Senate Bill Won’t Stop Illegal Immigration Without More Work Visas

When the Senate “Gang of 8” released their immigration reform principles earlier this year, they made an important admission: that drastic restrictions on low-skilled work visas incentivizes illegal immigration. The principles called for “a humane and effective system” for the “overwhelming majority of the 327,000 illegal entrants” apprehended in 2011 “to prevent future waves of illegal immigration.” Unfortunately, although the Gang’s bill improves legal immigration options, it clearly doesn’t live up to this principle.

The Senate legislation deletes one option while creating two new ones—one for agricultural work and another for non-agricultural work. It allocates 112,333 ag visas (W-2/W-3 visas) per year for the first five years. But it replaces the H-2A farm visa program that already brought in around 80,000/year. This means the new ag visa program initially adds at most  just 32,333 net visas each year. For other employment (W-1 visas), the bill grants just 46,250/year over the first four years—meaning, the government would issue up to (no guarantees!) 78,583 new visas per year for the next four years.

In other words, the bill’s quotas are 250,000 below what the Gang claimed was necessary just a few months ago. Worse still, the actual shortfall is much greater than this because the Gang’s estimate of visa demand 1) excluded demand from would-be legal immigrants and 2) only included “apprehended” entrants 3) from a single year and 4) from a single border region.

1) Many more would-be legal immigrants would want to come if legal options open up; 2) the apprehension figure ignores all those avoided detection (about 350,000/year during the 2000s); 3) FY2011 had extraordinary few apprehensions—even in 2008 the number was twice as high (475,000/year over last five years); 4) these visas might primarily go to immigrants from Mexico and central America, the primary sending nations for border crossers, but other nations would also compete for the limited supply; 5) finally, the calculation ignores how increasing the availability of work visas to new sectors (dairy, meatpacking, etc.) and new job categories (employment longer than a year) might affect U.S. employer demand.

After the fifth year, the quota for farm workers would be set by the U.S. Department of Agriculture (USDA) in “consultation with” the Department of Labor (DOL) based on a variety of “market-based” factors—a “demonstrated shortage,” unemployment of U.S. farm workers, visas sought by employers in the previous year, etc. The end product of this calculation is discretionary and could result in many more or many less visas depending on what USDA and DOL negotiate and the politics of the next president. Unfortunately, the initial quota level might act as a starting point for the USDA, keeping the total number of new visas relatively low.

For non-farm workers, the annual quota after year five could increase up to 200,000 plus up to 20,000 more for meat cutters. Unfortunately, the actual quota will be calculated by a political appointee based on an undefined “methodology.” If historical precedent is any guide, regulatory agencies tend to like to regulate rather than deregulate, and such open-ended authority might ultimately keep numbers far below this level. Consider the current H-2A Ag visa program already has no numerical limit, but still has never issued more than 80,000 visas in a given year—it is open in theory, closed in practice.

Over the next five years, based on the number border crossers—apprehended and not—in recent years (~825,000), guest work visas are at least 740,000 short of the Gang’s goal to stop attempted illegal entries. After that, the shortage might drop, optimistically, to 490,000 or so.

A final consideration is the time-constraints for these workers. These low-skilled visas are good for three years and only can be renewed once. After that, all must leave. But the incentives to overstay are huge, particularly given the uncertainty of being able to secure another visa. We know that almost half of the unauthorized population did not cross the border illegally, but simply ignored visa time-constraints.

Therefore, if the Senate bill is serious about eliminating illegal immigration, it should implement two reasonable guest worker reforms:

1. Permit work renewals (assuming their employers remain eligible for a worker) indefinitely, but withhold a certain percentage of guest workers’ income to be returned upon departure—if they fail to return after losing employment, take a certain percentage each month they stay without working at a registered employer.
2. Include the level of illegal immigration into the “market-based” factors for increasing the quotas.

We already know that robust guest worker programs can dramatically reduce illegal immigration. The 1960s Bracero work visa program proved that beyond any doubt. It is good that in principle, the Gang of 8 recognizes this, but their proposal fails to meet their principle. Congress must amend this bill to head off another wave of illegal immigration.