applicants. Pilot programs provide an opportunity to determine if the proposed verification process leadsas we believe it willto a simpler, more fraud-resistant verification procedure accessible to all eligibility determination workers. The pilot programs will also enable data collection to determine if the verification system effectively prevents discrimination and disparate treatment of foreign-

looking or -sounding applicants. As for the verification procedures proposed for work authorization, protections of civil liberties and privacy of information must be established and evaluated in the verification procedures for benefit eligibility determinations. Also similar to the work authorization recommendations, pilot testing of this system of verification of status for benefit eligibility purposes can help ensure that accurate databases have been developed prior to any decision on national

implementation.

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• An equitable policy based on immigration status must be adhered to in cases of mixed households (i.e., households in which some members are citizens and/or legal residents and others are illegal aliens). Some benefits could be prorated in order to provide them only to eligible recipients in a household.

To achieve a consistent and fair benefits eligibility policy based on immigration status, we must adhere to the same standards in cases of mixed household living situations. The Commission believes that regardless of a family's economic situation,

only authorized immigrant or citizen members should receive routine benefits.

The relationship between the eligibility unit and the living unit is a complex aspect of eligibility determination in many programs. Determining whether or not an individual is eligible for assistance, as well as the amount of assistance that may be provided, depends on the nature of the eligibility unit itself. The eligibility unit varies by program, and may be an individual, a family, a household, or othersuch as the concept of "assistance unit" used in the AFDC program. This variation derives from the purpose of the assistance and the statutory basis for meeting that purpose. Most benefit programs determine eligibility with regard to alien statuses for the applicant andif applicableother members of the eligibility unit and determine the benefit according to preset increments for the number of eligible members in the unit. For example, under the Food Stamp program, eligibility is determined for, and benefits are provided to, persons who reside and function as a household. AFDC, on the other hand, is available to single parent nuclear families and nuclear families with two parents, one of whom is unemployed and participating in the program's work search requirements. SSI is available to individuals and couples. These eligibility unit definitions apply regardless of the composition of the living unit,

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although frequently the income and resources of individuals beyond the eligibility unit are taken into account in determining need and the amount of assistance to be provided.

On the other hand, the living unit is often made up of individuals who have diverse family and nonfamily relationships to each other, as well as differing immigration statuses. While defining the eligibility unit as a "family" or "household" may make good sense from a programmatic perspective, it can be problematic when it is necessary to introduce the consideration of alien status as an eligibility criterion. Migrationlegal and illegaloften separates family members, if only temporarily, and also reunites within the same living unit relatives and friends of all kinds. Chain migration, wherein families are led in immigration by certain "seed" members, to be followedas resources, opportunity, and preferences allowby other close family and relatives, produces extended households of varying immigration statuses.

In determining benefit eligibility, the primary problem is the presence within a living unit of unauthorized alienswho are ineligible for benefitsalong with legal immigrants or citizenswho are eligible for benefits. For example, it is not unusual to find families in which one or both parents and possibly one or more children entered the country illegally, while other children/siblings born here have U.S. citizenship. (As currently interpreted, the 14th Amendment requires that citizenship be bestowed on all individuals born in the U.S., regardless of the status of their parents.) Because of the large number of aliens legalized under IRCA, it is also not uncommon to find households where one parent is a legalized immigrant, one is here illegally, and the children are U.S. citizens.

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The existence of multiple status households presents several major social dilemmas. Of particular concern in many immigrant-

receiving states is the caseload of citizen children who are eligible for AFDC. Orange County, California claims, for example, that there are approximately nine thousand citizen children eligible for and receiving AFDC benefits whose undocumented parents are ineligible. The parents receive, as legal caretaker, the benefit on behalf of their child(ren). Since the citizen children's parents are, by law, prohibited from working, there is no legal means for them to support their children. Nor can these parents be subjected to the work requirements that are the program's main mechanism for helping recipients obtain employment and eventually earn their way off of assistance. Local officials ask what this situation means for the economic support of citizen children and whether it is official U.S. policy that they are to be supported by AFDC because the parents cannot legally work.

These parents escape the family support collection requirements and the mandatory training and work requirements that welfare reform proposals may place on the parents of AFDC children who do have legal status. Hence the perception can arise that undocumented parents receive favorable treatment. Clearly, this is an area for further study within the welfare reform and immigration policy arenas. What does not require further study, however, is the fact that enhanced deterrence of illegal immigration will tend to keep this problem from arising in the first place.

The mixed family issue is somewhat more difficult regarding eligibility for housing. A 1987 amendment to section 214 of the Housing and Community Development Act of 1980 added a paragraph concerning the preservation of families that is applicable to any family with an ineligible individual who was receiving assistance on the date of enactment. The 1987 Housing Act defines "family" as, "head of household, any spouse, any par

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ents of the head of household or the spouse, and any children of the head of household or spouse." Section 214 (c)(1)(A) gives the Public Housing Authority and the Secretary of HUD discretion to continue assistance indefinitely to a family "whose head of household or spouse does have eligible status" but contains at least one person who lacks eligible status, if continuation of assistance is necessary to "avoid the division of the family."

The Commission recommends that the Department of Housing and Urban Development revise its public housing policies to provide eligibility only for legal permanent resident or citizen family members. In the alternative, housing benefits could be prorated and provided only to eligible recipients in a given household. This would dramatically change the current system, whereby an entire household receives public housing, regardless of immigration status, if one member of the "family" qualifies. The Commission believes that the current system amounts to a reward for illegal aliens and other nonqualifying legal aliens who live with one or more qualified family member.

The Commission acknowledges that there is no way to further immigration policy goalsthat is, to set benefit eligibility requirements in accordance with legal statuswithout running into undesirable side effects. Some illegal aliens will benefit from the resources made available to citizen members of their household, but denying the citizen members access to the assistance would be inequitable and illegal. Similarly, some of the aims of the benefit policies may be undermined by the exclusion of illegal aliens (such as work requirements for parents), but immigration policy requires that those without lawful status be so excluded. The best that can be done in these situations is to ensure that benefits are provided only to those with legal status or that the benefit be prorated according to the proportion of legal residents in the household or family unit. Again, better

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enforcement of the borders and of the work authorization procedures also should help to prevent and deter the entry of unauthorized immigrants in the first place, thereby decreasing the number of mixed-household cases.

Legal Immigrants

The Commission recommends against any broad, categorical denial of public benefits to legal immigrants.

No federal benefit program currently denies eligibility on the basis of alienage to legal immigrants. In some needs-based public assistance programs (i.e., SSI, AFDC, and Food Stamps), as a means of enforcing the public charge provisions for exclusion and deportation, current law requires that program eligibility workers "deem" sponsor income as available to immigrants in determining financial eligibility [see discussion of sponsor deeming below]. In other social insurance programs (such as social security and Medicare) an immigrant becomes eligible on the same basis as citizensthrough sufficient payroll contributions to the trust funds (there is a five-year residency requirement for enrollment for elderly immigrants who have not contributed sufficiently to the Medicare trust funds).

A considerable amount of public debate has focussed on the issue of eligibility of legal immigrants for public assistance programs. Indeed, during the past year a number of proposals for curtailing immigrant eligibility have been made. While some measures would affect all legal immigrants, others are more specifically aimed at individuals coming into the country for family reunification purposes. The proposals range from making all legal immigrants ineligible for all federal assistance programs until such time as they naturalize, to extending for some federal programs the time period during which a sponsor's income is counted or "deemed" available to determine need. Also under consideration are measures to

The Commission recommends

against

any broad,

categorical

denial of

public benefits

to legal

immigrants.

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strengthen the basis upon which immigrants can be excluded or deported because of the public charge provision of the INA.

The impetus for proposals to change immigrant eligibility standards for public assistance stems from a number of different concerns. Immigration during the past few decades is the first to occur after the creation of the modern welfare state. Steady increases in the number of legal immigrants admitted into the U.S.and the prevailing tendency of these immigrants to settle in only a handful of stateshas raised general concerns about the ability of states and communities to absorb new migrants. Further, some observers argue that recent immigrants have less education and lower skills than earlier immigrants, resulting in a higher utilization rate of public assistance benefits than previous generations of immigrants. Also, in an era of federal and state budget pressures that require funding for new programs to come from cuts in existing ones, restricting the eligibility of immigrants for benefits is seen as a source of revenue. In addition, several well-publicized incidents of fraud in the use of public benefits by immigrants has animated public concern about possible misuse of federally-funded programs. Finally, there is perception that the long-standing provision of immigration law that immigrants should not become public charges has not been effectively enforced.

Some argue that public aid impedes the social and economic adjustment of immigrants, particularly in the refugee resettlement program where AFDC and its refugee cash assistance counterpart are the principal means of providing transitional financial aid to refugees. Continued high levels of welfare utilization by refugees

in some states, especially California, have raised questions about

the effect of public assistance on the attainment of economic

self-sufficiency.

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The Commission rejects proposals to categorically deny eligibility for public benefits on the basis of alienage. We support efforts to close some loopholes that have led to abuses within our immigration and benefits programs. The United States admits legal immigrants with the expectation that they will reside permanently in the United States and become productive citizens. Therefore the Commission believes that the following principles should guide policy on the benefit eligibility of immigrants.

• The safety net provided by needs-tested programs should be available to those whom we have affirmatively accepted as legal immigrants into our communities. The U.S. admits immigrants on the basis that they will not be a public charge [see below]. However, circumstances may arise after an immigrant's entry that create a pressing need for public helpunexpected illness, injuries sustained due to 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 criteria. We are not prepared to remove the safety net from under individuals who, we hope, will become full members of our polity.

A policy to categorically deny legal immigrants access to such safety nets based solely on alienage would lead to gross inequities between very similar individuals and undermine our immigration goals to reunite families and quickly integrate immigrants into American society. For example, while two children in the same family may be equally poor, one may be a legal immigrant and, under proposals to deny benefits to legal immigrants, would be ineligible for assistance, while the other may be a citizenby virtue of being born after the family arrives in the U.S.and eligible for assistance. In the case of unlawful immigration, the policy goal of controlling illegal entry overrides potential inequities derived from limiting eligibility on the basis of alienage.

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There is no such public policy objective achieved, however, by denying public benefits to eligible legal permanent residents.

The inequities for the legal immigrant child grow if eligibility is linked to citizenship, rather than a specified time, since the child may not naturalize, by law, until he or she is eighteen years of age. The only route to citizenship prior to that age is through the naturalization of his or her parent. If there were a categorical denial of eligibility to all legal immigrants and the parent is unable or unwilling to naturalize, the child would suffer the consequences of a parental action that he or she cannot remedy.

• Sponsors should be held financially responsible for the immigrants that they bring to this country. In particular, the Commission recommends making affidavits of support signed by sponsors legally binding for a specific period of time and the development of mechanisms to enforce sponsors' pledges of

financial responsibility.

Affidavits of support are one means to assure the Consular Officer that the alien will be supported in the United States and will not become a public charge. In accordance with BIA rulings, the signatory sponsor's ability to provide the promised support must be given due consideration in determining whether to exclude a person as likely to become a public charge. Some courts, however, have held that such affidavits of support

impose only a moraland not a legalobligation on the

signatory sponsor.

Thus, as affidavits are not legally enforceable, assurance that the alien will not become a public charge has relied primarily on the "deeming rules" applied by the statutory requirements that apply to sponsored immigrants in three federal means-tested entitlement programsAFDC, SSI, and Food Stamps. Under these

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statutesenacted in the late 1970s to respond to concerns about possible abuses of federal programs by sponsored immigrants and to enforce the public charge provisions found in immigration lawa portion of the income and resources of an alien's sponsor are "deemed" to be available to the alien when determining the alien's level of financial need. The deeming rules apply only to sponsored immigrants and are not used if a sponsored immigrant becomes blind or disabled after entry into the U.S., if an immigrant's sponsor has died, or if a sponsor's income and resources are depleted unexpectedly after the immigrant's entry. Also, refugees are statutorily exempt from deeming rules since their entry is based on humanitarian considerations rather than on family unity.

Although Medicaid eligibility is generally conferred with AFDC or SSI eligibility, such eligibility can be established separately. Since there are no sponsor deeming rules in the Medicaid program, such separate determinations of a sponsored immigrant's eligibility for that program does not take into account a sponsor's income and resources (although actual receipt of support and maintenance is taken into account in determining any individual's eligibility for Medicaid).

For the AFDC and Food Stamp programs, the deeming provisions apply during the first three years following the alien's admission to the U.S. Until recently, the deeming period was also three years under the SSI program. However, in 1993, the sponsor deeming period under SSI was temporarily extended to five years after admission. This change, authorized for a period of two fiscal years, resulted in savings that financed an extension of the Emergency Unemployment Compensation program. This use of immigrant eligibility revisions for budgetary advantage is a precedent that has opened the door to further consideration of

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revisions to immigrant eligibility in the current debate on

welfare reform.

This extension of the deeming period for SSI resulted in part from the increased attention to the public charge issue and in part to data showing a rapid increase in SSI utilization by immigrants, many of whom are elderly and sponsored by their families. For example, in 1993, immigrants represented about 12 percent of the total SSI caseload and about 28 percent of

the aged caseload, compared to 3 percent and 6 percent

respectivelyin 1982. About 25 percent of all immigrants receiving SSI are legal immigrants who are not likely to have sponsorsprimarily refugees, but also asylees, parolees, and others. The remaining 75 percent are legal permanent residents who are likely to have sponsors, and one-third of these began to receive SSI in the year immediately following the end of the sponsor deeming period.

These data can be interpreted in various ways. Some believe that these elderly immigrants, sponsored by their families, have always intended to apply for SSI benefits as soon as the deeming restrictions are removed. They argue that, at the time of entry, these elderly individuals have no intention of being self-supporting and that their sponsoring relatives have no intention of honoring their sponsorship role beyond the deeming period, creating precisely the situation the public charge provision is supposed to prevent.

On the other hand, no laws have been broken and the data do not imply that there is any specific fraudulent activity occurring. Sponsors and their elderly immigrant relatives are merely following the rules of program eligibility as they have evolved over the years.

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The one conclusion that can be unequivocally drawn from the data is that the deeming policies have generally been effective in preventing sponsored immigrants from receiving federal welfare benefits during the deeming period. However, under federal welfare benefit programs, the deeming rules apply even if sponsors are not actually providing financial support to the immigrant they have sponsored. As the affidavit of support has been judicially interpreted as a document that is not legally binding, there is currently no legal procedure to compel sponsors to actually provide such financial support. It is possible that a sponsor may refuse to provide financial support to the immigrant, but due to the sponsor's income and resources, the immigrant may also be ineligible for federal welfare benefits as a result of the deeming rules. The immigrant may, however, be eligible for state and local assistance programs as these programs do not generally take into account sponsors' income in determining eligibility for benefits.

There are no data to indicate the prevalence of such sponsor abandonment of immigrants. Some experts argue that such cases are relatively rare, particularly in situations where the sponsor is a close relative of the immigrant (e.g., the son or daughter of an elderly immigrant). Some states and localities complain, however, that sponsored immigrants utilize their programs while awaiting the end of the deeming period for federal programs. Making the affidavit of support a legally binding document

is necessary to close this loophole in the current sponsor

deeming policies.

A legally-enforceable affidavit of support is a necessary complement to deeming policies. Deeming is used not only for immigrants, but for others as well, to ensure that the income and resources of legally liable individuals are taken into account when determining an applicant's eligibility for benefits. For example,

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RECOMMENDATIONS

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under the SSI program there are both spouse-to-spouse and parent-to-child deeming policies, in addition to the sponsor-to-alien deeming policy. In these other cases, the fact that there is an established, legally liable relationship between individuals (e.g., husband and wife) does not obviate the need to have deeming policies in place in order to adequately take into account the income and resources of the legally liable individual (e.g., the husband) when determining the financial need of the applicant (e.g., the wife). Making the affidavit legally binding would establish the legal, financial relationship between sponsors and immigrants; deeming policies would continue to allow benefit programs to take this relationship into account when determining a sponsored immigrant's level of financial need as part of the eligibility determination process. In defining the sponsor's responsibility, special consideration should be given to the issue of medical care, particularly in the context of health care reform initiatives.

It is likely that making the affidavit of support legally binding will serve primarily as an effective deterrent to sponsors. There is reason to assume that most citizens and legal permanent residents will voluntarily comply with such a legally binding affidavit. But to be fully credible, mechanisms must be developed to enforce such a new legal requirement.

Consideration should be given to the particular enforcement mechanisms developed to actually enforce the affidavit, so as to avoid unnecessarily complex and costly new regulations or bureaucracies. Federal, state, and local governments should be allowed to consider the sponsor/immigrant relationship on the same legal basis as current parent/child and spouse/spouse relationships and to hold sponsors to the same standards of financial responsibility with regard to the immigrant as are currently applied to spouses and parents of children. If an immi

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RECOMMENDATIONS

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grant claims that a sponsor is not honoring his or her financial obligation, courts could render judgements of support on behalf of the immigrant and initiate procedures to ensure that support. Also, the INS and the Department of State should review

their policies to determine if immigration-related sanctions

should be applied against sponsors who do not abide by their responsibilities.

Finally, making the affidavit of support legally binding should also provide states the authority to ensure that sponsors do not shift their financial responsibility to state and local public assistance programs. As some courts have determined that states cannot implement the same type of deeming policies for their public assistance programs as the federal government now does for its programs, this is an important protection.

A serious effort to enhance and enforce the public charge provisions in immigration law to ensure that legal immigrants do not require public assistance and to provide clear procedures for deporting individuals who become public charges within five years of entry for reasons that existed prior to entry. In particular, the Commission recommends that deportation apply to sustained use of public benefits.

Specific provisions within U.S. immigration law are designed to ensure that those persons seeking admission to this country will contribute to it, not merely take advantage of its resources and the generosity of its people. For example, U.S. immigration law currently bars the entry of those who are likely to be a public charge and contains provisions for the deportation of individuals who become public charges within five yearsunless they require aid for reasons that developed after entry. Effective enforcement of these provisions helps minimize the number

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RECOMMENDATIONS

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of legal immigrants who come to need or depend on

public assistance.

At the admissions stage, the determination as to whether an individual meets the public charge test is generally made by a consular officer prior to the issuance of a visa. A public charge is a person who "by reason of poverty, insanity, disease or disability would become a charge upon the public." The test applied for the public charge determination is "a prediction based on the totality of the circumstances as presented in the individual case," according to a 1988 ruling from the Board of Immigration Appeals [BIA]. BIA has found that "a healthy person in the prime of their life cannot ordinarily be considered likely to become a public charge, especially where he or she has friends or relatives who have indicated their ability and willingness to come to assist in case of emergency."13 Friends or relatives who sign an affidavit of support on behalf of the immigrant are known as sponsors.

Immigrant visa applicants must demonstrate their financial

responsibility by presenting evidence of bona fide offers of employment, evidence of sufficient personal assets and income, or affidavits of support from a relative or friend assuring the U.S. government that the alien will be supported in this country and not become a public charge. Aliens unable to demonstrate

their financial responsibility through such evidence are said

to be excludable under section 273 of the Immigration and

Nationality Act.

The Foreign Affairs Manual section on public charge provides guidance on what to review as evidence and indicates that all of


13Legal cases addressing public charge issues include Gegiow v. Uhi, 239 U.S. 3 (1950, Matter of Vindman , I&N Dec. 131 (Reg. Comm. 1977), Matter of Harutunian, 14 I&N Dec. 583 (Reg. Comm. February 28, 1974), Matter of A-, 19 I&N Dec. 867, 869 (BIA 1988), and Matter of Martinez-Lopez, 10 I&N Dec. 409 at 421-22.

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the evidence should be compared to the official government poverty guidelines as published annually by the Department

of Health and Human Services [HHS]. While an applicant's

income and resources are compared to the guideline, determinations on whether an applicant has met the public charge provision are applied in a flexible, individualized manner. For example, in determining whether an applicant has sufficient resources, a medical condition that would affect the applicant's ability to maintain employment successfully would be a factor in determining eligibility for the visa. The final determination that an alien is likely to be a public charge remains, then, a matter of discretion. The Consular officers make a judgment regarding future patterns of behavior. For those aliens who apply to adjust to lawful permanent resident status within the U.S., the INS makes the determination whether or not the alien passes the public charge requirements.

To emphasize the discretionary aspect of these decisions is not to say that enforcement of public charge exclusionary grounds are not performed vigorously. In FY 1992, 8,811 individuals were initially refused immigrant visas on public charge grounds. During that year, 4,285 individuals were able to overcome the grounds of refusal.

Immigrant and nonimmigrant visitors may become eligible for a waiver of the public charge exclusion by giving a bond or surety against the alien becoming a public charge. This public charge bond affirms that the obligor will pay to the United States, or to any state, town, or municipality, any expenses resulting from the alien's becoming a public charge after entry.

The U.S. is authorized to enforce the bond on behalf of the states or localities that have incurred expenses if the alien becomes a public charge. The bond remains in full force and effect unless

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or until it is cancelled by the District Director, the alien naturalizes, or the alien dies or departs permanently from the U.S. This provision is rarely used to satisfy public charge requirements.

Aliens who become public charges within five years of entry for reasons not shown to have arisen since entry are deportable under current law. The statute applies only to occurrences of destitution after entry that are tied to a cause existing at the time of entry, such as a preexisting mental or physical disability. An alien is not subject to deportation for acceptance of public assistance as a result of unemployment or other conditions or physical ailments that develop after entry. To deport the alien, the government must have affirmative knowledge that the condition existed prior to the alien's immigration to the United States. For example, the BIA held that development of psychosis was not conclusive in and of itself that the condition existed at time of entry14. In the last thirty years, very few immigrants have been deported based on public charge provisions.

Under the current statutes governing benefit programs there are no references to the public charge provisions in immigration law. Therefore, an immigrant may be determined eligible for benefits without regard to the public charge provisions found in the INA. Moreover, the relevant statutes have been interpreted to mean that, before an immigrant receiving benefits can be judged deportable, the federal, state or local government providing the benefit must seek repayment under its program rules for services rendered. The government must also demonstrate that the alien failed to repay the costs of the assistance provided. Thus, there are three elements necessary to support this ground of deportability: a liability for payment; a demand for payment; and a refusal or omission to pay. Unless all three


14in Matter of S, 5 I&N Dec. 682 (BIA 19540).

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elements are met, the immigrant receiving public aid will not become deportable.

The Commission believes this is not a reasonable interpretation of the public charge concept. A more sensible criteria is needed for deporting an immigrant who becomes a public charge, such as a tolerance threshold represented by a period of time of continued receipt of certain benefits. Tightening the deportation provision could help ensure that individuals with preexisting conditions that might require public aid within a short time of entry understand the seriousness of their (or their sponsors') commitments that they will not become a public charge. Thus, immigrants who may require publicly-financed services for a sustained period of time for conditions that existed prior to entry would know at the time of application for assistance that they could be deported as a public charge.

This provision would not unduly limit an immigrant's access to safety net programs where the use is of brief duration or for reasons arising after entry. Thus, if the condition that precipitates the need for long-term care occurred after entry, the immigrant would not be deportable as a public charge. Similarly, if the immigrant requires publicly-financed medical services for a limited duration of time (e.g., hospitalization for a specific procedure), there would be no public charge determination.

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.

Under current laws, procedures for making benefit eligibility determinations for legal immigrants 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

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.

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RECOMMENDATIONS

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spelled out in the Immigration and Nationality Act and/or benefit laws, it is also true that the Congress, the Executive Branch, and the courts have created various other statuses that may or may not denote benefit eligibility.

Determining which class of immigrants is eligible for what type of benefits is complicated by the number of immigration status grey areas that exist among lawful permanent residents, those who have entered with explicit permission and possess a status that indicates our intent that they reside here on a permanent or temporary basis and those who are here without consent. There are some statuses for which our immigration intent is not clear or, if the intent is to deport, not immediately achievable, resulting in both courts and benefit programs conferring eligibility on individuals who are residing without formal consent of the government.

The term "Permanently Residing in the United States under Color of the Law"or PRUCOLis used in statutes governing four federal benefit programs (AFDC, SSI, Medicaid, and unemployment insurance) to indicate a number of categories of aliens who are not permanent residents but are nonetheless eligible for benefits. PRUCOL was first introduced in 1972 by amendment to the statute governing the SSI program; then for AFDC, by regulation in 1973 and by statute in 1981; for Medicaid, by regulation in 1982 and by statute in 1986; and for unemployment insurance in 1978. It is neither a term defined nor an immigration category provided for in the INA. PRUCOL includes refugees and asylees who are first provided conditional status but are able to adjust to permanent resident status after one year. PRUCOL also includes aliens whose right to remain permanently is less clearly defined in lawsuch as parolees, Cuban/Haitian entrants, aliens whose deportation is withheld or have been granted a stay of deportation, aliens under orders of supervision, aliens granted voluntary departure, and a variety of other aliens who are "living in the United States with the knowl

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edge and permission of the INS and whose departure the INS does not contemplate enforcing." [This last category was the result of litigation, Berger v. Heckler, 771 F.2d 1556 (1985).]

As a result of its evolution, the multipurpose term "color of law" has been variously interpreted by the benefit programs and the courts. Since a single, uniform PRUCOL standard has not been defined statutorily, some aliens qualify under some benefit programs but not under others. For example, the courts generally have held that asylum applicants are not PRUCOL for the purpose of AFDC eligibility, but the Florida Supreme Court has ruled otherwise. However, asylum applicants may be eligible for SSI and Medicaid if the INS makes a determination that they do not "contemplate enforcing their departure." Similarly, Congress has expressly denied PRUCOL status to aliens granted temporary protected status [TPS], a time-limited resident status generally granted on a country-specific basis to aliens who do not want to return home because of armed conflict, natural disaster, or other extraordinary and temporary conditions. However, when Salvadorans were granted Deferred Enforced Departure status, rather than extending their TPS status, there was no indication as to their benefit eligibility status.

In general, SSI and Medicaid interpret the PRUCOL standard broadly, while AFDC regulations define PRUCOL more narrowly. Legislation governing the Food Stamp program was amended in 1977, in part because of the vagueness of "permanently residing under color of law," replacing PRUCOL language with a listing of the specific categories of legal aliens eligible for benefits. As a result, alien eligibility is more narrowly drawn for food stamps than for AFDC, SSI, and Medicaid.

Inconsistencies inherent in the term PRUCOL call for INA provisions that clearly define categories of aliens to help clarify decisions about

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RECOMMENDATIONS

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immigrant eligibility for public assistance benefits. Therefore, the Commission recommends:

Establishment of statutory categories of aliens according to their eligibility for work and benefits. Such INA definitions would help provide more specific guidance to various benefit programs as to the intent underlying a given immigration status and would lead to more consistency among different programs in determining benefit eligibility. Further, consistent and easily identifiable categories are attractive from a compliance and fiscal reimbursement perspective.

Table 3 illustrates how such broad immigration categories could be developed and indicates the framework to develop benefit eligibility and work authorization policies related to such categories. These categories reflect whether individuals: (1) have been admitted affirmatively into the U.S. for permanent residence; (2) have been admitted affirmatively into the U.S. for temporary residence; (3) are remaining here pending a final decision on deportability; or (4) are here unlawfully or have already been determined deportable and are awaiting removal. The Commission intends to continue to refine these broad categories and their implications for benefit eligibility and work authorization. Determinations of work authorization and benefit eligibility, we believe, should be consistent with the immigration principles underlying the broad categorization. They should strengthen an overall policy that supports legal immigration and deters unlawful immigration by extending public assistance to those persons residing in the U.S. lawfully and at our invitation, while not rewarding with public benefits those persons not affirmatively admitted.

As many of these same issues apply to nonimmigrants, a similar categorization should be done for the various nonimmigrant

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Table 3.

Example of Broad Categorization of Immigrant Status for Potential Benefit Eligibility and Work Authorization


Immigration Immigration Work Benefit Labor

Code Status Eligibility Eligibility Standards

Code 1 Citizens Permanent Permanent Applicable

Code 2 Permanent Permanent Permanent16 Applicable

Immigrants

Code 3 Temporary Limited Limited Applicable

Immigrants

(allowed to

remain

indefinitely)17

Code 4 Temporary Limited None Applicable

Immigrants (Except

(intended to Emergency)

leave)18

Code 5 Undocumented None None Applicable

Immigrants (Except

Emergency)

16Eligibility of sponsored immigrants may be affected by sponsors' income and resources.

17Includesfor examplealiens whose deportation has been stayed or withheld indefinitely and certain aliens admitted under the Attorney General's parole authority.

18Includesfor exampleasylum applicants, Temporary Protected Status aliens, and aliens granted voluntary departure, order of supervision, and deferred action status.






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RECOMMENDATIONS

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statuses. However, there are also critical differences between immigrants and nonimmigrants, in terms of both their potential eligibility for benefits and work authorization.15 Therefore,

the Commission suggests that these issues be dealt with in a separate context.

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. All current and future immigration statuseswhether the result of statute, court order, or administrative

ordershould be assigned to one of these broad categories. In turn, these categories would have implications for the work authorization and benefit eligibility of immigrants in those categories.

Impact on States and Localities

Until better enforcement measures are in place and as long as certain requirements are met, the Commission supports in principle a short-term authorization of impact aid to offset at least a portion of the fiscal burdens of unlawful immigration.

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 decision-

makers, including state officials and others representing areas now heavily affected by illegal immigration. Nevertheless, the federal government bears a responsibility for alleviating some of these

impacts, particularly through renewed efforts to reduce unlawful immigration.

Until better

enforcement

measures

are in place

and as long

as certain

requirements

are met,

the Commission supports

in principle

a short-term

authorization

of impact aid

to offset at least

a portion of

the fiscal burdens

of unlawful

immigration.


15For example, many temporary workers are authorized to work for only particular employers, within particular industries or sectors, for a limited time.

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We believe that the federal government's responsibility to provide impact aid applies where specific costs are unavoidable and there is clearly an immediate budget impact. These areas are the major "unfunded mandate" areas: emergency medical care, because it is required under the Medicaid laws and has an effect on service delivery for lawful residents; education, because the Supreme Court has held that states may not limit the right of children to education on the basis of immigration status; and the costs of incarcerating illegal aliens who commit crimes because it is required by public safety. In no other areas are arguments for impact aid as compelling.

The restoration of a credible immigration policythat is, a policy that works and is recognized to workis the primary goal of this report. The Commission believes that the recommendations offered herein will reduce unlawful immigration, thereby alleviating its fiscal impact. The responsibility of the federal government for immigration impact should be met primarily through implementation of the comprehensive set of recommendations contained in this report. The extent to which impact assistance is part of this process depends on how effectively and how quickly the recommendations take effect. It also depends upon the credibility of the claims of impact presented by affected governments.

Our federal system provides for a sharing of responsibility among governmentsfederal, state and localin providing services to the people of this country. Recently, state and local officials have expressed concern that the traditional sharing arrangement has gotten out of balance due to the presence of large numbers of undocumented immigrants in their jurisdictions and the costs that are incurred in meeting the states' usual obligation to provide services. In 1994 Arizona, California, Florida, and Texas initiated state claims for reimbursement by filing suit against the federal government for $121 million, $377 million, $1.5 billion, and $1.34 billion respectively. They claimed that the impact of undocumented aliens on their jurisdic

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tions results from irresponsibility on the part of the federal government in failing to carry out immigration policy effectively. Other major immigration states have joined in a series of complaints about the serious budgetary impacts of immigration on their public and human service programs.

The argument made by states and localities is based on the notion that immigration policy in general and control of illegal entry specifically is a federal responsibility. Therefore, if federal immigration policy is inadequate, or if the implementation of that policy is ineffective, the federal government should assume additional responsibility in the service partnership.

Various proposals have been made for impact aid funding to cover costs of undocumented aliens in the areas of health care, criminal justice, and education. In FY 1993, the Administration looked closely at the possibility of providing to states, on a formula basis, additional grant funds to supplement their federal Medicaid share and to counter high emergency care costs incurred in serving both legal and illegal aliens. In response to the pressure by states for reimbursement for costs incurred in incarcerating illegal aliens, the President asked for $350 million in funds under the crime bill to pay for the costs of housing illegal criminal aliens. Section 20301 under Subtitle C of the Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322, addresses incarceration of undocumented aliens. The law provides that if a chief executive officer of a state submits a written request for reimbursement for the incarceration of an undocumented criminal alien, the Attorney General shall enter into a contractual arrangement which provides for compensation or take the undocumented criminal alien into custody. Funds authorized between FY 1995-FY 2000 total $1.8 billion.

Any authorization of impact aid should be made contingent on the following conditions:

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RECOMMENDATIONS

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• 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, and impact assistance

should be provided only to the extent that actual impact costs are identified.

Much of the controversy in the debate about illegal alien use of public benefits is fueled by the lack of specific data. Some state and federal programs do not collect information on immigration status generally because alienage is not in those cases relevant to eligibility or to the need for the program's services. This is especially true for programs involving public health and education where it is in the public's interest to encourage participation regardless of legal status. For example, the Family Educational Rights and Privacy Act prohibits education agencies from disclosing records or personally identifiable information from records without prior consent. Similarly, under section 1867 of the Social Security Act, hospitals must provide emergency medical services to any individual who comes to a hospital with an emergency medical condition; and under section 1137(f) of the Social Security Act an alien is not required to provide alienage status for determining whether such emergency services are reimbursable under the Medicaid program.

Given limited information, estimates of benefit use are based on assumptions regarding the size of the illegal alien population and the program utilization rates of these aliens as compared to legal immigrants and native-born residents. Although progress has been made in recent years in estimating the number of illegal aliens, differences in assumptions and data sources have inevitably led to conflicting results in many recent studies. As the number of illegal aliens residing in the countrythe starting

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RECOMMENDATIONS

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point for estimating total costsare not known with much precision, many of the cost estimates presented by states and experts are imprecise as well.

Even more troubling for estimating costs is the lack of information about the demographic traits, income, and other relevant characteristics of illegal aliens. The foreign-born population is often used as a proxy for estimating the gender, age, and income levels of the illegal alien population. The foreign-born population, however, includes several groups of aliens: legal immigrants, refugees, illegal residents, aliens in the United States on temporary visas, and other aliens permanently residing in the United States under color of law [PRUCOL]. As not all of these groups have the same characteristics, basing estimates of age and gender composition of illegal aliens on these figures can be misleading.

• Provision of any impact aid authorized in a manner commensurate with the interim period of regaining control over unauthorized immigration. Any 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. The Commission is concerned that the availability of such assistance not create an expectation of ongoing immigration-related federal aid. The comprehensive package of recommendations to make immigration law enforcement strategies more effective is a response to impact concerns. Any impact aid authorized should take into account the expectation that the number of illegal aliens needing state and locally funded services will decrease and be made available on an explicitly temporary basis. Additionally, such assistance should be provided retrospectively to avoid budgetary and political speculation as to anticipated impact costs. Impact aid should not cover new programs but only reimburse costs associated with existing ones.

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Nor should impact aid be framed in a way that gives illegal aliens new eligibility for any existing programs. In prior experience with immigration-related impact assistance, both the

duration of such assistance and the ability of state or local government to create new programs have affected the overall federal funding level. Ground rules about impact definitions and reimbursement policies should be clear about the nature of the commitment at the time of authorization.

Appropriate cooperation of state and local governments

receiving impact aid with federal authorities to enforce the immigration laws of the United States. State and local governments should be required to comply appropriately with reasonable requests for cooperation from federal agencies responsible for immigration enforcement. The type of cooperation will vary depending on the assistance programs covered by impact aid and should be consistent with the laws and regulations that apply to the program in question. The requested cooperation should be for activities in the actual control of the state and local authorities. For example, departments of corrections should be asked to provide information to identify and transfer certified conviction records of illegal aliens serving prison sentences, whereas school officials would not be required to violate the provisions of the Family Educational Rights and Privacy Act which bar the transfer of personal information obtained

from pupils.

There are currently insufficient mechanisms for cooperation between state and local officials and immigration officials. The Commission does not intend that this criterion compel state or local officials to violate legal restrictions. Nonetheless, it does intend that obstructionist policies and explicit noncooperation policies not mandated by federal law should be taken into account in considering a government's eligibility for aid. In the

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RECOMMENDATIONS

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1980s, some state and local governments implemented sanctuary laws that prohibited their agencies from requesting or divulging information about the immigration status of program clients. In some cases, these provisions were in response to legal actions. Many of these sanctuary policies benefitted illegal immigrants beyond those specifically involved in the litigation. Such provisions should be reviewed in the context of potential impact aid agreements. Specific agreements as to what appropriate cooperation entails should be negotiated between federal, state, and local authorities as part of any assistance application process.

The Commission advocates tailored agreements that allow for cooperation between levels of government without violating individual rights and without unduly changing the role of state agencies for enforcement purposes. The terms and conditions of these provisions would best be negotiated by federal and state officials themselves. An early form of cooperation that the Commission would welcome is participation in the pilot programs to test work and benefit eligibility.

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 criminal justice system. Specific costs attributable to the incarceration of illegal aliens can be 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 assuming responsibility for their incarceration, and/or by negotiating with foreign governments to accept and incarcerate their nationals who are criminal illegal aliens.

The Commission supports

an immediate

authorization

of impact aid

aimed

specifically at

criminal justice

costs.

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State prison administrators and other law enforcement officials have argued strongly and persuasively that the presence of criminal undocumented aliens in their facilities is a problem they do not need and can no longer afford. Estimates of the percentage of incarcerated individuals who are deportable (these aliens may be legal or illegal) range from percents of a few to the low teens. Transport of deportable inmates to federal facilities and subsequent deportation of these inmates to prisons in their country of origin through agreements with foreign governments appears to be a remedy with merit and some support. However, reimbursement for costs already incurred and imminent may be necessary as not all illegal aliens in prisons can be deported to serve out their sentences and the costs of incarcerating them in federal prisons may be higher than the cost of reimbursing the states.

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.

Most funds earmarked for education are state and local in origin. State officials generally agree that serving children is, from both a humanitarian and pragmatic viewpoint, useful and even essential, regardless of their immigration status. However, many of these officials also believe that the presence of foreign-born, undocumented

The Commission recommends

further

investigation

of the costs

of education

and emergency

medical

assistance.

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children in their jurisdictions derives from a failed national responsibility to prevent the entry and continued residence of undocumented alien parents. They argue that the fiscal impact of this failure should be offset by an increase in federal financial participation in affected school districts. Although the Commission agrees with their perspective, we are not satisfied with the current estimates as to the number of illegal alien children actually in school. Until these estimates are improved, it will be impossible to determine the actual costs to be reimbursed. We also do not wish to provide a financial incentive to school districts to attract additional illegal alien children to their districts.

Since the enactment of authorization for the Medicaid program in the 1965 amendments to the Social Security Act, emergency care has been part of state plans under that program, and costs of providing such care were shared by the federal and state governments. Because Medicaid services are not available to undocumented aliens generally but health providers may not turn away patients in need of emergency medical care, the responsibility of serving individuals in need of emergency treatment who were not Medicaid eligible defaulted to units of government closest at hand. Many states and localities complained that public hospitals, in particular, were providing uncompensated care because of Medicaid restrictions. In 1986, under the Omnibus Budget and Reconciliation Act, emergency medical care was extended under Medicaid to anyone in need, regardless of alien status. This extension was a response to requests by states. The amendment both required that emergency services be provided to all in need and guaranteed federal financial participation. As a result, states both gained resources for services they had already been providing outside of Medicaid and were required to provide those services. The requirement and the federal contribution necessitate a state contribution as well. Of late, some states have indicated that the burden of this requirement has become too heavy and, using the argument generally brought forth regarding

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RECOMMENDATIONS

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immigration impact, have requested that further amendments be enacted that would shift the entire cost of emergency care for undocumented aliens to the federal government.

As with education costs, the Commission is not satisfied with the estimates used to support claims for reimbursement of emergency medical costs attributable to illegal aliens. Here, as with education, no questions are asked of those given emergency medical assistance about their immigration status. Thus, it is impossible to determine with accuracy the proportion of these costs attributable to illegal aliens as distinct from citizens or legal immigrants who have no health insurance and are, for whatever reason, ineligible for full Medicaid coverage.

The Commission plans to work with an expert panel of the National Academy of Sciences to develop recommendations as to methodologies and data sources that may help improve data collection on the costs to states and localities of these programs. We encourage other government agencies and private experts to continue their efforts to refine the cost methodology as a necessary first step in addressing the fiscal impacts of illegal immigration.

Detention and Removal

of Criminal Aliens

An effective procedure for prompt and permanent 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 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

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RECOMMENDATIONS

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the present, the Commission is limiting specific recommendations to the removal of criminal aliens who represent the most serious threat to safety and national security.

The Commission recommends that 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.

While representing a very small proportion of all aliens, the criminal alien is clearly a financial burden to already strained criminal justice systems. Even more importantly, criminal aliens may pose a threat to the safety and security of U.S. communities. Thus, their speedy and effective deportation is seen universally to be a worthy federal priority.

The presence of any sizeable number of aliens convicted of crimes is troubling. The group of most concern are those designated as aggravated felons because of the serious nature of the crimes for which they were convicted. An alien aggravated felon is one convicted of murder, illicit trafficking in any controlled substance, any drug trafficking crime, illicit trafficking in any firearms or destructive devices, any offense relating to laundering of monetary instruments, crimes of violence for which the term of imprisonment

imposed is at least five years, or any attempts of conspiracy to commit any such acts. The Immigration Act of 1990 imposed certain legal disabilities for these aliens. These disabilities include the inability: to apply for or be granted asylum; to be eligible for withholding of deportation; to be eligible for relief under 212(c) if they served a term of imprisonment at least five years; to obtain a pardon from the President or a governor; for a trial judge or prosector to ask INS to deport before the end of their jail term; be granted the automatic stay of deportation that accompanies filing of a petition of review with a federal court of appeals. The law also shortens the

The Commission recommends that

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.

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time the alien can file a petition for review with the court of appeals, precludes the alien from establishing "good moral character," and increases the time, from ten to twenty years, that they are barred from receiving permission to reenter the U.S. Other deportable criminal aliens include those convicted of: crimes involving moral turpitude committed within five years after entry where the sentence of confinement is at least one year; multiple criminal convictions; controlled substances violations; certain firearms offenses; and such other crimes as sabotage, treason, espionage, and sedition, or violating the Military Selective Service Act or the Trading With The Enemy Act. In addition to imposing certain legal disabilities on aggravated felons, IMMACT contained provisions that attempted to streamline deportation proceedings for all criminal aliens.

The Violent Crime Control and Law Enforcement Act of 1994 also contains a number of provisions related to criminal aliens, including changes to the deportation process to make it easier for INS to deport criminal aliens. More specifically the provisions:

Expand the use of special deportation proceedings to ensure that criminal aliens are immediately deportable upon their release from incarceration.

Provide expedited deportation for aliens convicted of aggravated felonies who are not lawful permanent residents. The administrative hearing is eliminated and judicial review is limited for aliens convicted of aggravated felonies.

Authorize that two INS Service Processing Centers [SPCs] for the detention and removal of criminal aliens be constructed or contracted for construction by fiscal year 1996.

Require the Attorney General to operate a criminal alien

tracking center.

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Provide authorization for reimbursements to states for costs of incarcerating undocumented criminal aliens.

Provide the authority for the government to accept assistance (except cash) in the transporting of deportable aliens arrested for misdemeanor or felony crimes or those who agree to voluntary return.

The INS instituted the Alien Criminal Apprehension Program [ACAP] in 1986, based on mandates in several pieces of legislation: the Immigration Reform and Control Act of 1986 required expeditious deportation proceedings for aliens convicted of deportable criminal offenses; the Anti-Drug Abuse Act of 1986 revised the immigration law to facilitate the deportation of alien narcotics violators; the Anti-Drug Abuse Act of 1988 created a special criminal alien category, Aliens Convicted of Aggravated Felonies, and provided for expedited deportation, "no bond" provisions, presumption of deportability and criminal penalties for re-entry after deportation; and

IMMACT expanded the definition of aggravated felony conviction, and required states to send within ninety days of a conviction the certified court records of all aliens convicted of violating the states' laws. The Omnibus Safe Street Act of 1968 provides states federal funding to control drugs. An IMMACT amendment to that law requires states to coordinate with INS in transmitting certified conviction records without fee within thirty days of the date of the conviction. The establishment of a plan is a condition for receipt of

federal funds.

The ACAP program pursues the systematic detection inside and outside of prisons and the arrest of criminal aliens within the U.S. The goals of the program are: to systematically identify, locate and initiate removal proceedings against criminal aliens; to ensure expeditious removal of convicted criminals, consistent with statutory and

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regulatory requirements; and to create an effective deterrent against aliens seeking entry into the United States to engage in crime.

During FY 1990-1993, some 59,921 aliens were deported because of narcotics or other violations. The numbers increased steadily during that period. In 1990, 8,126 convicted criminal aliens were deported; data for FY 1993 shows 18,611 deportations. The number of deportations for criminal and narcotics violations now account for the largest number of deportations. The vast majority of the deported criminal aliens had entered without inspection (43,149 out of 56,419 or 76 percent for those with convictions). This emphasizes the need for an improved border management strategy.

Several plans presently in place deal specifically with criminal aliens. The ACAP program has several components:

• Five State Criminal Alien Model. In 1991 INS started the Five State Criminal Alien Model to identify criminal aliens in state facilities. This program focuses INS resources on the five states with the highest concentration of criminal aliens and the largest foreign-born populations (California, New York, Florida, Illinois, and Texas). The model proposed cooperative efforts with the state criminal justice agencies for the screening of persons identified as foreign-born inmates in the five states.

• Organized Crime Initiatives. Since 1986, INS has been involved in the interagency Organized Crime Drug Enforcement Task Force. INS special agents, with the assistance of local law enforcement agencies, identify and investigate targeted criminal organizations controlled by foreign nationals.

INS also participates in the Organized Crime and Racketeering Strike Force in an effort to identify criminal aliens not incarcerated. The Strike Force investigates organizations whose mem

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bers have violated federal laws, including Racketeer Influenced Corrupt Organizations [RICO] violations. Some businesses appear legitimate but conceal such criminal activities as counterfeiting documents, harboring and smuggling aliens, marriage fraud, and drug trafficking.

National Crime Information Center. The INS has access to the National Crime Information Center [NCIC] and the National Law Enforcement Telecommunications System [NLETS], that automate the exchange of information between the INS and the state and local criminal justice agencies. The INS and FBI also reached an agreement in which INS enters warrants of deportation based on criminal grounds into the NCIC. This ensures that INS will be notified when local law enforcement agencies encounter deportable aliens.

• The Institutional Hearing Program [IHP]. A fourth component of ACAP, the IHP, is described in a recommendation below.

In addition to the ACAP, there are several other existing pilot programs, including the Florida Clemency Plan. Governor Lawton Chiles of Florida negotiated an MOU with INS for the expeditious removal of criminal aliens before the completion of their sentence. Under this agreement, on a case by case basis, Florida can grant clemency to nonviolent criminal aliens and allow them to be deported upon completion of their hearing and prior to the sentence being fully served. The state expects to deport five hundred Florida inmates by the end of the year.

Aside from these existing programs 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. Identifying and then track

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ing criminal aliens is a difficult process. Aliens are often identified as such only if they self-identify as foreign born. Local and state officials also find it difficult to ascertain if an arrested or convicted alien is legal or illegal. The statutory definitions and criteria for determining deportability are very complex as well. Even where criminal aliens are identified and deported, they may use a different name and other identifying information when reentering the U.S. The INS identification system is based on name and A-number. Agencies do attempt to cross index aliases, but aliases can be difficult to track. Local jurisdictions are sometimes unwilling to cooperate with INS in the identification of illegal aliens, including aliens that come into contact with the criminal justice system.

In order to encourage local jurisdictions to cooperate, the Office of Criminal Justice Planning in January 1993, notified all cities and county jails that they must provide the INS with data on all persons that may be illegal immigrants or face the loss of federal funds. A 1993 California law prohibits local governments from maintaining ordinances that prohibit peace officers or custodial officers from identifying and reporting to the INS any person who is arrested and booked for the alleged commission of a felony and who is reasonably suspected to have violated the civil provisions of the federal immigration laws.

The Crime Bill authorized and appropriated a total of $55 million to be used to identify and expedite deportation proceedings against criminal aliens in the federal prison system. Of the $55 million, $27 million will add investigators and judges to identify deportable aliens in prisons and issue deportation orders before they complete their sentences in the five largest criminal alien states (California, Texas, Florida, New York and Illinois). The other $28 million will be used to capture and relay identifying information (such as fingerprints) on aliens and link the data to

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the FBI's NCIC. The Commission supports initiatives that will increase resources for the identification, detention, and deportation of criminal aliens as a necessary step in removing them from the United States.

• 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 primary program for the identification and expeditious removal of criminal aliens is the Institutional Hearing Program. 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 IHP is a cooperative effort between the INS and Executive Office for Immigration Review [EOIR], with assistance from the Bureau of Prisons [BOP]. The goal of the program is to begin deportation hearings on aliens presently incarcerated and complete the hearing process before the sentence is complete, so that an immediate deportation can follow. The IHP begins with the Bureau of Prisons and other state and local correctional agencies identifying inmates suspected of being aliens and compiling a list for INS. The INS then periodically interviews the prisoners to determine alienage. In cases where the prisoner is determined to be an alien, the INS and EOIR begin deportation proceedings while the alien is incarcerated. As the alien nears completion of his sentence and is issued a final order of deportation, he or she may be transferred to one of two federal

facilities at Oakdale, Louisiana to await deportation. Oakdale I consolidates federal prisoners with final orders ready for deportation, and Oakdale II consolidates state and local prisoners who are at the end of their term and need hearings to receive final orders and be deported. In 1994, a facility modeled after Oakdale

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I and II was built in Eloy, Arizona. This facility contains

five hundred beds run by the BOP for federal prisoners in

the IHP and five hundred beds for state and local prisoners in INS custody.

The Commission commends the negotiations taking place between INS, the Executive Office of Immigration Review, and state correctional departments to enhance the efficiency of the IHP. In 1994, the INS negotiated a Memorandum of Understanding with the state of New York that provides that criminal aliens be centralized into two state facilities where the IHP program will be administered. The agreement also provides that the aliens will be deported or removed from these same two state IHP facilities. Previously, the IHP hearings took place in seven different locations throughout New York state. The MOU greatly facilitates the identification and deportation of criminal aliens and could serve as a model both for the other four states with large concentrations of criminal aliens and for facilitating deportation of criminal aliens in other states.

• 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.

In 1992, the INS and Government of Mexico cooperated and deported 316 undocumented immigrants to Mexico City rather than just across the border. Although there is little evidence to date as to whether the interior repatriation had a long-term effect in reducing reentry, the Commission supports this form of removal because it increases the cost and logistical difficulty to criminal aliens who try to reenter the United States. Interior

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repatriation can be a deterrent when coupled with penalties for those who return and are apprehended. All repatriation to Mexico should be in coordination with Mexican authorities. Mexican officials have asked for notification of all deportations of criminal aliens so they can check if an outstanding arrest warrant has been issued in Mexico.

• Use of bilateral treaties encouraging the transfer of criminal aliens to serve sentences in their own countries. The Commission supports efforts to simplify the process for transferring criminal aliens to prisons in their country of origin to serve out their terms. The original and a continuing purpose of the treaties is to allow U.S. citizens to complete their sentences in U.S. prisons. The treaties also allow incarcerated criminal aliens to serve sentences in their own country and expedite their removal and minimize the chances of entering U.S. communities. Prisoners must volunteer for the program. The U.S. treaties for prisoner transfer are all reciprocal and all three parties must agree to the transferthe prisoner, the receiving country and the sending country. Prisoners in state systems are eligible for the program and may participate if state laws do not prohibit transfers. Since the transfers began in 1977, 1,505 prisoners have been transferred to the U.S., while 1,382 were transferred out. From January to August 1994, an additional 240 aliens have been transferred out while 30 U.S. citizens have returned.

Attorney General Janet Reno and her Mexican counterpart, Jorge Carpizo, have agreed to increase the number of prisoners eligible to serve their sentence in their native lands. As of June 1994, 8,000 Mexicans in federal prisons and 330 U.S. citizens in Mexican prisons were candidates for possible transfers. The Justice Department is also working with states that have large numbers of criminal aliens to assist them in using the program. In 1992, California passed legislation requiring officials to notify

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inmates of the possible transfer option. Current legislation directs the Secretary of State and the Attorney General to report to Congress on the use and effectiveness of the prisoner transfer treaty and recommend changes to increase the number of prisoners transferred.

Some of the conditions of the U.S.-Mexico prisoner transfer treaty are that the crime must be recognized in both states, the criminal must be a national of the country to which he is being moved, the criminal does not have his domicile residence in the country from which he or she is being moved, the criminal must have at least six months remaining on the sentence, and the sentence is firm, providing no recourse, appeal or proceeding against the sentence. Additionally, the state receiving the criminal may not extend the sentence or claim reimbursement of expenses incurred during the criminal's sentence.

In designing these transfer programs, provisions should be included requiring the Department of State to monitor these cases to be certain that sentences are served. If the prisoner transfer programs become a means of early release for aliens who commit serious crimes or specific countries do not cooperate with Department of State in monitoring the transferred aliens, the programs in these countries should be reassessed. However, if reassessment is necessary, the original intent of the transfer program, which was to allow U.S. citizens to complete their sentences in U.S. prisons, should be recognized.

Immigration Emergencies

In the years since 1980, the United States has witnessed mass migration of individuals seeking asylum from Cuba, Haiti, El Salvador, Nicaragua, and Guatemala. In addition, the country has seen the

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entry under emergency circumstances of smaller numbers of migrants from such countries as China.

The Commission believes that a credible immigration policy requires the ability to respond effectively and humanely to immigration emergencies.

A growing backlog of asylum cases is but one measure of inadequacies in current policy for addressing this type of movement into the U.S. Additionally, the potential for future immigration emergencies makes it imperative that more effective policy alternatives be implemented. Specific recommendations regarding emergencies will be the subject of a separate Commission report in FY 1995.

Immigration emergencies generally are triggered by or accompany disruptive political events in a country of origin, although economic problems and natural disasters may also precipitate movements. A review of past immigration emergencies shows a complicated

picture of the circumstances under which people leave their home country and seek entry into the United States, including political instability, civil war and violence, economic deterioration or crises, natural disasters, human rights violations and political repression. In many cases, family and community connections in the United States, economic pressures at home, economic opportunities in the U.S., and a general desire for a better life combined with the first factors to heighten motivation. The very complexity of the movements have made it all the more difficult to achieve effective and humane responses.

During the past decade, U.S. policy has tried to balance a number of sometimes competing interests and concerns: preserving our international and domestic commitments to provide asylum to those fleeing persecution or a well-founded fear of persecution and providing protection to aliens who would otherwise face return to dan

The Commission believes that

a credible

immigration

policy

requires

the ability

to respond

effectively

and humanely

to immigration

emergencies.

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gerous conditions in a home country; deterring illegal immigrants who abuse the asylum system as a backdoor to entry; responding to domestic ethnic and political constituencies; ensuring U.S. policy does not serve as a magnet for otherwise avoidable mass migration;

upholding foreign policy commitments; and helping states and localities faced with the costs and other impacts of dealing with immigration emergencies.

The U.S. experience, as well as that of other countries in handling immigration emergencies, reveals a number of areas where problems and shortcomings need to be addressed: early warning of immigration emergencies; prevention strategies; contingency planning and emergency preparedness; coordination with other countries; immigration status determinations; interdiction; in-country processing; expedited exclusion procedures; antismuggling efforts; detention; return to home countries; and resettlement and relocation within the United States.

• Early warning of immigration emergencies. Rapid and effective responses to immigration emergencies require early knowledge of the likelihood of movements. At issue is the collection and analysis of information to forecast with as much precision as possible whether, when, and in what form an emergency will occur. While the root causes of many immigration emergencies are readily discernible, it is harder to predict what specific factors will precipitate large-scale movements. Intelligence is needed as well to assess the potential size and duration of an immigration emergency, the mode of entry, the location to which migrants will come, and other characteristics of an emergency. Also of concern are the mechanisms to ensure that forecasts result in such appropriate action as preventive steps, when possible,

and as emergency responses, when the emergency cannot

be forestalled.

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Intelligence gathering on immigration emergencies is the principal responsibility of the INS Intelligence Division, which is

supported by information from the Department of State, the intelligence community, the Coast Guard, the Department of Defense, the Customs Service, the National Weather Service, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the El Paso Intelligence Center. Maintaining and, where necessary, strengthening the capacity to obtain early and accurate intelligence on possible mass movements toward the United States is clearly in the national interest and deserves higher priority than in the past. Early warning also requires exchange of information with the United Nations, regional organizations, other governments whose involvement may be needed in finding regional or international solutions, and nongovernmental organizations with a presence in potential sending countries. In the case of mass movements into Florida, the state also provides intelligence gleaned from the resident population. The primary focus is on identifying imminent departures, boats already under way, and situations where arrivals have already overwhelmed local resources.

• Contingency planning and emergency preparedness. Since the 1980 Mariel boatlift demonstrated the need for better contingency planning and preparedness for handling emergencies, several efforts have been made to develop a comprehensive plan of action. Operation Distant Shore: Mass Immigration Emergency Plan outlines a contingency plan for a mass immigration emergency in southern Florida. The draft plan envisions that the President would declare an immigration emergency upon the recommendation of the Attorney General or at the request of the governor of the state. The President would appoint a Federal Coordinating Officer to consult with officials of the state as well as other federal agencies. An Emergency Response Team from various federal agencies and cochaired by the local INS District

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Director and Border Patrol Sector Chief would establish an Emergency Operations Center to take action on site.

Among the issues regarding contingency planning that have been raised are: relationships within and among federal, state and local governments in developing and implementing the plans; questions about how, by whom, and with what criteria decisions will be made regarding what to do with aliens prior to their entry (that is, whether aliens will be returned home, sent to a third country or permitted to land); need for better overall federal integration of the separate operational plans developed by each federal agency; challenges if the rate of influx exceeds capacity to process new arrivals and transport them to alternate sites; effects of litigation in response to the government's handling of the immigration emergency; actions to deter smuggling of aliens (particularly by U.S. citizens seeking to bring relatives to Florida as occurred during Mariel); and questions about what, if any, assistance will be provided to those entering during the emergency, and what, if any, reimbursement states and localities will receive for providing such services.

The lesson of earlier crises, such as Mariel, raises questions about how policy will be coordinated during an immigration emergency. The contingency planning process has focused primarily on operational coordination. Several studies suggest the need to assign policy responsibility within the White House for immigration emergencies, including responsibility for negotiating with other countries regarding internationalization of responses, for discussions of mechanisms to address the causes of the emergency, for determinations about whether aliens will be returned, processed in a third country, or permitted entry into the U.S., and for similar issues.

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• Immigration status determinations. The Refugee Act of 1980 is the principal legislative framework for deciding who among those arriving during an immigration emergency will be permitted to remain in the U.S. Individuals who meet the refugee definitionthat is, those who have a well-founded fear of persecution on the basis of political opinion, race, religion, nationality, or membership in a social groupwill be granted asylum and, after one year, the right to adjust to permanent residence. Short- and long-term parole or special entrant statuses have been used to permit people to enter the country prior to a full determination as to whether they will be permitted to remain. Some of those whose asylum claims are rejected have been given another form of discretionary relief from deportation under either special legislative authority or administrative discretion. Those individuals already in this country may be granted Temporary Protected Status [TPS] if the Attorney General has determined that they should not be required to depart because of a civil war or natural disaster in their country of origin.

Current policies regarding procedures and type of status come up short in responding to mass immigration emergencies. Asylum requires an individual determination as to whether the

applicant has a well-founded fear of persecution. It does not envision group determinations of status. Given the backlog of about 400,000 cases, the process is currently very protracted. This very protractedness can serve as a magnet for individuals seeking entryeven if they know they have no valid claim to asylum. Legislation and regulatory changes have been proposed to enable more rapid decisions when asylum is requested as part of an exclusion proceeding and when it is requested affirmatively. Even with the proposed changes, however, it would take considerable time and resources to interview everyone who would likely request asylum if that were the only means of entry during a mass immigration emergency.

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Because the refugee definition pertains generally to a small proportion of those fleeing during an emergency (those with an individualized fear of persecution rather than generalized violence or upheaval), the majority of those interviewed may well find their claims rejected under any asylum system used. Yet, the circumstances in their home country may impede immediate repatriation, particularly if there is a civil war underway. During the 1980s, the U.S. saw considerable debate and controversy regarding deportation of Salvadorans, Nicaraguans, and Guatemalans because of the conditions in their home countries. TPS was created to provide a legislative remedy for individuals fleeing civil conflicts. To date, TPS has been used to provide protection to people already in the United States when it is granted. Because the grant specifies a date certain by which applicants must have entered the United States to qualify for the status, it has not been used as a means of handling an unfolding immigration emergency where people continue to arrive. Proponents of a broader use of TPS, or development of a new temporary safe haven status, argue that it would provide a needed mechanism to respond to complex emergencies when aliens would be endangered if returned to their home country. Critics of a broadening of the concept express concerns that such a status would serve as a magnet for mass migration. Also at issue are concerns that those granted temporary status will not return when the crisis is over. (Return issues are discussed in greater detail

below.)

• Country-Specific Responses. Current refugee, asylum, and temporary safe haven policies have been criticized for disparate treatment given to individuals from different countries. Some of the differences result from country-specific legislation; others are the result of administrative discretion. Differences in treatment by country of origin can be seen in the Cuban Adjustment Act that permits Cubans paroled into the country to adjust to permanent

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residence one year later, the Chinese Student Protection Act that permits certain Chinese to adjust to permanent residence, the special Temporary Protected Status provision for Salvadorans (extended as Deferred Enforced Departure) that provides temporary legal status, and administrative actions that require special procedures before Nicaraguans can be deported, leaving many in a state of limbo.

Special provisions apply as well to Indochinese and Soviet applicants for refugee status (under the Lautenberg Amendment) and parolees (under Section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriation Act of 1990). These provisions result from a combination of domestic constituency interests and foreign policy concerns. They point to a broader question regarding refugee resettlement. The majority of refugees now admitted to the U.S. for resettlement are from Vietnam and the former Soviet Union. Many have been in the pipeline for many years, vestiges of Cold War relations. Within the next few years, barring unexpected emergencies, it is expected that most of the Vietnamese and Soviet applicants eligible for U.S. admission will have entered the country. What will follow in the way of a post-Cold War refugee admissions program is less clear.

• Interdiction. Since 1981, the United States has followed a policy of interdiction to avert mass migration into this country, particularly regarding arrivals from Haiti, but more recently, those from China and Cuba as well. Interdiction has been used by the U.S. and other countries for a variety of purposes: to rescue people on unseaworthy boats and bring them to safety; to redirect boats (for example, Malaysia interdicted Vietnamese boats and sent them in the direction of neighboring countries); and to return people to home countries. A brief review of policies towards Haitians demonstrate the range of policies that accompany in

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terdiction. Between 1981 and 1991, Haitians interdicted by the Coast Guard were given an opportunity to present a claim to asylum on board ship before a decision was made to return them. With substantial increase in boat departures from Haiti after the military coup in 1991, interdicted Haitians were brought to the U.S. naval base in Guantanamo, Cuba for a preliminary screening; those who presented a credible fear of persecution were brought to the United States to continue their asylum claim while others were returned. In May 1992, the policy of a preliminary asylum hearing was reversed, and interdicted Haitians were returned without any hearing of their asylum claims; the Supreme Court upheld this policy of interdiction and mandatory return. In May 1994, this immediate return policy was reversed; interdicted Haitians are now provided temporary safe haven in the region, with no access to admissions to the United States. A similar policy recently has been adopted for Cubans as well, in a major shift from former policy.

• In-country processing. To avert mass immigration emergencies, the United States and other countries have sought to regularize outflows of people through programs that process potential asylum seekers while they are still within their own countries. The Orderly Departure Program from Vietnam was an early attempt to reduce boat departures by providing an alternative means by which people could exit their country. In-country processing in Cuba has occurred for many years. Processing inside the former Soviet Union to identify individuals eligible for the U.S. refugee resettlement program was instituted in 1990 so that applicants would no longer need to go through Austria and Italy to get to the United States. In 1992, in-country processing was established in Haiti to provide an alternative to boat departure. While many observers agree that in-country processing is a useful component of a strategy to avert immigration emergencies, critics argue that it cannot serve as a substitute for first asylum as

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many would-be refugees are too afraid of the authorities to risk presenting themselves for orderly departure.

• Detention. Short- and long-term detention has been a common response to immigration emergencies. During the Mariel boatlift, Cubans were sent to military camps around the country for processing and eventual resettlement. In 1988-1989, camps were established in southern Texas to handle an increase in asylum applications from Central Americans. In two cases, facilities on U.S. territory, but not within the fifty states, were used to detain aliens: Ft. Allen, Puerto Rico towards the end of the Mariel boatlift and Guantanamo for the detention of Haitians and Cubans. More recently, arrangements have also been made with third countries that are providing safe haven to individuals interdicted by the U.S. Coast Guard.

While recognizing that it is an expensive undertaking, proponents of detention point out that it provides a capacity to monitor the whereabouts of individuals who have not yet been

determined to be admissible or excludable. Detention facilitates deportation of those found to have no grounds for remaining in the country. Critics of detention point to inconsistencies in its use, raising concerns about the criteria used to determine who will be detained and who will be released. There have been a number of lawsuits regarding the length, terms and conditions of detention and release from detention. In addition, tensions within the facilities or between the facilities and local townspeople have sometimes erupted when the detention is prolonged.

• Return of aliens during and after an immigration emergency. Return raises two distinct sets of issues: first, repatriation of those found to have no grounds to enter the United States; second, repatriation of those granted asylum or temporary protection if and when there is a significant change of conditions in

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their home country. The former issue relates to the capacity of the United States to enforce its immigration laws by returning those who have no grounds to enter.

In reality, only a small percentage of aliens with final orders of deportation are actually removed from the country. Locating and removing aliens who have been paroled into the country pending an exclusion or deportation hearing is difficult. A further problem arising in some immigration emergencies is gaining the cooperation of home countries in accepting the return of their nationals.

Return is also difficult when individuals have been granted temporary permission to stay in the country and later conditions permit return. The capacity to return individuals granted TPS or similar statuses affects the likelihood that the U.S. will in the future be willing to provide protection to individuals fleeing civil wars or other disruptions that temporarily preclude their safety. The policy dilemmas inherent in return of those granted TPS can be seen in the recurrent renewals of Deferred Enforced Departure of Salvadorans. The Salvadoran government and others have requested renewal of the status because the pre-

cipitous return of so many individuals could disrupt the peace process and cause serious economic hardships for those who

are reliant on remittances from the U.S. Many Salvadorans

have lived for a decade in this country and have established roots here.

The United Nations and some individual countries have established assisted return programs to encourage repatriation in such circumstances. In some cases, the assistance goes directly to the returnees. In other cases, funding goes to the community to which the person is returned to help in the reintegration of the returnee. This funding may permit the building or rebuilding of

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roads, housing, hospitals, schools and other facilities to be used by community members and the returnees.

• Resettlement and relocation within the United States. If aliens entering during an emergency are permitted to remain within the United States for an extended time (for example, pending review of asylum claims, having been granted a temporary status, after a positive asylum determination, or through the refugee resettlement program), a number of issues arise: Where will they be located? Will they be eligible for any public benefits? Will states and localities receive any funding from the federal government to provide services or assistance to them? Funds for language training, job placement, and cash and medical assistance are available for individuals resettled under the Refugee Act of 1980, but asylum applicants are explicitly ineligible for these programs. Those granted asylum may obtain social services under the legislation, and, if they are within the eligibility period (now eight months), they may obtain cash and medical assistance. After Mariel, special legislation was passed for Cubans and Haitians to provide programs patterned on those offered in the refugee resettlement program. At present, the Community Relations Service has the legislative authority to resettle Cuban and Haitian nationals who are granted asylum, are admitted, or are permitted entry under the Attorney General's authority to parole aliens into the United States.

The Immigration Act of 1990 provides for reimbursement to states and localities for assistance provided, at the request of the Attorney General, to meet an immigration emergency, to aid in the administration of the immigration laws of the U.S., and to meet urgent demands arising from the presence of aliens in a State or local jurisdiction. Regulations for this program were finalized recently, but there is no experience to date with its implementation.

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During the past fourteen years, the United States has repeatedly faced the dilemmas posed by mass immigration emergencies. Given the strong likelihood that the future will also be marked by large-scale, irregular movements of people into this country, policy

approaches for handling immigration emergencies are needed to

provide more effective and humane responses to such recurrent

phenomena.

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 jobs and 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 of unlawful migration.

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.

Such steps could help alleviate the causes of unauthorized movements into this country. The Commission recommends that the Department of State, U.S. Agency for International Development [USAID], and other relevant agencies target their resources and those of international organizations supported by U.S. funds on the for

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.

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mulation and implementation of policies to help prevent unauthorized migration from occurring.

Recognizing the complex motivations behind mass movements, possible interventions include: trade arrangements, such as NAFTA, with other countries experiencing mass emigration to the United States; support for human rights and democracy-building in potential sending countries; peacekeeping operations; humanitarian assistance in countries of origin and first asylum; deployment of human rights monitors; the training of government officials in potential sending countries on human rights, humane treatment of citizens and minorities, and tolerance; and programs aimed at reconstruction of sending countries following civil wars and civil conflict that have precipitated large-scale exodus. Where such programs are not now possible because conditions in the home country do not permit them, contingency planning would allow for a more rapid implementation of programs to build democracy and economic opportunities when conditions change.

Development of immigration impact analyses of foreign policy and trade decisions regarding potential migrant-sending countries would also help the U.S. address the causes of migration more effectively. For example, as part of the process of determining whether to support increased economic sanctions against a country, the Department of State would undertake an analysis of the potential migration ramifications of the various options under consideration. While the immigration impact would not be determinative of the eventual policy option chosen, a statement as to likely impact would facilitate planning to address potential migration ramifications.

More specifically, the Commission supports:

• The recommendations of the Commission for the Study of International Migration and Cooperative Economic Develop

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ment (known as the Asencio Commission after its chair) related to trade with, and investment in, immigrant-sending countries. The Asencio Commission was mandated by the Immigration Reform and Control Act of 1986 to report on mechanisms for reducing migration pressures in countries producing large numbers of unauthorized migrants to the United States. As the Asencio Commission concluded, "The issue for many countries is stark: they either export goods and services to create jobs at home, or they export people." Arguing that it is in U.S. national interest to promote economic opportunities in immigrant-sending countries, the Asencio Commission recommended a program of trade and investment geared towards the long-term alleviation of economic "push" factors in countries in the Western Hemisphere. One of its principal recommendations, a North American Free Trade Agreement, has already come to pass. In addition, the Asencio Commission recommended:

Acceleration of the Caribbean Basin Initiative [CBI] by easing limitations on beneficiary products and transforming the CBI into a contractual arrangement between the United States and beneficiary countries;

Revitalization of the Central American Common Market;

U.S. encouragement of exports of manufactured goods from Western Hemisphere countries, with particular attention to textiles, apparel, and steel;

Improving access to U.S. markets for sending country agricultural products, with special reference to the distorting impacts of the U.S. sugar program;

Job creation through Section 936 of the Internal Revenue Code for CBI countries;

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Coproduction strategies to enable developing countries to generate jobs, earn foreign exchange, modernize plants, and undertake self-sustaining industrial development;

Increased investment and support for technology transfer that would require sending countries to assure intellectual property protection and remove barriers to investment;

Linking of trade benefits to respect for worker rights; and

Encouragement of needed structural adjustments in the economies of migrant-sending countries to help them make a smooth transition to market-based economies.

While the Commission has not independently reviewed and

assessed each specific proposal put forth by the Asencio Commission, we do believe their report on trade and investment strategies provides a good framework for addressing migration pressures in sending countries and we recommend serious attention to these proposals.

• Adoption of strategies with more immediate impact targeted at alleviating migration pressures in communities producing large numbers of illegal aliens. At the same time it recommended the policies cited above, the Asencio Commission concluded that, "while job-creating economic growth is the ultimate solution to reducing migratory pressures, the economic development process itself tends in the short and medium term to stimulate migration by raising expectations and enhancing people's ability to migrate." Recognizing the validity of this conclusion, we have sought to identify strategies that can be taken to gain more immediate reduction in migration, at least from selected communities with high emigration rates.

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The Commission on Immigration Reform recommends that information on the specific communities from which significant numbers of illegal aliens depart be studied to develop strategies that produce quicker results in reducing unlawful immigration from these targeted areas and encouraging return of unlawful migrants to their home communities. Such strategies include: job creation programs in targeted communities; income generation projects for women who remain behind to help enable families to support themselves without reliance on remittances from illegal aliens; technical assistance to farmers to help them stay on their land; programs to invest remittances in businesses in home communities to facilitate return and reduce further migration pressures; and public information programs to dissuade potential unauthorized migrants from coming to the United States.

• Strengthening intelligence gathering capacities to improve early warning of unauthorized migration patterns. Early warning systems to identify incipient unauthorized migration patterns would be useful in assessing how many individuals were likely to move, where they were heading, and what alternative

strategies might avert their movement. Early warning is particularly needed in identifying the potential for mass migration emergencies. While the root causes of regular and emergency migration of people are readily discernible, it is harder to predict what specific factors will precipitate actual movements into the United States.

• Coordinated efforts by the United States and other countries to address pressures for unlawful migration. The Commission recommends a strengthening of those multilateral coordination efforts that prove effective in averting unauthorized migration, particularly within the Western Hemisphere. Because unauthorized migration results from a combination of "push" and "pull" factors, coordinated efforts between sending and receiving coun

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tries to reduce these movements should have greater effect than unilateral actions on the part of any single country.

At present, however, the current array of regional and international mechanisms to address the problems raised by large-scale unauthorized migration are weak. At the international level, the two principal organizations with responsibility for international movements of people are the U.N. High Commissioner for Refugees [UNHCR] and the International Organization for Migration [IOM]. The UNHCR's primary mandate is to provide protection and assistance to refugees; IOM has a broader mandate to assist all types of migrants but functionally focuses on the provision of transport to individuals who are being resettled or returning to their home countries. The complex circumstances that characterize many mass movements do not fit very well within either organization's current mandate or capacities. Within the Western Hemisphere, there are no established mechanisms for discussion of migration issues. Development of regional coordination mechanisms that would allow discussion of mass migration issues and identification of effective strategies, as well as strengthening of coordination of UN and IOM effective efforts, would provide opportunities to anticipate and respond better to unauthorized immigration.

Improving Data

Throughout the Commission's own inquiry, we have found it difficult to assess the effects of immigration policy and immigration itself because of inadequacies in the data.

Recently, the InterAgency Working Group on Immigration Statistics was formed to reform data collection efforts within the federal government. The Commission commends the initial work of the

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InterAgency Working Group which is already addressing some of the recommendations on data needs.

The Commission recommends building upon existing administrative record-keeping to the extent possible as a cost-effective means of improving data. The specific actions that the Commission recommends will then serve a dual function. Improving administrative record-keeping will provide better data for policy formulation and implementation while also permitting better research and analysis of the experiences and impact of immigrants.

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 experience in this country. Computer matches of administrative data are promising sources of new information on immigration. Within the constraints of privacy limitations, administrative records matching is appealing for several reasons. First, matches extend the amount of information available by combining existing records; little or no new data collection is required. Second, matches are relatively inexpensive compared to gathering similar information through new surveys or the creation of new administrative records. Finally, in some cases relatively complete retrospective data are available to analyze past trends.

One of the biggest limitations concerning the social and economic characteristics of immigrants is that immigrants (both legal and illegal) are grouped together in most data sources. Information on legal status and type of immigrant are crucial in order to isolate the impacts of these diverse groups. By combining INS records containing detailed class of admission with records from

The Commission

supports

improved

data collection

efforts in

four major

areas.

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other agencies, it should be possible to obtain information to assist in evaluating the impacts of legal immigrants. This would allow, for example, the separate collection of information on the economic activity of family-based and employment-sponsored immigrants.

The INS and Social Security Administration have held initial discussions on the possibility of matching a social security file containing retrospective data on employment and earnings with an INS file containing classes of admission. This project could prove especially valuable because it could provide employment and earnings information by type of immigrant over time. It may also provide estimates of emigration. The Commission recommends that the INS and the Social Security Administration continue to pursue a match of their records that would produce longitudinal information by class of admission and earnings of immigrants and continue to work on deriving estimates of emigration.

The Commission recommends that the INS and the SSA initiate discussions for INS to supply Social Security numbers to lawfully admitted immigrants and those granted work authorization. This procedure would yield two benefits. First, it would help ensure the accurate, timely entry of data into the computer registry that the Commission has found to be the most promising option for verification of work authorization. Second, from a research point of view, it would permit analysis of earnings and income by class of admission. Such analysis should only be done on an aggregate basis; researchers should have no access to individual records. With such ground rules, the privacy interests of individual immigrants would be protected while

research on the overall experiences of immigrants would be

facilitated.

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• Developing a methodology for better measuring the size of the illegal alien population and the flow of illegal aliens entering the United States. In the late 1970s, estimates of the number of illegal aliens residing in the country were largely conjectural and ranged from two to twelve million. During the 1980s, researchers at the Census Bureau and INS devised innovative methods for estimating the size of the resident illegal alien population based on solid data, resulting in a narrowing of the range to between three and six million. The Commission commends the Executive Branch's effort to develop a methodology for better measuring the size of the illegal alien population and the flow of illegal aliens entering the United States. Despite these improvements, however, there is a need for more precise estimates. More detailed information is needed to evaluate whether the current border control policies and employer sanctions are effective and to evaluate state claims for impact aid.

The Executive Branch's estimates of the illegal alien population since 1980 have relied in part on an estimate of the legally resident foreign-born population in 1980 derived from INS data on the legally resident alien population and naturalizations. Unfortunately, the INS was in a better position to supply this information in 1980 than it is today because the Alien Address Report, the source of the information on the alien population, was discontinued by Congress in 1981, in part because of its cost and because it was believed to be seriously underreported. With the elimination of the Alien Address Report, the INS has no way of estimating the legal alien population in the country. This data gap weakens the estimates of the illegal alien population and emigration. The Commission recommends that the INS and Census Bureau develop methods to produce estimates of the foreign-born population annually by state of residence. The INS and the Census Bureau should also periodically produce estimates of the legal and illegal resident population for the largest

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states. The Commission recognizes that it may not be feasible to provide annual estimates of the foreign-born population at the state level given the current data and methodologies.

Less is known about the flowthe number of illegal aliens who enter and leave the United States each year. INS records of apprehension have been used as an indicator of the flow, but it is not known how closely the trend in apprehensions mirrors the trend in the flow. This data gap has implications for certain border and agricultural communities that have a large number of illegal aliens going back and forth between Mexico and the United States. These commuters and temporary migrants are not included in the estimates of the illegal resident population, therefore, impact estimates based on the resident population may be too low.

The Commission recommends that the INS continue to test the fingerprint identification of apprehended aliens in San Diego to evaluate whether this information can be used to better estimate the flow of illegal aliens into the United States. Biometric data on those who are apprehended will permit identification of those who have entered multiple times.

The need for better data on legal and illegal immigration between Mexico and the United States was discussed recently in meetings between the U.S. and Mexican governments. As a result of these meetings, a Binational Study of Migration will be initiated using researchers from both countries. This opportunity to examine migration flows on both sides of the border should contribute to better estimates of the population and flow of illegal residents and a better understanding of the migration process.

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• Developing new methods for estimating emigration from the United States. This information is crucial to estimates of the legal and illegal populations. It is often reported that in the past about one of three aliens admitted for permanent residence later departed. Recent departures are unknown, however, partly because INS stopped collecting information on emigration in 1957. Information on emigration is essential for estimating the sizes of both the legal and illegal populations. Estimates of emigration are also used in national population projections. A better understanding of emigration patterns also would give a better picture of adjustment and integration of immigrants.

Information on emigration is difficult and costly to collect. The INS stopped collecting data on emigration because the United States has never controlled the departure of its residents and departures were thought to be underreported. Emigration is not limited only to permanent residentsnative born and naturalized citizens also leave the United States. The Census Bureau conducted a survey of U.S. citizens living abroad but eliminated the survey because it was believed to be seriously underreported. From these data they were able to estimate that about two million former U.S. residents were living abroad; however, these survey results were not considered adequate for making annual estimates of emigration.

Several agencies and the InterAgency Working Group on Immigration Statistics are currently working on developing better estimates of emigration. The Commission commends these

efforts and urges INS, Census Bureau, and other concerned agencies to continue the investigation into devising means of estimating emigration.

• Improving the estimates of the costs and benefits associated with legal and illegal immigration. There is a need for reliable

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information on the fiscal impacts of legal and illegal immigration. Much of the controversy in the debate about immigrants' use of public assistance benefits is fueled by the lack of specific data. Given limited information, estimates are based on assumptions regarding the size of the immigrant population and the public assistance utilization rates of immigrants compared to native-born residents. Differences in assumptions and data sources have inevitably led to conflicting results. Confusion also results from grouping illegal immigrants, legal immigrants, and refugees together.

Data improvements may be possible through a variety of sources, for example, through administrative records or special surveys. The Executive Branch has made some initial attempts to improve the data and methodologies for estimating costs. With the recent series of lawsuits, the Executive branch is currently attempting to evaluate the accuracy of states' estimates of their costs associated with illegal immigrants.

One possible means of improving the capacity to measure immigration impacts is the development of a new longitudinal survey on immigrants. A number of factors must be considered in assessing the utility of a such a survey. Longitudinal surveys provide data on the experiences of immigrants over time. Data collected from such surveys would permit improved analysis of their impact over time as well. The cost of longitudinal surveys is higher than other research methods and, to be useful, they must be maintained over an extended period. There are also technical problems associated with conducting longitudinal surveys that are exacerbated when examining an immigrant population (e.g., their uneven distribution across the country and language problems).

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The Commission supports continued investigation of the potential of longitudinal studies in assessing the impact of immigration. In addition to examining the utility of a new, immigrant-only survey, perhaps through a pilot effort, other methods of obtaining longitudinal data should be explored. For example, it might prove cost effective to augment a current longitudinal survey with more immigrants or add specific questions of interest where the numbers of immigrants are already large.

A promising new resource is the Census Bureau's Current

Population Survey [CPS]. Several agencies in the InterAgency working group have funded a major increase in the amount of information on the foreign-born population collected in the CPS. The CPS is a large monthly national household survey that is the principal vehicle for collecting social and economic information between the decennial censuses. Before January 1994, country of birth was not routinely included in the CPS. These data potentially will provide information on the foreign-born population that was previously only available every ten years through the census. In addition, more information will be available from the CPS because more questions are asked than in the census. Specific questions of interest for immigration research could also be added for analysis of immigration issues.

The Commission plans to support the work of a panel of independent experts organized by the National Academy of Sciences to review the methodologies and assumptions of the contemporary studies of the costs and benefits of immigration. The panel will develop recommendations on the data sources and methodologies that hold the greatest promise for more precise measuring of the economic and social impacts of immigration. The recommendations will permit improved analysis of impacts at both the national and local levels as well as by immigration status.

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