United States Commission on Immigration Reform 
Becoming an American:  
Immigration and  
Immigrant Policy

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 immigration policy.
 
 

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: 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.
 
 

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:

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.

The definitions and objectives of the five limited duration visa classifications would be:6

 

Short-Term Visitors

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.

 

Foreign Workers

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 foreign workers.

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. 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: 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. workers.

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:

 

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.

 

Deterrence Strategies

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:  

Removals

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:

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.

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.
National Research Council. 1997. The New Americans: Economic, Demographic, and Fiscal Effects of Immigration. Washington, DC: National Academy Press.
For a full explanation of the Commission’s refugee-related recommendations, see U.S. Refugee Policy: Taking Leadership, 1997.
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.
For a full explanation of the Commission’s recommendations see: U.S. Immigration Policy: Restoring Credibility, 1994.
The Concurring Statement of Commissioners Leiden and Merced can be found in the Commission’s 1994 report.
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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