The Commission calls for urgently needed reforms
to increase the efficiency and integrity of the naturalization
process
. .
Solemnly Solemnly Solemnly Solemnly Solemnly, fr
, fr
, fr
, fr
, freely eely eely eely eely, and
, and
, and
, and
, and
without any mental r
without any mental r
without any mental r
without any mental r
without any mental reservation, eservation, eservation,
eservation, eservation,
I, I, I, I, I, [name] [name] [name] [name] [name] her her her her hereby r
eby r
eby r
eby r
eby renounce under oath
enounce under oath
enounce under oath
enounce under oath
enounce under oath
[or upon af
[or upon af
[or upon af
[or upon af
[or upon affirmation] firmation] firmation] firmation] firmation]
all former political allegiances.
all former political allegiances.
all former political allegiances.
all former political allegiances.
all former political allegiances.
My sole political fidelity
My sole political fidelity
My sole political fidelity
My sole political fidelity
My sole political fidelity
and allegiance fr
and allegiance fr
and allegiance fr
and allegiance fr
and allegiance from this day forward
om this day forward
om this day forward
om this day forward
om this day forward
is to the United States of America.
is to the United States of America.
is to the United States of America.
is to the United States of America.
is to the United States of America.
I pledge to support and r
I pledge to support and r
I pledge to support and r
I pledge to support and r
I pledge to support and respect espect espect
espect espect
its Constitution and laws.
its Constitution and laws.
its Constitution and laws.
its Constitution and laws.
its Constitution and laws.
Wher Wher Wher Wher Where and if lawfully r
e and if lawfully r
e and if lawfully r
e and if lawfully r
e and if lawfully requir equir equir equir equired, ed, ed, ed, ed,
I further commit myself to defend them against all
I further commit myself to defend them against all
I further commit myself to defend them against all
I further commit myself to defend them against all
I further commit myself to defend them against all
enemies, for
enemies, for
enemies, for
enemies, for
enemies, foreign and domestic, either by military or
eign and domestic, either by military or
eign and domestic, either by military or
eign and domestic, either by military or
eign and domestic, either by military or
civilian service.
civilian service.
civilian service.
civilian service.
civilian service.
This I do solemnly swear [or af
This I do solemnly swear [or af
This I do solemnly swear [or af
This I do solemnly swear [or af
This I do solemnly swear [or affirm], firm], firm],
firm], firm],
So help me God.
So help me God.
So help me God.
So help me God.
So help me God. 4
The Commission calls for ur
The Commission calls for ur
The Commission calls for ur
The Commission calls for ur
The Commission calls for urgently needed r
gently needed r
gently needed r
gently needed r
gently needed reforms to incr
eforms to incr
eforms to incr
eforms to incr
eforms to increase the
ease the
ease the
ease the
ease the
ef ef ef ef efficiency and integrity of the naturalization pr
ficiency and integrity of the naturalization pr
ficiency and integrity of the naturalization pr
ficiency and integrity of the naturalization pr
ficiency and integrity of the naturalization process. ocess. ocess. ocess. ocess. The vast
majority of applicants for naturalization are lawabiding immigrants
who contribute to our society. The value of Americanization is
eroded whenever unnecessary obstacles prevent eligible immigrants
from becoming citizens. Its value also is undermined when the
4 As is the case under current regulations, when applicants, by reason of
religious training and belief or for other reasons of good conscience,
cannot swear an oath, they may substitute "solemnly affirm" and delete
"so help me God."
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
52
process permits the abuse of our laws by naturalizing applicants
who are not entitled to citizenship. For the process of Americaniza
tion to succeed, it must provide fair and timely service to legal
residents applying for citizenship. It must also earn the trust and
confidence of the general public.
In August 1995, the INS launched an initiative to address many of
the most serious impediments to naturalization, including a backlog
in excess of 300,000 persons and processing times that in larger
cities approached four years. Consequently, the Service hired more
than 1,000 new personnel, opened several additional branch offices,
and established direct mail centers.
While these new resources resulted in record numbers of naturaliza
tions, improprieties in granting citizenship to criminal aliens and
fraud in the testing process undermined the goals of the program.
It is fair to conclude that the new program revealed many of the
structural and managerial weaknesses of the overall naturalization
process. Subsequent Congressional hearings and independent in
vestigations demonstrate that many of the most serious problems
preceded the new initiative and were exacerbated by the increasing
number of applications.
The Department of Justice [DOJ] has launched a variety of new
initiatives to reengineer naturalization. DOJ named a Director for
Naturalization Operations charged with overseeing management and
reform of the naturalization program, including quality assurance
and field operations. DOJ also contracted with Coopers and Lybrand
to conduct a twoyear review of the implementation and adminis
tration of the INS naturalization program.
Recognizing steps already are underway to reengineer the natural
ization process, the Commission supports the following approaches:
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
53
n Instituting ef
Instituting ef
Instituting ef
Instituting ef
Instituting efficiencies without sacrificing quality controls.
ficiencies without sacrificing quality controls.
ficiencies without sacrificing quality controls.
ficiencies without sacrificing quality controls.
ficiencies without sacrificing quality controls.
In the Commission's 1995 report to Congress, we recom
mended that the Immigration and Naturalization Service
and the Congress take steps to expedite the processing of
naturalization applications while maintaining rigorous stan
dards. Two years later, the naturalization process still takes
too long, and previous efforts to expedite processing re
sulted in serious violation of the integrity of the system.
Because of failures in processing that resulted in the natural
ization of ineligible applicants, new procedures subsequently
were adopted to reduce inadvertent naturalization of crimi
nal aliens. These new procedures, while not foolproof in
barring criminals from naturalizing, have led to processing
delays. At the same time, adequate staffing remains a prob
lem. Congress has authorized reprogramming of funds to
hire additional staff, but the Committees permitted tempo
rary hires for most of the new positions even though the
number of applications remain large. An entirely temporary
workforce with short contracts lends instability to a process
that already has problems. Instituting a system that has
sufficient continuity of personnel and that is both credible
and efficient therefore remains a pressing need.
n Improving the integrity and processing of fingerprints.
Improving the integrity and processing of fingerprints.
Improving the integrity and processing of fingerprints.
Improving the integrity and processing of fingerprints.
Improving the integrity and processing of fingerprints. Be
fore applicants for naturalization can receive citizenship, they
must submit fingerprints for FBI review to determine if the
applicants have any disqualifying criminal background.
Problems that delay thousands of applications have been
identified in the operation of private agencies taking the
fingerprints of applicants for citizenship. These problems
include smudged prints and failure of applicants to sign or
properly complete forms. Further, no mechanism now ex
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
54
ists to verify accurately that the individual submitting the
prints is the person whose prints are on the application.
To improve this process, the INS placed restrictions on who
may qualify to offer fingerprint services. INS now accepts
only fingerprints provided by Designated Fingerprint Ser
vices [DFS] trained and authorized by INS. These include
local law enforcement agencies, nonprofit agencies, and fin
gerprint convenience stores. These restrictions may improve
the quality of the prints, but do nothing to ensure that
fingerprint services consistently and competently verify the
identity of individuals whose prints are submitted. While
law enforcement agencies have a vested interest in preserv
ing the quality of fingerprints, they have heavy workloads
and do not always give high priority to naturalization re
quests. Nonprofit, communitybased organizations appear
to take clear fingerprints, but there are questions about their
competence to assess the validity of identity documents.
The Commission believes than only service providers under
direct control of the federal government should be autho
rized to take fingerprints. If the federal government does
not take fingerprints itself but instead contracts with service
providers, it must screen and monitor such providers rigor
ously for their capacity, capability, and integrity. Failure to
meet standards would result in termination of the contract.
n Contracting with a single English and civics testing ser
Contracting with a single English and civics testing ser
Contracting with a single English and civics testing ser
Contracting with a single English and civics testing ser
Contracting with a single English and civics testing ser
vice.
vice. vice.
vice. vice. The Commission urges a fundamental restructuring of
the policies and procedures with which private agencies test
naturalization applicants for their knowledge of English and
civics.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
55
A 1991 regulation authorized the INS to recognize the re
sults of private forprofit and nonprofit testing services. The
rationale was that private testing of civics and English would
help to adjudicate citizenship applicants more expeditiously.
By 1994, six organizations had been authorized by the INS
to administer the citizenship exam.
Congressional hearings during the fall of 1996 revealed dis
turbing weaknesses in the use of private testers that under
mined the integrity of the citizenship test. In response to
reports that private, forprofit testing services were engag
ing in price gouging, cheating, and fraud, INS investigated
three sites. In April and May of 1996, INS made some
changes to improve testing site oversight Local INS offices
were directed to conduct unannounced inspections of citi
zenshiptesting affiliate locations if the office did not already
have an inspection plan in place. The congressional hear
ings revealed that private testers continued to be inadequately
supervised or disciplined by either INS or their parent com
pany.
The Commission recommends that the federal government
contract with one national and respected testing service to
develop and give the English and civics tests to naturaliza
tion applicants. Having one organization under contract
should help the government substantially improve its over
sight. Moreover, continuity with a highlyrespected and
nationallyrecognized testing service will help ensure a high
quality product.
n Increasing professionalism
Increasing professionalism
Increasing professionalism
Increasing professionalism
Increasing professionalism. While many naturalization staff
are highly professional in carrying out their duties, reports
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
56
from district offices, congressional hearings, and complaints
from naturalization applicants demonstrate continued dis
satisfaction with the quality of naturalization services. The
Commission believes that a culture of customeroriented
service must be developed.
Recent audits point to very high levels of noncompliance
with established practices and excessive error rates even in
such basic tasks as filling in the proper names and identify
ing numbers on forms. Mistakes pose two serious problems
for the naturalization process. First, legitimate applicants
for naturalization face unnecessary delays while clerical and
other mistakes are corrected. Second, ineligible applicants,
including felons, may be able to obtain citizenship through
administrative error. While INS must pursue denaturaliza
tion of such improperly naturalized citizens vigorously within
legal limits, it is difficult to reverse grants of citizenship
once made. Recruitment and training of longerterm staff
assigned to adjudicating applications and overseeing qual
ity control would help overcome some of these problems.
n Improving automation.
Improving automation.
Improving automation.
Improving automation.
Improving automation. According to the INS, the number
of naturalization applicants projected for fiscal year 1997
and each of the following few years will exceed 1.8 million.
As more and more immigrants apply for naturalization and
choose to become part of the American polity, there is a
greater need for efficient and accurate recordkeeping. Cur
rent systems are inadequate to meet such a demand for
service. Both the INS and FBI rely on paper rather than
electronic files, which is inefficient and subject to permanent
loss or misplacement of documents. The inability of INS to
provide accurate data on the number of recentlynaturalized
citizens who had undergone full background investigations
is a particularly glaring example of the present system's
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
57
vulnerabilities. The costs to applicants and to INS credibil
ity are significant. The Commission is encouraged by plans
to develop linkages among data sources related to natural
ization. The Commission recommends continued funding
for an uptodate, advanced, electronic automation system
for information entry and recordkeeping.
n Establishing clear fee and other waiver guidelines and
Establishing clear fee and other waiver guidelines and
Establishing clear fee and other waiver guidelines and
Establishing clear fee and other waiver guidelines and
Establishing clear fee and other waiver guidelines and
implementing them consistently
implementing them consistently
implementing them consistently
implementing them consistently
implementing them consistently . . . . . Under current law, the
Attorney General is authorized to grant fee waivers to natu
ralization applicants. The Commission has received accounts
of legitimate requests being denied. The prospective in
crease in naturalization fees may precipitate more fee waiver
requests or perhaps discourage applicants. Clear guidelines
and consistent implementation are needed to ensure that
bona fide requests are granted, while guarding against abuse.
The 1994 Immigration and Nationality Technical Corrections
Act provided exceptions to the English proficiency and civ
ics requirements for naturalization for persons with physi
cal or developmental disabilities or with mental impairments.
After extensive consideration and opportunities for public
comment, the INS published its final rule in March 1997.
The new rule emphasizes medically determinable standards
that promote integrity and fairness. Further, the new rule
does not confer a blanket exemption. Hence, judging whether
an applicant's disability would bestow a disability waiver is
inherently complex.
The Commission believes that rigorous and equitable inter
pretation of the new rule will require that adjudicators are
properly trained. Further, implementation must be strictly
monitored to ensure that exceptions allowed by law are made
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
58
available to otherwise qualified legal residents. Finally, to
ensure that the qualifications and procedures are understood
and adhered to, the Commission recommends a thorough
public education effort.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
59
A CREDIBLE FRAMEWORK
FOR IMMIGRATION POLICY
In our previous reports, the Commission defined a credible immi
gration 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,
the U.S. has made substantial, but incomplete, progress. What fol
lows are the Commission's recommendations for comprehensive re
form to achieve more fully a credible framework for immigration
policy.
LEGAL PERMANENT ADMISSIONS
The Commission reiterates its support for a properlyregulated system for
system for
system for
system for
system for
admitting legal permanent r
admitting legal permanent r
admitting legal permanent r
admitting legal permanent r
admitting legal permanent residents. esidents. esidents. esidents. esidents. 1 1 1 1 1 Research and analyses con
ducted since the issuance of the Commission's report on legal im
migration support our view that a properly regulated system of
legal permanent admissions serves the national interest. We reiter
ate that such a system enhances the national benefits while protect
ing against potential harms.
This position is supported by a recent report we commissioned from
the National Research Council on the impacts of immigration. 2 The
panel concluded that "immigration produces net economic gains for
domestic residents" in the form of increased productivity and re
duced consumer prices. The benefits go well beyond economic
ones, however. The panel also identified social and cultural gains
The Commission
The Commission
The Commission
The Commission
The Commission
reiterates its support
reiterates its support
reiterates its support
reiterates its support
reiterates its support
for a properly
for a properly
for a properly
for a properly
for a properly
regulated regulated regulated regulated regulated
system for
system for
system for
system for
system for
admitting legal
admitting legal
admitting legal
admitting legal
admitting legal
permanent permanent permanent permanent permanent
residents. residents. residents. residents. residents.
1 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.
2 National Research Council. (J.P. Smith, B. Edmonston, eds.). 1997. The
New Americans: Economic, Demographic, and Fiscal Effects of Immigration.
Washington, DC: National Academy Press. 62.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
60
resulting from immigration, particularly through the entry of highly
talented immigrants who choose to live and contribute to the United
States. The report continues: "Even when the economy as a whole
gains, however, there may be losers as well as gainers among dif
ferent groups of U.S. residents." The principal "gainers" are the
immigrants themselves, owners of capital, higherskilled workers
who are complements to most immigrants (who are themselves
lowerskilled) and consumers. The principal "losers" are the low
skilled workers who compete with immigrants and whose wages
fall as a result. On a fiscal basis, the panel found nationallevel net
contributions of tax revenues resulting from immigration, but the
panel also identified significant net fiscal costs to the taxpayers of
states with large number of immigrants. These high fiscal impacts
are due, particularly, to the presence of sizeable numbers of lesser
skilled immigrants whose tax payments, even over a lifetime, are
insufficient to cover their use of services.
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 pov
erty. More specifically, the Commission reiterates its support for:
n A significant redefinition of priorities and reallocation of
A significant redefinition of priorities and reallocation of
A significant redefinition of priorities and reallocation of
A significant redefinition of priorities and reallocation of
A significant redefinition of priorities and reallocation of
existing admission numbers to fulfill more ef
existing admission numbers to fulfill more ef
existing admission numbers to fulfill more ef
existing admission numbers to fulfill more ef
existing admission numbers to fulfill more effectively the
fectively the
fectively the
fectively the
fectively the
objectives of our immigration policy
objectives of our immigration policy
objectives of our immigration policy
objectives of our immigration policy
objectives of our immigration policy. . .
. . The Commission's
more specific recommendations on priorities and procedures
for admission stem not only from the above analysis of the
effects of immigration but also from our review of the work
ings of the admission system. We argued in our 1995 report
that the current framework for legal immigration - family,
skills, and humanitarian admissions - makes sense. How
ever, the statutory and regulatory priorities and procedures
for admissions do not support the stated intentions of legal
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
61
L E G A L I M M I G R A T I O N
Spouses & Minor
Children of U.S.
Citizens1st priority
Parents of U.S.
Citizens2nd priority
Spouses & Minor
Children of Legal
Immigrants3rd priority
NUCLEAR
FAMILY
ADMISSIONS
SKILL
BASED
ADMISSIONS
REFUGEE &
HUMANITARIAN
ADMISSIONS
Exempt
from
Labor
Market
Test
n Aliens with
Extraordinary
Ability,
n Multinational
Executives &
Managers,
n Entrepreneurs,
n Ministers and
Religious
Workers
Labor
Market
Tested
n Professionals
with Advanced
Degrees,
n Professionals
with
Baccalaureate
Degrees,
n Skilled
Workers
Proposed Tripartite Immigration System
Refugees Asylees
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
62
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 as is dis
cussed below.
We believe 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 admissions
away from extended family and toward nuclear family and
away from unskilled and toward higher skilled immigrants.
Thereafter, modest reductions in levels of immigration - to
about 550,000 per year, comparable to those of the 1980s -
will result from the changing 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. It also should consider the eco
nomic and other domestic needs and capacities of the United
States to absorb newcomers.
n Familybased admissions that give priority to nuclear fam
Familybased admissions that give priority to nuclear fam
Familybased admissions that give priority to nuclear fam
Familybased admissions that give priority to nuclear fam
Familybased admissions that give priority to nuclear fam
ily members - spouses and minor children of U.S. citi
ily members - spouses and minor children of U.S. citi
ily members - spouses and minor children of U.S. citi
ily members - spouses and minor children of U.S. citi
ily members - spouses and minor children of U.S. citi
zens, parents of U.S. citizens, and spouses and minor
zens, parents of U.S. citizens, and spouses and minor
zens, parents of U.S. citizens, and spouses and minor
zens, parents of U.S. citizens, and spouses and minor
zens, parents of U.S. citizens, and spouses and minor
children of legal permanent residents - and include a back
children of legal permanent residents - and include a back
children of legal permanent residents - and include a back
children of legal permanent residents - and include a back
children of legal permanent residents - and include a back
log clearance program to permit the most expeditious en
log clearance program to permit the most expeditious en
log clearance program to permit the most expeditious en
log clearance program to permit the most expeditious en
log clearance program to permit the most expeditious en
try of the spouses and minor children of LPRs.
try of the spouses and minor children of LPRs.
try of the spouses and minor children of LPRs.
try of the spouses and minor children of LPRs.
try 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
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
63
of spouses and minor children is cleared. The backlog, which
numbers more than 1 million persons, consists of the nuclear
family members of legal immigrants who married after the
U.S. spouse became a permanent resident, as well as spouses
and minor children of aliens legalized under IRCA (most of
whom are now eligible to naturalize). 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 chil
dren of citizens and LPRs to enter expeditiously.
Since the Commission first reported its findings on legal
admissions, the problems associated with familybased ad
missions have grown. In 1995, the wait between application
and admission of the spouses and minor children of LPRs
was about three years. It is now more than four years and
still growing. 3
Various statutory changes enacted 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 ex
panded the bases and number of grounds upon which per
sons may be denied legal status because of a previous illegal
entry or overstay of a visa. Most important, a person un
3 It appears that the priority date (i.e., the cutoff date by which an
approved petition must have been filed) has moved forward as much as
it has only because of delays in processing applications for adjustment
of status within the United States. When it became clear that INS could
not keep up with the adjustment backlog, the Department of State moved
up the priority date to continue processing visas overseas. As many of
the adjustment applications are still to be processed, it is likely that there
will be very little movement on the priority date during the next several
months.
2
3
4
5
1.01.52.0
NUMBER
OF
YEARS
Waiting Time for
Spouses and
Minor Children of
LPRs (FB2A)
Source: DOS Visa Office
Visa Bulletin (19921997).
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
64
lawfully present for more than six months will be inadmis
sible for three years, and those unlawfully present for more
than one year will be inadmissible for ten years. 4 If Con
gress decides not to renew the provision [known as Section
245(i)] that permits these individuals to adjust status within
the United States, they will be unable to become legal immi
grants even if they meet all other admission criteria.
An unknown, but believed to be large, number of spouses
and minor children 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 fourormoreyear waiting
period for a family secondpreference visa. U.S. immigra
tion policy should not force legal immigrants to choose
between family responsibilities and vows and their contin
ued presence in the United States. The Commission believes
no spouse or minor child should have to wait more than
one year to be reunited with their U.S. petitioner.
The Commission is also concerned with the impact on nuclear
family reunification of the provisions adopted in the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 [IIRIRA] to address perceived abuses in the use of
parole. We agree that parole should be used only in excep
tional circumstances and that Congress should be involved
more directly in decisions to parole large numbers of indi
viduals for permanent residence. We further recognize the
validity of efforts to count longterm parolees against world
wide numerical ceilings. However, we do not agree with
4 IIRIRA permits the Attorney General to provide a waiver for spouses
and minor children if there is an extreme hardship to the U.S. petitioner.
Although standards have not been set for implementing this provision,
mere separation from family members generally has not counted as an
"extreme hardship" in applying other provisions where extreme hardship
is a ground for relief.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
65
the IIRIRA provisions that count parolees against family
based admission numbers. Moreover, the language of IIRIRA
requires the counting of those admitted with the intention
that they reside permanently and those who are paroled for
short stays but who are not known to have left one year
later. For the first time in U.S. law, persons illegally in the
U.S. would be counted against legal admission ceilings. This
creates a conflict between policies. Moreover, inadequacies
in current entryexit controls mean that some parolees who
leave the country will be determined to have remained and
will also be counted against the legal admissions ceiling.
Because the parole numbers are deducted from the family
preferences, the new provisions hold the potential for delay
ing still further the already unacceptable delays in admis
sion of nuclear family members.
The Commission believes that the national interest in the
entry of nuclear family members outweighs that of more
extended family members. We recognize that others dis
agree; they argue that the bonds to adult children and adult
siblings can be as strong as the bond between spouses and
with minor children. They also point to the valuable assis
tance provided by many extended families in setting up and
running businesses and providing child care and other sup
portive services. Whatever the cultural and economic val
ues attached to each family relationship, however, the far
stronger responsibilities to one's spouse and minor children
are well established in the U.S. We continue to believe that
our family reunification system will remain seriously flawed
until the spouses and minor children of LPRs are treated as
a priority.
An end to extended visa categories is justified even apart
from the large nuclear family backlog. The Commission
pointed out in its 1995 report that the extraordinarily large
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
66
waiting list for siblings of U.S. citizens, and to a lesser ex
tent, adult children undermines the integrity of the legal
immigration system.
The backlog for siblings of adult U.S. citizens has stabilized
during the past two years, but at a very large level. In
January, 1995, there were 1.6 million on the waiting list; as
of January 1997, the waiting list was 1.5 million. Except for
oversubscribed countries, siblings who applied ten years ago
are now eligible to enter. Admissions from the Philippines
are of those who applied almost twenty years ago. These
extended waiting periods mean that most siblings enter well
into their working lives, limiting the time during which they
can make a contribution to the U.S. economy. More than
onehalf of all the siblings and their spouses admitted in FY
1996 were above the age of 45. In other immigration catego
ries, most principals are in their twenties or thirties.
The backlog for adult children is growing. In January 1995,
there were about 70,000 unmarried sons and daughters of
citizens, 500,000 unmarried sons and daughters of LPRs,
and 260,000 married sons and daughters of citizens in the
backlog. As of January 1997, the unmarried backlog had
grown to more than 90,000 and 575,000, respectively, and
the married children backlog is more than 310,000.
A particular concern is the "aging out" of children who were
minors at the time of application, but who turned 21 years of
age while awaiting their green cards. The Commission pro
posed in our 1995 report that the Immigration and National
ity Act [INA] be amended so that "a person entitled to status
at the time a petition is approved shall continue to be entitled
to that status regardless of his or her age."
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
67
n Skillbased admissions policies that enhance opportuni
Skillbased admissions policies that enhance opportuni
Skillbased admissions policies that enhance opportuni
Skillbased admissions policies that enhance opportuni
Skillbased admissions policies that enhance opportuni
ties for the entry of highlyskilled immigrants, particu
ties for the entry of highlyskilled immigrants, particu
ties for the entry of highlyskilled immigrants, particu
ties for the entry of highlyskilled immigrants, particu
ties for the entry of highlyskilled immigrants, particu
larly those with advanced degrees, and eliminate the cat
larly those with advanced degrees, and eliminate the cat
larly those with advanced degrees, and eliminate the cat
larly those with advanced degrees, and eliminate the cat
larly those with advanced degrees, and eliminate the cat
egory for
egory for
egory for
egory for
egory for admission of unskilled workers
admission of unskilled workers
admission of unskilled workers
admission of unskilled workers
admission of unskilled workers. . .
. . The Commis
sion 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 eco
nomic contributions they can make. The reunification of
adult children and siblings of adult citizens solely because
of family relationship is not as compelling.
A number of the NRC report's findings argue for increasing
the proportion of immigrants who are highlyskilled and
educated so as to maximize fiscal contributions, minimize
fiscal impacts, and protect the economic opportunities of
unskilled U.S. workers. The NRC research shows that edu
cation 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 substi
tutes. Further, the difference in estimated fiscal effects of
immigrants by education is striking: using the same meth
odology to estimate net costs and benefits, immigrants with
a high school education or more are likely to be net con
tributors while those without a high school degree are likely
to be net costs to taxpayers.
Shifting priorities to higher skilled employmentbased im
migrants will have a beneficial multiplier effect. The highly
skilled are, in effect, new seed immigrants who will petition
for admission of their family members. The educational
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
68
level of the spouses and children of highlyeducated per
sons tends to be in the same range. Hence, our society
benefits not only from the entry of highlyskilled immigrants
themselves, but also from the entry of their family.
The Commission's framework for legal skillbased admis
sions includes two broad categories. The first category would
cover individuals who are exempt from labor market tests
because their entry will generate economic growth and/or
significantly enhance U.S. intellectual and cultural strength
without undermining the employment prospects and remu
neration of U.S. workers: aliens with extraordinary ability,
multinational executives and managers, entrepreneurs, and
ministers and religious workers. The second category cov
ers individuals subject to labor market tests, including pro
fessionals with advanced degrees, professionals with bacca
laureate degrees, and skilled workers with specialized work
experience.
In our 1995 report, the Commission recommended alloca
tion of 100,000 admission slots to skillbased immigrants.
That number represented an increase of about 10 percent
over actual usage of these visas, but a decline from the
statutory ceiling of 130,000 admission numbers (i.e., 140,000
minus the 10,000 allocated to lesser skilled workers). We
further recommended that unused skillbased admissions
carry over to the following year's skillbased admissions.
The trend in admission of skillbased immigrants supports
our 1995 recommendations, but also indicates the great need
to monitor and revise admission numbers as needed. In FY
1995, 85,000 employmentbased immigrants were admitted,
including 7,900 unskilled workers. This number was artifi
cially low, however, because of INS delays in adjudicating
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
69
applications for adjustment of status. In FY 1996, admis
sions totaled 117,000, including 12,000 unskilled workers.
The 100,000 skilled admission numbers recommended by
the Commission would have been sufficient to cover the
period 19941996 (with the carryover provision). However,
if the FY 1996 spike turns out to be real (rather than an
artifact of the adjustment of status delays of FY 1995), the
number of employmentbased visas may need to be revised.
The Commission also continues to recommend changes in
the procedures used in testing the labor market impact of
employmentbased admissions. Rather than use the lengthy,
costly, and ineffectual labor certification system, the Com
mission recommends using market forces as a labor market
test. To ensure a level playing field for U.S. workers, em
ployers would attest to having used normal company r e
cruiting procedures that meet industrywide standards, pay
ing the prevailing wage, and complying with other labor
standards. Businesses recruiting foreign workers also would
be required to make significant financial investments in cer
tified private sector initiatives dedicated to improving the
competitiveness of U.S. workers. These payments should
be set at a perworker amount sufficient to ensure there is
no financial incentive to hire a foreign worker over a quali
fied U.S. worker. Labor certification continues to be a time
consuming, unproductive way to protect U.S. workers from
unfair competition from immigrant workers. The Depart
ment of Labor has tried to institute reforms that have stream
lined the process for certain applications. The result, how
ever, has been to slow down even further other applications
that do not meet the streamlining requirements.
n Refugee admissions based on human rights and
Refugee admissions based on human rights and
Refugee admissions based on human rights and
Refugee admissions based on human rights and
Refugee admissions based on human rights and humani
humani humani
humani humani
tarian considerations, as one of several elements of
tarian considerations, as one of several elements of
tarian considerations, as one of several elements of
tarian considerations, as one of several elements of
tarian considerations, as one of several elements of U.S.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
70
5 For a full explanation of the Commission's refugeerelated
recommendations, see U.S. Refugee Policy: Taking Leadership, 1997.
leadership in assisting and protecting the world's perse perse perse perse perse
cuted
cuted cuted
cuted cuted. . . . . 5 Since its very beginnings, the United States has been
a place of refuge. Today, when millions of refugees are
displaced because of persecution, human rights violations,
or warfare, U.S. leadership in responding to refugee crises
is critical. 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.
Admissions to the U.S. should be seen within the context of
broader U.S. interests in protecting and assisting refugees
worldwide. The Commission believes a comprehensive U.S.
refugee policy should be coordinated by an office within the
National Security Council [NSC] to serve as the White House
focal point for domestic and international refugee and re
lated humanitarian issues: to care for and protect refugees
overseas; to resettle the few for whom U.S. resettlement is
the only or best option and provide sensible transitional
assistance to them; to operate an effective system for pro
tecting bona fide asylum seekers in the U.S. while deterring
those who are not; and to adopt a humane and effective
plan to respond to mass migration emergencies.
The admission of refugees should be divided into two broad
priority groups with numbers allocated accordingly. The
first priority would be for refugees who are in urgent need
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
71
of rescue and refugees who are the immediate relatives of
persons already living legally in the United States. The
second priority would include refugees whose admission is
of special humanitarian interest to the United States but
who are not in imminent danger where they currently re
side. Admission numbers would be sufficient each year to
guarantee entry to all bona fide applicants within the first
priority and an agreedupon number for the second priority
Family members and close household members who are
dependent on the principal applicant for financial or physi
cal security should also be included among admissions within
this priority system.
The United States should set annual numerical targets - but
not a statutory limit - for future refugee admissions. The
Commission recommends an improved consultation process
that will help ensure that admission numbers and alloca
tions meet U.S. national and international interests. The
annual consultations should be strengthened by considering
projections of admission levels and priorities for at least two
years beyond the fiscal year under immediate consideration.
Input should be solicited from a wide range of human rights
and humanitarian organizations with knowledge of condi
tions precipitating the need for resettlement.
The United States also should use an active, inclusive pro
cess for identifying and making decisions regarding the
admissibility of applicants for resettlement, conferring with
a broad set of agencies in identifying possible candidates for
resettlement. The U.S. government should confer with a
broader set of agencies in identifying possible candidates
for resettlement, including international and local human
rights organizations, relief agencies providing assistance to
refugees, and host governments.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
72
The Commission further believes changes are needed to make
the administrative processes for admission more flexible
and streamlined in determinations of eligibility in order to
respond quickly to refugee crises. Also, refugees should be
admitted with LPR status except in cases where there has
been inadequate opportunity prior to admission for the
admitting officer to thoroughly review the case(s).
The Commission supports a continuing program of assis
tance to refugees after entry. The current array of assistance
and services that characterize the resettlement program
should be maintained, but with increased attention to ser
vices that prepare refugees for rapid economic selfsuffi
ciency and civic participation. In addition, the federal, state,
and local agencies involved in resettlement should develop
a national plan for streamlining the program to address the
complexity of the funding process and reporting require
ments, the overlap of programs and responsibilities, and the
lack of clear accountability for the outcomes of the program.
The current public/private partnership in the domestic re
settlement program should be continued, but for a three
year trial period their division of responsibility should be
more explicit, with (1) the public sector assuming responsi
bility for refugees eligible for the publicly funded public
assistance programs and (2) the private sector being respon
sible for a limited duration program for refugees not eligible
for the mainstream public programs.
The mechanisms by which the refugee program is funded
should be strengthened through changes to the Refugee Act:
(1) to specify a minimum time period of special refugee cash
and medical assistance provided to refugees not eligible for
Temporary Assistance for Needy Families [TANF] or Supple
mental Security Income [SSI]; (2) to permit the appropria
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
73
tion of "no year" money for the cash and medical assistance
portion of the Office of Refugee Resettlement [ORR] budget;
(3) to broaden the consultation process to ensure greater
consistency between admission decisions and appropriation
of funds to support refugee assistance and services; and (4)
to establish a domestic emergency fund.
The Commission continues to r
The Commission continues to r
The Commission continues to r
The Commission continues to r
The Commission continues to recommend against denying benefits
ecommend against denying benefits
ecommend against denying benefits
ecommend against denying benefits
ecommend against denying benefits
to legal immigrants solely because they ar
to legal immigrants solely because they ar
to legal immigrants solely because they ar
to legal immigrants solely because they ar
to legal immigrants solely because they are noncitizens.
e noncitizens.
e noncitizens.
e noncitizens.
e noncitizens. The Com
mission believes that the denial of safety net programs to immi
grants solely because they are noncitizens is not in the national
interest. In previous 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 responsibil
ity for newlyarriving 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 rela
tionship or a timespecified period. We continue to believe that this
targeted approach makes greater sense than a blanket denial of eli
gibility for public services solely on the basis of a person's alienage.
Basing eligibility for assistance on citizenship debases citizenship.
We encourage immigrants to become citizens in order to participate
fully in the civic life of the country. We do not want immigrants to
become citizens solely because the alternative is the serious eco
nomic hardship that may result if benefits are lost or unavailable. In
some cases, categorical denial of eligibility to legal aliens under
mines the very purpose of our immigration policy. For example, the
United States admits refugees, as noted above, to provide protection
against the dangerous situations they encounter in their home coun
The Commission
The Commission
The Commission
The Commission
The Commission
continues to
continues to
continues to
continues to
continues to
recommend recommend recommend recommend recommend
against denying
against denying
against denying
against denying
against denying
benefits to
benefits to
benefits to
benefits to
benefits to
legal immigrants
legal immigrants
legal immigrants
legal immigrants
legal immigrants
solely because
solely because
solely because
solely because
solely because
they are
they are
they are
they are
they are
noncitizens.
noncitizens. noncitizens.
noncitizens. noncitizens.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
74
tries and firstasylum countries. Some of the most vulnerable refu
gees requiring such protection are the elderly and disabled who will
have the greatest difficulty meeting our naturalization standards.
This is not to deny that elderly and disabled immigrants pose a cost
to U.S. taxpayers. The NRC report confirms this fact. By contrast,
however, immigrants who come during their prime working years
generally do not pose a net cost to the taxpayer over their lifetime.
Most of the fiscal impact related to the presence of immigrants
comes in the area of education, which can be seen as both a cost and
an investment as education has longterm benefits to the United
States both in a more skilled workforce and in higher income and
resulting tax payments.
The Congress did not accept the Commission's recommendations to
preserve the safety net. Some eligibility for elderly and disabled
immigrants receiving Supplementary Security Income lost as of the
enactment of the welfare reform legislation has been restored as a
result of budget negotiations. Eligibility for food stamps and other
programs designed for the working poor were not restored, how
ever. And, future immigrants will be ineligible for SSI even if they
become disabled after entry and have no other means of support.
The Congress did adopt, but in a modified version, the Commission's
recommendation for binding affidavits of support. The 1996 legis
lation framed the requirement in two ways that differ from the
Commission's recommendations. First, the legallybinding affida
vit, with its more rigorous requirements regarding the income of
sponsors, applies to some persons who are not likely to be public
charges but not to others who are likely to require assistance. The
affidavits apply to all familybased immigrants, not just to those
who are likely to be public charges. By contrast, the new affidavit
will not be used for other admission categories (for example, diver
sity immigrants) even if an immigrant is likely to be a public charge.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
75
Second, under the new legislation, the same time periods and re
quirements apply to everyone who signs an affidavit. The affidavits
are in force until the immigrant works forty quarters or becomes a
U.S. citizen. The Commission believes the period of responsibility
should be geared instead to the family relationship and likely period
during which the immigrant may require assistance. For example,
the sponsors of an elderly parent would be required to assume a
longer (even an indefinite) period of support if the parent is of an
age that makes it unlikely that he or she would become selfsupport
ing. The responsibility for a spouse, however, would be for a time
limited period or for the duration of the marriage, whichever is
longer. Under the new law, the responsibility of petitioners of
younger immigrants is so openended that it does not provide a
realistic or fair set of obligations. For example, if a U.S. citizen
marries a foreign student with a professional degree and a job offer,
the U.S. citizen must now take on a openended obligation to the
foreign student, an obligation that carries on even if the marriage
ends in divorce. If the immigrant spouse chooses not to work (and
therefore doesn't meet the forty quarters requirement) and not to
naturalize, the citizen remains responsible for his or her financial
support (at 125 percent of the poverty level) indefinitely. The law
has no "good cause" exception.
To conclude, the Commission's recommendations on legal admis
sions are as relevant today as they were in 1995. The Commission
urges the Congress to take the measures needed to reform our legal
immigration policies so it best serves the national interest in a well
regulated immigration system.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
76
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 shortterm visits for com
mercial or personal purposes, such as tourism or 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. The
term "nonimmigrants" is misleading as some LDAs entering the
United States are really in transition to permanent residence, and
other LDAs enter for temporary stays and become permanent resi
dents based on marriage or skills. 6
The benefits of a wellregulated system of LDAs are palpable. LDAs
represent a considerable boon to the U.S. economy. The tourism
and travel industry (domestic and international) is the second larg
est employer in the United States and generates 6 percent of the
nation's Gross Domestic Product [GDP]. International tourism pro
vides a net trade surplus (dollars international visitors spend here
minus dollars U.S. visitors spend outside the U.S.) of $18 billion.
Worldwide, the U.S. earned the most from international visitors -
more than $64 billion.
Foreign students and workers often enrich the cultural, social, and
scientific life of the United States. Our universities gain access to
many talented students worldwide, thus maintaining the global com
petitiveness of the U.S. system of higher education. Foreign stu
dents give U.S. students the opportunity to learn about foreign
6 Certain LDA categories, such as those for fiancé(e)s, intracompany
transferees, and specialty workers provide explicit bridges to permanent
immigration.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
77
Limited Duration Admissions
and Visa Issuances
Class of Admission
All classes*
Foreign government officials (& families) (A)
Temporary visitors for business and pleasure (B1, B2)
Transit aliens (C)
Treaty traders and investors (& families) (E)
Students (F1, M1)
Students' spouses/children (F2, M2)
Representatives (& families) to international organizations (G)
Temporary workers and trainees
Specialty occupations (H1B)
Performing services unavailable (H2)
Agricultural workers (H2A)
Unskilled workers (H2B)
Workers with extraordinary ability (O1, O2)
Internationally recognized athletes or entertainers (P1, P2, P3)
Exchange & religious workers (Q1, R1)
Spouses/children of temporary workers and trainees (H4, O3, P4, R2)
Exchange visitors (J1)
Spouses/children of exchange visitors (J2)
Intracompany transferees (L1)
Spouses/children of transferees (L2)
Sources: Admissions: U.S. Immigration and Naturalization Service statistical division. Visa Issuances: U.S.
Department of State. 1996. Report of the Visa Office, 1996. Washington, DC: DOS, Bureau of Consular
Affairs.
*Categories may not equal total because of omitted categories (e.g., fiancé(e)s of U.S. citizens,
overlapping Canadian FreeTrade Agreement professionals, unknown, NATO officials and profession
als, and foreign media).
Admissions
(Entries)
1996
24,842,503
118,157
22,880,270
325,538
138,568
426,903
32,485
79,528
227,440
144,458
23,980
9,635
14,345
9,289
33,633
11,048
53,572
215,475
41,250
140,457
73,305
Visa
Issuances
1996
6,237,870
78,078
4,947,899
186,556
29,909
247,432
21,518
30,258
81,531
58,327
23,204
11,004
12,200
4,359
23,885
5,946
38,496
171,164
33,068
32,098
37,617
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
78
societies and cultures and, on returning home - often to positions of
leadership - share their exposure to our democratic values, constitu
tional principles, and economic system. Foreign workers give em
ployers timely access to a global labor market when they cannot
identify or quickly train U.S. workers with knowledge and expertise
required for a specific job. These worker programs also help com
panies conducting business both in the U.S. and internationally to
reassign personnel as needed to maintain their competitiveness. As
economies become increasingly integrated, companies are attracting
more and more U.S. workers abroad as well.
Yet, LDAs pose problems for U.S. society under two principal cir
cumstances: when the aliens fail to depart at the end of their legal
stay; and when they present unfair competition to U.S. workers.
The first problem is an enforcement one. Although overstayers
represent a minute portion of the LDAs admitted each year, they are
a significant part of the illegal immigration problem. The Immigra
tion and Naturalization Service estimates that as many as 40 percent
of the illegal aliens currently in the country originally entered with
LDAs, many as shortterm visitors. An equally pressing problem is
the current inability to track the continued presence and where
abouts of many longerterm LDAs, particularly foreign students,
after their arrival in the United States. This lack of capacity to
monitor their presence exacerbates the problems of overstay and
other violations of their legal status.
The second issue arising in limited duration admissions relates to
the criteria for admission of foreign workers and the procedures
used to determine their impact on U.S. workers. A proper balance
must be struck in the LDA system between enhancing the produc
tivity and global competitiveness of the U.S. economy through ac
cess to foreign workers and protecting U.S. workers against unfair
competition.
The availability of foreign workers may create a dependency on
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
79
them. It has been welldocumented that reliance on foreign workers
in lowwage, lowskill occupations, such as farm work, creates dis
incentives for employers to improve pay and working conditions for
American workers. When employers fail to recruit domestically or
to pay wages that meet industrywide standards, the resulting de
pendence - even on professionals - may adversely affect both U.S.
workers in that occupation and U.S. companies that adhere to ap
propriate labor standards. For many of the foreign workers, even
wages and working conditions that are very poor by U.S. standards
are much better than those available at home. In a few egregious
cases, businesses have hired temporary foreign workers after laying
off their own domestic workforce.
The Immigration Act of 1990 imposed numerical limits on two em
ployment categories where such dependence was feared: H1B (spe
cialty workers) is capped at 65,000 per year, and H2B (unskilled
workers) is capped at 66,000 per year. While the H2B category is
far from its numerical limits, the statutory cap on annual H1B ad
missions was reached for the first time in FY 1997. INS announced
in August 1997 the formation of a waiting list because approved
workers would be ineligible to enter until the start of the next fiscal
year. If the trend in applications continues, the cap is likely to be
reached even earlier in FY 1998. Hence, employers petitioning late
in the year would be required to wait for the admission of approved
workers.
The current business users of the H1B tend to fall into two distinct
categories. One group of employers is clearly unlikely to become
dependent on foreign workers but potentially is adversely affected
by the numerical limits. These employers tend to hire relatively few
foreign workers (for example, measured as a proportion of their
overall workforce). Generally, they have identified specific foreign
workers whose specialized skills are needed. Often, the company
has done extensive recruitment in the United States and has been
unable to find qualified workers with the specific skills they seek.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
80
Because foreign workers represent a relatively small proportion of
their workforce, there is little risk that foreign hires will cause either
job displacement or wage depression for U.S. workers.
A second group of employers includes companies that make exten
sive use of H1B professionals (again, as measured by proportion of
their workforce). Sometimes, they seek approval in the same appli
cation for a large number of foreign workers who share minimal
professional qualifications. But even within this more dependent
group, there is variation in the risk posed by the importation of
foreign workers to U.S. workers. Some employers recruit domesti
cally or take other steps to employ U.S. workers, but they are unable
to find sufficient professionals to fill their needs. Other employers
recruit exclusively overseas and make no effort to employ qualified
U.S. workers. They may utilize the H1B workers in their own
operations or contract the foreign workers to other employers.
Under current law, the numerical limits, and now required waiting
time, pertain equally to the employer who has few foreign workers
and the employer who has only foreign workers. Similarly, the
same provisions apply to the employer who has recruited exten
sively within the United States and been unable to find a worker
with the needed specialized skills and to the employer who does no
domestic
recruitment.
The recommendations presented in this report seek to maximize the
potential benefits for the U.S. economy and society resulting from
the admission of LDAs while minimizing the potential negative
effects. They build on - and in some cases reinforce - the
Commission's previous recommendations for reforming the perma
nent legal immigration system. The overarching goal is to maintain
the advantages that accrue to American society from entry of LDAs
while protecting the legitimate interests of American workers and
businesses from unfair competition.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
81
Principles for a Properly
Regulated System
The Commission believes that LDA policy should rest on the follow
ing principles:
n Clear goals and priorities
Clear goals and priorities
Clear goals and priorities
Clear goals and priorities
Clear goals and priorities. LDA policy should clearly dif
ferentiate the goals of each set of visa categories, with pro
cedures that reflect the requirements of each type of visa
and subsequent admission. With more than forty different
LDA visas provided for under current law, as discussed
below, it is often difficult to identify how the goals of one
category differ from those of others.
n Systematic and comprehensible organization of LDA cat
Systematic and comprehensible organization of LDA cat
Systematic and comprehensible organization of LDA cat
Systematic and comprehensible organization of LDA cat
Systematic and comprehensible organization of LDA cat
egories
egories egories
egories egories. The statutory definitions, criteria, and procedures
for visas and admission have developed in an ad hoc fash
ion. There is now accumulation of more than forty different
LDA visas (subsumed under nineteen alphabetical headings),
including overlapping categories for students, workers, and
other visitors, as well as additional visas added to address
the concerns of specific interest groups. Simplification of
the system would enable businesses, educators, persons with
LDAs, government officials, and the general public to un
derstand more clearly the requirements for visa application
and admission and the responsibilities of the persons with
LDAs and their sponsors. Administration of the LDA sys
tem could be simplified, with attendant reduction in cost
and confusion.
n T
T T
T Timeliness, ef
imeliness, ef
imeliness, ef
imeliness, ef
imeliness, efficiency ficiency ficiency ficiency ficiency , and flexibility in implementation
, and flexibility in implementation
, and flexibility in implementation
, and flexibility in implementation
, and flexibility in implementation.
LDA policy should be implemented in a timely and efficient
way with sufficient flexibility in law and regulations to re
spond to such domestic considerations as changes in the
economy and our educational systems. Because of the time
limited nature of the stay, it is imperative that the system
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
82
allow admissions decisions to be made expeditiously while
retaining a capacity to identify unqualified or fraudulent
applications. Similarly, the provisions to protect U.S. work
ers must allow for timely and efficient mechanisms to inves
tigate complaints and impose appropriate sanctions. While
a good part of the LDA system now functions in a timely
way, the diffusion of responsibility in foreign worker catego
ries reduces the potential efficiency of that part of the sys
tem. The Commission's structural reform recommendations,
discussed below, will help address certain
inefficiencies.
n Compliance with conditions for entry and exit and
Compliance with conditions for entry and exit and
Compliance with conditions for entry and exit and
Compliance with conditions for entry and exit and
Compliance with conditions for entry and exit and ef ef ef ef effec fec fec fec fec
tive mechanisms to monitor and enforce this compliance.
tive mechanisms to monitor and enforce this compliance.
tive mechanisms to monitor and enforce this compliance.
tive mechanisms to monitor and enforce this compliance.
tive mechanisms to monitor and enforce this compliance.
The LDA system should be designed to allow for greater
compliance, monitoring, and enforcement. Policies should
specify clearly the conditions of entry and the penalties for
noncompliance. It is the responsibility of the government,
with the cooperation of the private sector where appropri
ate, to record, track, and report on those entering for limited
duration stays. Americans expect that aliens will respect
and observe the conditions of their temporary admission,
including departure at the end of their lawful stay, and that
they will be subject to government enforcement if they fail
to comply with the conditions of their admission or if they
overstay. Their sponsors (generally, businesses and schools)
also bear responsibility for complying with all relevant re
quirements. Penalties for noncompliance must be commen
surate with the offense. The current system does not yet
have exit controls in place. In sum, the LDA system should
meet a "truthinadvertising" test.
n Credible and realistic policies regarding transition from
Credible and realistic policies regarding transition from
Credible and realistic policies regarding transition from
Credible and realistic policies regarding transition from
Credible and realistic policies regarding transition from
LDA to permanent immigrant status.
LDA to permanent immigrant status.
LDA to permanent immigrant status.
LDA to permanent immigrant status.
LDA to permanent immigrant status. Realistic policies
should continue to differentiate between LDAs who will
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
83
remain only temporarily and those who become permanent.
For example, LDAs should continue to be able to transition
to immigrant status as expeditiously as possible if they enter
bona fide marriages with U.S. citizens or meet the justifiably
high education, skill standards, and prescribed labor market
tests of the permanent skillbased immigration categories.
n Protection of workers from unfair competition and of for
Protection of workers from unfair competition and of for
Protection of workers from unfair competition and of for
Protection of workers from unfair competition and of for
Protection of workers from unfair competition and of for
eign workers from exploitation and abuse
eign workers from exploitation and abuse
eign workers from exploitation and abuse
eign workers from exploitation and abuse
eign workers from exploitation and abuse. LDA worker
categories present special challenges in ensuring that U.S.
workers are protected from unfair competition while legiti
mate foreign workers are protected from exploitation. Any
system of LDA admissions must include protections for both
U.S. and foreign workers, protections that are commensu
rate with the risk of unfair competition or abuse that the
specific category presents. For example, lesserskilled work
ers (whether American or foreign) who are newly entering
the workforce and whose skills are easily replaced are gen
erally more vulnerable - both to displacement and exploita
tion - than are more highlyskilled, specialized workers.
Businesses that contract out their foreign workers to other
businesses pose a greater risk for labor market violations
because of the greater diffusion of employer responsibility.
Also, employees of firms whose workforces consist prima
rily of temporary foreign workers, particularly from low
wage countries, are more vulnerable to exploitation; these
foreign workers may be used to displace American workers
because of their fear that any complaint about wages and
working conditions might lead to deportation.
n Appropriate attention to limited duration admission
Appropriate attention to limited duration admission
Appropriate attention to limited duration admission
Appropriate attention to limited duration admission
Appropriate attention to limited duration admission poli poli poli poli poli
cies in trade negotiations
cies in trade negotiations
cies in trade negotiations
cies in trade negotiations
cies in trade negotiations. Important policy decisions on
admission of temporary workers occurred during negotia
tions on the North American Free Trade Agreement [NAFTA]
and the General Agreement on Trade in Services [GATS].
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
84
Some are concerned that these treaty obligations restrict the
capacity to reform our LDA policies by locking current
immigration law into place or establishing minimum require
ments to which changes in immigration law must adhere.
In the future, both the Administration, in negotiating trade
agreements, and the Congress, in passing enabling legisla
tion, should assess more carefully the longterm ramifica
tions of trade negotiations for immigration policy. The aim
should be to ensure that options for future immigration
reform are not unknowingly foreclosed.
The following recommendations aim at maximizing the potential
benefits accruing from admission of LDAs while minimizing the
potential harmful effects.
Framework
The Commission r
The Commission r
The Commission r
The Commission r
The Commission recommends a r
ecommends a r
ecommends a r
ecommends a r
ecommends a reor eor eor eor eorganization of the visa catego
ganization of the visa catego
ganization of the visa catego
ganization of the visa catego
ganization of the visa catego
ries for limited duration stays in the United States to make them
ries for limited duration stays in the United States to make them
ries for limited duration stays in the United States to make them
ries for limited duration stays in the United States to make them
ries for limited duration stays in the United States to make them
mor mor mor mor more coher
e coher
e coher
e coher
e coherent and understandable
ent and understandable
ent and understandable
ent and understandable
ent and understandable. The Commission recommends
that the current proliferation of visa categories be restructured into
five broad groups: official representatives; shortterm visitors; for
eign workers; students; and transitional family members. Subcat
7 The current system includes the J visa for cultural exchange, which is
used for a variety of purposes, ranging from shortterm 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 [FulbrightHays 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.
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends a
ecommends a
ecommends a
ecommends a
ecommends a
r r r r reor eor eor
eor eorganization of the
ganization of the
ganization of the
ganization of the
ganization of the
visa categories for
visa categories for
visa categories for
visa categories for
visa categories for
limited duration
limited duration
limited duration
limited duration
limited duration
stays in the United
stays in the United
stays in the United
stays in the United
stays in the United
States to make them
States to make them
States to make them
States to make them
States to make them
mor mor mor mor more coher
e coher
e coher
e coher
e coherent and
ent and
ent and
ent and
ent and
understandable. understandable. understandable. understandable. understandable.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
85
egories of these groups may be appropriate in some cases. This
reorganization reflects such shared characteristics of different visa
categories as entry for like reasons, similarity in testing for eligibil
ity, and similar duration of stay in the United States.
The definitions and objectives of the five limited duration admission
groups would be: 7
n Of
Of Of
Of Official representatives
ficial representatives
ficial representatives
ficial representatives
ficial 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 govern
ments or international organizations. The presence of offi
cial representatives in the United States is based on reci
procity; the United States expects similar treatment for its
own persons in similar capacities abroad. Under current
law, these individuals are admitted under the A and G vi
sas. For the most part, members of these groups are admit
ted to the United States for the duration of their status as
official representatives.
n Shortterm visitors
Shortterm visitors
Shortterm visitors
Shortterm visitors
Shortterm visitors come to the United States for commer
cial or personal purposes. In 1995 alone, an estimated 43.5
million inbound visitors from other countries spent $76 bil
lion on travel to and in the United States (on U.S. flag car
riers, lodging, food, gifts, and entertainment). 8 This sup
ports the U.S. national interest in encouraging tourism and
business exchange. The majority of shortterm visitors enter
the United States under the visa waiver program, which is
available for nationals of countries demonstrating little visa
8 The 43.5 million visitors include the admission entries of individuals
from countries where a visa or visa waiver is required as well as those
from Canada (no visa, visa waiver, or border crossing card required) and
Mexico (border crossing card required).
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
86
abuse. (For these nationalities, visas are required for all
other purposes). "Nonwaiver" nationalities must possess a
B visa for tourism or business, or a C visa for transit.
Some shortterm visitors also enter with the J visa if they are
sponsored by the U.S. Information Agency [USIA] or other
U.S. government agency. Shortterm visitors generally have
little or no effect on the U.S. labor market as they are se
verely limited in what they can do in the United States.
Under current law, waiver visitors are admitted for ninety
days, with no option for extension; visitors admitted with B
visas are normally authorized a sixmonth stay, with flex
ibility to apply for another six months. Those in transit with
C visas are given up to twentynine days' stay. The majority
of visitors by their own volition stay for very short periods.
This category also includes informants/witnesses (current S
classification) whose temporary entry is in the U.S. national
interest because their knowledge is needed for criminal pros
ecutions.
n Foreign workers
Foreign workers
Foreign workers
Foreign workers
Foreign workers are those who are coming to perform nec
essary services for prescribed periods of time, at the expira
tion of which they must either return to their home coun
tries or, if an employer or family member petitions success
fully, 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. Under current law, numerous types of foreign
workers are admissible under the D visa for crewmembers,
E visa for treaty traders and investors, H visa for "specialty
workers" and other temporary workers, I visa for foreign
journalists, L visa for intracompany transferees, O visa for
aliens of extraordinary ability, P visa for performers and
entertainers, Q visa for participants in cultural exchange
programs, and R visa for religious workers. In addition,
certain other workers enter under the TN provisions created
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
87
by NAFTA. There is a second, parallel system under which
other workers enter with J visas because they are sponsored
by an institution approved by the U.S. Information Agency
to engage in cultural exchange. Some of these J workers are
paid by their own governments or home institutions whereas
others receive compensation from the U.S. institutions and
businesses employing them. Also included as foreign work
ers are trainees, that is, individuals receiving onthejob train
ing by working in U.S. institutions. The present multiplicity
of LDA work categories could be rationalized and made to
parallel similar immigrant visa categories. [See below for
specific recommendations regarding foreign workers.]
n Students
Students Students
Students Students are persons who are in the United States for the
purpose of acquiring either academic or practical knowl
edge 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 stu
dents; 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 stu
dents and cultures. Students now enter under at least three
visa categories: F visa for academic students; J visa, also for
academic students (but generally including those whose
education is paid by their own government or the U.S. gov
ernment rather than themselves); and M visas for vocational
students.
n T
T T
T Transitional family members
ransitional family members
ransitional family members
ransitional family members
ransitional family members include fiancé(e)s of U.S. citi
zens. 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 tran
sitional family members should be added: spouses of U.S.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
88
citizens whose weddings occur overseas but who subse
quently come to the U.S. to reside. At present, a U.S. citizen
cannot petition for the admission of a spouse until after the
marriage. Months often pass before the foreign spouse can
come to the U.S. Under the Commission's plan, the newly
wed should be permitted to enter the U.S. under a transi
tional family visa and then complete the paperwork for le
gal permanent resident status.
ShortTerm Visitors
The Commission recommends that the current visa waiver pilot program
for shortterm business and tourist visits be made permanent upon the
implementation of an entryexit control system capable of measuring over
stays. A permanent visa waiver system requires appropriate provi
sions 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.
Most observers recognize that the waiver has been a positive factor
in increased tourism and trade and in less processing time for many
travelers at ports of entry. More than onehalf of the shortterm
visitors from waivered nationalities come to the U.S. under the
waiver, and INS reports little overstay or other immigration viola
tions from these visitors. The Department of State [DOS] has been
able to reallocate its relatively highcost overseas resources to areas
that need greater attention, such as increased antifraud efforts, cop
ing with the Diversity Visa workload, and staffing new posts in the
former Soviet Union. A key factor in the success of the waiver
program is the electronic sharing of "watch list" data of persons
ineligible for visas between the Department of State and INS on an
almost immediate basis. Being able to screen visitors arriving with
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends that
ecommends that
ecommends that
ecommends that
ecommends that
the curr
the curr
the curr
the curr
the current ent ent ent ent
visa waiver
visa waiver
visa waiver
visa waiver
visa waiver
pilot pr
pilot pr
pilot pr
pilot pr
pilot program ogram ogram ogram ogram
for shortterm
for shortterm
for shortterm
for shortterm
for shortterm
business and
business and
business and
business and
business and
tourist visits
tourist visits
tourist visits
tourist visits
tourist visits
be made
be made
be made
be made
be made
permanent upon
permanent upon
permanent upon
permanent upon
permanent upon
the implementation
the implementation
the implementation
the implementation
the implementation
of an entryexit
of an entryexit
of an entryexit
of an entryexit
of an entryexit
contr contr contr contr control system
ol system
ol system
ol system
ol system
capable of measuring
capable of measuring
capable of measuring
capable of measuring
capable of measuring
overstays. overstays. overstays. overstays. overstays.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
89
out visas at ports of entry serves the fundamental purpose of ensur
ing that statutorily ineligible aliens are not admitted to the United
States.
Foreign Workers
Each year, more foreign workers enter the United States as LDAs
for temporary work than enter as skillbased immigrants. In FY
1996, the Department of State issued almost 278,000 limited dura
tion worker visas, including those for spouses and children. (Other
LDA workers who changed status within the United States are not
reflected in these statistics. Also not considered are LDA foreign
students working in the United States during their course of study
or as part of their practical training, or researchers entering under
J visa programs.) By contrast, only 117,000 immigrant visa issu
ances 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 classi
fication 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 would be organized around the same principles
that guide permanent worker categories. LDA workers would be
subject to rigorous tests of their impact on the labor market unless
they are exempt from these tests because their admission will gen
erate substantial economic growth and/or significantly enhance U.S.
intellectual and cultural strength and pose little potential for under
mining the employment prospects and remuneration of U.S. work
ers.
The Commission
The Commission
The Commission
The Commission
The Commission
r
r r
r recommends that
ecommends that
ecommends that
ecommends that
ecommends that
the limited duration
the limited duration
the limited duration
the limited duration
the limited duration
admission
admission admission
admission admission
classification classification classification classification classification
for for
for for
for for
for for
for foreign workers
eign workers
eign workers
eign workers
eign workers
include thr
include thr
include thr
include thr
include three ee ee
ee ee
principal categories:
principal categories:
principal categories:
principal categories:
principal categories:
those who,
those who,
those who,
those who,
those who,
for significant
for significant
for significant
for significant
for significant
and specific
and specific
and specific
and specific
and specific
policy r
policy r
policy r
policy r
policy reasons, easons, easons,
easons, easons,
should be exempt
should be exempt
should be exempt
should be exempt
should be exempt
by law fr
by law fr
by law fr
by law fr
by law from om om
om om
labor market
labor market
labor market
labor market
labor market
pr
pr pr
pr protection otection otection
otection otection
standards; standards; standards; standards; standards;
those whose
those whose
those whose
those whose
those whose
admission is
admission is
admission is
admission is
admission is
governed by
governed by
governed by
governed by
governed by
tr tr tr tr treaty obligations;
eaty obligations;
eaty obligations;
eaty obligations;
eaty obligations;
and those whose
and those whose
and those whose
and those whose
and those whose
admission
admission admission
admission admission
must adher
must adher
must adher
must adher
must adhere to
e to
e to
e to
e to
specified
specified specified
specified specified
labor market
labor market
labor market
labor market
labor market
pr
pr pr
pr protection standards.
otection standards.
otection standards.
otection standards.
otection standards.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
90
Within the labor market protection standards group, criteria for ad
mission are consistent with the potential adverse effect of given
categories of workers. The Commission believes adverse impact is
broadly related to educational and skill level of the affected work
ers. Although there sometimes is an adverse effect from even the
most highlyskilled and experienced foreign workers, the benefits of
such workers are usually large to American society as a whole.
They are likely to enhance the U.S. national interest through the
generation of economic activity, including the creation of jobs. In
general, the higher the levels of education and skill required in a
given occupation, the more likely U.S. workers will be able to com
pete successfully with workers from abroad. Even at the very high
est levels of skill and education, however, this generalization fits
some highskill occupations, but not others.
Entrylevel professionals and lesserskilled workers pose somewhat
greater risk of displacing U.S. workers because their work can more
likely substitute for that of U.S. workers. If they accept lower wages
and benefits or poorer working conditions, they present unfair com
petition to U.S. workers and their employers may gain an unfair
advantage over other U.S. employers. Similarly, unskilled foreign
workers present the greatest potential for adverse impact because
they are competing with some of the most vulnerable of American
workers. Accordingly, the Commission proposes different subcat
egories with labor market protection standards commensurate with
the risks we believe are posed by the workers.
n Those exempt by law from labor market protection stan
Those exempt by law from labor market protection stan
Those exempt by law from labor market protection stan
Those exempt by law from labor market protection stan
Those exempt by law from labor market protection stan
dards
dards dards
dards dards because their admission will generate substantial eco
nomic growth and/or significantly enhance U.S. intellectual
and cultural strength and pose little potential for undermin
ing the employment prospects and remuneration of U.S.
workers. These include:
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
91
Individuals of extraordinary ability in the sciences, arts, educa
tion, business, or athletics, demonstrated through sustained
national or international acclaim and recognized for extraor
dinary achievements in their field of expertise. These indi
viduals now enter under the O visa. This category is com
parable to the first priority in our permanent resident sys
tem. The U.S. national interest is well served by entry of
individuals at the very top of their chosen fields who can
contribute during their temporary stay to U.S. economic
growth and intellectual and cultural strength.
Managers and executives of international businesses (current
L visa), also comparable to the first priority in the legal
permanent resident system. 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. Often, there is only temporary need for a transfer,
although permanent relocation may later be required.
Under current law, the person with a LDA visa must have
been employed by the firm, corporation, affiliate or subsid
iary continuously for one year within the three years pre
ceding the application for admission. As discussed below,
the Commission believes greater safeguards must be in place
to ensure that only bona fide international businesses benefit
from this policy.
Professors, researchers and scholars whose salary or other com
pensation is paid by their home government, home institu
tion, or the U.S. government in a special program for for
eign professors, researchers, and scholars. Each year, pro
fessors, researchers, and scholars enter the United States on
sabbatical from their own universities or research institutes,
often with a J visa. Also in this category are foreign mem
bers of research teams cofunded by the United States and
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
92
other countries. These individuals present substantial ben
efits to the United States in the expertise and resources they
bring, and they pose no threat of displacement of U.S. re
searchers as their salaries are from foreign sources or they
enter under a U.S. governmentfunded program, such as the
Fulbright Program, whose resources are earmarked through
an appropriation process for foreign researchers and schol
ars.
Religious workers, including ministers of religion and profes
sionals and other workers employed by religious nonprofit
organizations in the U.S. to perform religious vocations and
religious occupations. Under current law, religious workers
must have had at least two years' prior membership in the
religious organization (current R visa).
Members of the foreign media admitted under reciprocal agree
ments (current I visa). 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.
n Foreign workers whose admission is subject to treaty ob
Foreign workers whose admission is subject to treaty ob
Foreign workers whose admission is subject to treaty ob
Foreign workers whose admission is subject to treaty ob
Foreign workers whose admission is subject to treaty ob
ligations.
ligations. ligations.
ligations. ligations. 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.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
93
n Foreign workers subject by law to labor market protection
Foreign workers subject by law to labor market protection
Foreign workers subject by law to labor market protection
Foreign workers subject by law to labor market protection
Foreign workers subject by law to labor market protection
standards.
standards. standards.
standards. standards. These are principally:
Professionals and other workers who are sought by employers
because of their highlyspecialized skills or knowledge and/
or extensive experience. Included in this category are employ
ees of international businesses who have specialized knowl
edge (now admitted under the L visa) and professionals
(now covered by the H1B visa). A diverse range of indi
viduals may be admitted in this category, including, but not
limited to, university faculty and researchers with advanced
degrees, accountants and lawyers with specialized knowl
edge of the tax and legal codes of other countries, and elec
trical engineers and software systems engineers with spe
cialized knowledge needed for systems design. This cat
egory would also cover highlyskilled workers without pro
fessional degrees if they have substantial experience in their
occupation. This category includes as well aliens now ad
mitted under the H1B visa who have a bachelor's degree
but little specialized expertise or experience.
Trainees admitted to the United States for practical, onthe
job training in a variety of occupations. They now enter
through the H3 visa, practical training arrangements under
the F visa, and the J visa provisions pertaining to physicians
seeking graduate medical education and to some research
ers with J visas engaged in postdoctoral studies. All of
these groups have in common work in U.S. institutions as
part of a training program. They are paid U.S. wages and,
in many cases, are not readily distinguished from U.S. resi
dents in the same type of onthejob training activities.
Institutions petitioning for foreign workers as trainees would
be required to demonstrate that the principal purpose of the
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
94
program is training by showing a significant educational
component to the work experience. Trainees would be paid
the actual wages provided to U.S. trainees in similar pro
grams. The trainees would be admitted for the specified
duration of the training program. For example, a foreign
physician admitted for graduate medical education would
be admitted for the period of the specific residency pro
gram.
Artists, musicians, entertainers, athletes, fashion models, and par
ticipants in international cultural groups that share the history,
culture, and traditions of their country. This category in
cludes aliens now admitted under the P visa and Q visa, as
well as fashion models admitted under H1B visa, and ath
letes, musicians and other performers admitted under the
H2B visa.
Lesserskilled and unskilled workers coming for seasonal or other
shortterm employment. Such worker programs warrant
strict review, as described below. This category includes
aliens now admitted with H2A and H2B visas. Requests
for admission of unskilled and lesserskilled workers should
be met with heightened scrutiny. Temporary worker pro
grams for lesserskilled agricultural workers exert particu
larly harmful effects on the United States. The Commission
remains opposed to implementation of a largescale pro
gram for temporary admission of lesserskilled and unskilled
workers along the lines of the bracero program. Having
examined the issue further during our consultations on LDA
issues, we reaffirm our belief that a new guestworker pro
gram would be a grievous mistake.
Historically, guestworker programs have depressed the
wages and working conditions of U.S. workers. Of particu
lar concern is competition with unskilled American work
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
95
ers, including recent immigrants who may have originally
entered to perform the needed labor but who can be dis
placed by newly entering guestworkers. Foreign
guestworkers often are more exploitable than lawful U.S.
workers, particularly when an employer threatens deporta
tion if the workers complain about wages or working con
ditions. The presence of large numbers of guestworkers in
particular localities - such as rural counties with agricultural
interests - presents substantial costs for housing, health care,
social services, schooling, and basic infrastructure that are
borne by the broader community and even by the federal
government rather than by the employers who benefit from
the inexpensive labor.
Despite the claims of their supporters, guestworker programs
also fail to reduce unauthorized migration. To the contrary,
research consistently shows that they tend to encourage and
exacerbate illegal movements by setting up labor recruit
ment and family networks that persist long after the
guestworker programs end. Moreover, guestworkers them
selves often remain permanently and illegally in the country
in violation of the conditions of their admission.
If new initiatives to reduce illegal migration were at some
point to create real labor shortages in agriculture or other
lowskill occupations, employers could request foreign work
ers through the LDA provisions that the Commission pro
poses for the admission of unskilled workers.
The Commission r
The Commission r
The Commission r
The Commission r
The Commission recommends that the labor market tests used in
ecommends that the labor market tests used in
ecommends that the labor market tests used in
ecommends that the labor market tests used in
ecommends that the labor market tests used in
admitting temporary workers in this category be commensurate with
admitting temporary workers in this category be commensurate with
admitting temporary workers in this category be commensurate with
admitting temporary workers in this category be commensurate with
admitting temporary workers in this category be commensurate with
the skill level and experience of the worker
the skill level and experience of the worker
the skill level and experience of the worker
the skill level and experience of the worker
the skill level and experience of the worker. . . . .
n Employers requesting the admission of temporary work
Employers requesting the admission of temporary work
Employers requesting the admission of temporary work
Employers requesting the admission of temporary work
Employers requesting the admission of temporary work
ers with highlyspecialized skills or extensive experience
ers with highlyspecialized skills or extensive experience
ers with highlyspecialized skills or extensive experience
ers with highlyspecialized skills or extensive experience
ers with highlyspecialized skills or extensive experience
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends that
ecommends that
ecommends that
ecommends that
ecommends that
the labor market
the labor market
the labor market
the labor market
the labor market
tests used in
tests used in
tests used in
tests used in
tests used in
admitting
admitting admitting
admitting admitting
temporary temporary temporary temporary temporary
workers in this
workers in this
workers in this
workers in this
workers in this
category
category category
category category be be be be be
commensurate
commensurate commensurate
commensurate commensurate
with the skill
with the skill
with the skill
with the skill
with the skill
level and
level and
level and
level and
level and
experience of the
experience of the
experience of the
experience of the
experience of the
worker
worker worker
worker worker. . . . .
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
96
should meet specific requirements
should meet specific requirements
should meet specific requirements
should meet specific requirements
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 by the employer to other employees
with similar experience and qualifications for the specific
employment in question. Actual wage rates should be de
fined in a simple and straightforward manner. By this rec
ommendation, we do not intend a complicated, bureaucrati
callydefined wage analysis. Rather, businesses should be
able to use their own compensation systems to determine
appropriate wages and benefits for the individual foreign
worker hired. The entry of a small number of highlyskilled
foreign workers should have minimal effect on these wage
scales, which will be determined by the majority of U.S.
workers employed by the business. In the absence of a
companywide system that ensures equitable compensation
for similarly situated workers, the employer would be re
quired to attest to paying prevailing wages for that job cat
egory, wages that are typical of the enterprise or nonprofit
company. [See below for recommendations for atrisk em
ployers with a significant proportion of foreign workers.]
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 employed.
The employer has paid a reasonable user fee that will be dedi
cated to facilitating the processing of applications and the
costs of auditing compliance with all requirements. Cur
rently no fees are collected by the Department of Labor
[DOL] for either processing or monitoring purposes. In
effect, this requires taxpayers to subsidize these programs.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
97
To ensure that the employer, and not the foreign worker,
pays the user fee, penalties should be imposed upon viola
tors.
There is no strike or lockout in the course of a labor dispute
involving the occupational classification at the place of em
ployment.
The employer has not dismissed, except for cause, or otherwise
displaced workers in the specific job for which the alien is
hired during the previous six months. Further, the em
ployer will not displace or lay off, except for cause, U.S.
workers in the specific job during the ninetyday period
following the filing of an application or the ninetyday pe
riods preceding or following the filing of any visa petition
supported by the application.
The employer will provide working conditions for such tempo
rary workers that are comparable to those provided to simi
larly situated U.S. workers.
n Certain atrisk employers of skilled workers [described
Certain atrisk employers of skilled workers [described
Certain atrisk employers of skilled workers [described
Certain atrisk employers of skilled workers [described
Certain atrisk employers of skilled workers [described
below] should be required to attest to having taken signifi
cant steps - for example, recruitment or training - to em em em em em
ploy U.S. workers in the jobs for which they are recruiting
ploy U.S. workers in the jobs for which they are recruiting
ploy U.S. workers in the jobs for which they are recruiting
ploy U.S. workers in the jobs for which they are recruiting
ploy U.S. workers in the jobs for which they are recruiting
foreign workers.
foreign workers.
foreign workers.
foreign workers.
foreign workers. The Commission is aware that some com
panies now petitioning for H1B workers recruit exclusively
in foreign countries. The Commission believes that U.S.
recruitment or hiring efforts will help ensure that qualified
U.S. citizens and permanent residents have access to these
jobs. We do not recommend, however, that current labor
certification processes be used to document significant ef
forts to recruit. These procedures are costly, time consum
ing, and ultimately ineffective in protecting highlyskilled
U.S. workers.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
98
Under the now expired H1A visa program for the admis
sion of LDA registered nurses, several alternative steps were
described as meeting the requirement of timely and signifi
cant steps to employ U.S. workers. These alternativesi n
clude: operating a training program for such workers at the
facility (or providing participation in a training program
elsewhere); providing career development programs and
other methods of facilitating workers to become qualified;
paying qualified workers at a rate higher than currently
paid to other similarly employed workers in the geographic
area; and providing reasonable opportunities for meaning
ful salary advancement. Examples of other steps that might
qualify as meeting the timely and significant requirement
include monetary incentives, special perquisites, work sched
ule options, and other training options.
n Employers requesting the admission of lesser
Employers requesting the admission of lesser
Employers requesting the admission of lesser
Employers requesting the admission of lesser
Employers requesting the admission of lesserskilled work
skilled work
skilled work
skilled work
skilled work
ers should be required to meet a stricter labor market pro
ers should be required to meet a stricter labor market pro
ers should be required to meet a stricter labor market pro
ers should be required to meet a stricter labor market pro
ers should be required to meet a stricter labor market pro
tection test.
tection test.
tection test.
tection test.
tection 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 steps 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. (For example, sugar cane growers
in southern Florida who had petitioned for foreign workers
had success in reducing their dependence on H2A workers
through mechanization.) 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.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
99
The Commission recommends that categories of employers who are at special
risk of violating labor market protection standards - regardless of the edu
cation, skill, or experience level of its employees - be required to obtain
regular independentlyconducted audits of their compliance with the attes
tations 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 dis
placing U.S. workers and/or exploiting foreign workers. The risk
factors that should be considered in determining whether stricter
protection standards must apply include:
n The employer
The employer
The employer
The employer
The employer' ' ' ' 's extensive use of temporary foreign work
s extensive use of temporary foreign work
s extensive use of temporary foreign work
s extensive use of temporary foreign work
s extensive use of temporary foreign work
ers.
ers. ers.
ers. ers. 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.
n The employer
The employer
The employer
The employer
The employer' ' ' ' 's history of employing temporary foreign
s history of employing temporary foreign
s history of employing temporary foreign
s history of employing temporary foreign
s history of employing temporary foreign
workers.
workers. workers.
workers. workers. Those employers with a history of serious viola
tions of regular labor market protection standards or spe
cific labor standards related to the employment of LDA
workers should be considered as at risk for future viola
tions.
n The employer
The employer
The employer
The employer
The employer ' ' ' ' 's status as a job contracting or employment
s status as a job contracting or employment
s status as a job contracting or employment
s status as a job contracting or employment
s status as a job contracting or employment
agency providing
agency providing
agency providing
agency providing
agency providing temporary foreign labor to other employ
temporary foreign labor to other employ
temporary foreign labor to other employ
temporary foreign labor to other employ
temporary foreign labor to other employ
ers.
ers. ers.
ers. ers. Risk of labor violations increases as responsibility is
divided between a primary and secondary employer.
To ensure adequate protection of labor market standards, such em
ployers should be required to submit an independent audit of their
compliance with all statements attested in their application. The
independent audits should be done by recognized accounting firms
that have the demonstrated capacity to determine, for example, that
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends ecommends ecommends
ecommends ecommends
that categories
that categories
that categories
that categories
that categories
of employers
of employers
of employers
of employers
of employers
who ar
who ar
who ar
who ar
who are e e
e e
at special risk
at special risk
at special risk
at special risk
at special risk
of violating
of violating
of violating
of violating
of violating
labor market
labor market
labor market
labor market
labor market
pr pr pr pr protection otection otection otection otection
standards standards standards standards standards
be r
be r
be r
be r
be requir equir equir equir equired ed ed ed ed
to obtain r
to obtain r
to obtain r
to obtain r
to obtain regular egular egular
egular egular
independently independently independently independently independently
conducted audits
conducted audits
conducted audits
conducted audits
conducted audits
of their
of their
of their
of their
of their
compliance with
compliance with
compliance with
compliance with
compliance with
the attestations
the attestations
the attestations
the attestations
the attestations
made about
made about
made about
made about
made about
labor market
labor market
labor market
labor market
labor market
pr pr pr pr protection otection otection otection otection
standards.
standards. standards.
standards. standards.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
100
wages and fringe benefits were provided as promised in the attes
tation 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 expedi
tious preapproval review but are subject to postapproval enforce
ment actions against violators. To ensure adequate safeguards for
U.S. workers, the government agencies responsible for processing
applications and enforcing the law must have adequate capacity to
identify and act quickly against fraudulent applicants and to moni
tor postapproval violations of the terms under which foreign work
ers enter. More specifically, the Commission recommends:
n Allocating increased staf
Allocating increased staf
Allocating increased staf
Allocating increased staf
Allocating increased staff and resources to the agencies re
f and resources to the agencies re
f and resources to the agencies re
f and resources to the agencies re
f and resources to the agencies re
sponsible for adjudicating applications for admission and
sponsible for adjudicating applications for admission and
sponsible for adjudicating applications for admission and
sponsible for adjudicating applications for admission and
sponsible for adjudicating applications for admission and
monitoring and taking appropriate enforcement action
monitoring and taking appropriate enforcement action
monitoring and taking appropriate enforcement action
monitoring and taking appropriate enforcement action
monitoring and taking appropriate enforcement action
against fraudulent applicants and violators of labor market
against fraudulent applicants and violators of labor market
against fraudulent applicants and violators of labor market
against fraudulent applicants and violators of labor market
against fraudulent applicants and violators of labor market
protection standards.
protection standards.
protection standards.
protection standards.
protection standards. These agencies require additional re
sources to investigate potential fraud among applicants for
temporary worker visas as well as violations of the labor
market protection standards. Enhancing this capability has
significant resource implications, especially if, as the Com
mission also recommends, such antifraud investigations are
undertaken in a manner that does not delay visa adjudication
and issuance. Increased costs required for more efficient ad
judication of applications can be covered by applicant fees.
However, additional costs incurred for more effective inves
tigations of compliance with labor market standards will re
quire appropriated funds.
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends ecommends ecommends
ecommends ecommends
enhanced enhanced enhanced enhanced enhanced
monitoring of
monitoring of
monitoring of
monitoring of
monitoring of
and enfor
and enfor
and enfor
and enfor
and enforcement cement cement cement cement
against against against against against
fraudulent fraudulent fraudulent fraudulent fraudulent
applications and
applications and
applications and
applications and
applications and
postadmission postadmission postadmission postadmission postadmission
violations violations violations violations violations
of labor market
of labor market
of labor market
of labor market
of labor market
pr pr pr pr protection otection otection otection otection
standards. standards. standards. standards. standards.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
101
Sufficient funds should be appropriated to provide the ad
ditional resources needed for adequate enforcement by the
Department of Labor. These resources should be targeted at
employers and contractors at special risk of violating labor
market protection standards. Targeting these employers
makes the most sense both in terms of economical use of
resources and in protection of workers.
The Department of State also must have the capacity to
make a proper investigation of cases in which fraud is sus
pected. This capacity is particularly needed in applications
for admission of LDAs in exempt categories to ensure that
use of these categories does not become a means of evading
labor market protection standards. For example, the visa for
intracompany transfers has been abused by persons setting
up sham corporations. To comply with appropriate require
ments for timely decisions, the government must have the
resources to investigate suspected fraud.
n Barring the use of LDA workers by any employer who has
Barring the use of LDA workers by any employer who has
Barring the use of LDA workers by any employer who has
Barring the use of LDA workers by any employer who has
Barring the use of LDA workers by any employer who has
been
been been
been been found to have
found to have
found to have
found to have
found to have committed willful and serious labor
committed willful and serious labor
committed willful and serious labor
committed willful and serious labor
committed willful and serious labor
standards violations with respect to the employment of
standards violations with respect to the employment of
standards violations with respect to the employment of
standards violations with respect to the employment of
standards violations with respect to the employment of
LDA
LDA LDA
LDA LDA workers. Further
workers. Further
workers. Further
workers. Further
workers. Further, upon the recommendation of any
, upon the recommendation of any
, upon the recommendation of any
, upon the recommendation of any
, upon the recommendation of any
federal, state, or local tax agency
federal, state, or local tax agency
federal, state, or local tax agency
federal, state, or local tax agency
federal, state, or local tax agency , barring the use of LDA
, barring the use of LDA
, barring the use of LDA
, barring the use of LDA
, barring the use of LDA
workers by any employer who has been found to have
workers by any employer who has been found to have
workers by any employer who has been found to have
workers by any employer who has been found to have
workers by any employer who has been found to have
committed willful and serious payroll tax violations with
committed willful and serious payroll tax violations with
committed willful and serious payroll tax violations with
committed willful and serious payroll tax violations with
committed willful and serious payroll tax violations with
respect to LDA
respect to LDA
respect to LDA
respect to LDA
respect to LDA workers. workers. workers. workers. workers. The law currently provides for
such debarment for failure to meet labor condition attesta
tion 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.
This would address an issue that has come to the attention
of the Commission: the knowing misclassification of some
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
102
LDA workers as independent contractors, with subsequent
failure to pay payroll taxes or other legallyrequired deduc
tions to the appropriate governmental agency.
n Developing an enforcement strategy to reduce evasion of
Developing an enforcement strategy to reduce evasion of
Developing an enforcement strategy to reduce evasion of
Developing an enforcement strategy to reduce evasion of
Developing an enforcement strategy to reduce evasion of
the LDA labor
the LDA labor
the LDA labor
the LDA labor
the LDA labor market protection standards through use of
market protection standards through use of
market protection standards through use of
market protection standards through use of
market protection standards through use of
contractors.
contractors. contractors.
contractors. contractors. U.S. businesses' growth in contractingout func
tions has raised questions of employment relationships and
ultimate liability for employmentrelated violations, includ
ing 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.
Conclusion
Limited duration admissions are an important part of immigration
policy because they are linked closely to the admission of legal
permanent immigrants and to our policies for deterring unlawful
migration. This report seeks to treat limited duration admission
policy in a comprehensive fashion, building on the recommenda
tions made by the Commission on other aspects of immigration
policy. The opportunities presented by the admission of limited
duration admissions are significant. With the type of regulation
recommended herein, the United States will be able to continue to
benefit from these admissions while mitigating potential harmful
effects, particularly on vulnerable U.S. populations.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
103
CURBING UNLAWFUL MIGRATION
In its first interim report to Congress this Commission recommended
a comprehensive strategy to curb unlawful migration into the United
States through prevention and removal. 9 That report focused on
deterrence - steps that could prevent illegal entry and unauthorized
work. The Commission found that curbing unlawful immigration
required: (1) better border management; (2) more effective deter
rence of the employment of unauthorized workers; (3) a more con
sistent benefits eligibility policy; (4) cooperative efforts with source
countries; (5) improved data collection and analysis; (6) mecha
nisms to address migration emergencies; (7) and an improved ca
pacity to remove deportable aliens. The Commission presented
detailed recommendations on the first five elements of this strategy
(border, worksite, benefits, source country, and data). Our report on
refugee policy detailed more specific recommendations on the sixth,
migration emergencies. 10 This final report provides more detailed
recommendations on the seventh, removals.
Since 1994, the immigration system as a whole has undergone al
most unprecedented change. As Congress, the public, and the Ad
ministration focused more keenly on immigration, the financial re
sources available to INS grew from $1.5 billion in FY 1994 to a
projected $3.6 billion in FY 1998. During the same period, INS
staffing is expected to rise 65 percent, from 17,000 in FY 1994 to
more than 28,000 in FY 1998. Once in 1994, 11 and three times in
1996, 12 enactment of major legislation made substantive and sub
stantial changes in laws affecting illegal migration. Many of these
statutory and administrative actions sought to implement the
Commission's 1994 recommendations.
9 U.S. Immigration Policy: Restoring Credibility, 1994.
10 U.S. Refugee Policy: Taking Leadership, 1997.
11 Violent Crime Control and Law Enforcement Act of 1994.
12 Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA], Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 [IIRIRA],
Personal Responsibility and Work Opportunity Reconciliation Act of 1996.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
104
Deterrence Strategies
The Commission reiterates its 1994 recommendations supporting a com
prehensive strategy to deter illegal migration. Despite the additional
resources, new policies, and often innovative strategies adopted
during the past few years, illegal migration continues to be a prob
lem. In October 1996, INS released its latest estimates of the illegal
alien population in the United States: some 5 million undocumented
migrants reside in the United States, a number growing by approxi
mately 275,000 annually; 41 percent of these are nonimmigrant over
stays; the remaining 59 percent probably entered illegally and with
out inspection.
The Commission continues to believe that unlawful immigration
can be controlled consistent with our traditions, civil rights, and
civil liberties. As a nation committed to the rule of law, our immi
gration 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 believes that the comprehensive strat
egy we outlined in 1994 continues to hold the best promise for
reducing levels of illegal migration. These policies, combined with
the structural and management recommendations detailed later in
this report, can restore the credibility of our immigration system by
both deterring illegal entry and facilitating legal crossings. The
Commission emphasizes, however, that no one part of this strategy
will, on its own, solve the problem of unauthorized migration.
More specifically, the Commission continues to support implemen
tation of the following deterrence strategies:
n An ef
An ef
An ef
An ef
An effective border management policy that accomplishes
fective border management policy that accomplishes
fective border management policy that accomplishes
fective border management policy that accomplishes
fective border management policy that accomplishes
the twin goals of
the twin goals of
the twin goals of
the twin goals of
the twin goals of preventing preventing preventing preventing preventing illegal entries and facilitating
illegal entries and facilitating
illegal entries and facilitating
illegal entries and facilitating
illegal entries and facilitating
legal ones.
legal ones.
legal ones.
legal ones.
legal ones. Increased resources for additional Border Patrol
officers, inspectors, and operational support, combined with
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r reiterates eiterates eiterates eiterates eiterates
its 1994
its 1994
its 1994
its 1994
its 1994
r r r r recommendations ecommendations ecommendations
ecommendations ecommendations
supporting a
supporting a
supporting a
supporting a
supporting a
compr compr compr compr comprehensive ehensive ehensive ehensive ehensive
strategy strategy strategy strategy strategy
to deter
to deter
to deter
to deter
to deter
illegal illegal illegal illegal illegal
migration. migration. migration. migration. migration.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
105
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 along the border
where significant violations of U.S. immigration law are likely
to occur.
Implementing effective prevention strategies. In 1994, "Opera
tion Hold the Line" in El Paso, Texas successfully challenged
outmoded border control concepts. This effort then served
as the model for efforts to control other parts of the border,
particularly in the San Diego area. The result, "Operation
Gatekeeper," utilizing a strategy described as "Prevention
through Deterrence," began on October 1, 1994, and included
the commitment of significant new resources and the imple
mentation of innovative new strategies.
Phase I (1994) of the plan had the greatest impact on the
area around Imperial Beach in San Diego County. For many
years this area accounted for approximately 25 percent of
illegal crossings across the southwest border. Utilization of
new equipment led to apprehension of greater numbers,
and use of new techniques cracked down on alien smug
gling rings. Reinforcement of interior checkpoints helped
capture those who made it illegally across the border.
Phase II (begun in June 1995) consisted mainly of reinforcing
nearby ports of entry seen as the next likely route for aliens
whose illegal entry was disrupted by "Operation
Gatekeeper." INS placed additional service inspectors at
the border, constructed fencing at strategic locations, installed
a fingerprint identification system , and added increased
lighting at ports of entry.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
106
Phase III (begun in 1996) is designed to extend control over
increasing sections of the southwest border as additional
staff and equipment become available. The San Diego Bor
der Patrol Sector now has almost 2,000 agents working along
the border.
Where these new initiatives have been instituted, the num
ber of people seeking to cross is significantly reduced. On
Commission site visits, residents of El Paso and Imperial
Beach, the main beneficiaries to date of the new enforce
ment efforts, cited reduction in vagrancy and petty crime as
evidence of reduced illegal crossings through their commu
nities. Preliminary research data reveal that it now takes
longer and costs more to enter the United States illegally.
Illegal migrants now must now cross through tougher ter
rain and need the assistance of smugglers. Migrant smug
gling increasingly is becoming specialized and
professionalized.
The 1997 Binational Study, Migration Between Mexico and the
United States, reports that a systematic survey of border cross
ers indicates fewer actual crossers but longer periods of stay
in the United States. Thus, it appears that while new border
initiatives may deter some movements, they do not fully
reduce either levels or impacts of illegal migration. In other
words, border control is a necessary, but not sufficient, re
sponse to illegal migration.
Evidence also shows that in response to the new initiatives
migrants have shifted their entry patterns. For example, as
Imperial Beach and its neighboring communities came un
der control, the numbers of illegal entries rose in eastern
San Diego county, the Imperial Valley, Arizona, and south
Texas. As the Commission noted in 1994, the immigration
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
107
system must have the capacity to prevent entry across the
southern border. Mobile, rapid response teams initially can
help plug holes along the border, but eventually, a preven
tion capacity must be established in every likely crossing
area.
Protecting human rights. Effective border management is not
without its human toll, increased violence along the border,
as well as deaths resulting from exposure to extreme weather
in mountain and desert areas. Both border crossers and
Border Patrol agents have been victims of this heightened
violence.
Since the implementation of the border initiatives, incidents
of violence against the Border Patrol have increased. Inci
dents of rockthrowing, a hazard to Border Patrol agents for
years, have risen. Agents now face random gunfire from
south of the border. Beginning in May of 1997, six reported
sniper shootings in the San Diego sector were directed at
Border Patrol agents. Sustained efforts to protect agents
from such violence must be at the top of the policy agenda.
Efforts also must continue to warn potential illegal border
crossers - while they are still in their countries of origin - of
the increased physical dangers and legal consequences of
trying to cross illegally. In particular aliens must be warned
of the pitfalls of using smugglers, some of whom abandon
border crossers and otherwise abuse them.
Site visits in Mexico demonstrate that already widespread
knowledge exists about the new difficulties in entering the
United States illegally; misinformation continues to abound
as well. Residents in new sending regions such as Oaxaca,
traditional sending regions such as Jalisco, and border cross
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
108
ing points such as Tijuana, all spoke of the additional costs
and dangers encountered in attempting to cross the border
illegally.
The Commission continues to support efforts to monitor
and reduce human rights violations and potentially violent
confrontations between government personnel and those be
lieved to be seeking illegal entry into the United States. The
INS formed a Citizens' Advisory Panel [CAP] that met pe
riodically from February 1994 through February 1997, a year
beyond its original expiration date. During that time, the
CAP discussed ways and means for averting potential hu
man rights abuses and outright violence by INS employees
against aliens. As a result, INS adopted a formal complaint
procedure for reporting alleged abuses by government em
ployees to their supervisors and for INS to respond to those
complaints. At its February 1997 meeting, the CAP decided
to disband in its present form. Discussions are now under
way on how best to retain the CAP input in the INS
decisionmaking processes, in delivering feedback for train
ing and supervising INS border personnel, and in respond
ing to complaints made against employees.
Improving ports of entry. Additional pressure on ports of
entry also accompany enhanced border control. The vari
ous initiatives already undertaken provide guidance for other
border sites. In San Diego, "Operation Gatekeeper II" in
cluded enhanced resources for inspectors to identify indi
viduals entering with fraudulent documents or as impos
tors. A Port Court was established to place these persons
into formal exclusion proceedings. Presiding Immigration
Judges made clear to those receiving exclusion orders that
they would face criminal penalties if they were apprehended
attempting to reenter within one year. To ensure that word
went out that these were not idle threats, the U.S. Attorney
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pledged to prosecute these cases. A relatively small number
of persons were apprehended attempting reentry after re
ceiving an exclusion order at the Port Court.
This process has changed somewhat under the new expe
dited removal procedures mandated by the Illegal Immigra
tion Reform and Immigrant Responsibility Act of 1996, which
took effect on April 1, 1997. Under the new procedures, an
alien arriving at a port of entry with fraudulent documents
or without documents is referred to secondary inspection,
where he or she is advised about expedited removal. 13 If the
alien does not indicate a fear of persecution or an intent to
apply for asylum, the alien is fingerprinted, photographed
and detained until removal, which in San Diego typically
takes two processing days. The alien's identity is recorded
in the INS IDENT database for immediate and future deter
mination of repeated attempts at unlawful reentry. An
immigration officer's determination to remove an alien un
der the expedited procedures is not subject to administra
tive or judicial review, except under only very narrow cir
cumstances.
Immigration officials in San Diego report a significant in
crease in removals as a result of the new expedited removal
provisions. These gains in the capacity to remove at the
border are no doubt desirable goals for an immigration
enforcement agency. However, a more reliable determinant
13 IIRIRA permits the Attorney General to apply the expedited removal
provisions to aliens in the U.S. who have not been admitted or paroled
[EWIs] and who have not shown to the satisfaction of the immigration
officer that they have been continuously present in the U.S. for the two
year period immediately preceding the date of the determination of
inadmissibility. At present, the Attorney General has elected not to apply
these provisions to EWIs, although she has reserved through regulation,
the option to apply the expedited removal provisions at any time, to any
alien specified in that section.
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of the extent to which a law actually deters the conduct it
seeks to address is the recidivism rate. Thus, the effective
communication of the consequences attached to the removal
of an alien as a result of the new provisions is a key ingre
dient of the efficacy of our immigration laws. Without such
public education, certain individuals are likely to be unde
terred by the type of sanction exacted under the new expe
dited removal procedures.
Although reliable data on reentry is not yet available, the
San Diego district reports an apparent increase in recidi
vism following implementation of the new law. It appears
that an order issued by an immigration inspector does not
have the psychological force of an order issued by an Immi
gration Judge. What is gained in expediting by the new
statutory process may be lost in increased recidivism.
To counter this trend, the San Diego district has instituted
a threestrike system that corresponds with the changes man
dated by the new law. This system was established with the
cooperation of the INS, the Executive Office for Immigra
tion Review [EOIR], and the U.S. Attorney's Office in re
sponse to reports of apparent recidivism among aliens turned
away by the expedited removal process. The first strike
occurs once the INS inspector issues an expedited removal
order to the alien that carries a penalty of inadmissibility for
up to twenty years in some cases and permanently if the
offense involves the use of a fraudulent document.
The second strike - appearance before an Immigration Judge
in Port Court - occurs once the alien is apprehended after
having been removed for a previous immigration or crimi
nal violation. This step provides a critical link to deter
rence: personal communication of the consequences of vio
lating an immigration law. At the hearing, the Immigration
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Judge advises the alien of the administrative sanction result
ing from the attempted illegal reentry after expedited re
moval (i.e., a bar to admission for some period) and also of
the certainty of felony prosecution if the alien attempts re
entry during that period. The presence of an Immigration
Judge is considered a vital component to the credibility of
the San Diego district's border enforcement. The clear,
unequivocal notice of the penalty aliens are likely to incur at
the third step, coupled with the prospect of time spent in
prison, is predicted to have more of a deterrent effect than
simply turning aliens away without providing adequate
notice of the consequences of their conduct.
The third strike involves felony prosecution by the U.S.
Attorney's office under 8 U.S.C. § 1326(a) for illegal reentry
following deportation, exclusion, or removal or under §
1326(b) for illegal reentry by certain criminal aliens who
likewise have been previously removed. The penalties for
a conviction under these sections of Title 8 range from sen
tences of not more than two years to not more than twenty
years and/or a fine.
The INS and the Border Patrol are in the process of linking
the IDENT system to all sectors along the southwest U.S.
Mexican border. This is especially important in light of the
apparent shift in border movements to the east. Moreover,
proper coordination of this system with various other law
enforcement agencies to identify criminal aliens and other
immigration violators may enhance the cooperation between
those agencies and heighten enforcement along the border.
For example, within the constraints of privacy limitations,
data on criminal aliens entered into the IDENT system and
furnished to the U.S. Attorney's Office would allow that
office more readily to identify and prepare the criminal alien
cases it intends to prosecute under the § 1326 provisions.
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San Diego also is a laboratory for initiatives to facilitate
legal entries while guarding against the abuses referenced
above. The Commission urged in its 1994 report that port
of entry operations be improved to reduce long waiting times
for legal crossings. We learned in El Paso that some illegal
crossers had legal authority to enter, but because of the long
waits, chose to use unauthorized avenues to enter. San
Diego, along with several northern border sites, has been
experimenting with a Dedicated Commuter Lane [DCL] to
speed legitimate border traffic. This concept combines
upfront screening of the applicant for a commuter pass and
use of technology to ensure that the crosser is indeed the
person who previously was screened. Another innovation
in San Diego is a new working relationship between INS
inspections and the Customs Service to open all traffic lanes
and to improve the division of responsibility: INS currently
runs the port for pedestrian crossing and Customs for cargo
inspections. Responsibility for inspections at the vehicle
lanes still is shared by INS and Customs.
Reducing visa overstay and abuse. Visa overstay and abuse of
visas and Border Crossing Cards [BCCs], particularly through
unauthorized work, continue to challenge effective border
management. Most of those entering with visas and BCCs
come for legitimate purposes, abide by the terms of their
entry, and leave when required. Out of the millions of aliens
who are inspected each year, only a very small proportion
(about 150,000 per year) overstay for significant periods.
Any efforts to reduce abuse must also consider the wide
spread benefits that accrue from most visa and BCC hold
ers. A number of policy changes could help ease legal entry
while reducing abuse. The Commission previously recom
mended, and Congress and the Administration have taken
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action for, the development of new entryexit controls for
persons entering with visas, reissuance of Border Crossing
Cards to give them greater integrity, and providing signifi
cant new resources for inspections.
Monitoring and evaluating new initiatives. The various in
tended and unintended consequences of the new resources,
policies, and initiatives in and between ports of entry make
clear the need for careful monitoring. The Commission
reiterates its 1994 recommendation that a systematic assess
ment of the effectiveness of new border strategies be under
taken by internal and external evaluators. IIRIRA mandates
a General Accounting Office fiveyear evaluation of border
management. This study should be underwritten with suf
ficient resources and expertise to ensure that Congress and
the Executive Branch gain an independent view of the new
policies' effectiveness.
n Reducing the employment magnet is the linchpin of a
Reducing the employment magnet is the linchpin of a
Reducing the employment magnet is the linchpin of a
Reducing the employment magnet is the linchpin of a
Reducing the employment magnet is the linchpin of a
comprehensive strategy to deter unlawful immigration.
comprehensive strategy to deter unlawful immigration.
comprehensive strategy to deter unlawful immigration.
comprehensive strategy to deter unlawful immigration.
comprehensive strategy to deter unlawful immigration.
Economic opportunity and the prospect of employment re
main the most important draw for illegal migration to this
country. Strategies to deter unlawful entries and visa over
stays require both a reliable process for verifying authoriza
tion to work and an enforcement capacity to ensure that
employers adhere to all immigrationrelated labor standards.
The Commission continues to believe the following areas of
worksite regulation and enforcement require improvement:
Employment authorization verification system. In our 1994 re
port, the Commission concluded that the single most impor
tant step that could be taken to reduce unlawful migration
was development of a more effective system for verifying
work authorization.
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A large majority of employers will comply with the law, and
they will not knowingly hire illegal aliens. However, the
widespread availability of fraudulent documents makes it
easy for illegal aliens to obtain jobs because employers gen
erally have no way of determining if the workers are autho
rized or not. The minority of employers who knowingly
hire illegal aliens, often to exploit their labor, find protection
from sanctions by going through the motions of compliance
while accepting counterfeit documents. The absence of a
secure verification process also heightens the potential for
discrimination against legallyauthorized, foreignlooking or
sounding workers because employers fear that they may be
inadvertently hiring illegal aliens.
The Commission concluded that the most promising option
for verifying work authorization is a computerized registry
based on the social security number; it unanimously recom
mended that such a system be tested not only for its effec
tiveness in deterring the employment of illegal aliens, but
also for its protections against discrimination and infringe
ments on civil liberties and privacy. 14 The Commission urged
the Administration "to initiate and evaluate pilot programs
using the proposed, social securitybased computerized veri
fication system in at least five states with the highest levels
of illegal immigration . . ." In the interim, we recommended
that INS should continue to implement pilot programs al
ready underway that permit employers to verify the work
authorization of these newlyhired workers who attest to
being aliens. The existing pilot, since expanded, was a good
mechanism through which INS could develop the data and
other systems that would be needed in the more extensive
pilots envisioned by the Commission. They continued to
14 The Concurring Statement of Commissioners Leiden and Merced can be
found in the Commission's 1994 report.
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have a fatal flaw, however, in that an illegal alien could
attest to being a U.S. citizen and thereby escape verification
by INS.
The Commission's recommendation for a verification pilot
that involved both citizens and aliens was incorporated in
modified form in IIRIRA. 15 Congress mandated that the
Attorney General establish a pilot confirmation system us
ing a telephone line or other electronic media. The Com
missioner of Social Security was mandated to establish a
reliable, secure method to verify the social security number
provided by a new hire as part of the employment confir
mation process. Pilot programs testing the new confirma
tion process were to be implemented in, at a minimum, five
of the seven states with the highest estimated illegal alien
population. Participation in the pilot programs is to be
voluntary for most employers. The legislation mandated
participation by federal agencies and the Congress. Compa
nies violating employer sanctions provisions can also be
required to participate. The Attorney General is to report
on the pilot programs after three and four years of opera
tion.
The first of these pilot projects was to begin not later than
one year from enactment of IIRIRA, or about August 1997.
The first pilot project, starting in Chicago, began in late
August. Called the "Joint Employment Verification Project"
[JEVP], the pilot involves INS and the Social Security Ad
ministration. The verification pilot will test many of the
requirements of the "Basic Pilot Program" mandated in §
403(a) of IIRIRA.
15 IIRIRA, Title IV - Enforcement of Restrictions Against Employment,
Subtitle A: Pilot Programs for Employment Eligibility Confirmation,
sections 401405.
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The JEVP will have prospective new employees fill out the
current INS Form I9, submit identification documents listed
in the legislation, and include a photograph. Employers
will then contact the Social Security Administration [SSA]
through a touchtone telephone (being developed under a
contract with ATT) that will electronically verify identity
and authorization/nonauthorization to work using the
employee's social security number. If either of these is not
confirmed, the prospective employee must be notified. The
employee may then withdraw or contest this tentative
nonconfirmation. In this case, the prospective employee has
ten days in which to provide additional or corrected infor
mation to the employer. If this still does not produce con
firmation of employment authorization, the employee will
be told to contact SSA [for citizens] or INS [for noncitizens]
to correct their record(s) and/or their status. During this
confirmation process, employees cannot be terminated. If
still unconfirmed at the end of the process, the employee
then may be terminated. As mandated by IIRIRA, INS plans
to expand implementation of the JEVP into five additional
states by the end of September 1997.
In addition, IIRIRA mandates two other pilot projects, a
"citizen attestation pilot project" and a "machine readable
document pilot project." INS currently is formulating these
additional pilot projects. The "citizen attestation pilot
project" will be similar to the INS' current Employment
Verification Program, while the "machine readable docu
ment pilot project" is a variation of the JEVP and the "Basic
Pilot Project."
The current pilot programs are a useful step in improving
verification, but they do not fully solve the problems we
have identified. The Commission reiterates its support for
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pilottesting approaches that do not require employers to
use the current I9 procedure. The I9 is flawed in several
ways. First it is a document system, which is prone to
counterfeiting. Second, it requires employees to specify if
they are citizens or aliens. This latter requirement increases
the potential for discrimination based on alienage or pre
sumed alienage. Third, it presents an added paperwork
burden for employers who must keep the I9 file. The cur
rent pilot programs help address the first problem by pro
viding for telephone or computer verification of information
provided in the I9. It does not address the second or third
problems, however.
A system based on verification of an employee's social se
curity number, with a match to records on work authoriza
tion for aliens, eliminates any determinations by the em
ployer and can be implemented electronically, thus eliminat
ing the need for work authorization documents. The Com
mission recognizes that the data systems are not yet in place
for this preferred process to work. The federal government
does not have the capacity to match social security numbers
with INS work authorization data without some of the in
formation captured on the I9. Congress should provide
sufficient time, resources, and authorities to permit devel
opment of this capability.
The Commission urges the Administration and Congress to
monitor closely and evaluate the effects of these various
pilot programs. As discussed in our earlier report, the evalu
ation should assess their effects in reducing fraud, reducing
the potential for discrimination, reducing emplyers' time,
resources, and amount of paperwork, and protecting pri
vacy and civil liberties. The evaluation should be carried
out by nationallyrespected outside evaluators. It should be
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conceived as a continuing evaluation whose results are used
in modifying and improving the pilots as they are imple
mented.
Counterfeit documents. The Commission recommended ac
tion to reduce the availability of counterfeit documents and
the fraudulent access to socalled "breeder documents," par
ticularly birth certificates used to establish identity. The
Commission is pleased to note progress in the development
of new and more tamperproof basic documents that could
serve as verification documents until a general, nationwide
verification system is fully in place. The Commission also
believes that the federal government should develop a pack
age of incentives and disincentives to encourage states and
other localities to develop standards for issuing birth and
death certificates and drivers' licenses. The Commission is
pleased to note that its 1994 recommendation for imposing
additional penalties on those producing and selling counter
feit documents was adopted in the IIRIRA.
Antidiscrimination strategies. In its 1994 report, the Commis
sion expressed its concern regarding the discrimination that
occurs against citizens and noncitizens as a result of the
current employer sanctions system. To address this issue,
the Commission recommended development of a new veri
fication process to deter immigrationrelated discrimination.
We also urged more proactive strategies to identify and com
bat immigrationrelated discrimination at the workplace, as
well as a new study to document the nature and extent of
the problem. Revisiting this issue three years later, the Com
mission finds that there have been a number of changes that
are relevant to the Commission's recommendations.
First, the Office of Special Counsel [OSC] for unfair immi
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grationrelated employment practices, formerly housed as
an independent agency within the Department of Justice,
has been incorporated into the DOJ's Civil Rights Division.
This organizational change seems to have been well received
within the Department as both the Division and OSC focus
on protecting the rights of immigrants and racial and ethnic
minorities.
The number of OSC staff, however, has decreased from thirty
six to about twentyfive since FY 1994. This downward
trend harms OSC's ability to take the proactive role that the
Commission recommended (e.g. increasing independent,
targeted investigations and beginning testing programs). The
Commission urges attention to this matter, as well as to the
long delay in confirming a Special Counsel to head the of
fice.
A significant portion of OSC's efforts have been directed
toward the education of employees and employers, and we
support these efforts. OSC has awarded 114 grants totaling
$2.09 million since FY 1990 and contracted out for a five
year national public affairs/communications strategy. Its
attorneys and staff have made 1,000 presentations in the last
ten years, and its grantees have averaged 1,700 presenta
tions per year. OSC also has coordinated its educational
efforts with the Equal Employment Opportunity Commis
sion, INS, and DOL and has Memoranda of Understanding
with these and other agencies.
Despite this apparent coordination, however, OSC has not
been involved in designing and monitoring the verification
pilot programs. Reducing immigrationrelated employment
discrimination against foreignlooking or sounding persons
was a key goal of the Commission's proposed verification
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system. OSC should play a role in monitoring the verifica
tion pilots to see if the discrimination is indeed reduced as
predicted.
The Commission also reiterates its recommendation for a
methodologicallysound study to document the nature and
extent of unfair immigrationrelated employment practices
that have occurred since the General Accounting Office's
1990 report. Only through such a study can it be determined
whether employer sanctionsrelated discrimination has in
creased or decreased and how the pilot programs compare
with the current situation on this indicator.
In 1996, IIRIRA changed the INA by requiring that an intent
to discriminate must be proven for an employer to be found
guilty of violating IRCA's antidiscrimination procedures with
respect to document requests. Some believe that the intent
standard will be a difficult one to prove and that it provides
the employer with a loophole. The actual effect of this pro
vision will be known only as OSC implements the statutory
change and should be monitored.
Labor standards enforcement. Protecting authorized workers
from employment abuses and substandard conditions and
practices remains an essential ingredient of a strategy to
combat illegal migration. Employers who hire illegal aliens
tend to violate other labor standards and vice versa. Re
cently uncovered examples of exploitation of illegal aliens,
including indentured servitude, highlight the necessity of
enhanced labor standards enforcement. The Commission
recommended in our 1994 report the allocation of increased
staff and resources to the Department of Labor for the en
forcement of wage and hour and other labor standards. We
continue to believe that these additional resources are nec
essary, and the Commission continues to urge Congress to
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authorize and fund additional labor standards investigators
whose work should target industries hiring significant num
bers of illegal aliens. As described more fully later in this
report, we believe that the Department of Labor should have
full capacity and authority to sanction employers who fail to
verify work authorization as part of the agency's duties in
enforcing labor standards.
n Restricting eligibility of illegal aliens for publiclyfunded
Restricting eligibility of illegal aliens for publiclyfunded
Restricting eligibility of illegal aliens for publiclyfunded
Restricting eligibility of illegal aliens for publiclyfunded
Restricting eligibility of illegal aliens for publiclyfunded
services or assistance except those made available on an
services or assistance except those made available on an
services or assistance except those made available on an
services or assistance except those made available on an
services or assistance except those made available on an
emergency basis or for similar compelling reasons to pro
emergency basis or for similar compelling reasons to pro
emergency basis or for similar compelling reasons to pro
emergency basis or for similar compelling reasons to pro
emergency basis or for similar compelling reasons to pro
tect public health and safety or to conform to constitu
tect public health and safety or to conform to constitu
tect public health and safety or to conform to constitu
tect public health and safety or to conform to constitu
tect public health and safety or to conform to constitu
tional requirements.
tional requirements.
tional requirements.
tional requirements.
tional 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 public assistance ex
cept in unusual circumstances. The Commission recom
mended drawing a line between illegal aliens and lawfully
resident immigrants with regard to benefits eligibility, in
part to reinforce this message. Immigrants are welcome in
the country and, therefore, should be eligible for our basic
safety nets; illegal aliens are not welcome and should not
receive our assistance. 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 dis
tinctions between legal and illegal aliens by treating them
similarly for the purposes of many public benefit programs.
n Strategies for addressing the causes of unlawful migration
Strategies for addressing the causes of unlawful migration
Strategies for addressing the causes of unlawful migration
Strategies for addressing the causes of unlawful migration
Strategies for addressing the causes of unlawful migration
in source countries.
in source countries.
in source countries.
in source countries.
in source countries. An effective strategy to curb unautho
rized 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 contin
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ues 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. The
United States can take many unilateral steps to improve its
immigration policies, but U.S. policies alone will not stop
unauthorized migration.
Recognizing the complex motivations behind unlawful move
ments, the Commission advocated the following possible
interventions, many of which have indeed occurred. They
include: arrangements to facilitate trade and investment in
sending countries; support for human rights and democracy
building; peacekeeping operations; humanitarian assistance
in countries of origin and first asylum; deployment of hu
man rights monitors; human rights training for government
officials in potential sending countries; humane treatment of
citizens and minorities; and reconstruction programs after
civil wars and civil conflicts. In its 1997 report on refugee
policy, the Commission recommended that the U.S. govern
ment continue demonstrating leadership in international re
sponses to refugee and related humanitarian crises, includ
ing concerted diplomatic and other efforts to prevent the
emergencies from occurring.
To focus greater attention on the causes of migration, the
Commission recommends development of immigration im
pact analyses of foreign policy and trade decisions with po
tential migrant sending countries. The Commission also calls
for adoption of focused strategies for communities produc
ing large numbers of U.S.bound migrants and strengthened
intelligence gathering to improve early warning of large
unauthorized movements. Other efforts to reduce the pres
sures of migration from the sending countries would be
helpful, such as programs to arrest environmental damage
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throughout the hemisphere, to restore the environment in
such areas as Haiti and Mexico, to improve rural develop
ment and agricultural productivity, particularly in those areas
where land is becoming marginalized and unlikely to sus
tain the local population without an intervention strategy,
and to address other environmental problems such as clear
ing land mines in rural Central America.
Given its proximity to the United States and its number of
migrants, the Commission believes increased coordination
with Mexico is essential to address problems related to
migration. The Commission notes with satisfaction the ef
forts being conducted jointly by the government of Mexico
and the United States to improve coordination strategies
and actions on their respective sides of the border and en
courages the continuation of such important dialogues. In
particular, the Commission recognizes the work of the Bina
tional Study on Migration Between Mexico and the United
States, the Working Group on Migration and Consular Af
fairs, the various crossborder liaison groups established
along the border, and efforts between the two countries to
coordinate antismuggling efforts, regulate the movements
of people across land borders, deter thirdcountry nationals
transiting Mexico en route to the U.S., curtail auto theft and
train cargo theft, reduce border violence, and enhance cross
border law enforcement cooperation.
The Commission also notes that action has taken place at
the regional level; annual discussions have been convened
involving the U.S., Mexico, and Central American countries.
Further, the U.S. has held direct discussions with other coun
tries in the region, such as Cuba, with whom it signed an
agreement to curb unauthorized migration of its native
population.
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Despite that program, the need remains for forward looking
consultative mechanisms between the U.S. and other coun
tries. These should focus on exploring future policies and
their migration implications as well as developing various
policy scenarios and options for addressing unauthorized
migration. Joint data collection and analysis also would be
useful in resolving some of the disagreements surrounding
migration, for example joint solutions to address the eco
nomic and social costs of the migration.
n Mechanisms to respond in a timely
Mechanisms to respond in a timely
Mechanisms to respond in a timely
Mechanisms to respond in a timely
Mechanisms to respond in a timely , ef
, ef
, ef
, ef
, effective, and humane
fective, and humane
fective, and humane
fective, and humane
fective, and humane
manner to migration emergencies.
manner to migration emergencies.
manner to migration emergencies.
manner to migration emergencies.
manner to migration emergencies. A credible immigration
policy requires the ability to respond effectively and hu
manely to migration emergencies in which large numbers of
people seek entry into the United States. These emergencies
generally include bona fide refugees, other individuals in need
of 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. 16
Leadership. Past experiences demonstrate that leadership and
a chain of command must be established quickly during an
unfolding mass migration emergency to ensure an effective
response. The proposed National Security Council focal
point for refugee issues should assume these responsibilities
because of the political nature of the decisions, the need for
high Executive Branch access, and the need for credibility
that derives from sufficient authority and government expe
rience.
16 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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Regional advance preparation. Mass migrations are likely to
continue within this hemisphere. To respond effectively and
humanely to future crises, the U.S. and its regional partners
need a plan for a regional temporary protection system.
This plan should identify sites, prepare protection guide
lines and processing procedures at the primary protection
sites and other locations, and create a funding proposal that
clarifies financial responsibilities and accounts for marginal
additional costs. It also should include measures to avert
and resolve crises and develop plans for implementing du
rable solutions.
Domestic advance preparation. The U.S. must also finalize its
own federal contingency planning for migration emergen
cies that has been under development during the past de
cade (with review and revision as needed). The presence of
a such a contingency plan identifying various scenarios,
policy responses, and appropriate steps for implementing
them can help avoid both dangerous and costly ad hoc
decisionmaking and disruption of normal operations. An
effective and viable emergency response, however, requires
that the agencies have sufficient resources and authorities to
carry out their responsibilities. Thus, as part of this process,
the U.S. must develop a realistic financing strategy and
mechanisms to trigger allocation of funds.
Increased coordination among federal agencies involved in
emergency responses - as well as with state and local agen
cies - also is necessary to ensure that the appropriate par
ticipants are identified and involved in the discussions and
that as many decisions and responsibilities as possible are
agreed upon prior to emergency situations. This would
facilitate emergency responses by reducing the reluctance of
state and local government to be involved, by clarifying
lines of authority, and by increasing trust between the par
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ties. If they had the statutory authority to allow them to
respond rapidly and efficiently, agencies with operational
responsibility for mass migration emergencies could be more
effective. This operational responsibility must include the
authority to assign tasks to other agencies as needed.
Removals
A credible immigration system requires the effective and timely
removal of aliens determined through constitutionallysound proce
dures to have no right to remain in the United States. As the
Commission stated in its 1994 Report, if unlawful aliens believe that
they can remain indefinitely once they are within our national bor
ders, there will be increased incentives to try to enter or remain
illegally.
Our current removal system does not work. Hundreds of thou
sands 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.
A
A A
A A large number of aliens - more than 250,000 in the past eight years -
have been issued removal orders but have never been removed. 17
[See chart: Comparison of Removal Orders and Actual Removals.]
In studying how the current system produces such a large number
of unexecuted final removal orders, the Commission finds that the
removal process is neither conceived of nor managed as an inte
grated system.
17 Prior to IIRIRA, such orders were referred to as "deportation" and
"exclusion" orders.
U.S. COMMISSION ON IMMIGRATION REFORM
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Comparison
of
Removal
Orders
and
Actual
Removals
YEAR
1989
1990
1991
1992
1993
1994
1995
1996
1997 (1st
half)
ORDERS
48,000
52,000
60,000
65,000
70,000
84,000
105,000
131,000
64,000
REMOVALS
34,000
30,000
33,000
43,000
43,000
45,000
51,000
69,000
42,000
UNEXECUTED ORDERS
14,000
22,000
27,000
22,000
27,000
39,000
54,000
62,000
22,000
CRIMINAL REMOVALS
8,000
12,000
17,000
24,000
28,000
31,000
33,000
37,000
23,000
NONCRIMINAL ALIEN REMOVALS
26,000
18,000
16,000
19,000
15,000
14,000
18,000
32,000
19,000
INS
DISTRICT
IN
SAN
DIEGO
REMOVALS
-
7,000
8,000
8,000
8,000
9,000
12,000
23,000
13,000
Sources:
INS,
EOIR,
Administratively
Final
Removal
Order
by
Month:
Summary,
July
24,
1997
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
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18 See, e.g., GAO Testimony, "Criminal Aliens: INS' Efforts to Identify and
Remove Imprisoned Aliens Need to Be Improved," before the Immigration
and Claims Subcommittee, Committee on the Judiciary, House of
Representatives, July 15, 1997.
The Commission urges immediate reforms to improve management of the
removal system and to ensure that aliens with final orders of deportation,
exclusion, or removal are indeed removed from the United States.
In its 1994 report, the Commission recommended that the top en
forcement priority should be the removal of criminal aliens from the
U.S. in such a way that their potential return to the U.S. will be
minimized. The INS has made considerable progress recently in
removing larger numbers of criminal aliens. This year, INS is on
track to remove 70 percent more criminal aliens than were removed
in FY 1993. Despite these advances, the actual number of criminal
alien removals still lags behind the total number who should be
deported from this country. 18
INS has been able to increase the number of criminal alien removals
by detaining previously incarcerated aliens after they complete serv
ing their sentences, through conclusion of their proceedings, and
removal can be effected. More significantly, INS and the Executive
Office for Immigration Review developed the Institutional Hearing
Program [IHP] through which removal hearings are held in the pris
ons. When final orders are issued in this setting, criminal aliens can
be deported directly from state or federal prisons, alleviating INS'
need to detain them during deportation proceedings. The Commis
sion recommended enhanced use of the IHP in its 1994 report. As
the recent GAO testimony cited above indicates, improvements are
still needed to ensure that INS identifies and deports all removable
criminal aliens.
Further, while the INS has increased criminal alien removals over
the last several years, noncriminal alien removals remained static
The Commission
The Commission
The Commission
The Commission
The Commission
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the United States.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
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until 1996, as the chart comparing removal orders and actual orders
indicates. The recent increase in noncriminal removals may be some
what related to increased detention space and resources authorized
by Congress. However, much of the increase appears localized,
suggesting that other forces are at work. As the chart further shows,
removals from the San Diego District represent much of the increase
and are related directly to the establishment of a Port Court in
1995. 19
Even with these increased removals, the system needs significant
improvements before it can be regarded as credible, that is able to
deport most of the aliens with final orders of removal. To achieve
this goal will require a new approach to correct a fundamental flaw -
the fragmentation in the current conception and management of the
removal system. Each part of the system - Investigations, Trial
Attorneys, and Detention and Deportation - acts independently,
impeding the total system's efficiency and leaving no one account
able for growing numbers of unexecuted final orders of removal.
The system starts with INS investigations of potential immigration
law violations. When investigators find such violations, they issue
notices placing aliens in removal proceedings. At that point, the
investigators are finished with their assigned tasks; they are never
connected to the results of their work - whether the alien was ulti
mately ordered removed and actually deported. Nor is their perfor
mance evaluated in connection with actual removals or with the
priority that policymakers place on the removal of particular catego
19 When "Operation Gatekeeper" changed the patterns of how aliens
attempted to enter the U.S. illegally and resulted in a significant increase
in the number of aliens trying to cross with false documents at the port
of entry, the U.S. Attorney worked with INS and EOIR to establish a
more expeditious removal process for aliens apprehended at ports of
entry. Previously, such aliens were simply turned back to Mexico; under
the new system, they were placed in exclusion proceedings at the newly
created Port Court. The aliens were detained for a few days, and the
exclusion proceedings were expeditious because they were uncontested.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
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ries of aliens. Investigators do not, as a matter of practice, distin
guish among priorities when initiating the formal removal process;
both the worst violators and those who may have good claims for
relief are placed in the same costly and timeconsuming proceed
ings.
Once the proceedings have commenced, the INS Trial Attorney is
responsible for the case. The volume of cases for each Trial Attor
ney is very large; yet, again there is no considered prioritization
about which cases to proceed against and which not. Key
policymakers do not provide guidance to Trial Attorneys about
prioritizing cases, and, even if such guidance were provided, Trial
Attorneys say that they are not given sufficient time to review cases
to determine whether a case is worth pursuing. Again, there is no
connection to the ultimate aim of the system - removing those who
should be deported.
The system suffers further because many aliens are unrepresented
and thus do not receive advice on whether to go forward because
they have a chance of being granted relief. As the Commission
learned in studying the results of the Florence Representation Project
[see below], the removal process works much more efficiently when
aliens receive advice of counsel. Those with weak cases generally
do not pursue relief through proceedings if they understand from
counsel that they will be wasting their time. As the late Chief
Immigration Judge Robie pointed out, representation generally makes
the court system work more efficiently. For example, Immigration
Judges often grant continuances to unrepresented aliens to give them
time to obtain counsel. In certain types of cases (particularly asy
lum claims), some judges are hesitant to proceed in the absence of
representation. When a final order of removal is issued, another
INS office, Detention and Deportation, takes responsibility for the
case. This office is charged with managing detention space and
effecting removal. The reality is that there will never be enough
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
131
space to detain everyone who should be removed. Nonetheless, no
plan has been devised to pursue alternatives. The only experiment
the INS has launched is the Vera Appearance Assistance Program
that plans to test the utility of supervised release on various limited
populations [as discussed below]. Unfortunately, due to internal
INS problems, that pilot may not gain access to one of the main
groups it should test - asylum seekers who meet the credible fear
standard. No strategy has been devised for determining when, after
the first hearing on the merits, detention is advisable because the
likelihood of absconding is higher. Notices ordering removable aliens
to report for deportation, known as "run" letters, continue to be
issued at a 90+ percent noshow rate. No strategy has been devel
oped for picking up aliens with final orders even when there is a
recent address.
Establishing a more effective removal system requires changes in
the management of the removal process. More specifically, the Com
mission recommends:
n Establishing priorities and numerical targets for the re
Establishing priorities and numerical targets for the re
Establishing priorities and numerical targets for the re
Establishing priorities and numerical targets for the re
Establishing priorities and numerical targets for the re
moval of criminal
moval of criminal
moval of criminal
moval of criminal
moval of criminal and and and and and noncriminal aliens.
noncriminal aliens.
noncriminal aliens.
noncriminal aliens.
noncriminal aliens. The Commis
sion encourages headquarters, regional, and local immigra
tion enforcement officials to set these priorities and numeri
cal goals. Based on the above analysis of removal orders
and actual removals, it appears that beyond the very high
est removal priority - convicted criminals - targeted priori
ties of particular categories generally have not been devel
oped at the national and local levels. Nor has INS devel
oped numerical targets for the removal of specific categories
of noncriminal aliens. This absence of prioritization and
performance measures generally precludes serious consid
eration of what strategies, resources, and training will be
needed to effect the desired removals.
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RECOMMENDATIONS
132
Establishing removal of criminal aliens as a priority and
setting numerical targets helped identify such new strate
gies as the IHP. The same process can work with regard to
other categories of aliens, as can be seen in San Diego. Aliens
who attempted to enter there with fraudulent documents
were singled out as a priority for removal with an exclusion
order. Formerly, those presenting fraudulent documents were
permitted simply to withdraw their application for admis
sion with no penalty. Setting the priority to remove aliens
attempting reentry led to the decision to increase Inspection
staff, establish a Port Court, identify additional detention
space, and gain a commitment from the U.S. Attorney to
prosecute those who attempted reentry after exclusion.
Failed asylum seekers [as the Commission recommended in
our June 1997 Refugee Report], visa overstayers, unautho
rized workers in targeted industries, and those who use
false documents are categories that require attention if our
removal system is to become credible and deter abuse.
Setting priorities and numerical targets will help the gov
ernment manage what is potentially a huge caseload of re
movable aliens.
n Local oversight and accountability for the development
Local oversight and accountability for the development
Local oversight and accountability for the development
Local oversight and accountability for the development
Local oversight and accountability for the development
and implementation of plans to coordinate apprehensions,
and implementation of plans to coordinate apprehensions,
and implementation of plans to coordinate apprehensions,
and implementation of plans to coordinate apprehensions,
and implementation of plans to coordinate apprehensions,
detention, hearings, removal, and the prevention of reen
detention, hearings, removal, and the prevention of reen
detention, hearings, removal, and the prevention of reen
detention, hearings, removal, and the prevention of reen
detention, hearings, removal, and the prevention of reen
try
try try
try try . . . . . 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 process and ultimately removed. Local
managers also would be responsible and accountable for
identifying effective deterrents to reduce the likelihood that
removed aliens would attempt to reenter the U.S. Managers
need to redesign the system so that resources are balanced
from beginning to end. Right now, the system is lopsided
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
133
and disconnected. The front end (Investigations) drives the
system, and the back end (actual removals) is neglected.
That imbalance can be corrected if the local offices develop
plans to coordinate apprehensions, detention, hearings, and
the removal process in ways that target the particular priori
ties in different districts. As discussed above, the San Diego
district has had some success in focusing on aliens trying to
enter with false documents. After identifying this priority,
the U.S. Attorney coordinated the key federal government
actors to ensure that these aliens were placed into proceed
ings, either returned to Mexico or detained for several days
awaiting the hearing, promptly removed after the issuance
of a final order, and prosecuted if they reentered.
As discussed above, the local INS Trial Attorneys, who are
part of the General Counsel's Office, currently do not play
a significant role in driving the removal system. The Com
mission believes Trial Attorney offices should function in
the same manner that U.S. and District Attorney Offices do.
Those offices determine which cases they will prosecute;
and these determinations guide detectives as to which cases
they bring to the U.S. or District Attorney for prosecution.
Congress should provide sufficient resources to support such
initiatives. Based on the policy guidance and plans devel
oped by headquarters, regional and local offices, the chief
Trial Attorneys [now called District Counsel] should make
it clear to investigators which cases they will pursue in pro
ceedings and which cases they will not. Investigators should
then target these priority cases. Local heads of Immigration
Enforcement Offices should be held accountable for the plan
ning and implementation of this reconceived removal sys
tem. To ensure such accountability, these local officials should
have authority over both the prosecutorial and police func
tions.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
134
n Continued attention to improved means for identifying
Continued attention to improved means for identifying
Continued attention to improved means for identifying
Continued attention to improved means for identifying
Continued attention to improved means for identifying
and removing criminal aliens with a final order of depor
and removing criminal aliens with a final order of depor
and removing criminal aliens with a final order of depor
and removing criminal aliens with a final order of depor
and removing criminal aliens with a final order of depor
tation.
tation. tation.
tation. tation. The Commission reiterates the importance of re
moving criminal aliens as a top priority. Our recommenda
tion 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 crimi
nal 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.
To improve the effectiveness of the criminal removal sys
tem, criminal aliens must be identified as early in the pro
cess as possible. The local jail pilot project mandated by §
329 of IIRIRA should be used to help determine how early
in the criminal process identification should occur. The De
partment of Justice and the state and local criminal justice
agencies should develop uniform means of identification,
and the data systems of these agencies should be linked to
identify more effectively criminal aliens who should be re
moved.
With respect to the Institutional Hearing Program, the GAO
found that the INS (1) failed to identify many removable
criminal aliens and initiate IHP proceedings for them before
they were released from prison, and (2) did not complete
the IHP by the time of prison release for the majority of
criminal aliens it did identify. GAO recommended improved
data systems to track the IHP status of each foreignborn
inmate and the development of a workload analysis model
to identify the IHP resources needed in any period to achieve
overall program goals. The Commission believes that the
development of uniform means of such identification and
linked data also will help the program achieve its goals.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
135
The Commission urges the Department of Justice to attend
carefully to actual removals in two additional ways. First,
we have heard serious complaints from foreign authorities
that they are not being notified that the U.S. is returning a
criminal alien. DOJ must develop an improved notification
process so that appropriate authorities in the countries to
which criminal aliens are being returned can plan for such
returns and take these individuals into custody if necessary.
Second, we also have learned that many criminal aliens are
being returned unescorted. For public safety reasons, crimi
nal aliens should be returned by escort.
n Legal rights and representation.
Legal rights and representation.
Legal rights and representation.
Legal rights and representation.
Legal rights and representation. The Executive Branch
should be authorized to develop, provide, and fund pro
grams and services to 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. The alien would not have a right to
appointed counsel, but the government could fund services
to address some of the barriers to representation.
Under the provisions of § 292 of the Immigration and Na
tionality Act, an alien placed in proceedings is guaranteed
the privilege of being represented by an attorney or other
qualified legal representative, but at no expense to the gov
ernment. Under this system, the alien is provided with a
list of local attorneys and accredited organizations practic
ing immigration law who might be able to provide legal
representation. Studies have shown that the vast majority
of aliens in proceedings before Immigration Judges are not
represented by counsel. This is accounted for by several
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
136
factors including the lack of English proficiency on the part
of aliens, a lack of understanding of the legal process and of
their legal rights, the lack of funds to hire an attorney, and
an inability to find someone available and willing to repre
sent them. Securing the services of an attorney or otherwise
qualified legal representative presents a particular challenge
for detained aliens whose freedom is constrained, who have
limited phone privileges, and who find themselves situated
in locales not readily served by or accessible to the legal
community.
Experience demonstrates that when aliens are represented
in proceedings, cases move more efficiently, economically,
and expeditiously through the system. Indeed, represented
aliens with little or no chance of prevailing can be more
readily weeded out of the system. Aliens who have legal
representation are much more likely to appear at their hear
ings than unrepresented aliens. Fewer continuances are
needed or granted in the case of represented aliens. Hear
ings take less time. Issues presented for decision by the
immigration courts and on appeal are more readily nar
rowed. Applications for relief are better prepared and
presented in immigration court. Appeals are more cogently
presented and are supported by legal briefs. Simply put,
when aliens in proceedings or on appeal have legal repre
sentation, the system works better.
The Commission visited the Florence Immigration and Refu
gee Rights Project in Florence, Arizona, a project that dem
onstrates the advantages of programs designed to educate
aliens about their rights and that provides a triage system to
secure representation for those with a likely avenue for
relief. The Project screens detainees for eligibility for immi
gration benefits and relief from deportation, exclusion, or
removal, informs aliens about their rights, and directly rep
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
137
resents as many as it can handle, with the overflow referred
out to pro bono attorneys. The Project has been recognized
for its success and assistance in moving cases through the
system while affording due process. An evaluation of the
Project found that aliens with representation had a better
opportunity to become aware of their rights and legal op
tions. Many inside and out of government believe that the
Florence Project reduces alien detention time, expedites re
moval by decreasing necessary immigration court time, and
increases court efficiency. Representation also decreases anxi
ety and behavioral problems among detainees.
The Commission believes that programs like the Florence
Project should be facilitated and encouraged. Moreover, the
Commission believes that the Executive Branch should be
granted the authority to develop, provide, and fund other
programs and services that inform aliens about their rights
and the proceedings in which they are placed and to other
wise facilitate legal representation where to do so is a ben
efit to the system. Under this approach, the alien would not
have a right to appointed counsel, but the government could
fund ancillary services, such as rights presentations, inter
preters, transportation, attorney/client meeting places, and
training to address some of the barriers to increased legal
representation.
n Prosecutorial discretion to determine whether to proceed
Prosecutorial discretion to determine whether to proceed
Prosecutorial discretion to determine whether to proceed
Prosecutorial discretion to determine whether to proceed
Prosecutorial discretion to determine whether to proceed
with cases.
with cases.
with cases.
with cases.
with cases. Guidelines on the use of prosecutorial discre
tion should be developed; local Trial Attorneys should be
trained to exercise discretion and support staff should be
provided to ensure that Trial Attorneys have the time needed
to screen cases prior to hearings. Discretion should be ex
ercised with the goal of establishing a more efficient and
rational hearing system.
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In addition to targeting priority cases, the District and U.S.
Attorneys decide which of those cases to prosecute based
on an assessment of the strength of each case. In contrast,
by and large, the INS prosecutes all cases that appear to
involve violations of law. The Commission is concerned
about the cost of litigating every case, both in terms of the
credibility of the system and expenditure of public funds.
We have recommended setting priorities as a strategy to
establish credibility and to send a deterrent message. Here
we urge the development of a system based on a sensible
goal: prosecution of those who actually will be removed.
To establish a removal system that operates efficiently by
prosecuting appropriate cases and settling those, for example,
where relief is likely to be established, guidelines should be
developed and issued by the General Counsel. Trial Attor
neys should be trained to create and apply these guidelines
nationwide. Finally, Trial Attorneys need time to screen
cases prior to a removal hearing and to determine whether
the alien has a strong claim for relief. To free up their time,
support staff should be provided to handle the clerical work
that currently burdens the Trial Attorneys. By wisely apply
ing their discretion, the Trial Attorneys could then focus
their attention on immigration court cases that are likely to
result in the removal of the alien upon completion of the
proceedings. This "outofcourt" approach also would as
sist the Immigration Judges and the private immigration bar
by reducing the amount of time all parties spend in immi
gration court.
n Strategic use of detention and release decisions.
Strategic use of detention and release decisions.
Strategic use of detention and release decisions.
Strategic use of detention and release decisions.
Strategic use of detention and release decisions. Deten
tion space, always in limited supply, is in greater demand as
the government has focused more on the removal of crimi
nal aliens and as Congress mandates more categories to be
detained. IIRIRA requires the Attorney General to detain all
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RECOMMENDATIONS
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aliens found inadmissible or deportable on criminal or ter
rorist grounds. The criminal grounds include convictions
for certain crimes now categorized as "aggravated felonies"
for which a sentence of one year imprisonment or more may
be imposed. Congress enacted these changes knowing that
current detention space and personnel were insufficient to
execute such expanded detention requirements and allowed
the Attorney General to waive these requirements for two
oneyear periods while developing the capacity to handle
these developments. The Attorney General notified the
Judiciary Committees of the insufficiencies for the first year.
IIRIRA also requires the detention of asylum seekers during
the credible fear determination process.
Detention needs to be used more strategically if the govern
ment is going to target and remove designated categories of
aliens determined to be priorities in particular locales. If it
appears that asylum abuse is getting out of hand in one
locality, for example, detention space would be needed to
ensure that failed asylum seekers are removed.
Alternatives to detention should be developed so that de
tention space is used efficiently and effectively. In 1997, INS
initiated a threeyear pilot program, created with and imple
mented by the Vera Institute of Justice, that may help define
effective alternatives to detention for specific populations.
The Vera Assistance Appearance Program aims to develop
and validate with formal research a supervision program
that will increase both appearances at immigration court
proceedings and compliance with the legal process among
those not detained, while ensuring efficient use of detention
space. The program thus aims to address important re
moval problems: The Executive Branch can detain only a
fraction of individuals in removal proceedings; those who
are not detained often do not appear in court and rarely
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
140
comply with removal orders. The pilot will free up valuable
detention space by keeping out of detention aliens who may
eventually be granted relief. If the Vera pilot demonstrates
the utility of supervised release, an assessment of chances
for relief and community ties or supervision would assist
the Department of Justice in determining more precisely
when detention is needed in each case to ensure that aliens
who ultimately receive no relief do not abscond. It is hoped
that the pilot will provide insight into the use of reporting
mechanisms as well as the role of community organizations
who take responsibility for maintaining contact with and
reminding those released of their responsibilities to the
immigration court.
The Commission considers the Vera pilot of great impor
tance to the development of an effective removal system.
INS officials at headquarters and in the local offices should
work together to see that this pilot serves as a valid test of
detention alternatives. In particular, the pilot should be
permitted access to those asylum seekers who meet the "cred
ible fear" test for two reasons. First, detaining individuals
who have met an initial threshold demonstrating their like
lihood of obtaining asylum is not a good use of scarce de
tention resources. As the Commission stated in its Refugee
Report, "credible fear" is an appropriate standard for deter
mining who will be released from detention; it is not appro
priate for determining who will gain access to an asylum
hearing, except under exceptional circumstances. Second,
asylum seekers who have met the credible fear test
will enable the pilot to test the utility of supervised release
and make recommendations on the role of community ties
and sponsors.
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Additional alternatives should be developed to address lo
cal situations. For example, in border communities, aliens
with pending cases could be permitted to return to Mexico
and come to Port Court for their hearing in lieu of deten
tion, as occurs in San Diego. The aliens in such proceedings
are told the consequence of their failure to appear - that
they will be found excludable in absentia and criminally
prosecuted if they attempt to reenter.
n Improved detention conditions and monitoring.
Improved detention conditions and monitoring.
Improved detention conditions and monitoring.
Improved detention conditions and monitoring.
Improved detention conditions and monitoring. Over the
past two decades, INS has taken on significant responsibili
ties in detaining aliens. INS detains a broad range of aliens
of both genders, from criminals to asylum seekers. While
short detention periods typically are contemplated for those
awaiting removal hearings, the results often are otherwise.
The INS has also become the longterm jailer for a signifi
cant number of removable aliens from Cuba, Vietnam, and
other nations. INS currently operates nine Service Process
ing Centers and, like the U.S. Marshals, contracts bed space
with many state and local jails. In recent years, Congress
has increased significantly resources for detention space: total
available beds per day totaled 8,600 in 1996; INS is close to
reaching its goal of 12,000 by October 1997.
Serious problems have occurred, the most prominent in 1995
when the ESMOR Contract Facility in Elizabeth, New Jersey,
was shut down following an incident in which detainees
voiced complaints of physical abuse, stealing, and harass
ment by guards. INS' own investigation of the facility un
covered serious management problems. More regularly, com
plaints regarding local jails have included human rights
abuses, overcrowding, poor nourishment, mixing of women
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
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and juveniles with men and of asylum seekers with crimi
nals, and lack of access to health care, counsel, family, and
recreation.
Detention cannot be used effectively unless and until 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 and
publish findings on a regular basis must be developed. In
spections must occur more than once annually.
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 responsi
bility that is not part of its mission or expertise.
n Improved data systems.
Improved data systems.
Improved data systems.
Improved data systems.
Improved data systems. The Commission recommends that
data systems link apprehensions and removals. Current
data systems are unable to link an apprehension to its final
disposition (e.g., removal, adjustment of status). In addi
tion, INS statistics relate to events, not individuals. This
significantly limits the use of apprehension and removal data
for analytical purposes. The Commission urges develop
ment of data systems that link apprehensions and removals
and provide statistics on individuals. This would foster a
better understanding of apprehension as a removal tool and
provide better information on recidivism.
n The redesigned removal system should be managed ini
The redesigned removal system should be managed ini
The redesigned removal system should be managed ini
The redesigned removal system should be managed ini
The redesigned removal system should be managed ini
tially by a LastInFirstOut [LIFO] strategy to demonstrate
tially by a LastInFirstOut [LIFO] strategy to demonstrate
tially by a LastInFirstOut [LIFO] strategy to demonstrate
tially by a LastInFirstOut [LIFO] strategy to demonstrate
tially by a LastInFirstOut [LIFO] strategy to demonstrate
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
143
The Commission
The Commission
The Commission
The Commission
The Commission
ur
ur ur
ur urges Congr
ges Congr
ges Congr
ges Congr
ges Congress ess ess ess ess
to clarify that
to clarify that
to clarify that
to clarify that
to clarify that
IIRIRA and
IIRIRA and
IIRIRA and
IIRIRA and
IIRIRA and
AEDP AEDP AEDP AEDP AEDPA A A A A do not
do not
do not
do not
do not
apply r
apply r
apply r
apply r
apply retr etr etr
etr etroactively oactively oactively oactively oactively
to cases pending
to cases pending
to cases pending
to cases pending
to cases pending
when the new
when the new
when the new
when the new
when the new
policies and
policies and
policies and
policies and
policies and
pr pr pr pr procedur ocedur ocedur ocedur ocedures went
es went
es went
es went
es went
into ef
into ef
into ef
into ef
into effect. fect. fect.
fect. fect.
the credibility of the system.
the credibility of the system.
the credibility of the system.
the credibility of the system.
the credibility of the system. Once a coherent system is
organized and appropriate resources are assigned to re
moving deportable aliens - not simply to put aliens through
proceedings - removals should proceed in a LastInFirst
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.
The LIFO model has worked successfully in the affirmative
asylum system, allowing the government to demonstrate
control over the current caseload and to quickly establish
priorities for dealing with the backlog for enforcement pur
poses. It can provide both the measure of success for the
removal system as well as convey the proper deterrent mes
sage.
The Commission ur
The Commission ur
The Commission ur
The Commission ur
The Commission urges Congr
ges Congr
ges Congr
ges Congr
ges Congress to clarify that the Illegal
ess to clarify that the Illegal
ess to clarify that the Illegal
ess to clarify that the Illegal
ess to clarify that the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 and
Immigration Reform and Immigrant Responsibility Act of 1996 and
Immigration Reform and Immigrant Responsibility Act of 1996 and
Immigration Reform and Immigrant Responsibility Act of 1996 and
Immigration Reform and Immigrant Responsibility Act of 1996 and
the Antiterr
the Antiterr
the Antiterr
the Antiterr
the Antiterrorism and Ef
orism and Ef
orism and Ef
orism and Ef
orism and Effective Death Penalty Act of 1996 do not
fective Death Penalty Act of 1996 do not
fective Death Penalty Act of 1996 do not
fective Death Penalty Act of 1996 do not
fective Death Penalty Act of 1996 do not
apply r
apply r
apply r
apply r
apply retr etr etr
etr etroactively to cases pending when the new policies and
oactively to cases pending when the new policies and
oactively to cases pending when the new policies and
oactively to cases pending when the new policies and
oactively to cases pending when the new policies and
pr pr pr pr procedur ocedur ocedur ocedur ocedures went into ef
es went into ef
es went into ef
es went into ef
es went into effect. fect. fect. fect. fect. As a matter of policy, the Commission
believes that retroactive application of new immigration laws un
dermines the effectiveness and credibility of the immigration sys
tem. Applying newlyenacted laws or rules in an immigration pro
ceeding that is pending results in inefficiency in the administration
of the immigration laws. It also can raise troubling issues of fair
ness.
There is no uniform effective date for the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 in its entirety.
Instead, and to the extent it has spoken on the matter, Congress has
imposed several different effective dates depending on the provi
sions involved. Most of the new removal provisions became
effective on April 1, 1997. The fact that a statutory provision takes
effect upon enactment or upon a future date certain, does not re
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
144
20 The analytical model for determining statutory retroactivity, set forth by
the Supreme Court of the United States in Langraf v. U.S.I. Film Products,
Inc., 511 U.S. 244 (1994), is aptly encapsulated in the following excerpt
from Immigration Law and Procedure, Gordon and Mailman, Chapter 61,
Special Alert, SPA611, 2 (1997):
[T]he first step is to determine whether Congress expressly defined
the statute's proper reach. The language of the statute must be
examined to determine whether it manifests an intent to apply to
cases or conduct that arose before the law's enactment. For the
statute to apply retroactively, there must be an "unambiguous
directive" or an "express command" from Congress that it intended
such application. In the absence of such an unambiguous directive,
it must be determined whether the new statute "attaches new legal
consequences to events completed before its enactment" or "would
impair rights a party possessed when he acted, increase a party's
liability for past conduct or impose new duties with respect to
transactions already completed." If the statute has this effect, it
should not apply retroactively.
solve the issue of whether the provision applies to cases already
pending. When new statutory provisions are applied to such cat
egories of cases, it is generically considered a "retroactive" applica
tion of the law. 20
Although retroactive application of new statutory requirements by
Congress is legally permissible (subject to certain constitutional con
straints), it does not constitute sound public policy. Ours is a sys
tem governed by the rule of law. In our view, retroactively chang
ing the applicable rules once a legal proceeding has commenced not
only is manifestly unfair, but also invites confusion, adds uncer
tainty, and fosters a lack of trust and confidence in the rule of law.
We are concerned as well that retroactively applying new statutory
provisions results in inefficiency and simply does not make good
sense given the current realities of administering the immigration
laws. As fully discussed earlier in this report, hundreds of thou
sands of outstanding administratively final orders of deportation
remained unexecuted long before the enactment of either IIRIRA or
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
145
AEDPA. Clearly, the system has had little problem in establishing
sufficient grounds for deportation and exclusion under prior law.
Moreover, although relief from deportation and exclusion under prior
law was available, the number of granted applications was propor
tionally very small compared to the number of aliens in proceed
ings. The problem, then, has not been in ordering the deportation
or exclusion of immigration violators, or in granting relief in a rela
tively small percentage of cases. The problem has been in actually
removing aliens who have been found to be deportable, excludable,
or removable following the conclusion of their proceedings.
As noted above, the system is not yet removing anything approach
ing 100 percent of the existing detained or nondetained criminal
alien population for whom an administratively final order of depor
tation or exclusion already has been entered or who are otherwise
deportable or excludable under prior law based on their criminal
conduct. Moreover, the system has failed to remove significant
numbers of noncriminal aliens against whom orders of deportation
or exclusion have been outstanding for several years. Although
retroactive application of the 1996 legislation will both significantly
increase the numbers of removable aliens and decrease the num
bers of aliens who might have otherwise qualified for existing relief,
the system does not have the capacity actually to remove these
added numbers of individuals. The resulting situation serves only
to further erode the effectiveness and credibility of the immigration
system as a whole.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
147
ACHIEVING IMMIGRATION
POLICY GOALS
INTRODUCTION
Restoring credibility and setting priorities - themes at the center of
the Commission's policy recommendations on illegal and legal im
migration, respectively - will not come to pass unless the govern
ment is structured to deliver on these policies. An effective immi
gration system requires both credible policy and sound manage
ment. Good management cannot overcome bad policy. Poor struc
tures, lack of professionalism, poor planning, and failure to set pri
orities will foil even the best policies.
Until relatively recently, the agencies responsible for implementing
immigration policy were underfunded, understaffed, and neglected.
During the past few years, however, massive increases in resources
and personnel, combined with significant political attention to im
migration issues, have provided new opportunities to address long
standing problems. A recent General Accounting Office report docu
mented improvements - including, for example, a more strategic ap
proach to the formulation of immigration enforcement programs -
but concluded that management problems remain. Further change
is required if the overall U.S. immigration system is to function
smoothly and effectively, anticipating and addressing, rather than
reacting to, problems.
STRUCTURAL REFORM
The Commission recommends fundamental restructuring of responsibilities
within the federal government to support more effective management of the
core functions of the immigration system: border and interior enforcement;
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
148
enforcement of immigrationrelated employment standards; adjudication of
immigration and naturalization applications; and appeals of administra
tive decisions. . . . . The immigration system is one of the most compli
cated in the federal government bureaucracy. In some cases, one
agency has multiple, and sometimes conflicting, operational respon
sibilities. In other cases, multiple agencies have responsibility for
elements of the same functions. Both situations create problems.
Mission overload. Some of the agencies that implement the immigra
tion laws have so many responsibilities that they have proved un
able to manage all of them effectively. Between congressional man
dates and administrative determinations, these agencies must give
equal weight to more priorities than any one agency can handle.
Such a system is set up for failure, and, with such failure, further
loss of public confidence in the immigration system.
No one agency is likely to have the capacity to accomplish all of the
goals of immigration policy equally well. Immigration law enforce
ment requires staffing, training, resources, and a work culture that
differs from what is required for effective adjudication of benefits or
labor standards regulation of U.S. businesses. While some argue
that enforcement and benefits are complementary functions, we agree
with the Commission for the Study of International Migration and
Cooperative Economic Development [Asencio Commission, after its
Chair] that placing incompatible service and enforcement functions
within one agency creates problems: competition for resources; lack
of coordination and cooperation; and personnel practices that both
encourage transfer between enforcement and service positions and
create confusion regarding mission and responsibilities. Combining
responsibility for enforcement and benefits also blurs the distinction
between illegal migration and legal admissions. As a matter of
public policy, it is important to maintain a bright line between these
two forms of entry. We believe the Asencio Commission was correct
in contending that separating enforcement and benefits functions
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends ecommends ecommends
ecommends ecommends
fundamental fundamental fundamental fundamental fundamental
r r r r restructuring estructuring estructuring estructuring estructuring
of r
of r
of r
of r
of responsibilities esponsibilities esponsibilities esponsibilities esponsibilities
within the
within the
within the
within the
within the
federal government
federal government
federal government
federal government
federal government
to support mor
to support mor
to support mor
to support mor
to support more e e e e
ef ef ef ef effective fective fective fective fective
management management management management management
of the cor
of the cor
of the cor
of the cor
of the core e e e e
functions of the
functions of the
functions of the
functions of the
functions of the
immigration system:
immigration system:
immigration system:
immigration system:
immigration system:
border and interior
border and interior
border and interior
border and interior
border and interior
enfor enfor enfor enfor enforcement, cement, cement, cement, cement,
enfor enfor enfor enfor enforcement of
cement of
cement of
cement of
cement of
immigrationr immigrationr immigrationr immigrationr immigrationrelated elated elated
elated elated
employment employment employment employment employment
standards, standards, standards, standards, standards,
adjudication of
adjudication of
adjudication of
adjudication of
adjudication of
immigration and
immigration and
immigration and
immigration and
immigration and
naturalization naturalization naturalization naturalization naturalization
applications, applications, applications, applications, applications,
and appeals of
and appeals of
and appeals of
and appeals of
and appeals of
administrative administrative administrative administrative administrative
decisions. decisions. decisions. decisions. decisions.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
149
will lead to cost efficiencies, more effective enforcement, and im
proved service to the public.
Diffusion of responsibilities among agencies. Responsibility for many
immigration functions are spread across numerous agencies within
single departments or between departments. This fragmentation of
responsibility is most clear in relationship to the adjudication of
applications for admission as a legal permanent resident: responsi
bility for making decisions on skillbased immigrant and LDA ap
plications is dispersed among the Department of Labor, the Depart
ment of Justice's Immigration and Naturalization Service and the
Department of State. Responsibility for investigating employer com
pliance with immigrationrelated labor standards is shared by INS
and DOL. Additionally, the United States Information Agency has
responsibility for determining who will enter with a J visa, under
which some exchange visitors work in this country. USIA also must
sign off on requests for waivers of the twoyear home residency
required of some J visa holders before they can adjust their status
to other nonimmigrant or immigrant categories.
A second area in which responsibility is diffused and activities are
redundant is worksite enforcement. Both INS and DOL conduct
investigations to determine if employers have violated the employ
ment eligibility verification requirement. Sanctions may be imposed
by INS against employers who knowingly hire unauthorized work
ers. The DOJ Office of Special Counsel has related responsibilities
in determining if employers are engaging in immigrationrelated
unfair employment practices.
Fragmentation of responsibility leads to conflicting messages from
the various agencies, unnecessary delays in adjudication, and, when
more than one agency must adjudicate the same request, redundan
cies in actual implementation.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
150
Current
U.S. Immigration System
DEPARTMENT
OF JUSTICE
Immigration &
Naturalization
Service
Executive Office for
Immigration Review
DEPARTMENT
OF STATE
Consular Affairs
Bureau for Population,
Refugees & Migration
Board of Appellate
Review*
DEPARTMENT
OF LABOR
Employment Standards
Administration
Employment
Training Administration
Board of Alien Labor
Certification Appeals
IMMIGRATION
3
3
LABOR
STANDARDS
3 3
APPEALS
3
3
3
3
3
AGENCY
FUNCTION IMMIGRATION
ENFORCEMENT
*For a limited set of nationality and citizenshiprelated matters.
3
3
The Commission considered a range of ways to reorganize roles and
responsibilities, including proposals to establish a Cabinetlevel
Department of Immigration Affairs or an independent agency along
the lines of the Environmental Protection Agency. We believe a new
department or independent agency is neither practical nor desir
able, particularly in the context of current interest in streamlining
government operations, not creating sizeable, new entities.
After examining the full range of options, the Commission con
BENEFITS
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
151
cludes that a clear division of responsibility among existing federal
agencies, with appropriate consolidation of functions, will improve
management of the federal immigration system. As discussed be
low, the Commission recommends a restructuring of the immigration's
four principal operations as follows: 1
1. 1. 1. 1. 1. Immigration enfor
Immigration enfor
Immigration enfor
Immigration enfor
Immigration enforcement at the border and in the interior of
cement at the border and in the interior of
cement at the border and in the interior of
cement at the border and in the interior of
cement at the border and in the interior of
the U.S in a new Bur
the U.S in a new Bur
the U.S in a new Bur
the U.S in a new Bur
the U.S in a new Bureau for Immigration Enfor
eau for Immigration Enfor
eau for Immigration Enfor
eau for Immigration Enfor
eau for Immigration Enforcement at the
cement at the
cement at the
cement at the
cement at the
Department of Justice;
Department of Justice;
Department of Justice;
Department of Justice;
Department of Justice;
2. 2. 2. 2. 2. Adjudication of eligibility for immigrationr
Adjudication of eligibility for immigrationr
Adjudication of eligibility for immigrationr
Adjudication of eligibility for immigrationr
Adjudication of eligibility for immigrationrelated elated elated elated elated
applications (immigrant, limited duration admission,
applications (immigrant, limited duration admission,
applications (immigrant, limited duration admission,
applications (immigrant, limited duration admission,
applications (immigrant, limited duration admission,
asylum, r
asylum, r
asylum, r
asylum, r
asylum, refugee, and naturalization) in the Department of
efugee, and naturalization) in the Department of
efugee, and naturalization) in the Department of
efugee, and naturalization) in the Department of
efugee, and naturalization) in the Department of
State under the jurisdiction of a new Undersecr
State under the jurisdiction of a new Undersecr
State under the jurisdiction of a new Undersecr
State under the jurisdiction of a new Undersecr
State under the jurisdiction of a new Undersecretary for
etary for
etary for
etary for
etary for
Citizenship, Immigration, and Refugee Admissions;
Citizenship, Immigration, and Refugee Admissions;
Citizenship, Immigration, and Refugee Admissions;
Citizenship, Immigration, and Refugee Admissions;
Citizenship, Immigration, and Refugee Admissions;
Proposed
U.S. Immigration System
DEPARTMENT
OF JUSTICE
Bureau for
Immigration
Enforcement
DEPARTMENT
OF STATE
Undersecretary for
Citizenship,
Immigration, and
Refugee Admissions
DEPARTMENT
OF LABOR
Employment
Standards
Administration
AGENCY FOR
IMMIGRATION
REVIEW
3
LABOR
STANDARDS APPEALS
3
3
3
AGENCY
FUNCTION
BENEFITS
IMMIGRATION
ENFORCEMENT
IMMIGRATION The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends a
ecommends a
ecommends a
ecommends a
ecommends a
r
r r
r restructuring of the
estructuring of the
estructuring of the
estructuring of the
estructuring of the
immigration system:
immigration system:
immigration system:
immigration system:
immigration system:
1. Immigration
1. Immigration
1. Immigration
1. Immigration
1. Immigration
enfor
enfor enfor
enfor enforcement at the
cement at the
cement at the
cement at the
cement at the
border and in the
border and in the
border and in the
border and in the
border and in the
interior of the U.S
interior of the U.S
interior of the U.S
interior of the U.S
interior of the U.S
at the Department
at the Department
at the Department
at the Department
at the Department
of Justice;
of Justice;
of Justice;
of Justice;
of Justice;
2. Adjudication of
2. Adjudication of
2. Adjudication of
2. Adjudication of
2. Adjudication of
eligibility for
eligibility for
eligibility for
eligibility for
eligibility for
immigrationr immigrationr immigrationr immigrationr immigrationrelated elated elated elated elated
applications applications applications applications applications
in the Department
in the Department
in the Department
in the Department
in the Department
of State;
of State;
of State;
of State;
of State;
3. Enfor
3. Enfor
3. Enfor
3. Enfor
3. Enforcement of
cement of
cement of
cement of
cement of
immigrationr immigrationr immigrationr immigrationr immigrationrelated elated elated elated elated
employment employment employment employment employment
standards in
standards in
standards in
standards in
standards in
the Department
the Department
the Department
the Department
the Department
of Labor; and
of Labor; and
of Labor; and
of Labor; and
of Labor; and
4. Appeals of
4. Appeals of
4. Appeals of
4. Appeals of
4. Appeals of
administrative administrative administrative administrative administrative
decisions in an
decisions in an
decisions in an
decisions in an
decisions in an
independent r
independent r
independent r
independent r
independent review eview eview
eview eview
agency
agency agency
agency agency. . . . .
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
152
Proposed
Restructuring
of
the
Immigration
System
DEPARTMENT
OF
JUSTICE BUREAU
FOR
IMMIGRATION ENFORCEMENT Immigration enforcement
at
the
border
and
in
the
interior
of
the
United
States
DEPARTMENT
OF
LABOR EMPLOYMENT STANDARDS ADMINISTRATION Enforcement
of
immigration related employment standards
DEPARTMENT
OF
STATE UNDERSECRETARY FOR CITIZENSHIP, IMMIGRATION, AND
REFUGEE ADMISSIONS Adjudication
of
eligibility
for
immigration related applications
INDEPEN
DENT
AGENCY AGENCY
FOR
IMMIGRATION REVIEW Administrative review
of
all
authorized immigration related appeals
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
153
3. 3. 3. 3. 3. Enfor Enfor Enfor Enfor Enforcement of immigrationr
cement of immigrationr
cement of immigrationr
cement of immigrationr
cement of immigrationrelated employment standards
elated employment standards
elated employment standards
elated employment standards
elated employment standards
in the Department of Labor; and
in the Department of Labor; and
in the Department of Labor; and
in the Department of Labor; and
in the Department of Labor; and
4. 4. 4. 4. 4. Appeals of administrative decisions, including exclusion,
Appeals of administrative decisions, including exclusion,
Appeals of administrative decisions, including exclusion,
Appeals of administrative decisions, including exclusion,
Appeals of administrative decisions, including exclusion,
deportation, and r
deportation, and r
deportation, and r
deportation, and r
deportation, and removal hearings, in an independent agency
emoval hearings, in an independent agency
emoval hearings, in an independent agency
emoval hearings, in an independent agency
emoval hearings, in an independent agency, , ,
, ,
the Agency for Immigration Review
the Agency for Immigration Review
the Agency for Immigration Review
the Agency for Immigration Review
the Agency for Immigration Review. . . . .
The Commission believes this streamlining and reconfiguring of
responsibilities will help ensure: coherence and consistency in immi
grationrelated law enforcement; a supportive environment for ad
judication of applications for immigration, refugee, and citizenship
services; rigorous enforcement of immigrationrelated labor stan
dards to protect U.S. workers; and fair and impartial review of
immigration decisions.
Bureau for Immigration
Enforcement (DOJ)
The Commission recommends placing all responsibility for enforcing United
States immigration laws to deter future illegal entry and r r r r remove illegal
emove illegal
emove illegal
emove illegal
emove illegal
aliens in a Bur
aliens in a Bur
aliens in a Bur
aliens in a Bur
aliens in a Bureau for Immigration Enfor
eau for Immigration Enfor
eau for Immigration Enfor
eau for Immigration Enfor
eau for Immigration Enforcement in the Department
cement in the Department
cement in the Department
cement in the Department
cement in the Department
of Justice.
of Justice.
of Justice.
of Justice.
of Justice. The Commission believes that the importance and com
plexity of the enforcement function within the U.S. immigration
system necessitate the establishment of a higherlevel, singlefocus
agency within the DOJ. The Commission further recommends that
the newly configured agency have the prominence and visibility
that the Federal Bureau of Investigation [FBI] currently enjoys within
the DOJ structure. The Director of the Bureau for Immigration En
forcement would be appointed for a set term (e.g., five years). The
agency would be responsible for planning, implementing, managing
and evaluating all U.S. immigration enforcement activities both within
the United States and overseas.
1 See Appendix for Commissioner Leiden's concurring statement.
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends ecommends ecommends
ecommends ecommends
placing all
placing all
placing all
placing all
placing all
r
r r
r responsibility esponsibility esponsibility esponsibility esponsibility
for enfor
for enfor
for enfor
for enfor
for enforcing cing cing cing cing
United States
United States
United States
United States
United States
immigration laws
immigration laws
immigration laws
immigration laws
immigration laws
to deter futur
to deter futur
to deter futur
to deter futur
to deter future e e
e e
illegal entry and
illegal entry and
illegal entry and
illegal entry and
illegal entry and
r
r r
r remove illegal aliens
emove illegal aliens
emove illegal aliens
emove illegal aliens
emove illegal aliens
in a Bur
in a Bur
in a Bur
in a Bur
in a Bureau eau eau eau eau
for Immigration
for Immigration
for Immigration
for Immigration
for Immigration
Enfor
Enfor Enfor
Enfor Enforcement cement cement
cement cement
in the Department
in the Department
in the Department
in the Department
in the Department
of Justice.
of Justice.
of Justice.
of Justice.
of Justice.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
154
The new agency's responsibilities would include many functions
currently performed by the INS: inspections and admissions at air,
land, and sea ports of entry and at preinspection facilities overseas;
border management and control between ports of entry; apprehen
sion and prosecution and removal of illegal residents and workers;
oversight of pre and posttrial/hearing release; identification and
prosecution of document fraud; identification, deterrence, and pros
ecution of alien smuggling gangs; and other domestic and overseas
deterrence activities.
The Commission believes that the current U.S. immigration system
structure diffuses and confuses potential for a more concerted focus
on central functions and activities. Enforcement objectives some
times conflict with service goals and vice versa. Often, both compete
for limited operational resources and for the time and attention of
those responsible for planning, administering, and managing these
programs.
The Commission is particularly concerned that although the current
removal system produces more than 100,000 final removal orders
each year, the system does not have the corresponding capability to
remove the individuals subject to those orders. The Commission
believes that it is critical to the credibility of the removal sector of
the enforcement system that the agency be held accountable for
setting realistic numerical priorities and producing specific outcomes.
Upperlevel management must be responsible for effecting an inte
grated system such that the agency apprehends, detains, and pro
ceeds against those aliens it prioritizes for removal, and ultimately
removes all those being issued final orders of removal.
To establish such an integrated system, the Commission recommends
that the new enforcement agency have a more traditional law en
forcement model structure and that it focus on police activities, pre
and posttrial probation services, and prosecution. Agency person
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
155
nel should be upgraded to receive pay and benefits commensurate
with those provided to other Department of Justice law enforcement
agents. At present INS personnel performing the same functions as
FBI or Drug Enforcement Agency [DEA] personnel are often at a
lowerpay grade.
The police function would be carried out by uniformed services, such
as Inspectors and Border Patrol Agents, and investigators who would
conduct investigations and collect intelligence at the border and in
the interior to deter smuggling, facilitate removals, and accomplish
other similar goals. The Commission suggests turning over most
detention responsibility to the U.S. Marshals Service and/or the
Bureau of Prisons.
As in other law enforcement operations, particularly those in which
more people are put into proceedings than can either be accommo
dated in detention or actually removed, there is a need for pre and
posttrial/hearing screening and/or supervised release on probation or
bond. In the immigration context, these could be available, for
example, to asylumseekers who are deemed by an Asylum Officer
to have demonstrated a credible fear of persecution, to those who
have accepted voluntary departure and posted bond, or to those
unlikely (because of close family members or other strong commu
nity ties) to abscond pending completion of their hearings or sen
tences.
To ensure a high expectation of individuals actually being removed
from the U.S. within a certain time, the Commission believes that
Trial Attorneys should have greater discretion to set priorities for
apprehension and prosecution and to determine which cases are
pursued for removal proceedings.
The Commission recommends the following distribution of respon
sibilities within the Bureau for Immigration Enforcement.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
156
Uniformed enforcement of
Uniformed enforcement of
Uniformed enforcement of
Uniformed enforcement of
Uniformed enforcement officers ficers ficers ficers ficers. The Commission recommends
merger of the INS Inspectors, Border Patrol, and detention officers
into one unit, the Immigration Uniformed Service Branch. Its offic
ers would be trained for duties at land, sea, and air ports of entry,
between land ports on the border, and in the interior where uni
formed officers are needed for enforcement. The unit would be
accountable for both the facilitation of legal traffic at the ports of
entry and the enforcement against illegal entry. It also would be
responsible for moving detainees from apprehension sites to deten
tion facilities and to hearing sites, as well as for escort duty during
removals. After appropriate training, most of the officers perform
ing these various functions could be transferred interchangeably,
and opportunity for job mobility would exist across lines not now
possible. As stated above, grade level and pay should be upgraded
as needed to be commensurate with the law enforcement activities
the officers will perform.
Unlike the current practice in which the Border Patrol reports to
Sector Chiefs and Inspectors report to District Directors, all uni
formed officers within a particular geographic area would be under
the authority of a single, integrated immigration enforcement man
ager.
Investigators.
Investigators. Investigators.
Investigators. Investigators. The Commission believes investigations will be a key
part of the new agency's responsibility. Investigators are the main
agents responsible for identifying and apprehending people who are
illegally residing or working in the United States, for deterring smug
gling operations, for building a case against those who are not de
terred, and for identifying, apprehending, and carrying out the re
moval of aliens with final orders of removal.
Only some 2,900 employees, out of an INS staff of more than 25,000,
work on these many investigative tasks. A similar number work in
INS Detention and Deportation. Most of these Deportation Officers
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
157
could - given additional onthejob training and supervision con
duct investigations. Deportation Officers now deal almost exclu
sively with docket control and management paperwork that could
be done by lower level support staff, freeing the Deportation Offic
ers for field work.
INS Investigators primarily work the front end of the removals pro
cess: identifying and arresting those who are illegally residing or
working in the U.S. Little attention is given to the removal process
as a whole, for ensuring availability of adequate detention space,
allocating ample Trial Attorney and Immigration Judge time, effect
ing transfer to airports, and achieving physical removal. The sys
tem is bogged down with increasing numbers of aliens who are
apprehended, charged with an immigration violation, put into pro
ceedings, released due to lack of detention space or other prerequi
sites for effective timely processing, never appear at their hearings,
or are never deported after a final order of removal is issued. The
failure of careful planning and integration of the process means
many of those who are apprehended are never removed. According
to some observers, the INS' compartmentalized program planning,
budgeting, and implementation procedures blunt attempts to inte
grate these functions more fully into a seamless and effective pro
cess.
"Removal Officers" in the new Bureau for Immigration Enforce
ment, who would integrate the functions of Investigators and De
portation Officers in apprehensions and removals, would enable the
immigration system to deliver better on its commitment to actually
remove those who are issued final orders. Managers would then
have the flexibility to shift resources among various investigations
activities as needed to produce a smoothflowing process that en
sures timely removal. As dsicussed above, grade and pay should be
commensurate with the often dangerous law enforcement duties
performed by investigators.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
158
Intelligence.
Intelligence. Intelligence.
Intelligence. Intelligence. The Bureau for Immigration Enforcement will require
an Intelligence Division to provide strategic assessments, training
and expertise on fraud, information about smuggling networks, and
tactical support to uniformed officers or investigators. It would act
as a liaison with other federal law enforcement agencies and share
information and intelligence. The Intelligence division would be
one of the smallest in the agency with an anticipated staff of about
100 employees.
Assets Forfeiture Unit.
Assets Forfeiture Unit.
Assets Forfeiture Unit.
Assets Forfeiture Unit.
Assets Forfeiture Unit. As with the other DOJ enforcement agen
cies, the Bureau would have an Assets Forfeiture Unit. Statutory
authority for Assets Forfeiture activities is a useful addition to the
range of strategies and sanctions available to the U.S. law enforce
ment community. Augmented authorities in the 1996 immigration
legislation increased both its usefulness and the potential for misuse
or abuse. In order to be aggressive in using these new authorities
and equally aggressive and proactive in ensuring against misuse/
abuse, DOJ agencies established assets forfeiture units under the
general guidance of the DOJ Assets Forfeiture Unit. Each agency,
including FBI, DEA, and INS, has its own unit. These units, usually
highlyplaced within the agency, are the focal points for agency
wide assetrelated policy implementation, field staff training, and
field operations monitoring. They assist the agency's field staff in
case development, monitor use of assets forfeiture funds, and over
see use of these sanctions to guard against abuse. . . . .
Pre and posttrial "Probation" Of
Pre and posttrial "Probation" Of
Pre and posttrial "Probation" Of
Pre and posttrial "Probation" Of
Pre and posttrial "Probation" Officers. ficers. ficers. ficers. ficers. "Probation" functions are
not now performed consistently or effectively in the immigration
system, but the Commission believes these functions are essential to
more strategic use of detention space. District Directors and Immi
gration Judges determine the release (either on personal recogni
zance or on bond) of apprehended aliens from detention. Often,
release relates more to lack of detention space than to the likelihood
that aliens will appear at their proceedings or assessment of aliens'
danger to the community. Some aliens are given the option to
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
159
depart voluntarily, but there is little tracking of whether they actu
ally leave the country. As it is unlikely that all potentially deport
able aliens could or should be detained awaiting removal, the Com
mission believes more attention should be given to supervised re
lease programs and to sophisticated methods for tracking the where
abouts of those not detained.
Pilot programs, such as the Vera Institute Appearance Assistance
Program discussed above, could be expanded into more areas if
successful. INS requested this threeyear project in the New York
area. It studies reporting requirements and the effectiveness of com
munity sponsors in supervising the release of aliens who meet cer
tain criteria regarding community ties, relief from removal, and public
safety. The program aims to free up valuable detention space for
aliens without legal remedies who are likely to abscond, while keep
ing those who might receive relief out of detention.
T
T T
T Trial Attorneys/Prosecutors.
rial Attorneys/Prosecutors.
rial Attorneys/Prosecutors.
rial Attorneys/Prosecutors.
rial Attorneys/Prosecutors. INS has nearly 800 staff involved in
immigrationrelated legal proceedings, such as offering legalopinions
and advice and representing the government's interests in proceed
ings before Immigration Judges and on appeal.
The Commission believes that the Trial Attorneys, who, in effect, are
the Government's immigration prosecutors, should be vested with,
and should utilize, an important tool possessed by their criminal coun
terparts: prosecutorial discretion. Under the current system, the
Trial Attorneys do not as a practice use discretion in determining
which cases to pursue. The INS does not sufficiently prioritize or
target cases; instead it acts as if it had the means to prosecute each
and every case effectively. Cases go forward, even when an alien
will, or is likely to, prevail on an application for relief or when there
is no realistic belief that the alien will ever be removed from the
country. Discretion exercised at the beginning of the process and at
every step would target the use of scarce resources better and con
tribute to a more effective and credible system. Central office lead
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
160
ership would be required to set appropriate priorities and provide
guidance to the Trial Attorneys as to the proper use of discretion.
Greater sharing of information between the Trial Attorneys, aliens,
and their counsels would facilitate smoother and more expeditious
movement through the system and fewer Freedom of Information
Act requests. Greater use of stipulations and pretrial conferences
(with sanctions resulting when attorneys are not prepared), would
narrow the disputed issues needing court resolution and time.
Field Of
Field Of
Field Of
Field Of
Field Offices. fices. fices. fices. fices. The new enforcement agency would implement its
programs through a series of field offices structured to address com
prehensively the immigration enforcement challenges of the particu
lar locality As the location of these offices should be driven by
enforcement priorities, they would likely be located in different places
than current district offices. Regional Offices could be retained for
administrative and managerial oversight of these dispersed and
diverse field offices. The field office inspections officers at ports of
entry would both facilitate the admission of legal limited duration
admissions and immigrants and the identification of illegal entrants.
Border Patrol stations along the border and at checkpoints along
major interior transportation corridors would facilitate enforcement
activities. Appropriate field offices also would investigate and pros
ecute cases and contribute to detection and destruction of smug
gling rings.
Current INS Regional Offices could be retained for administrative
and managerial oversight of these dispersed and diverse field of
fices. Most existing district offices and suboffices could be incorpo
rated into the new agency; they also could supervise and administer
the Border Patrol. [Until the mid1950s, Border Patrol units worked
out of and reported to INS District Offices.] The INS overseas
enforcement presence could be retained and expanded by the new
enforcement agency.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
161
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends that
ecommends that
ecommends that
ecommends that
ecommends that
all citizenship
all citizenship
all citizenship
all citizenship
all citizenship
and immigration
and immigration
and immigration
and immigration
and immigration
benefits benefits benefits benefits benefits
adjudications
adjudications adjudications
adjudications adjudications
be consolidated
be consolidated
be consolidated
be consolidated
be consolidated
in the Department
in the Department
in the Department
in the Department
in the Department
of State, and that
of State, and that
of State, and that
of State, and that
of State, and that
an Undersecr
an Undersecr
an Undersecr
an Undersecr
an Undersecretary etary etary etary etary
for Citizenship,
for Citizenship,
for Citizenship,
for Citizenship,
for Citizenship,
Immigration, and
Immigration, and
Immigration, and
Immigration, and
Immigration, and
Refugee Admissions
Refugee Admissions
Refugee Admissions
Refugee Admissions
Refugee Admissions
be cr
be cr
be cr
be cr
be created eated eated eated eated
to manage
to manage
to manage
to manage
to manage
these activities.
Citizenship, Immigration, and
Refugee Admissions (DOS)
The Commission recommends that all citizenship and immigration benefits
adjudications be consolidated in the Department of State, and that an
Undersecretary for Citizenship, Immigration, and Refugee Admissions be
created to manage these activities. At present, three separate agen
cies - the INS, the Department of State, and the Department of
Labor - play broad roles adjudicating applications for legal immi
gration, limited duration admission, refugee admission, asylum, and/
or citizenship. In addition, the Department of Health and Human
Services plays an ancillary role in setting requirements regarding
health standards for new arrivals, and the United States Information
Agency has a major role in exchange visitor programs.
The Commission believes a more streamlined and accountable ad
judication process, involving fewer agencies but greater safeguards,
would result in faster and better determinations of these benefits.
Consolidation of responsibility in one department would permit a
reengineering of the adjudication process to make it more efficient
and timely.
In considering which department should be responsible for adjudi
cating citizenship and immigration benefits, the Commission con
sidered each agency's current role and overall mission. Immigra
tion has been a stepchild in each of the major departments with
current responsibilities. The Department of State's primary role is
the conduct of foreign relations, and immigration issues have been
subsumed within its consular functions of protection and welfare of
American citizens abroad. The Department of Justice tends to view
immigration as an enforcement matter, and it is not well suited to
oversee an agency that also adjudicates applications for benefits.
The Department of Labor is concerned primarily with the labor
market impact of immigration. The Department of Health and
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
162
Human Services plays an important role in setting and implement
ing domestic refugee policy, but it has a very narrow, largely health
related involvement in overall immigration policy.
Recognizing the drawbacks inherent in choosing any of these loca
tions, the Commission nevertheless concluded that the Department
of State has the greatest capacity to undertake the additional work
entailed in a consolidated system.
Taking responsibility for immigration and citizenship services out of
the Department of Justice sends the right message, that legal immi
gration and naturalization are not principally law enforcement prob
lems; they are opportunities for the nation as long as the services are
properly regulated. Further, the Department of Justice does not have
the capacity internationally to take on the many duties of the De
partment of State. The Department of State, however, already has
a domestic presence and an adjudicatory capability. It issues one
half million immigrant visas and six million nonimmigrant visas
each year. DOS also provides a full range of citizenship services
both domestically (issuance of almost six million passports annu
ally) and abroad (e.g., citizenship determinations and registration of
births of U.S. citizens overseas). Indeed, DOS has devoted a major
share of its personnel and its capital and operating resources to
these adjudicatory functions at embassies and consulates in more
than two hundred countries and in passport offices in fifteen U.S.
cities. In addition, the National Visa Center in New Hampshire
processes and forwards to overseas posts threequarters of a million
immigrant cases.
Consolidating responsibility requires some changes in the way the
Department of State administers its immigration responsibilities,
which we believe would strengthen the adjudication function. This
increase in domestic responsibilities may raise concern over possible
decrease in attention and focus on the Department of State's tradi
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
163
tional mandate in foreign affairs, as well as more practical caution
regarding the wellknown difficulties in managing the domestic
aspects of immigration. Some observers also may be concerned
that DOS might not give sufficient consideration to the domestic
impact of immigration. To counter this perception (and some un
derlying reality), the Department of State would need to develop
mechanisms for consultation with domestic groups representing a
broad range of views and interests regarding immigration.
The Department of State also will need to change its historic posi
tion on review of consular decisions. At present, decisions made at
INS and the Department of Labor on many immigrant and LDA
applications may be appealed, but no appeal is available on consu
lar decisions. The Commission believes that immigrant and certain
limited duration admission visas with a U.S. petitioner should be
subject to independent administrative review [see below]. The De
partment of State also would have to prepare its own bureaucracy
to take on these new functions. A need for a renewed emphasis on
training for the management of large and interrelated offices and
processes will be matched by the need for superior personnel man
agement and leadership. These highlyregarded management skills
would be an ideal attraction for those Foreign Service officers who
shy away from consular assignments abroad, perceiving them as
unwanted digressions from the classic diplomatic career path.
The new organization would be responsible for naturalization and
determination of citizenship, adjudication of all immigrant and lim
ited duration admission petitions, work authorizations and other
related permits, and adjustments of status. It also would have re
sponsibility for refugee status determinations abroad and asylum
claims at home. Overseas citizenship services would continue to be
provided by consular officers abroad and in Washington. Policy
and program development for all immigration activities would be
incorporated into the new organization, which also would have
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
164
enhanced capacity to detect, deter, and combat fraud and abuse
among those applying for benefits.
With consolidation, the Department of State would have sole re
sponsibility for processing immigrants - from the filing of the peti
tion in the United States and subsequent visa issuance abroad, to
the production of the green card and work authorization in the
U.S., and ultimately, to naturalization. Issuance of a passport to the
newlynaturalized citizen would complete this almost seamless pro
cess of immigration benefits adjudications. Consolidation of these
steps would permit greater operational flexibility (e.g., onestop ad
judication of petitions and forwarding to posts abroad, streamlined
processing for workrelated visas), greater flexibility in use of per
sonnel (e.g., the examination function could span visa petitions and
passports), and, as discussed below, greatly enhanced antifraud
capabilities.
The consolidation of these functions in DOS would, of course, be a
major undertaking for a relatively small department already charged
with absorbing the United States Information Agency and the Arms
Control and Disarmament Agency. The Department of State must
be given the resources to fulfill such new responsibilities. The ap
proximately five thousand INS and Department of Labor staff cur
rently involved in immigration applications adjudications would
likely be transferred to DOS. Many employees would remain in or
near their present locations and their functions would not apprecia
bly change.
This recommendation envisions creation of an Undersecretary who
would have direct access to the Secretary of State and who would
be responsible for domestic and overseas immigration, citizenship,
and refugee functions.
Within the Office of the Undersecretary would be a unit responsible
both for formulating and assessing immigration policy as well as
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
165
reviewing and commenting on the immigrationrelated effects of
foreign policy decisions. This policy capacity would be new for the
Department of State, but it is in keeping with the important role that
migration now plays in international relations.
The Undersecretary would have three principal operating bureaus:
A
A A
A A Bureau of Immigration Af
Bureau of Immigration Af
Bureau of Immigration Af
Bureau of Immigration Af
Bureau of Immigration Affairs [IA]
fairs [IA]
fairs [IA]
fairs [IA]
fairs [IA] would focus on the immigra
tion process, as noted above, as well as on LDA processing. IA's
expanded responsibilities would be based on those currently as
signed to the Visa Office and the National Visa Center. In addition
to its existing overseas work, the Bureau of Immigration Affairs
would be responsible for domestic adjudication/examination func
tions, including work authorization, adjustment of status, domestic
interviewing, and the issuance of appropriate documentation (e.g.,
green cards). The Bureau of Immigration Affairs also would staff
immigration information and adjudication offices in areas with im
migrant concentrations. Related INS legal and regulatory staffs in
Washington also would transfer to the IA Bureau, as would DOL
functions regarding employmentbased entry. In short, the IA Bu
reau would assess - in the U.S. and abroad - applications for all
immigrationrelated benefits now performed by INS, DOL, DOS,
and USIA.
Importantly, the employment verification system outlined in previ
ous Commission recommendations also would be under the Depart
ment of State's control, although it would likely contract out the
actual operation of that system. Another important part of its do
mestic presence would be the staffing of immigration information
offices in areas of major immigrant concentrations.
A
A A
A A Bureau of Refugee Admissions and Asylum Af
Bureau of Refugee Admissions and Asylum Af
Bureau of Refugee Admissions and Asylum Af
Bureau of Refugee Admissions and Asylum Af
Bureau of Refugee Admissions and Asylum Affairs fairs fairs fairs fairs would as
sure an appropriate level of independence from routine immigration
issues and processes. It would combine the present Bureau for
Population, Refugees and Migration [PRM] responsibilities for over
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
166
seas refugee admissions, the refugee and asylum offices of the INS,
and the DOS asylum office in the Bureau of Democracy, Human
Rights and Labor. 2 This would integrate the key governmental play
ers in one of our most important and historic international activities.
In this vein, the direct line of authority to the Secretary of State
through the new Undersecretary underlines the key policy advan
tage for global refugee issues.
A
A A
A A Bureau of Citizenship and Passport Af
Bureau of Citizenship and Passport Af
Bureau of Citizenship and Passport Af
Bureau of Citizenship and Passport Af
Bureau of Citizenship and Passport Affairs fairs fairs fairs fairs would be respon
sible for naturalization, other determinations of citizenship, and is
suance of passports. Local offices performing some citizenship func
tions, such as overseas travel information, passport and naturaliza
tion applications, testing and interviews, could be located at the
new or expanded immigration offices noted below.
Overseas citizen services would continue to be handled within the
new consolidated organization, utilizing the DOS substantial do
mestic and overseas staff. These services include: responding to
inquiries as to the welfare or whereabouts of U.S. citizens; assisting
when U.S. citizens die, are arrested, or experience other emergen
cies abroad; providing notarial services; and making citizenship
determinations and issuing passports abroad. In some countries
experiencing instability, an increasingly important activity is orga
nizing Americans living or working in those areas into networks for
efficient communication of information and warnings.
Quality Assurance Of
Quality Assurance Of
Quality Assurance Of
Quality Assurance Of
Quality Assurance Offices fices fices
fices fices would oversee records management,
monitoring procedures, fraud investigations, and internal review.
At present, monitoring of the quality of decisions made on applica
2 The Commission makes no recommendation regarding the management
or organization of the overseas refugee and humanitarian assistance
programs operated by PRM and the USAID Bureau for Humanitarian
Response. These functions could remain within the Undersecretary for
Global Affairs or be brought under the new Undersecretary for
Citizenship, Immigration, and Refugee Admissions.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
167
tions for immigration and citizenship benefits receives insufficient
attention. INS enforcement officials now have the responsibility to
investigate allegations of fraud in immigration and naturalization
benefits programs, but monitoring the adjudications process is a
low priority in an office that is also responsible for identifying and
removing criminal aliens, breaking up smuggling and counterfeiting
rings, and performing similar police work. A staff responsible for
and dedicated to ensuring the quality of decisions taken on appli
cations for immigration and citizenship should address some of the
weaknesses, such as those recently identified in the naturalization
process.
Some adjudication decisions now are reviewed by a separate ad
ministrative unit within the agency conferring benefits; others are
not. The Commission believes that quality decisions require some
form of supervisory review for applicants who believe their cases
have been wrongly decided. This type of review helps an agency
monitor consistency and identify problems in adjudication and of
fers a means of correcting errors. At present, DOS has procedures
for some internal supervisory review of consular decisions, but it
has had no need for procedures to review refusals of applications at
earlier stages of adjudication. With expanded responsibilities, DOS
will need to develop a comprehensive internal review process that
ensures that errors are corrected with minimal disruption to the
applicant and the agency.
Quality assurance requires good records. The accrued personal
records of each immigrant must be accurate, uptodate, and retriev
able at each adjudicative stage: (1) petition/immigrant visa; (2) alien
resident/green card; (3) naturalization; and (4) passport. The cre
ation and maintenance of the alien filing system ("A" files) should
be reviewed to assure its maximum utility in the adjudicative flow
noted above. The absolute need for good immigration records can
not be overstated.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
168
Standardized and flexible records management and the consolida
tion of domestic and overseas adjudication functions will greatly
enhance antifraud capabilities. At present, fraud often is not discov
ered until after a government agency has given the case one or more
approvals and the alien appears for his or her visa. The resources
are not now in place for adequate review of questionable petitions,
and communications between overseas posts and domestic agencies
are not adequate. Even when they receive information from over
seas posts about likely fraud, the domestic agencies generally do not
follow up with further investigation. Consolidation within the
Department of State would overcome poor coordination and com
munication and permit more antifraud efforts at the beginning of
the process, where they are most effective. A fraudulent entry pre
vented, a work permit not issued to an unauthorized person, or an
ineligible alien prevented from naturalization - these are far more
preferable to trying to rescind a benefit granted in error.
With respect to the domestic field structure for implementing these
programs, The Regional Service Centers and National Visa Center
would continue to be the location of most adjudication. The physi
cal plants are excellent and the locallyhired staffs are trained and
in place. At this time, information is passed from the RSCs to the
NVC when the applicant for admission is overseas. Eventually,
however, the functions of the Service Centers and the Visa Center
might be consolidated. Overseas interviews would continue to take
place at embassies and consulates.
A range of other interviews would take place domestically. The
Department of State already operates fifteen passport offices through
out the United States, many in areas of high immigrant settlement.
These offices, however, are not set up for high volume interviewing.
New offices, designed specifically with immigrant services in mind,
would be needed. Ideally, to avoid long lines and waits for service,
there would be smaller offices in more locations than the current
INS district offices. The Commission recommends against locating
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
169
these offices with the enforcement offices discussed above. Asking
individuals requesting benefits or information to go to an enforce
ment agency sends the wrong message about the U.S. view of legal
immigration.
ImmigrationRelated
Employment Standards (DOL)
The Commission r
The Commission r
The Commission r
The Commission r
The Commission recommends that all r
ecommends that all r
ecommends that all r
ecommends that all r
ecommends that all responsibility for enfor
esponsibility for enfor
esponsibility for enfor
esponsibility for enfor
esponsibility for enforcement cement cement cement cement
of immigrationr
of immigrationr
of immigrationr
of immigrationr
of immigrationrelated standards for employers be consolidated in
elated standards for employers be consolidated in
elated standards for employers be consolidated in
elated standards for employers be consolidated in
elated standards for employers be consolidated in
the Department of Labor
the Department of Labor
the Department of Labor
the Department of Labor
the Department of Labor. . . . . These activities include enforcing compli
ance with requirements to verify work authorization and attesta
tions made regarding conditions for legal hire of temporary and
permanent foreign workers. The Commission believes that as this
is an issue of labor standards, the Department of Labor is the best
equipped federal agency to regulate and investigate employer compli
ance with standards intended to protect U.S. workers. The hiring of
unauthorized workers and the failure of employers to comply with
the commitments they make (e.g., to pay prevailing wages, to have
recruited U.S. workers) in obtaining legal permission to hire tempo
rary and permanent foreign workers are violations of such labor
standards. Responsibility for enforcing compliance with these re
quirements currently lies within both INS and DOL. Under consoli
dation, the DOL Employment Standards Administration's [ESA],
Wage and Hour Division [WH] and Office of Federal Contract Com
pliance Programs [OFCCP] would perform these functions in con
junction with their other worksite labor standards activities.
These increased immigrationrelated responsibilities would require
increased DOL staff and resources. In addition to performing all
worksite inspections, DOL would assume new employer sanctions
responsibilities. Specifically, the Commission makes the following
recommendations regarding the DOL role in regulating the worksite
to ensure the protection of U.S. workers.
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends ecommends ecommends
ecommends ecommends
that all
that all
that all
that all
that all
r
r r
r responsibility for
esponsibility for
esponsibility for
esponsibility for
esponsibility for
enfor enfor enfor enfor enforcement of
cement of
cement of
cement of
cement of
immigrationr
immigrationr immigrationr
immigrationr immigrationrelated elated elated elated elated
standards standards standards standards standards
for employers
for employers
for employers
for employers
for employers
be consolidated
be consolidated
be consolidated
be consolidated
be consolidated
in the Department
in the Department
in the Department
in the Department
in the Department
of Labor
of Labor
of Labor
of Labor
of Labor. . . . .
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
170
Sanctions against employers who fail to verify work authoriza
Sanctions against employers who fail to verify work authoriza
Sanctions against employers who fail to verify work authoriza
Sanctions against employers who fail to verify work authoriza
Sanctions against employers who fail to verify work authoriza
tion.
tion. tion.
tion. tion. Among its provisions that address the problem of unautho
rized immigration, the Immigration Reform and Control Act of 1986
made it unlawful for an employer knowingly to hire any alien not
authorized to work in the U.S. IRCA requires all employers to
check the identity and work eligibility documents of all workers
hired. Upon hiring, employees must sign an I9 Form certifying
eligibility to work and that the documents they present to the em
ployer are genuine. The employer then signs the form, indicates
which documents were presented, and attests that they appear to be
genuine and to relate to the individual who was hired. IRCA estab
lished penalties both for employers failing to comply with this pro
cess and for employers knowingly hiring unauthorized aliens. Pilot
testing of a more rigorous verification process recommended in the
Commission's 1994 report and adopted in large part in the immi
grant legislation passed in 1996 addresses verification problems aris
ing from the widespread use of fraudulent documents by illegal
aliens.
The Commission believes all worksite investigations to ascertain
employers' compliance with employment eligibility verification re
quirements should be conducted by the Department of Labor. Al
though DOL already conducts many of these investigations, under
this recommendation, DOL also would assess penalties if employers
fail to verify the employment eligibility of persons being hired. DOL
would not be required to prove that an employer knowingly hired
an illegal worker, just that the employer hired a worker without
verification of his or her authorization to work. With implementa
tion of the Commission's proposal for a more effective verification
process, this function will be critical to deterring the employment of
unauthorized workers.
At present, INS has the principal responsibility for employers sanc
tions enforcement, including: investigations and prosecution of
"knowing hires" of illegal aliens and paperwork violations; worksite
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
171
raids that apprehend and remove illegal aliens; and development
and maintenance of employee eligibility verification programs de
signed to help employers determine which individuals are autho
rized to work in the United States. DOL also reviews employer
compliance with the employer sanctions verification processes in
the course of its onsite visits to workplaces and as part of regular
labor standards enforcement activities. DOL Wage and Hour and
OFCCP personnel inspect the I9 Forms on file and notify INS of the
results of such inspections. DOL also is authorized to issue warning
notices to employers when deficiencies are found in an employer 's
verification process. In practice, however, DOL has rarely issued
such warnings.
Although INS and DOL jointly enforce the employer sanctions pro
visions, INS has the primary responsibility, including assessing civil
penalties and initiating legal action. A Memorandum of Under
standing between DOL and INS retains for INS the responsibility for
promulgating employer sanctions program policy.
Consolidating verification enforcement at DOL gives responsibility
to an agency with extensive experience regulating business compli
ance with labor standards, an expertise largely lacking at INS. It
also permits a relatively high level of enforcement activity, as DOL
completes far more employer visits than INS. The number of em
ployer sanctions cases completed by INS has decreased sharply from
14,311 in 1990 to 5,211 in FY 1996, of which 90 percent were cases
in which the agency had some reason to believe a violation oc
curred. 3 Over the past several years, the number of Wage and Hour
onsite investigations also has decreased substantially but is still
well above the INS level. The DOL reduction results largely from
3 The lowered activity, nevertheless, represents more targeted and effective
enforcement. The number of arrests during this same period increased
more than 50 percent. In 1,024 cases the employers were fined; warnings
were issued in 669 cases; $4,853,288 was collected in fines; and 13,848
undocumented workers were arrested.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
172
a greatly expanded use of expedited investigations in the form of
employer selfaudits and conciliations in place of onsite investiga
tions. For example, Wage and Hour conducted more than 42,000
onsite investigations and corresponding I9 inspections in FY 1990,
but less than 23,000 in FY 1996. OFCCP conducts some 4,000 onsite
inspections each year. In FY 1996, approximately 70 percent of
Wage and Hour investigations were complaintdriven; the remain
ing 30 percent were directed or targeted. Wage and Hour devotes
the equivalent of twentyone fulltime employees to I9 inspections,
OFCCP the equivalent of eight.
The Commission recognizes DOL concern that from the begining its
assumption of an employer sanctions enforcement role created a
potential conflict with its broader mission of protecting the wages
and working conditions of workers. Its inspectors worry that work
ers' fears that such employer sanction actions might result in INS
apprehension and deportation could have a "chilling effect" on those
workers who might - and should - come forward to report work
place abuses. For this reason, DOL has been extremely wary of
crossing the hardtodistinguish line where sanctionsrelated activi
ties might effectively frustrate its ability to protect deserving work
ers.
The Commission believes that DOL participation in verifying that
only authorized workers are hired should be seen as integral to its
mission of protecting U.S. workers. DOL has an essential interest in
reducing illegal migration as those employers who hire illegal aliens
are more likely to violate the minimum labor standards that DOL is
charged with enforcing. A reduction in levels of illegal migration
could well be the most effective tool available to enhance protec
tions for legally authorized workers. The primary responsibility of
DOL is protecting American workers, and transfer of employer sanc
tions enforcement to DOL represents the best option for raising the
level of enforcement to a point that presents a real deterrent to the
employment of undocumented workers.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
173
Enforcement of skillbased immigrant and limited duration admis admis admis admis admis
sions requirements
sions requirements
sions requirements
sions requirements
sions requirements. . . . . In our 1995 report to Congress, the Commis
sion urged adoption of streamlined procedures for the admission of
skilled foreign workers whom U.S. businesses wish to hire. We
continue to believe that an expedited process is needed for the
admission of both temporary and permanent foreign workers, as
discussed earlier in this report, as long as adequate safeguards are
in place to protect the wages and working conditions of U.S. work
ers. To prevent abuse of an expedited system, an effective
postadmissions enforcement scheme is necessary.
Upon adoption of an expedited process for the admission of both
immigrant and temporary workers, DOL should be given responsi
bility and resources for enhanced monitoring of employers' fulfill
ment of the attestation terms they filed to bring in workers. As
discussed above, decisions on who will be admitted under the vari
ous skillbased admission categories would be made by the Depart
ment of State.
DOL's other worksite enforcement responsibilities place it in the
best position to monitor employers' compliance with the attesta
tions submitted in the admissions process. DOL investigators are
experienced in examining employment records and interviewing em
ployees. Penalties should be established for violations of the condi
tions to which the employer has attested, including payment of the
appropriate wages and benefits, terms and conditions of employ
ment, or any misrepresentation or material omissions in the attesta
tion. Such penalties should include both the assessment of admin
istrative fines as well as barring egregious or repeat violators from
petitioning for the admission of permanent or temporary workers.
When DOL has concluded that an employer is an egregious or re
peat violator, and any subsequent administrative appeal has been
decided, it would notify the DOS Bureau of Immigration Affairs of
such findings, with a recommendation about barring the employer
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
174
The Commission
The Commission
The Commission
The Commission
The Commission
r r r r recommends that
ecommends that
ecommends that
ecommends that
ecommends that
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r r r r review of all
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from petitioning for the admission of foreign workers for temporary
or permanent employment. The Bureau of Immigration Affairs would
then determine if such a debarment is to be made and would notify
the employer of its decision. The employer would have the option
of appealing such a decision.
Agency for Immigration Review
The Commission recommends that administrative review of all immigra
tionrelated decisions be consolidated and be considered by a newlycreated
independent agency, the Agency for Immigration Review, within the Ex
ecutive Branch.
The Commission believes that a system of formal administrative
review of immigrationrelated decisions - following internal super
visory review within the initial adjudicating agency - is indispens
able to the integrity and operation of the immigration system. Such
review guards against incorrect and arbitrary decisions and pro
motes fairness, accountability, legal integrity, uniform legal interpre
tations, and consistency in the application of the law in individual
cases and across the system as a whole.
Experience teaches that the review function works best when it is
well insulated from the initial adjudicatory function and when it is
conducted by decisionmakers entrusted with the highest degree of
independence. Not only is independence in decisionmaking the
hallmark of meaningful and effective review, it is also critical to the
reality and the perception of fair and impartial review.
To the extent that administrative review of immigrationrelated
decisions is authorized under current law, such review is conducted
by several Boards and units located in the Departments of Justice,
Labor, and State. For example, within the Department of Justice,
the Executive Office for Immigration Review, a separate agency es
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
175
tablished by regulation in 1983, oversees the system of immigration
courts, as well as the Board of Immigration Appeals [BIA]. The
BIA, a fifteenmember panel appointed by the Attorney General,
has nationwide jurisdiction over a wide range of cases, including
decisions of Immigration Judges in exclusion, deportation, and re
moval proceedings, and requests for relief made in those proceed
ings. In addition, the BIA adjudicates appeals in several other cat
egories of cases, such as bond determinations, fines, rescission of
adjustment of status, and certain familybased visa petitions.
Supplementing their normal hearing docket, Immigration Judges
now conduct the final review of the "credible fear" of persecution
determinations made in the admission/inspection process, as well
as determinations that an alien seeking admission is not currently a
lawful permanent resident, refugee, or asylee as he or she claims.
The Office of the Chief Administrative Hearing Officer [OCAHO]
also is housed in EOIR and is responsible for administering the
hearing process issues arising under the employer sanctions, anti
discrimination, and document fraud provisions of the Immigration
and Nationality Act.
Within the Immigration and Naturalization Service there is an Ad
ministrative Appeals Office [AAO], whose component parts include
the Administrative Appeals Unit [AAU] and the Legalization Ap
peals Unit [LAU]. Unlike the BIA, the AAO does not have a
decisionmaking board. Rather, the Chief of the Unit reviews and
signs off on decisions prepared by individual examiners. AAO has
appellate jurisdiction over petitions and applications in no fewer
than thirtynine subject areas, among which are decisions relating to
the breaching of bonds, employmentbased visa petitions, adjust
ment of status for Indochinese refugees, petitions for Amerasian
children, fiancé(e)s, orphans, temporary workers, permission to
reapply for admission after deportation or exclusion, reentry permit
waivers for certain grounds of excludability, certification of schools
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
176
for acceptance of foreign students, applications for refugee travel
documents, claims to acquisition of citizenship abroad, applications
to preserve residence abroad for naturalization purposes, various
applications for certain certificates of naturalization, and applica
tions for temporary or permanent resident status under the regular
legalization, Special Agricultural Worker or Replenishment Agricul
tural Worker programs, and corresponding waivers of inadmissibil
ity.
Appeals of denials of naturalization applications, however, are not
considered by the AAO. Instead, review of such decisions occurs at
the INS district office level and is conducted by an officer of equal
or higher grade as the initial adjudicator. (If the initial decision
denying the naturalization application is sustained, the alien may
challenge the decision in federal district court, the court having
jurisdiction over the ultimate swearingin of successful naturaliza
tion applicants.)
In the Office of the Legal Adviser in the Department of State, there
is a Board of Appellate Review [BAR] vested with jurisdiction to
hear, in part, appeals of determinations of loss of nationality or
expatriation, and denials, revocations, restrictions, or invalidations
of passports.
In the Department of Labor, the Board of Alien Labor Certification
Appeals [BALCA], created by regulation in 1987, hears appeals of
denials of applications for labor certification.
When considering the appellate review function in its totality, it
becomes apparent that responsibility for reviewing enforcementre
lated decisions rests primarily with the individual components of
EOIR, while responsibility for reviewing benefit adjudication deci
sions is spread across several offices and agencies including the BIA,
AAO, INS district offices, BALCA, and, for a more limited set of
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
177
nationality and citizenshiprelated issues, the BAR at DOS. Fur
ther, Immigration Judges and the BIA have the authority to provide
certain forms of relief during deportation, exclusion, and removal
hearings that can result in lawful permanent resident status for aliens.
Inasmuch as the underlying benefits and enforcement functions per
formed by the immigration system are themselves dispersed among
several Departments, it is not surprising to find that formal admin
istrative review of decisions made in the context of performing those
functions is likewise dispersed. However, in light of our recommen
dations that responsibility for the enforcement of the immigration
laws be placed with a new Bureau for Immigration Enforcement in
the Department of Justice and that all citizenship and immigration
benefits adjudications be removed from the Department of Justice
and instead be consolidated in the Department of State, we find that
a corresponding change in the placement of responsibility for the
review function is in order.
Even with the assignment of the benefits adjudication function to
DOS and the enforcement function to DOJ, interrelationships will
exist between eligibility for benefits and enforcement actions. In
deed, eligibility for an immigration benefit may be an avenue to
relief from deportation, exclusion, or removal while certain immi
gration violations may present barriers to attaining legal status. For
example, favorable disposition of a petition or application by the
benefits agency may collaterally resolve a deportation or removal
issue. Aliens in enforcement proceedings may be eligible for certain
forms of relief involving the same types of legal questions arising in
the context of benefits adjudication outside of proceedings - or aliens
in proceedings may be foreclosed from eligibility for a benefit ap
plied for outside of proceedings. Ultimately, however, there is a
need for a uniform administrative interpretation of what the law is
and how it should be applied, regardless of whether the questions
arise when adjudicating an application for a benefit or resolving an
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
178
enforcement action. These considerations lead us to conclude that
administrative review of all presently reviewable immigrationre
lated decisions should be consolidated.
In deciding where the review function could best be performed, the
Commission considered a number of options, including separate
reviewing bodies for enforcement actions within DOJ and forbenefit
determinations within DOS, placing responsibility for review en
tirely with EOIR, and creation of an Article I Immigration Court.
Placing the review function in its entirety with EOIR was an attrac
tive option, particularly given EOIR's success in both insulating the
review function and achieving independence of decisionmaking since
its inception in 1983. At the same time, EOIR remains located in the
Department of Justice, ultimately and predominantly a law enforce
ment agency. Further, existing procedures permit the Attorney
General to reverse or modify any decision reached by the BIA. The
Commission, as well as other commentators, find this practice trou
bling because, at a minimum, it compromises the appearance of
independent decisionmaking, injects into a quasijudicial appellate
process the possibility of intervention by the highest ranking law
enforcement official in the land, and, generally, can undermine the
BIA's autonomy and stature. In the end, the Commission decided
the EOIR option was unworkable because of the inherent difficulty
of a reviewing agency in one Department rendering decisions in
cases initially decided by another Department.
Instead, the Commission was persuaded by the arguments that the
review function should be completely independent of the underly
ing enforcement and benefits adjudication functions and that the
reviewing officials should not be beholden to the head of any De
partment. Although the desired independence could be attained by
establishing an Article I Immigration Court, such a court would be
part of the Judicial, rather than the Executive Branch. The overall
operation of the immigration system requires flexibility and coordi
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
179
nation of function, including the review function, by the various
agencies in the Executive Branch. Given this reality, the Commis
sion concluded that the review function should be conducted by a
newlycreated independent reviewing agency in the Executive Branch.
To ensure that the new reviewing agency is independent and will
exist permanently across Administrations, we believe it should be
statutorily created. It would incorporate the activities now per
formed by several existing review bodies and offices, including the
DOJ Executive Office for Immigration Review, the INS Administra
tive Appeals Office and district offices (naturalization), the DOL
Board of Alien Labor Certification Appeals, and the limited set of
nationality and citizenshiprelated matters presently considered by
the DOS Board of Appellate Review. The Agency for Immigration
Review also would have additional responsibilities.
Creating any decisional system or tribunal requires attention to sev
eral guiding principles. First, no system can work effectively if the
personnel who form the base of the decisional pyramid are insuffi
cient in number or deficient in skills and integrity to do the job.
Second, the base of any such structure cannot be expanded either in
number of its personnel or in extent of its jurisdiction beyond the
capacity of the next level above to review and decide the outcome.
This must be achieved within a reasonable period and with a rea
sonable expenditure of resources. Finally, the apex of any decisional
pyramid should be relatively small. With these considerations in
mind, the Commission proposes the following organization for the
new independent Agency for Immigration Review.
This new reviewing agency would be headed by a Director, a presi
dential appointee, who would coordinate the overall work of the
agency, but who would have no say in the substantive decisions
reached on cases considered by any division or component within
the agency. There would be a trial division headed by a Chief
Immigration Judge, appointed by the Director. The Chief Judge
would oversee a corps of Immigration Judges sitting in immigration
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
180
courts located around the country. 4 The Immigration Judges would
hear every type of case presently falling within the jurisdiction of
the now sitting Immigration Judges.
The new reviewing agency also would consider appeals of decisions
by the benefits adjudication agency, using staff with legal training.
Although the benefits adjudication agency will handle a wide range
of applications - from tourist visas to naturalization and the issu
ance of passports - not all determinations will be appealable, as is
the case under current law. We envision that those matters that are
appealable under current law would remain appealable. The only
difference is that the appeal would be lodged with and considered
by the new independent Agency for Immigration Review rather
than by the various reviewing offices and Boards presently located
among the several Departments.
The administrative appeals division also would consider appeals
from certain visa denials and visa revocations by consular officers.
Under current law, such decisions are not subject to formal admin
istrative or judicial review.
When a visa is denied, important interests are at stake. To be sure,
the visa applicant is adversely affected - but more importantly at
stake are the interests of the United States citizens, lawful perma
nent residents, employers, and businesses who have petitioned the
admission of the applicant or who otherwise have an interest in
having the applicant present in the United States. Given the lack of
formal administrative and judicial review of consular decisions, these
individuals are left with little or no recourse.
4 Admittedly, currently sitting Immigration Judges perform the classic
review function only to a very limited degree - for the most part they
serve as initial decisionmakers in cases where aliens are placed in
proceedings. Notwithstanding this circumstance, however, experience
teaches that Immigration Judges should find their home in the same
agency as the appellate reviewing Board, not the enforcement agency
that is initiating the proceedings against the alien.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
181
The Commission believes that consular decisions denying or revok
ing visas in specified visa categories, including, all immigrant visas
and those LDA categories where there is a petitioner in the United
States who is seeking the admission of the visa applicant, should be
subject to formal administrative review. The visa applicant would
have no right to appeal an adverse determination. Instead, standing
to appeal a visa denial or revocation would lie only with United
States petitioners, whether U.S. citizens, lawful permanent residents,
or employers.
An appellate Board would sit over the trial and administrative
appeals divisions of the new independent Agency for Immigration
Review. This appellate Board would be the highest administrative
tribunal in the land on questions and interpretations of immigration
law. It would designate selected decisions as precedents for publi
cation and distribution to the public at large. Its decisions would
be binding on all officers of the Executive Branch. To ensure the
greatest degree of independence, decisions by the Board would be
subject to reversal or modification only as a result of judicial review
by the federal courts or through congressional action. Neither the
Director of the reviewing agency nor any other agency or Depart
ment head could alter, modify, or reverse a decision by the appellate
Board.
The appellate Board would be headed a Chairman. Both the Chair
and Vice Chair would be appointed by the President for staggered
terms of at least ten years. The appellate Board would have as
many Members, who would be appointed by the Chair, as needed
to decide appeals in a timely manner. It would consider appeals
from the categories of cases presently falling within the BIA's juris
diction, subject to the abovenoted modifications. In addition, the
appellate Board could entertain appeals from decisions of the ad
ministrative appeals division in cases in which a novel or significant
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
182
The Commission
The Commission
The Commission
The Commission
The Commission
ur ur ur ur urges the
ges the
ges the
ges the
ges the
federal federal federal federal federal
government government government government government
to make
to make
to make
to make
to make
needed needed needed needed needed
r r r r reforms eforms eforms
eforms eforms
to impr
to impr
to impr
to impr
to improve ove ove ove ove
management management management management management
of the
of the
of the
of the
of the
immigration immigration immigration immigration immigration
system. system. system. system. system.
legal issue were presented, or in any other case in which it was
deemed necessary or appropriate.
The Office of the Chief Administrative Hearing Officer, presently
housed in EOIR, would operate as a separate component in the
Agency for Immigration Review and would perform the same work
as is presently being conducted. Of course, the precise organiza
tional arrangements and divisional jurisdictions could be subject to
future modification following a comprehensive review by the Agency
for Immigration Review of the types and volume of cases received.
However, to meet the challenges presented by consolidation of all
immigrationrelated appeals in one place, and to perform its critical
mission of correctly and expeditiously resolving appeals, the new
reviewing agency must be given sufficient resources and staffing.
MANAGEMENT REFORM
The Commission ur
The Commission ur
The Commission ur
The Commission ur
The Commission urges the federal government to make needed r
ges the federal government to make needed r
ges the federal government to make needed r
ges the federal government to make needed r
ges the federal government to make needed re e e
e e
forms to impr
forms to impr
forms to impr
forms to impr
forms to improve management of the immigration system.
ove management of the immigration system.
ove management of the immigration system.
ove management of the immigration system.
ove management of the immigration system. While
the Commissionrecommended structural changes will help improve
implementation of U.S. policy, certain management reforms must
also be adopted if the agencies responsible for immigration matters
are to be effective in performing their functions. Structural reforms
will not by themselves solve some of the management problems that
have persisted across Administrations in the immigration agencies.
More specifically, the Commission recommends:
n Setting more manageable and fullyfunded priorities
Setting more manageable and fullyfunded priorities
Setting more manageable and fullyfunded priorities
Setting more manageable and fullyfunded priorities
Setting more manageable and fullyfunded priorities. The
Commission urges Congress and the Executive Branch to
establish and then appropriately fund a more manageable
set of immigrationrelated priorities. By this we mean es
tablishing fewer objectives, but also setting more integrated
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
183
priorities, more realisticallyachievable shortterm and long
term goals, and greater numerical specificity on expected
annual outcomes to which agencies should be held account
able.
The processes by which both Congress and the Executive
Branch plan and allocate resources constrain the develop
ment of a more manageable set of priorities. Currently,
most immigration priorities result from Legislative/Execu
tive interaction through a multiyear budget process. Gov
ernment budgeting cycles are lengthy and complex. Agen
cies must work simultaneously with the budgets and report
ing cycles of four fiscal years. 5 Congressional action, mean
while, consists of the doubly bifurcated processes of autho
rization, followed by separate appropriations in the House
of Representatives and the Senate, and then by resolution in
conference.
Executive Branch departments seldom identify adequately
how much money they need to accomplish the entirety of a
specified goal. Nor do they do a good job of scaling back
or increasing objectives depending on the resources appro
priated. Within the Legislative Branch, there is little coor
dination among congressional committees to ensure a con
gruence of agreedupon priority expectations and resources
actually allocated to do the job. Consequently, transparency
and accountability are not built into the system. For ex
ample, Congress is not held accountable for adding new
priorities without appropriating resources to accomplish all
of the specified tasks. Federal agencies are neither directly
nor easily held accountable for their performance in achiev
ing or not achieving agreedupon results.
The Commission urges Congress and the Executive Branch
to refrain from overpromising what the federal government
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
184
can accomplish in implementing immigration policy. For
example, rather than defining the removal of all deportable
and inadmissible aliens as the priority for removal, a goal
that is presently not achievable, the federal government could
define removal priorities in terms of specified numbers and
categories of aliens (e.g., criminal aliens) and in terms of
certain strategies. For example, a "last in, first out" strat
egy would remove everyone who newly enters the removal
system before removing persons whose cases have been
pending in backlogs for some time. This prioritysetting
process worked well in reforming the asylum process and
could be replicated in other areas.
Priority setting must be accompanied by sufficient resources
to undertake the top objectives. In the case of removals, it
should include resources for Investigations, Trial Attorneys,
Immigration Judges, the BIA Detention and Deportation Of
ficers, Department of State liaisons with host countries, and
such needs as vehicles, equipment, training, and support.
The priority should identify the problem completely and
clearly and map out which part of that problem will be
solved in which of several years of the priority. And then
Congress should agree and the Executive Branch should be
held accountable.
n Developing more fully the capacity for policy develop
Developing more fully the capacity for policy develop
Developing more fully the capacity for policy develop
Developing more fully the capacity for policy develop
Developing more fully the capacity for policy develop
ment, planning, monitoring, and evaluation.
ment, planning, monitoring, and evaluation.
ment, planning, monitoring, and evaluation.
ment, planning, monitoring, and evaluation.
ment, planning, monitoring, and evaluation. In general,
5 For example, for the second quarter [JanuaryMarch] of FY 1997, federal
agencies were:
n For FY 1996, completing '96 yearend statistics and reports;
n For FY 1997, continuing work on implementing '97 goals and priorities;
n For FY 1998, finalizing the President's February FY 1998 Budget
Submission to the Congress and explaining/defending it at
congressional committee hearings;
n For FY 1999, developing the '99 budget initiatives, priorities, and
strategies to be submitted to OMB under the "Spring Plan" planning
process.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
185
the current immigration system suffers from an inability to
develop, sustain, and clearly articulate longterm and short
term policymaking except in times of crisis. Often this has
led to bad policymaking, poorly developed programs, inad
equate policy coordination across departmental lines, and
almost nonexistent program assessment and evaluation of
outcomes. None of the main Executive Branch departments
has developed a broadbased immigration policymaking
capacity.
The most developed policymaking and coordination unit in
the immigration system exists in the INS Office of Policy
and Planning [OPP]. However, a majority of its eightyfive
people and its $5 million personnel budget are related to
statistics and other nonpolicymaking activities. Moreover,
while it is important for the principal agency responsible for
immigration enforcement to have its own policy and plan
ning capability, OPP is not necessarily well positioned to
advise the Department of Justice about immigrationrelated
policy issues affecting other DOJ agencies. Further, under
the Commission's proposed restructuring, it would make no
sense for the agency responsible for enforcement to have
lead responsibility for formulating policies related to legal
immigration and naturalization or enforcement of immigra
tionrelated labor standards.
Each department with immigrationrelated responsibilities
needs to perform a wide range of policy functions, includ
ing, but not limited to, longrange and strategic policy plan
ning, interagency policy integration, policy review, policy
coordination, priority setting, data collection and analysis,
budget formulation, decisionmaking, and accountability. The
Domestic Policy Council and the National Security Council,
both situated in the White House can also play an important
role in coordinating policy development across departments.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
186
Informed policymaking requires systematic review of cur
rent policies and programs (which themselves should be
informed by reliable and timely statistical information),
development of a range of options, and analysis of the ad
vantages and disadvantages (including costs and timeframes)
of each. Further, immigration policy affects, and is affected
by, a wide range of other issues of interest to the depart
ments. For example, the DOL overall labor policy is af
fected by immigration as the foreignborn represent a large
proportion of the growth in the labor force. As a proportion
of the unskilled workforce, immigrants represent an even
larger proportion and potential impact. Similarly, interna
tional migration and the foreign policy and national security
interests of the United States are strongly connected.
The immigrationrelated policymaking capacities at the de
partmental level in Justice, State, and Labor tend to be ad
hoc and understaffed. For example, the Office of the Deputy
Attorney General [DAG] has two and onehalf to three at
torneys working on immigrationrelated policy and program
coordination. These staff serve as a clearinghouse through
which immigrationrelated concerns and policy matters pass
from the responsible agencies (e.g., INS, EOIR, Office of
Special Counsel for ImmigrationRelated Unfair Employment
Practices, Office of Immigration Litigation) through the DAG
to the Attorney General. Given the wide range of policy
issues requiring departmentlevel attention, these staff have
an all but unmanageable policy portfolio. Much of their
time is spent on routine oversight punctuated by crisis man
agement, with little time left for longrange policy develop
ment or planning. The Commission believes more sustained
and timely attention to immigration policy issues within
and across departments will help improve both the formu
lation and implementation of programs.
U.S. COMMISSION ON IMMIGRATION REFORM
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Interagency coordination of immigration policymaking also
is particularly important. The Domestic Policy Council [DPC]
already plays such a role. The Commission recommends
strengthening the DPC's capacity to provide policy guid
ance, particularly when immigration matters affect or are
affected by other domestic interests. Designation of a senior
focal point for immigration policy in the DPC would en
hance its ability to coordinate policy development. This role
would be complementary to the enhanced role the Commis
sion recommended for the National Security Council with
regard to refugee issues. The DPC and the NSC would
coordinate closely when migration issues relate to U.S. for
eign policy and national security interests.
More specifically, the DPC should be mandated and staffed
to: oversee federal immigration policy development across
departmental and agency lines; monitor the execution and
impact of new legislation, policies and programs; resolve
differences within the Executive Branch, focusing on those
that impede the capacity of the federal government to de
liver a single, coherent message about immigration policy
and priorities; serve as a forum for discussion of new ideas;
coordinate liaison with and the input of advocates and other
nongovernmental agencies concerned with federal immigra
tion decisionmaking; and relay the resulting recommenda
tions to Congress and the President.
n Improving systems of accountability
Improving systems of accountability
Improving systems of accountability
Improving systems of accountability
Improving systems of accountability . . . . . The Commission
believes strongly that staff who are responsible for immigra
tion programs should be held accountable for the results of
their activities. Systems should be developed to reward or
sanction managers and staff on the basis of their perfor
mance. This requires the development of performance
measures that relate to expected outcomes. For example,
the Commission earlier recommended rewarding Border Pa
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
188
trol staff for their effectiveness in deterring illegal migration
rather than their prowess at apprehending illegal aliens.
Similarly, managers responsible for adjudication of benefits
should be rewarded if they lessen processing time for the
approval of applications and, simultaneously, improve their
detection of fraudulent cases. By contrast, managers who
fail to meet recognized operating standards should be held
accountable and be sanctioned for their noncompliance.
Systems to reward innovation or sanction managers and
staff on the basis of their performance also need to be devel
oped. Too often, staff who try new approaches not only are
not rewarded for their initiative, they are sanctioned by their
colleagues and supervisors.
n Recruiting and training managers.
Recruiting and training managers.
Recruiting and training managers.
Recruiting and training managers.
Recruiting and training managers. The Commission be
lieves improvements must be made in the recruitment and
training of managers. As immigrationrelated agencies grow
and mandated responsibilities increase or evolve, closer at
tention should be paid to improving the skills and manage
rial capacity of immigration staff at all levels to ensure more
efficient and effective use of resources allocated.
Since 1993, the immigration system has been undergoing a
tremendous infusion of new resources and, since 1996, sig
nificantly augmented statutory mandates. Either change
would seriously burden even the bestrun agencies of the
federal government. Such infusions of new resources to
INS and to several other agencies burden agency adminis
trative and management systems. INS has not added a
sufficient number of experienced, proven managers to help
the agency address the many challenges it faces.
Agencies must be able to rapidly recruit, select, train, de
ploy, and then support new staff - and they must sustain
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
189
this expansionist capacity over several fiscal years. Most of
the new staff added are entrylevel, necessitating onthejob
training, mentoring, and close supervision before they can
be considered fully functional in their jobs.
As new staff are added, new supervisors are needed - and
they too need supervisory and management training to be
successful. Supervisors usually are drawn from the ranks of
the operational staff, and with increased operational respon
sibilities, they often are unable to be freed soon enough or
long enough to attend supervisory training in a timely fash
ion.
In addition, major changes in the immigration statutes passed
in 1996 necessitate the redrafting and repromulgation of hun
dreds of sections of law and regulations, hundreds of new
or revised forms, and training and retraining of staff just to
implement these profound changes. Agencies should con
sider new ways in which staff are trained to do their work:
e.g., training in management by objectives, in accountability,
in managerial and supervisory skills. For some agencies,
the skill levels - and agency cultures - are not yet adequate
to be successful in fulfilling present and expected future
increased managerial and supervisory responsibilities. Both
additional supervisors and new skills are urgently needed.
The infusion of new skills and culture can come from two
sources: (1) inhouse training and retraining of existing staff;
and (2) the addition - from outside the agencies themselves -
of new middle and upperlevel management staff possess
ing those skills and the ability to apply them quickly to the
immigration settings. These two sources need not be mutu
ally exclusive; some of both may be required.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
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One promising recent development is the INS' new "compe
tencybased" assessment process for Border Patrol officer
promotions to supervisor. The Border Patrol is the single
immigration agency receiving the greatest number of new
staff over the coming next several years. The objective is to
test Border Patrol officers to predict more accurately their
potential for success as future supervisors. According to
INS, the main focus of the system is assessment of "thinking
skills . . . the way supervisors and managers must think and
react on a daily basis." 6 More than 1,000 Border Patrol
officers have been tested, another 1,000 will be by the end
of summer 1997, and testing of all remaining eligible Border
Patrol Officers will be completed by the end of 1997.
n Strengthening customer service orientation.
Strengthening customer service orientation.
Strengthening customer service orientation.
Strengthening customer service orientation.
Strengthening customer service orientation. The Commis
sion urges increased attention to instilling a customerser
vice ethic in staff, particularly those responsible for adjudi
cation of applications for benefits. Repeatedly, but most
recurringly regarding INS, the public complains of a lack of
service from both their dollar and from the personnel charged
with serving them. The horror stories are too common.
Most individuals coming into contact with the immigration
system have paid a fee - whether indirectly (such as at air
ports and the inspections users fees tacked onto their ticket
prices) or directly (such as through the submission of a fee
with their application for a benefit). They expect and should
receive service that is customerfriendly and timely. Appli
6 The system is based on four assessments:
1. Decisionmaking Situational Assessment, measures thinking skills such
as reasoning, decisionmaking, and problemsolving;
2. Inbasket Job Simulation, measures administrative skills, such as
planning/organizing and managing/organizing information;
3. Managerial Writing Skills Exercise, measures written communication
skills; and
4. Past Achievement Record, measures personal qualities, such as
leadership and flexibility.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
191
cants should be treated courteously, records should be lo
cated with ease, and accurate information should be pro
vided in a professional manner.
The absence of a separate career track for benefits adjudica
tors hampers efforts to attract and retain the best federal
employees to these tasks. The structural reforms we recom
mend should help address this problem. Currently, many
of those promoted into management positions within INS
moved along the enforcement career track. Its higherpaid
designations frequently make them eligible for such promo
tions before those who spend their careers in benefits adju
dication. Benefits adjudication personnel should have a
career track that promotes the best performers into posi
tions of management and leadership and provides all em
ployees with appropriate incentives as well as models worth
emulating.
The primary currency of service is information - informa
tion that should be both accurate and timely. Daily, in many
locations throughout the U.S., people seeking forms, infor
mation, status checks, and interview appointments, and
reporting a change of address, requesting a copy of a form
in their file, or requesting or extending employment autho
rization create long lines around local INS offices.
Immigration customers should not have to stand hours in a
line to get information. Immigration processes should be
reengineered to ensure that information is easily available at
several locations and through several electronic means and,
when given, is accurate. Several ways to improve access to
forms and information, many electronic, already are in de
velopment. Forms increasingly are available on Information
Kiosks located in high volume immigration centers; soon
they will be available over the Internet. The website devel
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
192
oped by the Department of State's Bureau of Consular Af
fairs makes available pertinent information on conditions
throughout the world.
Customerservice personnel should be both initially well
trained and periodically tested to ensure they remain cur
rent with the latest changes and interpretations of policy. In
addition, there should be a formal quality assurance pro
gram. For customer service representatives working on the
lines at district field offices or answering questions on the
telephone, quality assurance of their work should include
the possibility for supervisors to monitor the correctness
and manner of delivery of the service given.
n Using fees for immigration services more ef
Using fees for immigration services more ef
Using fees for immigration services more ef
Using fees for immigration services more ef
Using fees for immigration services more effectively fectively fectively fectively fectively . . . . . The
Commission supports the imposition of users fees, but
emphasizes that: (1) the fees should reflect true costs; (2) the
agencies collecting the fees should retain and use them to
cover the costs of those services for which the fees are lev
ied; (3) those paying fees should expect timely and courte
ous service; and (4) agencies should have maximum flexibil
ity to expand or contract their response expeditiously as
applications increase or decrease.
The current situation has a number of weaknesses. First,
some programs are now undercharging (or not charging)
fees while others reportedly are overcharging. INS is now
reviewing its fees to determine where adjustments should
be made. Second, some fees go into the General Treasury
while others are held by the agencies collecting them and
used for the function for which they were collected. Third,
agencies do not have effective systems for accurately antici
pating the volume of applications, forecasting their fee re
ceipts, and requesting appropriate levels of funding from
fee accounts to meet demand. Fourth, when there is an
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
193
The Commission
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immigration data
immigration data
immigration data
immigration data
immigration data
collection, collection, collection, collection, collection,
coordination, coordination, coordination, coordination, coordination,
analysis, and
analysis, and
analysis, and
analysis, and
analysis, and
dissemination.
dissemination. dissemination.
dissemination. dissemination.
unforeseeable increase in the number of applications, there
is a significant lag time before an agency is able to use the
increased fee revenue to expand its service capacity. For
example, it took several months to develop a reprogram
ming request and then obtain permission for a reprogram
ming of funds when naturalization and section 245(i) adjust
ment applications increased significantly. This delay resulted
in a growing backlog of persons awaiting service. Provid
ing more flexibility would require agreement from the con
gressional appropriations committees that they need not ap
prove the reprogramming of fees when the need for addi
tional resources is related solely to an increase in the vol
ume of applications.
IMPROVED DATA AND ANALYSIS
The Commission reiterates its 1994 recommendations 7 regarding the need
for improvements in immigration data collection, coordination, analysis,
and dissemination. Although progress has been made, much more
needs to be done. Reliable and timely data are crucial to the effec
tive enforcement of immigration law. They are the basis for the
effective implementation of ongoing and new programs. And, ulti
mately, they are the only means of assessing results achieved and
reaching the conclusions necessary for responsible policymaking.
Data problems throughout the immigration system have long been
evident. The Panel on Immigration Statistics of the National Re
search Council concluded in 1985 that the "story" about immigrant
data was "one of neglect." 8 Despite increases in congressional fund
ing and some notable improvements at the INS, the available data
remain incomplete - a problem that exists to some degree in each
agency involved in the immigration system.
7 U.S. Commission on Immigration Reform. 1994. U.S. Immigration Policy:
Restoring Credibility. Washington, DC. 17986.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
194
The Commission believes there is a pressing need for improvements
in immigration data collection, standardization, intra and inter
agency linkages, timely dissemination, rigorous analysis, and use in
policymaking. The Commission urges the federal government to
support continuing research and evaluation on all aspects of immi
gration. Further, the Commission urges the Congress to insist upon
the organizational structures needed to create and maintain high
quality statistical data.
The statistical function must be given high priority and sufficient
institutional control and authority. Quality data do not evolve as a
byproduct of disjointed administrative datagathering responsibili
ties. Quality data ultimately require a statistical system that can
satisfy policyrelevant and management information needs through
an integrated, centrallycoordinated approach. 9
In recent years Congress has addressed the statistical problem by
requiring improvements in specific arenas - primarily through auto
mation - and by appropriating increased funding. These steps are
encouraging and the Administration appears to have embarked suc
cessfully on some programs for automated data collection. The INS
already has established separate systems for data collection and
retrieval for its core enforcement and benefits functions. 10 Under
the Commission's proposals it is essential that the statistical systems
under DOJ enforcement and DOS benefits retain an automated and
integrated design. However, statistical systems cannot be improved
simply by automating data collection.
As the Panel on Immigrant Statistics concluded, it would be naive
8 Levine, D. B.; Hill, K.; Warren. R. (eds.). 1985. Immigration Statistics:
A Story of Neglect. Washington, DC: National Academy Press.
9 Norwood, J. L. 1995. Organizing to Count: Change in the Federal Statistical
System. Washington, DC: The Urban Institute Press.
10 However, there still remain more than one dozen separate data collection
systems that often suffer from various internal deficiencies and remain
to be integrated into larger core systems.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
195
to assume that automation will solve the problems that have been
evident for too long a time in statistical operations. 11 The Panel
cited an agencywide lack of understanding and commitment to
highquality data and the need for the development and acceptance
of appropriate standards as the primary causes of today's inad
equate state of affairs. It is necessary to change priorities from data
collection solely for individual division administrative purposes to
the production of data for integrated enforcement, benefits, quality
control, and analytic uses.
Congress also has been critical of the way in which data has been
disseminated. In the context of congressional debate, sporadic re
lease of data has the potential for politicizing statistics. Regular and
scheduled release of statistics, preferably monthly, can go a long
way toward depoliticizing data and focusing attention on unbiased
analysis. The Department of Labor's Bureau of Labor Statistics,
with an autonomous and scheduled release of data, offers one model
for the dissemination of data with no relation to the policy calendar.
The Commission believes each agency with immigration responsi
bilities should have a statistical office charged with final authority
over data coordination, agencywide definitions and systems inte
gration, quality monitoring, research and analysis, and regular dis
semination. Data collection and analysis must be a priority and be
reflected in the statistical branch's organizational placement. Only
sufficiently high placement and authority can ensure that its mission
is successfully discharged.
Interagency cooperation and coordination of agencies that produce
or use immigration data can enhance the data's timeliness and value
significantly. Cooperation also can lead to significant gains in the
11 Levine, D. B.; Hill, K.; Warren. R. (eds.). 1985. Immigration Statistics:
A Story of Neglect. Washington, DC: National Academy Press. See also:
Morris, M.D. 1985. Immigration - The Beleaguered Bureaucracy. Washington,
DC: Brookings Institution.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
196
use of scarce resources - be they funding, staff, time, or public tol
erance. Such coordination must insure monitoring of progress, ad
herence to standards, common definitions, timeliness in publication,
and full disclosure of methods, methodology, procedures, and prob
lems. Only then will significant improvements occur.
Consideration should be given to the creation of a permanent taskforce
on immigration statistics that would coordinate interagency efforts
to improve all aspects of the statistical system. Various ad hoc and
temporary governmental working groups have tackled a part of, or
the whole of, the data collection system. 12 A formallycharged
taskforce would craft the basis for interagency agreements and pos
sible statutory and regulatory changes. To be effective, the taskforce
would require appropriate institutional support. It would marshal
interagency collaboration on data whenever feasible, especially on
definitional issues and on what information is collected. The taskforce
should conduct an exhaustive review of the data collected in each
agency, identify overlap or potential interagency data linkages, evalu
ate technical and computer needs, propose standard definitions, and
make recommendations.
Information Needs
Little can be done to make significant advances in our understand
ing of immigration without improvements in data and targeted re
search. Policymaking is particularly hampered by lack of knowl
edge from detailed surveys and longitudinal studies in three areas:
the experiences and impacts of immigrants; the experiences and
impacts of foreign students and foreign workers admitted for lim
ited duration stays; and the patterns and impacts of unlawful mi
12 The INS has convened an Interagency Working Group on Immigration
Statistics that has reviewed various data problems. It has had a significant
impact on Administration funding for an immigration component in the
Current Population Survey, the preeminent U.S. source of data on national
trends and on the U.S. labor force. It also made significant contributions
to ultimate Administration support for the New Immigrant Survey.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
197
gration. There is a seemingly inexhaustible range of options for
collecting data and, especially, topic areas needing research. 13 Ex
amples of pressing analytic data needs are discussed below.
Legal Permanent Admissions
The gap between questions about legal immigration and the data
needed for answers is greater than in almost any other area of public
policy. It is not now possible to address fully pressing policy ques
tions about the changing skill makeup of newly admitted immi
grants over time, the transitions between temporary and permanent
residence status, the effects of today's immigration on future de
mand through family reunification, and the success and impact of
immigrants in the U.S. economy.
To answer such questions, policymakers have a crucial need for
both data on detailed classes of admission and the capacity to track
changes over time. Recently, the Administration funded the collec
tion of data on immigrants in the monthly Current Population Sur
vey. However, these and other survey data neither collect detailed
information about status nor distinguish between legal and illegal
foreign residents, much less between the various temporary or per
manent admission statuses.
The INS yearly admissions data are the most immediate source of
information on immigrant entry class. Yet, the data serve primarily
as a minimalist administrative count of individuals. Identifying
family units would make it possible to evaluate admissions as they
really are: the immigration not of individuals but of families. The
quality and type of data gathered on labor force status depends on
definitions that do not conform with modern concepts. Including
information about immigrant sponsors would go far to increase our
13 Edmonston, B. (ed.). 1996. Statistics on U.S. Immigration: An Assessment
of Data Needs for Future Research. Washington, DC: National Academy
Press.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
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ability to make reliable forecasts about the numbers and skill com
position of tomorrow's immigrants.
The New Immigrant Survey discussed in the introduction to this
report demonstrates the policy value of expanded data on new
admissions. For the first time we have an accurate picture of edu
cation and English ability, as well as the capability for studying
transitions from temporary to permanent status, the characteristics
of sponsors, and the financial wellbeing of new entrants. Designed
as a pilot, the NIS should be seriously evaluated for its costs and for
its value as a model for a longitudinal survey. 14 Experts agree that
only a longitudinal survey ultimately can answer Congress' most
pressing questions. 15
Finally, it is essential to improve our knowledge of newly natural
izing citizens. In the past few years there have been dramatic in
creases in the numbers of persons naturalizing, but little is known
about the individual circumstances under which residents choose to
naturalize. Only more detailed knowledge about such things as
eligibility and motivations will yield indicators to forecast the num
ber of future applications. Accurate forecasts are needed to meet
demand and to organize processing integrity.
14 A longitudinal survey would, among other things, help address serious
deficiencies due to "lost data sources." In the 1950s, the U.S. discontinued
collecting data on persons leaving permanently. Without accurate
emigration data, demographic estimates of the size and growth of the
foreign population are imprecise exercises. In the 1980s, the "Alien
Address" database was discontinued. Knowing the size of the legal
population makes it possible to get significantly more precise estimates
of the size and location of illegal residents.
15 Levine, D. B.; Hill, K.; Warren. R. (eds.). 1985. Immigration Statistics:
A Story of Neglect. Washington, DC: National Academy Press. Edmonston,
B. (ed.). 1996. Statistics on U.S. Immigration: An Assessment of Data Needs
for Future Research. Washington, DC: National Academy Press. . .
. . National
Research Council. (J.P. Smith, B. Edmonston, eds.). 1997. The New
Americans: Economic, Demographic, and Fiscal Effects of Immigration.
Washington, DC: National Academy Press.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
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Limited Duration Admissions
There exists remarkably little comprehensive or policyrelevant
knowledge or research on the administration of the LDA system or
its impact on the U.S. economy. 16 Problems in the LDA data system
are even more pervasive than in the legal permanent system.
The Commission believes that improvements in data collection and
analysis of LDAs and the impact of these admissions should be
considered an urgent priority. The INS has made significant efforts
to improve its data and has directed funds toward new computer
systems. The Commission urges the Congress to support continued
innovation in data collection and storage retrieval. As in our last
report, the Commission suggests that building upon existing admin
istrative recordkeeping will be most costeffective.
Improved data and new research efforts are especially critical as
there is remarkably little known about the number, characteristics,
and impact of LDA workers and foreign students. For example,
important basic information is lacking on LDA workers - their geo
graphic location in the U.S., occupations, or labormarket effects.
Longitudinal data and analysis are needed regarding the transition
of LDA workers to immigrant status - directly or through other tem
porary categories. Likewise, little is known about the total popula
tion and characteristics of foreign students, their geographic distri
bution, academic status, duration of stay, employment activities, or
change and adjustment of legal status.
There is a critical need to continue and extend improvements in
departure data - one of the more crucial components of the entire
immigrant information system. Precise exit information is neces
sary to track duration of stay, compliance with visa regulations, and
overstays. Further, the utility of current data could be meaningfully
16 Lowell, B.L. (ed.). 1996. Temporary Migrants in the United States.
Washington, DC: U.S. Commission on Immigration Reform.
U.S. COMMISSION ON IMMIGRATION REFORM
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extended, for example, by collecting accurate information on in
tended destination. The Commission endorses continued emphasis
on the improvement and introduction of electronic/paperless mecha
nisms for the collection of departure data.
Unauthorized Migration
The measurement and study of illegal aliens - a clandestine popula
tion - always has been fraught with difficulties. Ironically, a focus
on estimates of this population may well have produced more ac
curate numbers than official figures on legal residents. Yet, if our
research knowledge of legal immigrants is circumscribed, and re
search on LDAs nearly nonexistent, the analysis of the illegal popu
lation, while extensive, suffers from combinations of problems.
At a rudimentary level, there is a need to know more about the
number of illegal aliens who entered without inspection [EWI] in
contrast to temporary admittees who overstay the time permitted
on their LDA visa. 17 In terms of enforcement efforts the distinction
is important, but there is an unknown range of error in current
estimates. What proportion fall into each type? Improvements in
existing databases are sorely needed along with research into inno
vative and reliable means of estimating each population.
Much could be gained from knowing about the varied means by
which EWIs and LDA overstayers come to the United States and the
length of their stay. If, for example, LDA overstayers had shorter
durations of residence in illegal status, then their proportion of the
total illegal population is, in a sense, more "fluid." At a more
critical extreme, subpopulations of highly mobile and circular mi
17 U.S. General Accounting Office. 1995. Illegal Immigration: INS Overstay
Estimation Methods Need Improvement. GAO/PEMD9520. Washington,
DC: U.S. Government Printing Office.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
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grants may stay for only short periods in the United States. These
highly mobile individuals would not be fully captured in standard
estimates of the illegal population. 18
18 There are few reliable estimates of the highlymobile, illegal
subpopulation, nevertheless, ad hoc estimates increasingly are heard. A
correct estimate of this population should adjust for its average, or "person
year," size. For example, if 100 illegal workers spent onehalf year
working in the United States, they would earn the yearly wages of 50
workers. See Heer, D.M. 1990. Undocumented Mexicans in the United
States. Cambridge: Cambridge University Press.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
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CONCLUSION
This report concludes the work of the U.S. Commission on Immi
gration Reform. Together with our three interim reports, this final
set of recommendations provides a framework for immigration and
immigrant policy to serve our national interests today and in the
years to come. The report outlines reforms that will enhance the
benefits of legal immigration while mitigating potential harms, curb
unlawful migration to this country, and structure and manage our
immigration system to achieve all these goals. Most importantly,
this report renews our call for a strong commitment to American
ization, the process by which immigrants become part of our com
munity and we learn and adapt to their presence. Becoming an
American is the theme of this report. Living up to American values
and ideals is the challenge for us all.
U.S. COMMISSION ON IMMIGRATION REFORM
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REFERENCES
COMMISSION ON IMMIGRATION
REFORM RESOURCES
Interim Reports*
1994. U.S. Immigration Policy: Restoring Credibility.
1995. Legal Immigration: Setting Priorities.
1997. U.S. Refugee Policy: Taking Leadership.
Contract Research Papers*
Bean, F.D.; Chanove, R; Cushing, R. G.; de la Garza, R.; Freeman,
G.P.; Haynes C.W.; Spener, D. 1994. Illegal Mexican Migration
and the United States/Mexico Border: The Effect of Operation Hold the
Line on El Paso/Juarez.
Binational Study on Migration. 1997. Migration between Mexico and
the United States. U.S. Commission on Immigration Reform and
Mexican Foreign Ministry.
Bolton, G. 1994. Immigration Emergencies: Learning from the Past,
Planning for the Future.
Greenwood, M.; Ziel, F.A. 1997. The Impact of the Immigration Act
of 1990 on U.S. Immigration.
* For ordering information, contact the Commission.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
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Keely, C.B. 1994. The Challenge of Mass Asylum.
Kraly, E.P. 1995. U.S. Immigration and the Environment: Scientific
Research and Analytic Issues.
Lawler, K.C. 1994. Averting Immigration Emergencies.
Lewin Associates. 1997. Impact of Federal Welfare Reform on Immi
grants.
Lowell, B.L. (ed.). 1996. Temporary Migrants in the United States.
Bhagwati, J.; Rao, M. Foreign Students in Science and Engineer
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Chiswick, B. Policy Analysis of Foreign Student Visas.
DeFreitas, G. Nonimmigrant Visa Programs: Problems and Policy
Reforms.
Hagan, J; McCollom, S. Skill Level and Employer Use of For
eign Specialty Workers.
Keely, C. Visa Policy of the United States.
Lowell, B.L. Temporary Visas for Work, Study, and Cultural
Exchange.
Martin, P. California's Farm Labor Market and Immigration
Reform.
Morris, F. Denial of Doctoral Opportunities for African Ameri
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North, D. Some Thoughts on Nonimmigrant Student and Worker
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Papademetriou, D. Creating a Balanced and ForwardLooking
Selection Process.
Smith, M. Who Is the Employer? What Is the Problem?
Miller, M.J. 1994. Western European Strategies to Deter Unwanted
Migration: Neither New Barbarian Invasions Nor Fortress Europa.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
207
__________ 1995. Employer Sanctions in France: From the Campaign
Against Illegal Employment to the Campaign Against Illegal Work.
National Heritage Institute. 1997. Environmental Degradation and
Migration: The U.S./Mexico Case Study.
National Research Council. (J.P. Smith, B. Edmonston, eds.). 1997.
The New Americans: Economic, Demographic, and Fiscal Effects of Immi
gration. Washington, DC: National Academy Press.
__________ (B. Edmonston, R. Lee, eds.). 1996. Local Fiscal Effects
of Illegal Immigration. Washington, DC: National Academy Press.
North, D. 1997. Estimates of the Financial Costs of Refugee Resettle
ment: The Current System and Five Alternative Models.
Schultz, T.P. 1995. Immigrant Quality and Assimilation: A Literature
Review.
Schwartz, M.L.; Notini, J. 1994. Desertification and Migration: Mexico
and the United States.
WoodrowLafield, K.A. 1995. Potential Sponsorship by IRCALegal
ized Immigrants.
PUBLIC HEARINGS/
EXPERT CONSULTATIONS
January 1993 Consultation: The Commission's Mandate and
Workplan (Washington, DC)
February 1993 Consultation: Home and Family Care (Washing
ton, DC)
U.S. COMMISSION ON IMMIGRATION REFORM
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208
April 1993 Public Hearing: Immigration and the Economy
(Washington, DC)
September 1993 Roundtable: Worksite Enforcement (Washington,
DC)
October 1993 Public Hearing: Immigration and Community
Relations (Washington, DC)
December 1993 Roundtable: Impact of Immigration on San Di
ego (San Diego, CA)
Public Hearing: Impact of Immigration on the
Los Angeles Metropolitan Area (Los Angeles,
CA)
Roundtable: Local Impacts of Immigration (Los
Angeles, CA)
February 1994 Roundtable: Immigration Emergencies (Miami,
FL)
Public Hearing: Impact of Immigration on South
Florida (Miami, FL)
March 1994 Roundtable: Immigrant Utilization of Public Ben
efits Programs (Washington, DC)
Roundtable: Border Management Strategies (El
Paso, TX)
Public Hearing: Impact of Immigration on El
Paso (El Paso, TX)
May 1994 Consultation: Source Country for Legal and Ille
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
209
gal Immigration (Mexico City, Mexico)
Public Hearing: Impact of Immigration on Chi
cago (Chicago, IL)
August 1994 Public Hearing: Impact of Immigration on Lowell
(Lowell, MA)
November 1994 Roundtable: Impact of Immigration on New York
(New York, NY)
December 1994 Roundtable: Mass Migration Movements (Wash
ington, DC)
Roundtable: Detention and Removal (Washing
ton,DC)
January 1995 Roundtable: Economic and Labor Impact of Im
migration on Austin (Austin, TX)
February 1995 Consultation: Source Country for Legal and Ille
gal Immigration (Santo Domingo, Dominican Re
public)
Roundtable: Local Impacts of Immigration (San
Juan, Puerto Rico)
Roundtable: Illegal Movements into and through
Puerto Rico (San Juan, Aguadilla, Puerto Rico)
Consultation: Legal Immigration (Washington,
DC)
March 1995 Roundtable: Population/Environmental Effects
(Phoenix, AZ)
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
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Roundtable: Regional/Border Impacts (Phoenix,
AZ)
April 1995 Consultation: Refugee and Humanitarian Admis
sions (Washington, DC)
August 1995 Consultation: Source Country for Legal and Ille
gal Immigration (Havana, Cuba)
September 1995 Consultation: Impact and Integration (Vancouver,
Canada)
Consultation: Effects of Business Immigration
(Blaine, WA)
Roundtables: Local Impacts of Immigration, Role
of Services in Immigrant Integration, Refugee
Resettlement, and Nonimmigrant Issues (Seattle,
WA )
November 1995 Consultation: Agricultural and Enforcement Is
sues (Fresno, CA)
Roundtables: Local Effects, Labor Impacts, Hous
ing, Absorption and Nonimmigrant Issues (San
Francisco, CA)
Consultations: Absorption and Nonimmigrant Is
sues (San Francisco, CA)
April 1996 Consultation/Site Visits: Detention (Washington,
DC)
Site Visit: Source Country for Emergency Migra
tion (Port au Prince and Petit Goave, Haiti)
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
211
May 1996 Public Hearing/Site Visit: Local Effects of Immi
gration; Integration of Immigrants; Detention
(Houston, TX)
June 1996 Work Groups/Site Visit: J Visas (Washington, DC
and Rockville, MD)
Consultations: Domestic Refugee Resettlement;
The Asylum System (Washington, DC)
September 1996 Public Hearing/Consultations/Site Visits: Immi
grant Integration and Impact on the Metropoli
tan Area: Temporary Protection and Repatria
tion; Prosecutorial Discretion; English Language
Acquisition in the Schools (Metropolitan Wash
ington, DC)
October 1996 Site Visits: Overseas Refugee Admission and As
sistance (Geneva, Bonn, Frankfurt, Zagreb,
Sarajevo, Nairobi, Mombasa)
December 1996 Site Visits: Immigrant Entrepreneurship and Em
ployment; Worksite Enforcement; Labor Market
Issues; Management of the Immigration System
(Laguna Niguel, Orange County, Los Angeles,
CA)
January 1997 Site Visit: Management of the Immigration Sys
tem (Dallas, TX).
March 1997 Consultation: K12 English Acquisition Pedagogy
andProgram Implementation, Core Civic Cur
riculum, and Adult Education (Boston, MA).
Site Visit: Management of the Immigration Sys
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
212
tem (Portsmouth, NH).
Consultation and Site Visit: Impact of Immigra
tionon Local Communities (Garden City, KS).
April 1997 Consultation: Structuring, Organizing and Man
aging an Effective Immigration System (Wash
ington, DC).
Consultation: The Naturalization Process (Bos
ton, MA).
July 1997 Site Visit: Management of the Immigration Sys
tem (San Diego, CA).
TESTIMONY PRESENTED TO
THE U.S. CONGRESS
August 3, 1994. B. Jordan. Senate, Committee on the Judiciary,
Subcommittee on Immigration.
August 9, 1994. B. Jordan. House of Representatives, Commit
tee on Ways and Means, Subcommittee on Hu
man Resources.
September 29, 1994. B. Jordan. House of Representatives, Commit
tee on the Judiciary, Subcommittee on Interna
tional Law, Immigration and Refugees.
January 27, 1995. L.H. Fuchs. House of Representatives, Commit
tee on Ways and Means, Subcommittee on Hu
man Resources.
U.S. COMMISSION ON IMMIGRATION REFORM
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RECOMMENDATIONS
213
February 24, 1995. B. Jordan. House of Representatives, Commit
tee on the Judiciary, Subcommittee on Immigra
tion and Claims.
March 3, 1995. R. Hill. House of Representatives, Committee
on the Judiciary, Subcommittee on Immigration
and Claims.
March 7, 1995. R. Hill. House of Representatives, Committee
on Government Reform and Oversight, Subcom
mittee on Government Management, Informa
tion and Technology.
March 14, 1995. S. Martin. House of Representatives, Commit
tee on the Judiciary, Subcommittee on Immigra
tion and Claims.
March 27, 1995. S. Martin. Senate, Committee on Finance.
March 29, 1995. B. Jordan. House of Representatives, Commit
tee on Appropriations, Subcommittee on Appro
priations for the Departments of Commerce,
Justice, State, the Judiciary and Related Agen
cies.
March 30, 1995. B. Jordan. House of Representatives, Commit
tee on the Judiciary, Subcommittee on Immigra
tion and Claims.
May 17, 1995. S. Martin. House of Representatives, Commit
tee on the Judiciary, Subcommittee on Immigra
tion and Claims.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
RECOMMENDATIONS
214
June 28, 1995. B. Jordan. Joint Meeting: House of Representa
tives Committee on the Judiciary, Subcommittee
on Immigration and Claims and Senate Com
mittee on the Judiciary, Subcommittee on Immi
gration.
December 7, 1995. R.M. Estrada. House of Representatives, Com
mittee on the Judiciary, Subcommittee on Immi
gration and Claims.
December 13, 1995. B. Jordan. House of Representatives, Committee on
the Judiciary, Subcommittee on Immigration and
Claims.
February 6, 1996. S. Martin. Senate, Committee on the Judiciary,
Subcommittee on Immigration.
February 22, 1966. H. Ezell. House of Representatives, Committee
on Economic and Educational Opportunities.
May 16, 1996. M.S. Teitelbaum. House of Representatives,
Committee on the Judiciary, Subcommittee on
Immigration and Claims.
May 16, 1996. L. Fuchs. House of Representatives, Committee
on the Judiciary, Subcommitte on Immigration
and Claims.
May 16, 1996. S. Martin. House of Representatives, Commit
tee on the Judiciary, Subcommitte on Immigra
tion and Claims.
October 22, 1996. L. Fuchs. Senate, Committee on the Judiciary,
Subcommittee on Immigration.
U.S. COMMISSION ON IMMIGRATION REFORM
1997
APPENDIX
215
APPENDIX A
IMMACT: PROVISIONS
AND EFFECTS
The Immigration Act of 1990 [IMMACT] attempted to balance a
number of competing interests. First, it established annual overall
limits on total legal immigration, but allowed those limits to be
"pierced" in response to changing levels of nuclear family applica
tions and humanitarian admissions. Second, it created a guaranteed
minimum number of visas for close family members if there are
increases in the number of immediate relatives of U.S. citizens seek
ing entry. Third, it increased the number of persons admitted for
employment reasons, with higher priority given to professionals and
highlyskilled persons. Fourth, it created a diversity class of ad
missions for persons from nations that have not recently sent many
immigrants to the United States.
IMMACT legislated a worldwide level of 675,000 familybased,
employmentbased, and diversity immigration admissions per year. 1
This ceiling may be pierced if immediate relative applications ex
ceed expectations and does not include refugee, asylum, or other
humanitarian admissions. The worldwide pierceable ceiling repre
sented an increase of about 40 percent in the permitted number of
admissions compared to previously legislated levels. Prior to
IMMACT, immediate relatives (who entered without regard to nu
merical limits) averaged about 210,000 per year, and numerically
limited categories were set at 270,000. Humanitarianbased admis
sions were set outside of regular immigration ceilings, as they con
1 A transition worldwide level of 700,000 admissions was in effect during
FY 19921994. Many admissions during the first two years were from
the preIMMACT backlog and do not necessarily reflect the aims of the
new legislation.
U.S. COMMISSION ON IMMIGRATION REFORM
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tinue to be under IMMACT. Most of IMMACT's legal immigration
provisions went into effect in FY 1992, with the permanent diversity
program beginning in FY 1995.
More specifically, IMMACT contained the following provisions af
fecting immigration numbers and immigrant characteristics.
Familybased admissions.
Familybased admissions.
Familybased admissions.
Familybased admissions.
Familybased admissions. IMMACT established a worldwide limit
of 480,000 familybased admissions. Immediate relatives - includ
ing spouses, minor children, and parents of U.S. citizens - continue
to enter without regard to numerical limits. Their actual admission
numbers are subtracted from the worldwide limit to determine how
many other family members (i.e., adult unmarried children of U.S.
citizens, spouses and minor children of legal permanent residents,
married children of U.S. citizens, and siblings of adult U.S. citizens)
will be permitted to enter the following year. IMMACT set a
minimum floor of 226,000 numericallylimited family immigrants.
In addition, unused employment visas are transferred to the next
year's family admissions.
The actual number of admission slots available and used each year
varies. During the past five years, annual family admissions have
been as low as 460,653 in FY 1995 and as high as 595,540 in FY 1996. 2
Variation can be seen in both the immediate relative and the nu
mericallylimited categories.
2 Processing problems explain some of the below average numbers for FY
1995 and above average ones for FY 1996. Higher demand for adjustment
of status within the United States followed enactment of § 245(i) that
permits those not in lawful status to pay a penalty to obtain their legal
immigration status in the U.S. INS was not prepared for the large
increase in applications, resulting in an adjustment backlog. Some of
those who normally would have received their green card in FY 1995
had to wait until FY 1996. In the meantime, the large number of unused
FY 1995 employmentbased admissions were transferred to the family
categories for FY 1996.
U.S. COMMISSION ON IMMIGRATION REFORM
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One goal of IMMACT was to reduce waiting times, particularly for
the spouses and minor children of legal permanent residents (FB2A
Preference). Recognizing that the 2.7 million aliens who were given
LPR status by the Immigration Reform and Control Act would pe
tition for their immediate families, IMMACT provided three years
of additional visas for spouses and minor children of legalized aliens.
Because percountry limits sometimes create admission backlogs for
affected nationalities, it also required that 75 percent of the FB2A
numbers would be exempt from percountry limits.
The family categories have attracted far more applicants than there
are admission visas and, hence, large backlogs have developed. The
total backlog of family applicants stood at 3.5 million at the start of
FY 1997, essentially unchanged from FY 1996. About one million
individuals are awaiting legal admission under FB2A. As projected
by the Commission in its 1995 report, the numbers on the FB2A
waiting list have declined slightly from the prior year. 3 However,
the waiting time until admission has continued to grow since
IMMACT. From an already long wait of just less than two and one
half years in FY 1992, the waiting time in the backlog has continued
to increase each year until, at the time of this report, it is almost four
and onehalf years. The priority date for admission advances little
each month, meaning longer and longer waits for new applicants.
Anticipation of such trends led the Commission to recommend in its
1995 report a series of changes to the numericallylimited family
categories, but no congressional action was taken. The Commission
3 Much of the initial rapid increase in the spouse and children of the LPR
backlog was due to IRCA legalization. Now most of those family
members already have made their applications and, indeed, new applicant
numbers have declined steadily since 1992. Even so, there were still
82,521 new applicants entering the backlog in 1996. In most years, about
90,000 admission slots are available for FB2A, meaning that the waiting
list will experience only modest decreases in the future.
U.S. COMMISSION ON IMMIGRATION REFORM
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218
has projected that waiting times could reach as long as ten years for
applicants at the end of the waiting line. 4
Employmentbased admissions.
Employmentbased admissions.
Employmentbased admissions.
Employmentbased admissions.
Employmentbased admissions. IMMACT extensively revised the
employmentbased categories and numbers. The legislation empha
sized the admission of highskilled persons and added a new cat
egory for investors. IMMACT allows up to 140,000 employment
based admissions each year, up from an annual limit of 54,000 un
der previous statute. Covered under these numbers are the princi
pal applicants, as well as their spouses and minor children (both
referred to as beneficiaries). The numbers are distributed over sev
eral categories, generally reflecting educational and skill level.
IMMACT also placed a cap of 10,000 admissions on lesserskilled
admissions.
Employmentbased admissions increased significantly under
IMMACT, but they have not approached the annual ceiling of 140,000
(except when the Chinese Student Protection Act of 1992 [CSPA]
permitted Chinese who had entered the U.S. before Tiananmen
Square to become permanent residents under the employment cat
egory). Subtracting out the onetime admissions under CSPA, skilled
and unskilled employmentbased admissions have gone from about
100,000 in FY 1994 to 81,000 in FY 1995 and back up to 117,000 in
FY 1996. The increase in FY 1996 appears to reflect a catchup from
4 In principle, the recent surge in the naturalization of potential sponsors
could reduce the backlog and waiting time of spouses and children of
LPRs. Sponsors who have naturalized can petition for the admission of
their spouses and minor children under the unlimited citizen reunification
category, thus effectively moving them out of the queue. However, this
process will not decrease the backlog in an expeditious fashion. Even
assuming rather high rates of naturalization, the Commission projections
also show that it will take at least another decade before today's backlog
can be reduced to acceptable numbers. Surprisingly, early indications
are that the large volume of naturalizations since 1995 have not resulted
in increases of relatives of U.S. citizens in the family preference total.
(DOS Bureau of Consular Affairs. 1997. Visa Bulletin 73:7 A7.)
U.S. COMMISSION ON IMMIGRATION REFORM
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APPENDIX
219
administrative processing delays in the previous year. The most
notable increase through this period has been in the first preference,
particularly in the subcategory for executives and managers of mul
tinational corporations. 5 The first preference had fewer than 5,500
admissions in IMMACT's first year of implementation but now has
more than 25,000 admissions.
In terms of the backlog of employmentbased visas, the category of
unskilled workers (EB3B preference) remains heavily oversubscribed
as of FY 1997, with nearly a sevenyear wait for admission for all
nations. Otherwise, only India is oversubscribed with nearly a two
year wait for admission for employment professionals with advanced
degrees (EB2) and skilled workers (EB3A). Employmentbased
admissions must be closely monitored to know whether or not they
reach their limit in the future and whether percountry limits im
pede timely entry of the highlyspecialized workers who are genu
inely needed by U.S. business.
Diversity admissions.
Diversity admissions.
Diversity admissions.
Diversity admissions.
Diversity admissions. The diversity immigrant provisions in
IMMACT seek to increase national diversity in the immigrant popu
lation by widening access for immigrants from underrepresented
countries whose citizens have neither strong family nor job ties to
the United States. The permanent program began in October 1994.
It provides 55,000 admission slots per year to nationals of countries
that have sent fewer than 50,000 legal immigrants to this country
over the previous five years. Each applicant must have a high
school education or its equivalent or two years of work experience
in an occupation requiring at least two years of training or experi
ence. Persons eligible to enter are chosen by lottery. In FY 1996,
some eight million applications were received by the Department of
State.
5 Multinational corporations include U.S.based companies with overseas
operations and large and small foreign businesses that establish U.S.
offices, subsidiaries, or affiliates.
U.S. COMMISSION ON IMMIGRATION REFORM
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220
About 40,000 diversity immigrants entered in FY 1995 and 58,000 in
FY 1996. As with other admission categories, the FY 1995 numbers
are misleading because of the delays in processing adjustments of
status. Unlike other categories, however, the diversity program
does not permit a waiting list of unprocessed applicants who will be
interviewed the following year.
Refugee and other humanitarian admissions.
Refugee and other humanitarian admissions.
Refugee and other humanitarian admissions.
Refugee and other humanitarian admissions.
Refugee and other humanitarian admissions. Various categories
of people may obtain LPR status outside of the worldwide pierceable
ceiling. The largest groups are refugees admitted from overseas as
part of the refugee resettlement program and asylees granted asy
lum domestically. After one year, refugees and asylees become
eligible to adjust to LPR status. They are counted when the adjust
ment occurs. Other humanitarianbased admissions include
Amerasians, parolees permitted to adjust status under special leg
islation, and individuals granted suspension of deportation. The
total numbers admitted under these categories vary depending
largely on the annual refugee admission levels determined through
PresidentialCongressional consultation. All humanitarian admis
sions reached a high in FY 1994 of 160,000 and dropped modestly
to 123,000 and 138,000 in FYs 1995 and 1996, respectively.
Future trends.
Future trends.
Future trends.
Future trends.
Future trends. As indicated, the yeartoyear admissions under
IMMACT have followed an upanddown course. Future trends are
difficult to project. A number of factors may increase future admis
sion levels. Given the pace with which immigrants are naturalizing,
growth in the number of immediate relatives may occur as newly
naturalized citizens petition for their families. While LPRs may
petition for spouses and minor children, until naturalization, they
may not petition for the admission of a parent. It is also unlikely
that the numericallylimited family preferences will be
undersubscribed in the foreseeable future. Continuing backlogs
ensure that available family quotas, as well as any unused employ
ment numbers transferred to the family categories, will be filled.
U.S. COMMISSION ON IMMIGRATION REFORM
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221
At the same time, new provisions adopted in the recent welfare
reform (The Personal Responsibility and Work Opportunity Recon
ciliation Act of 1996) and the Illegal Immigration Reform and Immi
grant Responsibility Act of 1996 may dampen future admissions
despite the lengthy waiting lists. In particular, IIRIRA requires all
family members to be sponsored by a U.S. petitioner whose income
meets at least 125 percent of the poverty level. Sponsors must sign
legallybinding affidavits under which they pledge to provide any
financial support needed by the new immigrants. In addition, the
welfare reform legislation bars noncitizens from most income trans
fer programs. Some U.S. family members may be unwilling or
unable to take on these new financial responsibilities for new immi
grants.
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APPENDIX
222
APPENDIX B
STATEMENT OF COMMISSIONER
WARREN R. LEIDEN
While I agree with most of the findings and recommendations of the
Commission majority, there are two subjects of major recommenda
tions on which I am moved to make separate statements - one in
dissent (Legal Permanent Admissions) and one in concurrence (Struc
tural Reform).
Legal Permanent Admissions
Legal immigration needs reform of priorities and allocations, but
Legal immigration needs reform of priorities and allocations, but
Legal immigration needs reform of priorities and allocations, but
Legal immigration needs reform of priorities and allocations, but
Legal immigration needs reform of priorities and allocations, but
current levels of legal immigration are in the national interest.
current levels of legal immigration are in the national interest.
current levels of legal immigration are in the national interest.
current levels of legal immigration are in the national interest.
current levels of legal immigration are in the national interest.
Virtually all the research and analysis received by the Commission
indicated that the current levels of legal immigration continue to
provide a net positive benefit to America in a multitude of ways.
Whatever interest is examined - economic, social, political, scien
tific, or cultural - the current levels of legal immigration are found
to benefit each of these aspects of American life. The current levels
of legal immigration that were established by the Immigration Act
of 1990 have served this country well. And, after the current one
time increase that is the result of the 1986 legalization program, the
overall number of legal immigrant admissions can be expected to
moderate and decrease.
The current overall levels of legal immigration should be main
tained until there is another opportunity for review in three to five
years.
The majority recommends a onequarter reduction in legal immigra
tion from current levels, but not now, rather in five to eight years.
U.S.COMMISSIONONIMMIGRATIONREFORM
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223
This reduction comes at the expense of thousands of American fami
lies who have been patiently waiting for legal reunification with
their close relatives overseas. It is accomplished by eliminating
three of four family preference categories and simply shutting the
door on thousands of sons, daughters, and siblings of U.S. citizens.
There is no convincing argument for this drastic reduction in legal
immigration now or years from now. Current levels of legal immi
gration clearly serve the national interest and can better do so if
priorities and allocations are reformed.
Prioritize familybased admissions without eliminating family re re re re re
unification.
unification. unification.
unification. unification. Spouses and minor children of U.S. citizens and lawful
permanent residents [LPRs] and parents of U.S. citizens should re
ceive the highest priority for immigration, but this can be accom
plished without eliminating the immigrant categories for adult sons
and daughters or siblings of U.S. citizens.
The family preference categories should be reordered, placing the
spouses and minor children of LPRs at the top, with a "spilldown"
of unused visas going to the remaining family categories. This
approach would ensure the quickest reduction in the shameful back
log of spouses and minor children of LPRs, without sacrificing the
family unification of those sons and daughters who simply turned
21 years old. The majority, by its determination to reduce legal
immigration, is forced to call for the elimination of sons and daugh
ters preference categories. It is wholly unnecessary to impose this
hardship when simple priority setting can accomplish the same end.
The backlog of spouses and children of LPRs has already begun to
decrease, and there are fewer new applicants than there are indi
viduals being accorded immigrant status under the "second prefer
ence category." This indicates, as predicted, that the current back
logs can be reduced and that a new stable level of family immigra
tion can be achieved once the onetime "echo" of the legalization
U.S.COMMISSIONONIMMIGRATIONREFORM
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224
program has been processed. The small increases in the family
preference categories for sons and daughters can be quickly made
up once the top preference category is current.
Preserve employmentbased immigration levels and reform labor
Preserve employmentbased immigration levels and reform labor
Preserve employmentbased immigration levels and reform labor
Preserve employmentbased immigration levels and reform labor
Preserve employmentbased immigration levels and reform labor
market tests without penalizing employers.
market tests without penalizing employers.
market tests without penalizing employers.
market tests without penalizing employers.
market tests without penalizing employers. I dissent from the
majority's recommendation to reduce employmentbased immigra
tion by almost 30 percent to only 100,000 admissions per year (in
cluding spouses and children). This level was already exceeded in
FY 1996, when employment based legal immigration reached 117,000.
Moreover, the continued growth of the international economy prom
ises to increase employmentbased legal immigration up to at least
the current level of 140,000 admissions per year. The majority's
recommendation to cut annual employment based admissions down
to 100,000 per year would result in immediate backlogs, which would
recreate precisely the situation that the Immigration Act of 1990 was
enacted to cure.
Proposals that would result in the immediate creation of new back
logs are clearly wrong. The employmentbased immigration ceiling
should be kept at the current level, with review in three to five
years.
New requirements and procedures need to be developed to replace
the labor certification process to test the bona fides of the petitioning
employer's need and to avoid adverse effect on similar U.S. work
ers. I dissent from the majority's recommendation that the solution
is that such employers be required to pay a "substantial fee" or tax
for the privilege of sponsoring international personnel.
The "substantial fee" approach simply does not address the real
issues. It substitutes a penalty on certain employers for an honest
assessment of what is beneficial to the national interest and what is
practical in an environment of heightened international competition.
The majority wants to label the imposition of fees to be a use of
U.S.COMMISSIONONIMMIGRATIONREFORM
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225
"market forces," but it is obvious that governmentimposed tariffs
and fees are the complete opposite of market forces. For the gov
ernment to charge a substantial, arbitrarilyset fee that will be used
for purposes other than expense of adjudication and processing the
application would be more like a tax, the antithesis of market forces.
The majority would not only impose a penalty fee but would also
require such employers to meet subjective tests of eligibility, such as
whether it took "appropriate steps to recruit U.S. workers." It is
hard to imagine that this proposal would not result in a new bu
reaucracy sitting in judgment on employers' compliance with new
regulations and requirements.
The majority's proposal will serve more to penalize U.S. employers
who petition for international personnel than to prevent adverse
effect. Unfortunately, a proper analysis of these issues and more
thoughtful recommendations remain to be done.
Structural Reform
Restructure the federal immigration responsibilities to separate
Restructure the federal immigration responsibilities to separate
Restructure the federal immigration responsibilities to separate
Restructure the federal immigration responsibilities to separate
Restructure the federal immigration responsibilities to separate
the adjudications function from the enforcement function but keep
the adjudications function from the enforcement function but keep
the adjudications function from the enforcement function but keep
the adjudications function from the enforcement function but keep
the adjudications function from the enforcement function but keep
them in the Department of Justice along with the appeals func
them in the Department of Justice along with the appeals func
them in the Department of Justice along with the appeals func
them in the Department of Justice along with the appeals func
them in the Department of Justice along with the appeals func
tion.
tion. tion.
tion. tion. The federal responsibilities to conduct immigration enforce
ment, both at the border and inside the U.S., and to adjudicate
immigration and naturalization applications and petitions have not
been managed adequately.
Although it has received substantial increases in appropriations for
staff, equipment, and other resources, the enforcement function con
tinues to suffer from a lack of strategic coordination. While impor
tant improvements have been made in enforcement at the border,
coordination with interior enforcement is tactical at best and often
exists in form only. Interior enforcement is led and managed by
officials who have been charged with too many other responsibilities.
U.S.COMMISSIONONIMMIGRATIONREFORM
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226
At most levels of the INS, inadequate attention is given to the glar
ing imbalances in staff and resource allocations to the sequential
steps of the enforcement process so that the consequences of appre
hension are neither swift nor certain. Distracted and overloaded
management also increases the risk of error and misconduct by its
subordinate staff. Simply put, there is not a single, focused, na
tional chain of command to pursue an integrated national enforce
ment strategy, and the immigration function and the nation suffer
as a result.
Similarly on the adjudications side, huge increases in fee account
receipts have not resulted in proportional improvements in accu
racy or efficiency. Managers at the local, regional, and national
levels have not been adequately concentrated on their adjudications
responsibilities in immigration and naturalization. The economies
of scale and additional resources provided by the substantial caseload
(and therefore revenue) increases have not been converted into
improvements, rather there is the appearance that there is just too
much to do.
The lack of success in enforcement and adjudications is not simply
for want of trying. The immigration agencies are served by many
talented and determined staff and managers. The current adminis
tration of the Immigration and Naturalization Service has made
impressive strides forward on a number of fronts and its accom
plishments are historic.
If, despite huge increases in funding and dedicated staff and lead
ership, the federal government still has not achieved adequate man
agement of its immigration responsibilities, it is inescapable that
something else must be done in order to arrive at a successful equa
tion. Based on the information, interviews, and analyses the com
mission has reviewed over the past several years, it becomes an
inescapable conclusion that the primary immigration functions need
to be separated and restructured.
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227
Separation of the enforcement and adjudications functions is the
only solution to the current overload of responsibilities competing
for attention that is obvious at every level of the INS. Separation of
the functions would permit the establishment of unified, focused
chains of command and operations at every level. Separation of
enforcement from adjudications would allow each function to have
a clear mission and to set clear goals on by which performance
could be judged and accountability enforced. Separate functions
would benefit greatly from the ability to gear hiring, training, pro
motions, and discipline to a clear mission.
At present, with its combined missions, the INS is often in internal
contradiction, and its personnel, trained primarily in one mission or
the other, are asked to crisscross from positions calling for one type
of expertise and then the other. The most telling evidence of the
value of separating the enforcement and adjudications functions
comes the recent history of INS itself. The two most successful
examples of INS adjudications programs, the 1986 Legalization pro
gram and the creation of an independent corps of asylum officers in
1990, are both instances where adjudications programs were con
sciously and deliberately kept separate and insulated from the en
forcement mission of the INS. These practical, real world examples
conclusively make the case for separation of enforcement from ad
judications.
Of course, separation and restructuring of the immigration func
tions is not a panacea in and of itself. The combined missions are
far from the only problem confronting the agencies, and the sepa
ration of the functions should be seen only as providing a necessary
foundation from which real, lasting solutions can be hammered out
to the many substantive challenges confronting the government. The
substantive problems of operations and policy remain the funda
mental issues of concern; structural changes provide means to better
accomplishing these ends.
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228
The benefits of restructuring can be gained with far less disruption,
at less cost, and with greater chance of success if it is accomplished
within the Department of Justice. The two main functions of the
INS - enforcement and adjudications - should be separated into two
different agencies within the Department of Justice, with separate
leadership. This would also permit the insertion of a senior level
office in the Department of Justice to coordinate and lead the sepa
rate functional agencies.
The creation of the Executive Office for Immigration Review [EOIR],
which separated the immigration hearings and appeals function from
the rest of INS in 1983, is a good model for this restructuring. Like
the EOIR, each agency should have its separate mission, career paths,
training, and management, while still benefiting from policy and
strategic coordination at senior department level.
The Department of Justice is the proper place for the immigration
enforcement function and it is the proper place for the adjudications
function. The Department of Justice has long experience with and
is the preeminent repository of expertise in both the immigration
enforcement and adjudications functions. The Department of Jus
tice epitomizes the values of due process and the rule of law, which
are especially important in achieving effective enforcement and fair,
accurate adjudications for a wellregulated, highlyselective legal
immigration system. The division of these two immigration func
tions, within the Department of Justice, would be far less disruptive
to either responsibility at a time when both adjudications workloads
and the need for enforcement activities are at record levels.
In contrast, transferring the adjudications function to the Depart
ment of State would require it to integrate into its organization large
operations programs with which it has little familiarity. Any de
partment other than Justice would have to undertake the absorption
of new missions, expertise, and institutional values with which it
has little experience.
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229
Keeping both functions within the Department of Justice would be
far less costly than the transfer of all adjudications activities to the
Department of State or another department. The personnel, train
ing, facilities, and management are already fully part of and inte
grated into Department of Justice. Separation of enforcement and
adjudications within the Department of Justice raises mostly issues
of management and structure, rather the basic recreation of a sub
stantial institution in an entirely new setting.
Moreover, keeping adjudications within Justice would not require
the proposed creation of an entirely new independent agency for
immigration review in place of EOIR. There are substantive argu
ments on both sides of this issue, and it is one that should be de
cided on the basis of merit, not mandated simply due to interde
partmental restructuring.
As in all cases of organizational change, some predictable disrup
tion and added expense are justifiable if the outcome is most likely
to be an improvement. However, the consequences of the proposed
transfer of all adjudications functions to the Department of State are
far from certain. Unlike the Department of Justice, the Department
of State would be undertaking a entirely different mission with which
it has had little experience or interest. Historically, immigration
and consular matters have received tertiary attention and status at
the Department of State. It is a gamble to think that these long
standing attitudes will change for the better. While some argue that
the Department of State could and should adopt an entirely new
mission in the postCold War era, beginning this debate by making
the massive implantation of the entire federal immigration adjudi
cations function puts the horse before the cart and is a great risk to
take.
The Department of State has not had experience with the large
volume of substantive adjudications that heretofore have been done
by the Department of Justice. Moreover, elementary concepts of
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1997
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230
legal process, including administrative and judicial review, prece
dent decisions, and the right to counsel, have been vigorously re
sisted by the Department of State throughout its history of consular
affairs. The Department of State has energetically fought all at
tempts in litigation and in legislation to make individual consular
decisions subject to any review within the Department of State itself
or by the federal courts. It is difficult for anyone familiar with this
history to conceive that these Department of State traditions would
soon give way to modern legal concepts and the consistency and
accuracy that is their goal.
In contrast, the Department of Justice has the experience and the
expertise. It needs only the restructuring and separation of enforce
ment from adjudications, with dedicated leadership and manage
ment for each, to have the best chance of success, at less cost and
with less disruption of the fundamental immigration responsibili
ties.
1997
REPORT TO
CONGRESS
U.S. COMMISSION ON IMMIGRATION REFORM
U.S. COMMISSION ON IMMIGRATION REFORM
2430 E STREET NW, SOUTH BUILDING
WASHINGTON, DC 20037
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