How To Curb Illegal Immigration—And Why It Won't Happen
[Author’s note: This is the second part of a discussion of immigration and immigration policy. The first part explained how the current debate originated and what it is about.]
Over the past decades, undocumented immigrants, largely concentrated among the unskilled and those without higher education, have exerted downward pressure on wages in agriculture, construction, food preparation and meatpacking, building maintenance, retail sales, and the hospitality industry. First generation legal immigrants and black Americans without a higher education have been particularly hurt. Even now, when unemployment remains low, the damage to these workers can be seen in the decline of the labor participation rate among working-age men without a college education.
The current and unprecedented stream of undocumented migration has also put enormous fiscal pressure not only on towns and cities in the Southwest but on big cities in the Northeast and Midwest as well, whose Democratic mayors are demanding federal action. Worse, the federal government's continued failure to stem illegal immigration threatens the underpinnings of American democracy, which depends on its citizens’ belief that those who receive the benefits of living in America meet the obligations of citizenship. Ultimately, illegal immigration is, in fact illegal. To condone it is to accept that in a very important sphere of American life, our laws don't hold. They can't be enforced, and Congress’s attempts to strengthen them have, to date, not succeeded.
Last May, the House passed a tough immigration bill, H.R.2, on a party-line vote. The Democrats denounced it. Rep. Gregory Meeks charged that the bill “keeps Trump-era immigration policies in place and does nothing but punish those who are fleeing extreme violence and persecution.” President Biden warned that if it were to pass the Senate, he would veto it. Senate Republicans introduced their own proposals, modeled on H.R.2, and Senate Republicans joined their House counterparts in demanding that a bill to fund Ukraine’s defense against Russia and Israel’s war in Gaza include provisions to strengthen border security. The Senate appointed a committee composed of Republican James Lankford, Democrat Chris Murphy, and Independent Kyrsten Sinema to come up with a plan that Democrats and Republicans could support. But the effort has predictably hit a roadblock.
House Speaker Mike Johnson (R-LA) has warned that if the Senate plan isn’t “very close to what we've sent over from the House,” Republicans will oppose it. Yet if the three senators come up with a compromise, it won’t be close to H.R.2. Donald Trump has rejected any compromise with the Democrats. “We need a Strong, Powerful, and essentially ‘PERFECT’ Border and, unless we get that, we are better off not making a Deal,” he declared. Biden has tried to put the onus on the Republicans by promising that if the Senators come up with a comprise, he will shut down the border if undocumented migrants exceed 4000 a day—which they regularly have. Democrats are relishing the chance to accuse Trump and the Republicans of obstructing a good-faith bipartisan effort.
But it may too late for Biden and the Democrats to claim the issue. If you look for a Democratic proposal that counters H.R.2 or that of the Senate Republicans, you won't find it. Search on the internet for “Democratic immigration plan” and you'll be directed to the Democrats’ 2020 platform that called for a dramatic expansion of the asylum system and path to citizenship for undocumented migrants. These proposals, voiced by Biden during his first year, inspired the huge wave of illegal immigration that began in 2021 and that many Democrats now recognize as a genuine problem. And look more closely at the Republicans' H.R. 2, and you'll discover that some of its provisions are not unreasonable, and one of them should be part of an effective plan to curb illegal immigration.
The House Republican Bill
It is understandable to assume that any bill that comes out of the Republican House, where nutcases and extremists hold inordinate sway, would be composed of mean-spirited, wackadoodle provisions that appeal to the worst instincts of the Republican electorate and the greed of Republican donors. There is some of that—an emphasis, for instance, on the prolonged detention of migrants and a sop to agribusiness that wants to eliminate the labor protections that the Biden administration granted to temporary seasonal workers on H-2A visas. But many of the proposals on curbing illegal immigration are worth considering, and they include one important proposal not included in the Senate Republican proposals and that will not be in any compromise Senate plan.
The House bill toughens rules for asylum and parole. Before last May, any unauthorized migrant could cross the border at any place and then ask for asylum. If an asylum official believed this migrant had a credible fear of persecution, they would then be entitled to a hearing before an immigration judge, for which they would almost invariably be released pending a court date. The hearing, given the glut of over three million court cases, could finally occur an average of over four years later. As the House bill came to a vote in May, the Biden administration made some useful modifications to its asylum and parole policy that would make it more difficult for migrants to apply. But these changes have been challenged in court and seem to have been applied sporadically due to a shortage of border personnel to handle the hundreds of thousands of migrants that are crossing without papers each month.
The House bill, which the Democrats denounced, would put some of the administration’s modifications, which were executive orders, into law. Notably it would require that asylum applicants on the border apply at official ports of entry—otherwise, they will be denied entry or deported—and that if they had transited through a third country, that they have applied and been denied asylum there. But the House bill goes beyond what Biden had proposed. It charges migrants (except for unaccompanied minors) a $50 fee to apply for asylum and raises the bar for what constitutes a credible fear of persecution. As things stand today, migrants would have to convince asylum officers that there was a “significant possibility” of their being granted asylum in a court hearing. The House bill would require they show that it is “more likely than not” that they be granted asylum.
According to the Refugee Act of 1980, migrants could apply for asylum based on “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” But Biden widened these criteria. Under Biden, applicants could seek asylum if they were threatened by gang or domestic violence. One applicant applied and was judged credible on the ground that he was a victim of extortion by criminals. Another got through because a policeman had knocked out his tooth.
The House bill sought to reassert the original narrower criteria for asylum. According to H.R.2, an applicant’s claim couldn’t be based on “personal animus or retribution,” “disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerrilla, or other non-state organizations,” “resistance to recruitment or coercion” by these organizations, being the target for “criminal activity for financial gain,” and it could not be based on the misconduct of rogue officials outside their official government role.
To be sure, H.R.2 also introduced unnecessarily punitive provisions. Even after an asylum seeker has established a “credible fear of persecution” under the bill’s new higher standard, they could either be detained in a facility or returned to a third county while they await the final consideration of their application. That could take a long time. (And the United States does not have anything like the number of facilities to hold these potential asylum seekers; the current capacity is about 35,000.) The $50 application fee, which can't be waived, could also discourage people who might qualify for asylum. But in general, H.R.2’s provisions on asylum seem worthy of consideration and not dismissal.
The House bill also establishes or re-establishes more stringent requirements for parole, which allows undocumented migrants to live in the United States and work for a distinct period (anywhere from six months to two years) after which they must apply for admission through normal channels. Parole, which dates to a 1952 immigration law, was legally limited to individual cases that advanced a humanitarian cause or conferred a public benefit. Typically, migrants would be granted parole to seek medical attention, but periodically, it was used to admit people fleeing war-torn countries where the United States had intervened unsuccessfully, such as in Vietnam. Under Biden, however, parole was used generally not only for people from Afghanistan and Ukraine but also from Venezuela, Cuba, and Haiti; it was also used by border officials to release undocumented migrants temporarily. Over a million migrants were paroled during Biden’s first three years.
The House Republican bill would reaffirm parole’s original language. Applicants would be judged on a “case-by-case basis” rather than as members of “an entire class”—in other words, they wouldn’t be admitted simply as Venezuelans or Cubans living under a dictatorship that the United States opposes. And what counts as a “humanitarian cause” would be restricted to such things as medical emergencies, the imminent death of a family member, or the attendance at a funeral. Parole would be limited to a year, which could be renewed once, and parolees wouldn’t be eligible to work. The bill would drastically cut down on the admission of economic migrants who should be applying through normal channels for legal admission and migrants who dislike their country’s anti-American dictatorships. There’s a question whether H.R.2 would allow entry in large numbers to people who had fought with or supported the United States in foreign wars like Afghanistan or Iraq. But there is a provision that allows for asylum “in extraordinary circumstances, such as those involving national security or foreign policy considerations.”
The Benefits of E-Verify
In proposals unveiled in November, Senate Republicans claimed that they took H.R.2 as their model but they conspicuously omitted one of the bill’s main proposals: E-Verify requirements. H.R.2 requires that all employers check whether their employees and applicants for employment are legally permitted to work in the United States using a national electronic database that combines data from the Social Security Administration and the Department of Homeland Security. If employers hired or continued to employ a worker who was not a legal migrant, they could be fined $5,000 for each employee and, if applicable, denied federal contracts.
The idea for using employee verification as a way of curtailing illegal immigration originated with a 1978 Congressional commission headed by Notre Dame president and civil rights leader Rev. Theodore Hesburgh. The Hesburgh Commission proposed that employers be fined for employing undocumented migrants, and that Washington develop a counterfeit-proof Social Security card that employers could use to verify the legality of employees. It thought that this requirement would discourage employers from recruiting illegal immigrants (which they had been doing to lower costs and bust unions) and discourage undocumented migrants from crossing the border to find work.
In the 1986 Immigration Reform and Control Act, Congress decreed fines for employers who knowingly employed undocumented workers, and criminal penalties, including, possibly, jail time, for repeated offenses, but under intense pressure from business, it balked at establishing a means to verify legality. Instead, employers need only file a form saying that they had seen evidence of an employee’s eligibility to work. Under these lax rules, the government has prosecuted more than 15 cases annually only twice.
In 1996, under prodding from House Speaker Newt Gingrich (R-GA), Congress inserted a provision for a purely voluntary pilot program into the Illegal Immigration Reform and Immigration Responsibility Act that would allow employers to check Social Security numbers electronically. Over the last two decades, ten states have required that all its employers use E-Verify, but in other states the use of E-Verify was either limited to public employees or entirely voluntary.
The only way to test the effectiveness of a mandatory requirement to use E-Verify would be to put it into effect. As things stand, undocumented migrants can simply avoid the states that don't require E-Verify. But there are studies of its effects in the states that require it that suggest it could discourage illegal immigration. In the IZA Journal of Migration in 2016,economists Pia M. Orrenius and Madeline Zavodny found that statewide E-Verify mandates reduce “the number of less-educated prime-age immigrants from Mexico and Central America—immigrants who are likely to be unauthorized—living in a state.” They also found “evidence that some new migrants are diverted to other states, but also suggestive evidence that some already present migrants leave the country entirely.”
In an earlier 2015 study published in the Southern Economic Journal, Orrenius and Zavodny also found that E-Verify mandates remedied the ill effects of the illegal immigration on unskilled workers. They found that the programs “appear to lead to better labor market outcomes among workers likely to compete with unauthorized immigrants. Employment rises among male Mexican immigrants who are naturalized citizens in states that adopt E-Verify mandates, and earnings rise among U.S.-born Hispanic men.”
What Should—but Won't—Be Done
By itself, however, E-Verify won’t resolve the country’s long-standing conflicts over immigration and illegal immigration. It may discourage undocumented migrants, but it will only reduce their number. It would have to be paired with more effective policing at the border and airports. H.R.2 includes some potentially effective measures, but they, too, would have to be supplemented by a dramatic increase in immigration judges to reduce the huge backlog of asylum cases and, as Andrew Levison has suggested, an attempt to shut down the burgeoning smuggling industry in concert with Mexico and other Central American nations.
E-Verify also doesn’t address the lot of the 12 million or so undocumented migrants already in the United States, many of whom have been here for a decade or more and who hold jobs. E-Verify will, if anything, drive them into the underground economy or even into petty crime. A solution would be to give them a path to legal employment. Unlike the 1986 amnesty, granting the undocumented the right to work won't inspire a massive new wave of illegal immigration if accompanied by E-Verify and strict border protection. E-Verify, border protection, and a right to work for undocumented migrants already in the United States need to be integral parts of a comprehensive approach to immigration. If the United States needs more immigrants, or immigrants with different skills, than it is receiving through the current legal immigration process, it should raise the annual immigration quota or change the criteria for immigration to the United States.
For the time being, however, there is very little chance that Congress and the White House will adopt this kind of approach to immigration. Business interests strongly oppose E-Verify. In the debate over the House bill, House Republicans representing agricultural districts, where undocumented migrants make up almost half of the labor force, objected to the mandated use of E-Verify. They were appeased by extending the timeline for when agribusiness would have to use E-Verify and eliminating the labor protections the Biden administration had created for seasonal H-2A temporary migrants.
After the House bill passed, industry lobbyists turned their attention to the Senate. As Brownstein Hyatt Farber Shreck, one of the country's largest business lobbies, wrote last May, “Industry pressure has already been successful in the alterations of E-Verify expansion, and there is already established Republican opposition to portions of the program. Now is the time for stakeholders to engage lawmakers to make sure their employment investments are protected moving forward.” The lobbying evidently had its effect: Senate Republicans left E-Verify out of their proposals.
As Ruy Teixeira and I recounted in Where Have All the Democrats Gone?, Democrats have also shunned E-Verify. Hispanic lobbies have claimed it is discriminatory, and major unions, led by the Service Employees International Union (SEIU), have warned it can be used to intimidate workers. These unions prefer that the government ignore undocumented workers, whom they want to organize. Lobbies and organizations aligned with the Democrats have also rejected attempts to curb illegal immigration. They denounced Biden's promise of a border shutdown. Said a spokeswoman for the American Civil Liberties Union, “President Biden and Congress must abandon these proposals and heed voters’ demands for fair and effective immigration policies that manage the border and treat people seeking safety with dignity.” Marisa Limon Garza of the Las Americas Immigration Advocacy Center called Biden's proposal “the most uninformed, short-sighted idea of a solution as could be.”
Just as Congress is unlikely to pass an E-Verify mandate, it is unlikely to pass a bill that includes a path to citizenship or even to a green card for the undocumented. An older generation of Republicans like George W. Bush and John McCain favored a path to citizenship, but many in the newer generation favor deportation. In the present circumstances, the best that could be hoped for are modest reforms in the use of asylum and parole and increased funding for custom officials and judges. But even these measures might prove difficult, if not impossible, during an election year when Trump and Republicans plan to highlight the inability of the Biden administration to police the border. The prospects for anything like a comprehensive reform remain dismal; the prospects for modest reform are slim; but the prospects for continued stalemate and strife are strong.
John B. Judis is author of The Politics of Our Time: Populism, Nationalism, Socialism and, with Ruy Teixeira, Where Have All the Democrats Gone?