||Becoming an American:
FRAMEWORK FOR IMMIGRATION POLICY
In our previous reports, the Commission defined a credible immigration
policy "by a simple yardstick: people who should get in do get in, people
who should not get in are kept out; and people who are judged deportable
are required to leave." By these measures, we have made substantial,
but incomplete, progress. What follows are the Commission's recommendations
for comprehensive reform to achieve more fully a credible framework for
LEGAL PERMANENT ADMISSIONS
The Commission reiterates its support for a
properly-regulated system for admitting lawful permanent residents.3
Research and analyses conducted since the issuance of the Commission's
report on legal immigration support our view that a properly-regulated
system of legal permanent admissions serves the national interest. The
Commission urges reforms in our legal immigration system to enhance the
benefits accruing from the entry of newcomers while guarding against harms,
particularly to the most vulnerable of U.S. residents—those who are themselves
unskilled and living in poverty. More specifically, the Commission reiterates
its support for:
A significant redefinition of priorities and reallocation of existing
admission numbers to fulfill more effectively the objectives of our immigration
policy. The current framework for legal immigration—family, skills,
and humanitarian admissions—makes sense. However, the statutory and regulatory
priorities and procedures for admissions do not adequately support the
stated intentions of legal immigration—to reunify families, to provide
employers an opportunity to recruit foreign workers to meet labor needs,
and to respond to humanitarian crises around the world. During the two
years since our report on legal immigration, the problems in the legal
admission system have not been solved. Indeed, some of them have worsened.
Current immigration levels should be sustained for the next several
years while the U.S. revamps its legal immigration system and shifts the
priorities for admission away from the extended family and toward the nuclear
family and away from the unskilled and toward the higher-skilled immigrant.
Thereafter, modest reductions in levels of immigration —to about 550,000
per year, comparable to those of the 1980s— will result from the changed
priority system. The Commission continues to believe that legal admission
numbers should be authorized by Congress for a specified time (e.g., three
to five years) to ensure regular, periodic review and, if needed, change
by Congress. This review should consider the adequacy of admission numbers
for accomplishing priorities.
The Commission continues to recommend against
denying benefits to legal immigrants solely because they are noncitizens.
The Commission believes that the denial of safety net programs to
immigrants solely because they are noncitizens is not in the national interest.
In our 1994 and 1995 reports, the Commission argued that Congress should
address the most significant uses of public benefit programs —particularly,
elderly immigrants using Supplementary Security Income— by requiring sponsors
to assume full financial responsibility for newly-arriving immigrants who
otherwise would be excluded on public charge grounds. In particular, the
Commission argued that sponsors of parents who would likely become public
charges assume the responsibility for the lifetimes of the immigrants (or
until they became eligible for Social Security on the basis of work quarters).
We also argued that sponsors of spouses and children should assume responsibility
for the duration of the familial relationship or a time-specified period.
We continue to believe that this targeted approach makes greater sense
than a blanket denial of eligibility for public services based solely on
a person's alienage.
Family-based admissions that give priority to nuclear family members—spouses
and minor children of U.S. citizens, parents of U.S. citizens, and spouses
and minor children of lawful permanent residents—and include a backlog
clearance program to permit the most expeditious entry of the spouses and
minor children of LPRs. The Commission recommends allocation
of 550,000 family-based admission numbers each year until the large backlog
of spouses and minor children is cleared. Numbers going to lower priority
categories (e.g., adult children, siblings, and diversity immigrants),
should be transferred to the nuclear family categories. Thereafter Congress
should set sufficient admission numbers to permit all spouses and minor
children to enter expeditiously.
Since the Commission first reported its findings on legal admission,
the problems associated with family-based admissions have grown. In 1995,
the wait between application and admission of the spouses and minor children
of LPRs was approximately three years. It is now more than four and one-half
years and still growing. Moreover, various statutory changes made in 1996
make it all the more important that Congress take specific action to clear
the backlog quickly to regularize the status of the spouses and minor children
of legal permanent residents in the United States. In an effort to deter
illegal migration, Congress expanded the bases and number of grounds upon
which persons may be denied legal status because of a previous illegal
entry or overstay of a visa. An unknown, but believed to be large, number
of spouses and minor children of LPRs awaiting legal status are unlawfully
present in the United States. While the Commission does not condone their
illegal presence, we are cognizant of the great difficulties posed by the
long waiting period for a family second preference visa.
Skill-based admissions policies that enhance opportunities for the entry
of highly-skilled immigrants, particularly those with advanced degrees,
and eliminate the category for admission of unskilled workers.
The Commission continues to recommend that immigrants be chosen on the
basis of the skills they contribute to the U.S. economy. Only if there
is a compelling national interest—such as nuclear family reunification
or humanitarian admissions—should immigrants be admitted without regard
to the economic contributions they can make.
Research shows that education plays a major role in determining the
impacts of immigration. Immigration of unskilled immigrants comes at a
cost to unskilled U.S. workers, particularly established immigrants for
whom new immigrants are economic substitutes. Further, the difference in
estimated lifetime fiscal effects of immigrants by education is striking:
using the same methodology to estimate net costs and benefits, immigrants
with a high school education or more are found to be net contributors while
those without a high school degree continue to be net costs to taxpayers
throughout their lifetime.4
The Commission also continues to recommend changes in the procedures
used in testing the labor market impact of employment-based admissions.
Rather than use the lengthy, costly, and bureaucratic labor certification
system, the Commission recommends using market forces as a labor market
test. To ensure a level playing field for U.S. workers, employers would
attest to having taken appropriate steps to recruit U.S. workers, paying
the prevailing wage, and complying with other labor standards. Businesses
recruiting foreign workers also would be required to make significant financial
investments in certified private sector initiatives dedicated to improving
the competitiveness of U.S. workers. These payments should be set at a
per worker amount sufficient to ensure there is no financial incentive
to hire a foreign worker over a qualified U.S. worker.
Refugee admissions based on human rights and humanitarian considerations,
as one of several elements of U.S. leadership in assisting and protecting
the world's persecuted.5 Since
its very beginnings, the United States has been a place of refuge. The
Commission believes continued admission of refugees sustains our humanitarian
commitment to provide safety to the persecuted, enables the U.S. to pursue
foreign policy interests in promoting human rights, and encourages international
efforts to resettle persons requiring rescue or durable solutions. The
Commission also urges the federal government to continue to support international
assistance and protection for the majority of the world's refugees for
whom resettlement is neither appropriate nor practical.
LIMITED DURATION ADMISSIONS
Persons come to the United States for limited duration stays for several
principal purposes: representation of a foreign government or other foreign
entities; work; study; and short-term visits for commercial or personal
purposes, such as tourism and family visits. These individuals are statutorily
referred to as "nonimmigrants." In this report, however, we refer to "limited
duration admissions [LDAs]," a term that better captures the nature of
their admission: When the original admission expires, the alien must either
leave the country or meet the criteria for a new LDA or permanent residence.
For the most part LDAs help enhance our scientific, cultural, educational,
and economic strength. However, the admission of LDAs is not without costs
and, as explained below, certain reforms are needed to make the system
even more advantageous for the United States than it now is.
The Commission believes LDA policy should rest on the following principles:
Clear goals and priorities;
Systematic and comprehensible organization of LDA categories;
Timeliness, efficiency, and flexibility in its implementation;
Compliance with the conditions for entry and exit (and effective mechanisms
to monitor and enforce this compliance);
Credible and realistic policies governing transition from LDA to permanent
Protection of U.S. workers from unfair competition and of foreign workers
from exploitation and abuse; and
The Commission recommends a reorganization
of the visa categories for limited duration stays in the United States
to make them more coherent and understandable. The Commission
recommends that the current proliferation of visa categories be restructured
into five broad groups: official representatives; foreign workers; students;
short-term visitors; and transitional family members. This reorganization
reflects such shared characteristics of different visa categories as entry
for like reasons, similarity in testing for eligibility, and similar duration
of stay in the United States.
Appropriate attention to LDA provisions in trade negotiations to ensure
future immigration reforms are not unknowingly foreclosed.
The definitions and objectives of the five limited duration visa classifications
Official representatives are diplomats, representatives of or to
international organizations, representatives of NATO or NATO forces, and
their accompanying family members. The objective of this category is to
permit the United States to admit temporarily individuals who represent
their governments or international organizations.
Short-term visitors come to the United States for commercial or
personal purposes. In 1995 alone, millions of inbound visitors from other
countries spent $76 billion on travel to and in the United States (on U.S.
flag carriers, lodging, food, gifts, and entertainment).
Foreign workers are those who are coming to perform necessary services
for prescribed periods of time, at the expiration of which they must either
return to their home countries or, if an employer or family member petitions
successfully, adjust to permanent residence. This category would serve
the labor needs demonstrated by U.S. businesses, with appropriate provisions
to protect U.S. workers from unfair competition.
Students are persons who are in the United States for the purpose
of acquiring either academic or practical knowledge of a subject matter.
This category has four major goals: to provide foreign nationals with opportunities
to obtain knowledge they can take back to their home countries; to give
U.S. schools access to a global pool of talented students; to permit the
sharing of U.S. values and institutions with individuals from other countries;
and to enhance the education of U.S. students by exposing them to foreign
students and their cultures.
Transitional family members include fiancé(e)s of U.S. citizens.
These individuals differ from other LDAs because they are processed for
immigrant status, although they do not receive such status until they marry
in the U.S. and adjust. The Commission believes another category of transitional
family members should be added: spouses of U.S. citizens whose weddings
occur overseas but who subsequently come to the U.S. to reside.
The Commission recommends that the current
visa waiver pilot program for short-term business and tourist visits be
made permanent upon the implementation of an entry-exit control system
capable of measuring overstay rates. A permanent visa waiver
system requires appropriate provisions to expand the number of participating
countries and clear and timely means for removing those countries that
fail to meet the high standards reserved for this privilege. Congress should
extend the pilot three years while the control system is implemented.
Each year, more foreign workers enter the United States as LDAs for temporary
work than enter as skill-based immigrants. In FY 1996, the Department of
State issued almost 278,000 limited duration worker visas, including those
for spouses and children. By contrast, only 118,000 immigrant visa issuances
and domestic adjustments of status in worker categories were recorded in
FY 1996, far less than the legislated limit of 140,000.
The Commission recommends that the limited duration
admission classification for foreign workers include three principal categories:
those who, for significant and specific policy reasons, should be exempt
by law from labor market protection standards; those whose admission is
governed by treaty obligations; and those whose admission must adhere to
specified labor market protection standards. Under
this recommendation, LDA worker categories are organized around the same
principles that guide permanent worker categories. Accordingly, the Commission
proposes different subcategories with labor market protection standards
commensurate with the risks to U.S. workers we believe are posed by the
Those exempt by law from labor market protection standards because
their admission will generate substantial economic growth and/or significantly
enhance U.S. intellectual and cultural strength and pose little potential
for undermining the employment prospects and remuneration of U.S. workers.
Individuals of extraordinary ability in the sciences, arts, education,
business, or athletics, demonstrated through sustained national or
international acclaim and recognized for extraordinary achievements in
their field of expertise.
Managers and executives of international businesses. The global
competitiveness of U.S. businesses is enhanced by the capacity of multinational
corporations to move their senior staff around the world as needed.
Professors, researchers and scholars whose salary or other compensation
is paid by their home government, home institution, or the U.S. government
in a special program for foreign professors, researchers, and scholars.
Religious workers, including ministers of religion and professionals
and other workers employed by religious nonprofit organizations in the
U.S. to perform religious vocations and religious occupations.
Members of the foreign media admitted under reciprocal agreements.
The U.S. benefits from the presence of members of the foreign media who
help people in their countries understand events in the United States.
Just as we would not want our media to be overly regulated by labor policies
of foreign governments, the United States extends the same courtesy to
foreign journalists working in the U.S.
Foreign workers whose admission is subject to treaty obligations.
This includes treaty traders, treaty investors, and other workers entering
under specific treaties between the U.S. and the foreign nation of which
the alien is a citizen or national. Under the provisions of NAFTA, for
example, Canadian professionals are not subject to numerical limits or
labor market testing; Mexican professionals continue to be subject to labor
market tests, but will be exempt from numerical limits in 2003.
The Commission recommends that the labor market
tests used in admitting temporary workers in this category be commensurate
with the skill level and experience of the worker.
Foreign workers subject by law to labor market protection standards.
These are principally:
Professionals and other workers who are sought by employers because
of their highly-specialized skills or knowledge and/or extensive experience.
Included in this category are employees of international businesses who
have specialized knowledge but are not managers or executives.
Trainees admitted to the United States for practical, on-the-job
training in a variety of occupations. Trainees work in U.S. institutions
as an integral part of their training program.
Artists, musicians, entertainers, athletes, fashion models, and participants
in international cultural groups that share the history, culture, and
traditions of their country.
Lesser-skilled and unskilled workers coming for seasonal or other
short-term employment. Such worker programs warrant strict review, as described
below. The Commission remains opposed to implementation of a large-scale
program for temporary admission of lesser-skilled and unskilled workers.
Employers requesting the admission of temporary workers with highly-specialized
skills or extensive experience should meet specific requirements. Admission
should be contingent on an attestation that:
The employer will pay the greater of actual or prevailing wage and
fringe benefits paid to other employees with similar experience and
qualifications for the specific employment in question. Actual wage rates
should be defined in a simple and straightforward manner.
The employer has posted notice of the hire, informed coworkers
at the principal place of business at which the LDA worker is employed,
and provided a copy of the attestation to the LDA worker.
The employer has paid a reasonable user fee that will be dedicated
to facilitating the processing of applications and the costs of auditing
compliance with all requirements.
There is no strike or lockout in the course of a labor dispute
involving the occupational classification at the place of employment.
The employer has not dismissed, except for cause, or otherwise displaced
workers in the specific job for which the alien worker is hired during
the previous six months. Further, the employer will not displace or lay
off, except for cause, U.S. workers in the specific job during the ninety-day
period following the filing of an application or the ninety-day periods
preceding or following the filing of any visa petition supported by the
The employer will provide working conditions for such temporary
workers that are comparable to those provided to similarly situated U.S.
Certain at-risk employers of skilled workers (described below) should
be required to attest to having taken significant steps—for example, recruitment
or training—to employ U.S. workers in the jobs for which they are recruiting
foreign workers. We do not recommend, however, that current labor certification
processes be used to document significant efforts to recruit. These procedures
are costly, time consuming, and ultimately ineffective in protecting highly-skilled
The Commission recommends that categories of
employers who are at special risk of violating labor market protection
standards —regardless of the
education, skill, or experience level of its employees— be required to
obtain regular, independently-conducted audits of their compliance with
the attestations made about labor market protection standards, with the
results of such audit being submitted for Department of Labor review.
Certain businesses, as described below, pose greater risk than others of
displacing U.S. workers and/or exploiting foreign workers. The risk factors
that should be considered in determining whether regular audit requirements
must apply include:
Employers requesting the admission of lesser-skilled workers should
be required to meet a stricter labor market protection test. Such employers
should continue to be required to demonstrate that they have sought, but
were unable to find, sufficient American workers prepared to work under
favorable wages, benefits, and working conditions. They also should be
required to specify the plans they are taking to recruit and retain U.S.
workers, as well as their plans to reduce dependence on foreign labor through
hiring of U.S. workers or other means. Employers should continue to be
required to pay the highest of prevailing, minimum, or adverse wage rates,
provide return transportation, and offer decent housing, health care, and
other benefits appropriate for seasonal employees.
The employer's extensive use of temporary foreign workers. Extensive
use can be defined by the percentage of the employer's workforce that is
comprised of LDA workers. It also can be measured by the duration and frequency
of the employer's use of temporary foreign workers.
The employer's history of employing temporary foreign workers. Those
employers with a history of serious violations of regular labor market
protection standards or of specific labor standards related to the employment
of LDA workers should be considered as at risk for future violations.
To ensure adequate protection of labor market standards, such employers
should be required to submit an independent audit of their compliance with
all statements attested to in their application. The independent audits
should be done by recognized accounting firms that have the demonstrated
capacity to determine, for example, that wages and fringe benefits were
provided as promised in the attestation and conformed to the actual or
prevailing wages and fringe benefits provided to similarly situated U.S.
The employer's status as a job contracting or employment agency providing
temporary foreign labor to other employers. Risk of labor violations
increases as responsibility is divided between a primary and secondary
The Commission recommends enhanced monitoring
of and enforcement against fraudulent applications and postadmission violations
of labor market protection standards. To function effectively,
both the exempt and nonexempt temporary worker programs must provide expeditious
access to needed labor. The Commission's recommendations build on the current
system of employer attestations that receive expeditious preapproval review
but are subject to postapproval enforcement actions against violators.
More specifically, the Commission recommends:
Allocating increased staff and resources to the agencies responsible
for adjudicating applications for admission and monitoring and taking appropriate
enforcement action against fraudulent applications and violations of labor
market protection standards. Increased costs required for more efficient
adjudication of applications can be covered by applicant fees. However,
additional costs incurred for more effective investigations of compliance
with labor market standards will require appropriated funds.
Barring the use of LDA workers by any employer who has been found to
have committed willful and serious labor standards violations with respect
to the employment of LDA workers. Further, upon the recommendation of any
federal, state, or local tax agency, barring the use of LDA workers by
any employer who has been found to have committed willful and serious payroll
tax violations with respect to LDA workers. The law currently provides
for such debarment for failure to meet labor condition attestation provisions
or misrepresentation of material facts on the application. Implementation
of this recommendation would enable penalties to be assessed for serious
labor standards violations that are not also violations of the attestations.
Developing an enforcement strategy to reduce evasion of the LDA labor
market protection standards through contractors. U.S. businesses' growth
in contracting-out functions has raised questions of employment relationships
and ultimate liability for employment-related violations, including those
related to temporary foreign workers. A uniform policy for dealing with
these situations is desirable for the enforcement agencies involved, as
well as for employers, contractors, and workers.
CURBING UNLAWFUL MIGRATION
In its first interim report to Congress , the Commission recommended a
comprehensive strategy to curb unlawful migration into the United States
through prevention and removal.7
Despite the additional resources, new policies, and often innovative strategies
adopted during the past few years, illegal migration continues to be a
problem. The Commission continues to believe that unlawful immigration
can be curtailed consistent with our traditions, civil rights, and civil
liberties. As a nation committed to the rule of law, our immigration policies
must conform to the highest standards of integrity and efficiency in the
enforcement of the law. We must also respect due process.
The Commission reiterates its 1994 recommendations
supporting a comprehensive strategy to deter illegal migration.
More specifically, the Commission continues to support implementation
of the following deterrence strategies:
An effective border management policy that accomplishes the twin goals
of preventing illegal entries and facilitating legal ones. New resources
for additional Border Patrol officers, inspectors, and operational support,
combined with such new strategies as operations "Hold the Line," "Gatekeeper,"
and "Safeguard," have improved significantly the management of the border
where they are deployed. The very success of these new efforts demonstrates
that to gain full control, the same level of resources and prevention strategies
must be deployed at all points on the border where significant violations
of U.S. immigration law are likely to occur.
Reducing the employment magnet is the linchpin of a comprehensive strategy
to deter unlawful migration. Economic opportunity and the prospect
of employment remain the most important draw for illegal migration to this
country. Strategies to deter unlawful entries and visa overstays require
both a reliable process for verifying authorization to work and an enforcement
capacity to ensure that employers adhere to all immigration-related labor
standards. The Commission supports implementation of pilot programs to
test what we believe is the most promising option for verifying work authorization:
a computerized registry based on the social security number.8
Restricting eligibility of illegal aliens for publicly-funded services
or assistance, except those made available on an emergency basis or for
similar compelling reasons to protect public health and safety or to conform
to constitutional requirements. Although public benefit programs do
not appear to be a major magnet for illegal migrants, it is important that
U.S. benefit eligibility policies send the same message as immigration
policy: Illegal aliens should not be here and, therefore, should not receive
assistance, except in unusual circumstances. The Commission recommended
drawing a line between illegal aliens and lawfully resident legal immigrants
with regard to benefits eligibility, in part to reinforce this message.
We continue to believe that this demarcation between legal and illegal
aliens makes sense. The Commission urges the Congress to reconsider the
changes in welfare policy enacted in 1996 that blur the distinctions between
legal and illegal aliens by treating them similarly for the purposes of
many public benefit programs.
Strategies for addressing the causes of unlawful migration in source
countries. An effective strategy to curb unauthorized movements includes
cooperative efforts with source countries to address the push factors that
cause people to seek new lives in the United States. The Commission continues
to urge the United States government to give priority in its foreign policy
and international economic policy to long-term reduction in the causes
of unauthorized migration.
Mechanisms to respond in a timely, effective, and humane manner to migration
emergencies. A credible immigration policy requires the ability to
respond effectively and humanely to migration emergencies in which large
numbers of people seek entry into the United States. These emergencies
generally include bona fide refugees, other individuals with need
for protection, and persons seeking a better economic life in the U.S.
Failure to act appropriately and in a timely manner to determine who should
be admitted and who should be returned can have profound humanitarian consequences.
Further, an uncontrolled emergency can overwhelm resources and create serious
problems that far outlast the emergency.9
A credible immigration system requires the effective and timely removal
of aliens who can be determined through constitutionally-sound procedures
to have no right to remain in the United States. If unlawful aliens believe
that they can remain indefinitely once they are within our national borders,
there will be increased incentives to try to enter or remain illegally.
Our current removal system does not work. Hundreds of thousands of aliens
with final removal orders remain in the U.S. The system's ineffectiveness
results from a fragmented, uncoordinated approach, rather than flawed legal
procedures. The Executive Branch does not have the capacity, resources,
or strategy to detain aliens likely to abscond, to monitor the whereabouts
of released aliens, or to remove them.
The Commission urges immediate reforms to
improve management of the removal system and ensure that aliens with final
orders of deportation, exclusion, or removal are indeed removed from the
United States. Establishing a more effective removal system
requires changes in the management of the removal process. More specifically,
the Commission recommends:
Establishing priorities and numerical targets for the removal of criminal
and noncriminal aliens. The Commission encourages headquarters, regional,
and local immigration enforcement officials to set these priorities and
Local oversight and accountability for the development and implementation
of plans to coordinate apprehensions, detention, hearings, removal, and
the prevention of reentry. With guidance on priorities, local managers
in charge of the removal system would be responsible for allocation of
resources to ensure that aliens in the prioritized categories are placed
in the system and ultimately removed. Local managers also would be responsible
and accountable for identifying effective deterrents that reduce the likelihood
that removed aliens would attempt to reenter the U.S.
Continued attention to improved means for identifying and removing criminal
aliens with a final order of deportation. The Commission reiterates
the importance of removing criminal aliens as a top priority. Our recommendation
regarding the importance of removing noncriminal aliens with final orders
is not intended to shift the attention of the removal system away from
this priority. Rather, both criminal and noncriminal aliens must be removed
to protect public safety (in the case of criminals) and to send a deterrent
message (to all who have no permission to be here).
Legal rights and representation. The Executive Branch should be
authorized to develop, provide, and fund programs and services that educate
aliens about their legal rights and immigration proceedings. Such programs
also should encourage and facilitate legal representation where to do so
would be beneficial to the system and the administration of justice. Particular
attention should be focused on aliens in detention where release or removal
can be expedited through such representation. Under this approach, the
alien would not have a right to appointed counsel, but the government could
fund services to address some of the barriers to representation.
Prosecutorial discretion to determine whether to proceed with cases.
Guidelines on the use of prosecutorial discretion should be developed,
local Trial Attorneys trained, support staff provided, and discretion exercised
with the goal of establishing a more efficient and rational hearing system.
Trial attorneys should focus their efforts on trying cases that are likely
to result in the removal of the alien upon completion of the proceedings.
Strategic use of detention and release decisions. Detention space,
always in limited supply, is in greater demand as the government has focused
more on the removal of criminal aliens and as Congress mandates more categories
to be detained. Detention needs to be used more strategically if removals
are to be accomplished. Alternatives to detention should be developed so
that detention space is used efficiently and effectively. The Commission
fully supports the three-year pilot program, created with and implemented
by the Vera Institute, to help define effective alternatives to detention
for specific populations.
Improved detention conditions and monitoring. Detention cannot be
used effectively unless the conditions of detention are humane and detainees
are free from physical abuse and harassment by guards. We have no doubt
that appropriate criteria for all facilities can be promulgated, based
on sound governmental judgment and consultation with concerned nongovernmental
organizations. But most importantly, a system to monitor facilities on
a regular basis must be developed. Inspections must occur more than once
Further, the Commission recommends that the Department of Justice consider
placing administrative responsibility for operating detention centers with
the Bureau of Prisons or U.S. Marshals Service. An immigration enforcement
agency should not be shouldered with such a significant responsibility
that is not part of its fundamental mission or expertise.
Improved data systems. Current data systems are unable to link an
apprehension to its final disposition (e.g., removal, adjustment of status).
This significantly limits the use of apprehension and removal data for
analytical purposes. The Commission urges development of data systems that
link apprehensions and removals and provide statistics on individuals.
The Commission urges Congress to clarify that
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
[IIRIRA] and the Antiterrorism and Effective Death Penalty Act of 1996
[AEDPA] do not apply retroactively to cases pending when the new policies
and procedures went into effect. As a matter of policy,
the Commission believes that retroactive application of new immigration
laws undermines the effectiveness and credibility of the immigration system.
Applying newly-enacted laws or rules in an immigration proceeding that
has already commenced results in inefficiency in the administration of
the immigration laws. It also can raise troubling issues of fairness. Finally,
it invites confusion, adds uncertainty, and fosters a lack of trust and
confidence in the rule of law.
The redesigned removal system should be managed initially by a Last-In-First-Out
[LIFO] strategy to demonstrate the credibility of the system. Once
a coherent system is organized and appropriate resources are assigned to
removing deportable aliens—not simply to put aliens through proceedings
—removals should proceed in a Last-In-First-Out mode. In this way, the
government can send a credible deterrent message to failed asylum seekers,
visa overstayers, users of counterfeit documents, and unauthorized workers,
that their presence in the United States will not be tolerated. Such a
well-organized system can establish control over the current caseload and
quickly prioritize the backlog for enforcement purposes. The deterrent
effect of LIFO has been shown in the asylum system where new procedures
were adopted in a LIFO mode.
3 For a full explanation
of the Commission’s recommendations see Legal Immigration: Setting Priorities,
1995. See Appendix for summary of Commissioner Leiden’s dissenting statement.
4 National Research
Council. 1997. The New Americans: Economic, Demographic, and Fiscal Effects
of Immigration. Washington, DC: National Academy Press.
5 For a full explanation
of the Commission’s refugee-related recommendations, see U.S. Refugee Policy:
Taking Leadership, 1997.
6 The current system
includes the J visa for cultural exchange, which is used for a variety
of purposes, ranging from short-term visits to study and work. The workers
include scholars and researchers, camp counselors, au pairs, and various
others. Some work activities under the J visa demonstrate a clear cultural
or education exchange; other work activities appear only tangentially related
to the program’s original purposes. Protection of U.S. workers by labor
market tests and standards should apply to the latter group in the same
manner as similarly situated temporary workers in other LDA categories.
The Department of State should assess how better to fulfill the purpose
of the Mutual Educational and Cultural Exchange Act of 1961 [Fulbright-Hays
Act]. Such an analysis is particularly timely in light of the merger now
being implemented between the Department of State and the United States
Information Agency, which is responsible for administering the J visa.
7 For a full explanation
of the Commission’s recommendations see: U.S. Immigration Policy: Restoring
8 The Concurring Statement
of Commissioners Leiden and Merced can be found in the Commission’s 1994
9 For a fuller discussion
of the Commission’s recommendation on mass migration emergencies, see U.S.
Refugee Policy: Taking Leadership, 1997.
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