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June 1994, Volume 1, Number 5

Incomplete Amnesty

The Immigration Reform and Control Act of 1986 included two distinct legalization programs: one based on residence in the US before January 1, 1982 (LAW), and the other based on having done at least 90 days of farmwork in 1985-86 (SAW). To the surprise of many observers, the number of SAWS was 1.1 million, or equivalent to two-thirds of the 1.7 million LAWS, even though it was widely asserted that only 10 to 20 percent of all illegal aliens worked in agriculture.

The SAW program was the last-minute compromise that enabled IRCA to be enacted, but it has proven to have major flaws. First, there was enormous fraud in the SAW program--the best estimates are that as many as two out of three people who were granted legal status did not in fact qualify, but eligibility rules were written in a manner that required the US government to prove that the alien was lying, rather than requiring the alien to convince the government of his eligibility. Second, the fraud in the SAW program encouraged the expansion of the fraudulent documents industry, and farmers began to hire more of their workers through labor contractors. Thus, enforcing labor and immigration laws in a labor market that hires 1.5 to 2 million seasonal workers each year--two-thirds of whom are immigrants--became more difficult.

SAW left a third human dilemma--only workers were legalized, in the false hope that they would leave their families in Mexico and commute legally to seasonal US farm jobs. Instead, many brought their families to the US, producing mixed families, such as a family with a legal immigrant father (most SAWS are young men), an illegal alien mother and several illegal children, a US citizen baby, and perhaps a child protected by a "family fairness" provision enacted in the 1990 IMMACT to prevent the breakup of families.

Illegal aliens who want the protection of "family fairness" must have arrived illegally in the US before May 1988 and apply for protection from deportation to the INS. As of March 30, 1993, only 66,198 illegal aliens applied for "family fairness" protection, and 56,495 received it. However, there are an increasing number of stories of children threatened with deportation because they cannot satisfy the requirements to be protected under "family fairness." In a typical profile, a five year-old--born after May 1988--is threatened with deportation after her mother sneaked her into the US because she cannot qualify for "family fairness." Activists estimate that there are 100,000 children in California who are illegal aliens and cannot satisfy family fairness criteria to stay legally, prompting California Assemblywoman Marguerite Archie-Hudson (D-LA) to introduce a resolution that would ask the federal government to grant a Temporary Protected Status to all of the illegal alien children in mixed families.

Philip Martin, "Good Intentions Gone Awry: IRCA and U.S. Agriculture," Annals of the AAPSS, July 1994. Marcos Breton, "Immigration laws leave child in limbo," Sacramento Bee, May 26, 1994.