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The Top 5 Reasons Why Immigration Reform in 2013 Is Different Than in 1986

SOURCE: AP/J. Scott Applewhite

Sen. John McCain (R-AZ) speaks on Capitol Hill about immigration reform legislation that would create a path for the nation's 11 million unauthorized immigrants to apply for U.S. citizenship, as outlined by the Senate's bipartisan "Gang of Eight."

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The specter of the 1986 Immigration Reform and Control Act, or IRCA, has haunted every immigration-reform effort over the past few decades and continues to influence the 2013 reform debates. Senators who oppose reform have used the 1986 law—where the United States granted legalization to 3 million unauthorized immigrants—as a cautionary example of the effects of legalization. They maintain that IRCA was sold to the public as a means to end unauthorized immigration but that it failed and, in fact, encouraged more unauthorized migration.

Although the predicate facts are true—IRCA legalized 3 million undocumented immigrants, and now we have 11 million unauthorized immigrants living in the country—the conclusions these opponents draw are false. The central reason IRCA never stood a chance at stopping unauthorized migration was that it failed to acknowledge and regulate the integrated North American labor market that already existed. It did not look to the future or create new legal channels for economic migrants. Instead, it counted on future migration to be stymied by an inadequate employment-verification requirement that practically invited fraud and a nonexistent border-security apparatus. The problem with IRCA was not the legalization component; it was the lack of an extant enforcement apparatus and a failure to produce a vision for future migration.

But the United States has come a long way since 1986 in terms of investments in border security and advances in electronic-verification technology, and we have learned from the past. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, or S. 744, contains a road map to citizenship for the 11 million unauthorized immigrants currently living in the country. But it also makes significant investments in restricting both the supply of immigrants coming into the country without status—through increased border security and legal-visa reforms—as well as the demand for their labor through mandatory employment verification.

Here are the top five reasons why S. 744 is not a repeat of IRCA.

1. We have made significant increases in border security and technology. IRCA mandated a 50 percent increase in the number of Border Patrol agents in both 1987 and 1988 relative to 1986 levels. But as of 2004, almost 20 years after IRCA was passed, there were only 10,000 Border Patrol agents—just about 2.5 times the size of the force in 1993. In the past few years, the United States has put unprecedented resources and manpower on the Southern border—more than doubling the number of Border Patrol agents, deploying National Guard troops to the border, and providing a significant amount of technology and fencing to monitor all sectors of the border. The results have been dramatic. There are currently 21,370 Border Patrol agents, and border apprehensions—which the Department of Homeland Security, or DHS, uses as a proxy for the number of immigrants attempting to enter the United States without status—are now at a 40-year low.

2. S. 744 makes new investments in border and national security. In addition to the strides already made on border security, S. 744 includes a number of new provisions to enhance border and national security. First and foremost, it mandates a plan to increase border fencing and reach a 100 percent rate of persistent surveillance of the entire southern border, as well as a 90 percent “effectiveness rate,” meaning that DHS can deter or detain 90 percent of unauthorized border crossings. The bill allots $4.5 billion to make these goals reality, and if DHS cannot achieve them after five years, the bill would allot an additional $2 billion and would create a Border Commission to help with recommendations. S. 744 requires that DHS hire an additional 3,500 Customs and Border Protection agents by the end of 2013; increases funding to help defray the costs to local law enforcement of combating unauthorized immigration and drug smuggling per the Operation Stonegarden program; mandates an exit system to track visa overstays and creates a pilot program to put a biometric exit system in the busiest international airports to track visa holders and visa overstays; and increases the technology deployed at the border to apprehend undocumented border crossers, including the use of drones.

3. S. 744 makes E-Verify mandatory. One of the main criticisms of IRCA is that it created penalties for hiring unauthorized workers but had no real enforcement mechanism. Employers were required to check that their workers had appropriate documentation, but the bill provided no support for employers to verify that the documents in question were valid. S. 744 fixes this problem by making the government’s Internet-based work-authorization system, E-Verify, mandatory for all employers in the United States within five years. E-Verify checks the documents submitted by an employee against records on file with the government with the goal of ferretting out unauthorized workers. The bill also includes a number of provisions to crack down on identity theft, including a mandate that within five years all Social Security cards must be fraud, tamper, wear, and identity-theft resistant. All of these provisions will make it harder to find employment as an unauthorized immigrant.

4. S. 744 provides a legal way for lesser-skilled workers to enter the country. One of the major failures of IRCA was the lack of provisions for lesser-skilled workers to enter the country through legal channels. Current law only grants 5,000 green cards each year to lesser-skilled workers from around the world, and the visas come with long waiting periods. Temporary work permits for these workers are also hard to come by, and the programs are fraught with problems and are often unusable. S. 744 fixes this problem by providing new legal channels for entry—in particular a new W visa for lesser-skilled workers, which provides between 20,000 visas and 200,000 visas each year, along with a new merit-based permanent visa, which allots between 120,000 visas and 250,000 visas each year and includes provisions for these lesser-skilled workers to adjust to permanent residency.

5. S. 744 contains a rigorous but fair road map to citizenship. In 1986 the only requirements for legalization were that immigrants had to have been living in the country since before January 1, 1982, leaving out a significant portion of unauthorized immigrants who had entered after the cut-off date; immigrants had to pay application fees; and they had to demonstrate an understanding of English and civics or be in classes on such topics to ease the adjustment to permanent residence. The road map to citizenship in S. 744 contains numerous steps, penalties, and fees. Immigrants would first have to pay a $500 fine plus application fees, pass a background check, and pay any assessed back taxes before they could receive a temporary provisional legal status, called Registered Provisional Immigrant status, or RPI. This status is good for only six years, at which time it can be renewed for an additional six years with another $500 fine and application fees and a second background check. After 10 years, an immigrant in RPI can apply for legal permanent residency after paying a third fine of $1,000 plus application fees, passing a third background check, and proving that they have either been employed throughout the 12-year period or have resources putting them at a minimum of 125 percent of the federal poverty line. This is not amnesty but instead is a tough but fair process of earned legalization.

When senators question whether we have learned from IRCA, the evidence is clear: 2013 is not 1986. S. 744 provides a road map to earned citizenship for the 11 million undocumented immigrants living in America, improves our border security, and provides flexible paths for future migrants to enter the country with legal status. This bipartisan immigration-reform plan learns from the past and places our nation on a strong footing to meet the challenges of the 21st century while still recognizing our heritage as a nation of immigrants.

Philip E. Wolgin is Senior Policy Analyst for Immigration and Abhay Aneja is an intern at the Center for American Progress.

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