Revaluating the 1989 Report "The U.S. Alien Legalization Program"

The Center for Immigration Studies, in view of the president's amnesty-by-edict announced last year, has decided to re-publish a 1989 evaluation of the amnesty that came with the Immigration Reform and Control Act of 1986. "The U.S. Alien Legalization Program" was written when the co-authors were with Washington's now-vanished New TransCentury Foundation and was commissioned and funded by the Ford Foundation. (The original report was the product of a partnership between David North and Anna Mary Portz, but this new preface has been written by North alone and does not necessarily reflect Ms. Portz's views.)

But the report was not available on line until now. The full text can be found at: http://files.cis.org/US-Alien-Legalization-Program-7.pdf

The IRCA amnesty was the only previous massive effort by the federal government to convert a portion of the illegal alien population to legal status; it was widely discussed and debated for years, was eventually passed by both houses of Congress, and signed into law by President Reagan, who otherwise had little to do with it. There are many similarities — and many differences — between the two programs and generally, unlike the current generation of Buicks, the Obama version is no improvement on the previous model — or at least that is my thinking.

The main negative difference relates to the births of the two programs. IRCA's legalization program was the result of several years of studies and congressional hearings, and was a truly bi-partisan effort as indicated by one of its names — the "Simpson-Mazzoli Bill". It bore the names of Sen. Alan Simpson (R-Wyo.) and of Rep. Roman Mazzoli (D-Ky.), the men being, at the time, the chairs of the Senate and House subcommittees on immigration.

The current amnesty reflects an executive branch-only birth and is, apparently, going to be authorized by a series of presidential memoranda rather than through a statute. The attempt to handle this matter in this way has created very substantial opposition from the Republican Party, which, at this writing at the beginning of 2015, has just taken control of both houses of Congress. Whether the GOP will, in fact, do anything to stop, stall, or modify the Obama amnesty is still unknown.

Another huge difference between the two programs is expected to be in the area of fraud; while there was extensive fraud in the IRCA program, steps were taken to detect it, steps that I doubt will be taken in the next amnesty. A key variable is the presence of an initial face-to-face interview between the illegal alien applicant and a federal official; something included in the IRCA program, but not in the ongoing DACA program (Delayed Action for Childhood Arrivals), which will probably set a precedent for the next amnesty. A table showing some of the similarities and differences of the programs follows. 

Similarities and Differences: The IRCA Amnesty and Obama's

Source: Center for Immigration Studies, Washington, D.C. 

One of the differences between the two programs relates to which major California industry will get what it wants out of the program. In IRCA, the powerful agribusiness got major benefits for itself in terms of easy legalization of newly arrived illegal alien farm workers. There were two slightly different, employer-friendly programs for Special Agricultural Workers (SAWs) during IRCA. This time around, the West Coast economic giant that must be served seems to be Silicon Valley and the totality of the benefits it will reap from the Obama amnesty is not yet clear.

There will be an extension of the period in which alien graduates of American colleges will be allowed to work on their (student) F-1 visas, in the Optional Practical Training Program (OPT) and, coming in on a separate regulatory track, there will be a new opportunity for spouses of H-1B high-tech workers to work legally. The first provision will extend the length of time that foreign skilled workers will work under indentured conditions, while the second will relieve some of the pressure to raise the wages of the H-1Bs.

Both of those provisions are major gifts to the industry. The OPT program carries with it a provision that allows employers not to incur payroll taxes (FICA and Medicare) on alien workers, while the same employers must pay those taxes when hiring American workers to do similar work. Similarly, when H-1B spouses are allowed to work, that means that they can do so anywhere in the United States, and thus the families will be getting more income, but not at the expense of the H-1B employers.
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A Backward Look at Our 1989 Report. Our report for the Ford Foundation dealt largely with the complex operations of the IRCA legalization, and its results (direct and indirect) rather than with IRCA's not-so-controversial creation. It was, after all, passed by both houses after considerable debate, and signed into law by the president, like statutes generally are.

It also should be noted that I was favorably inclined to the legalization at the time, thinking that it was to be accompanied by a vigorous employer sanctions program. But the latter did not occur; the nation got three million newly legalized aliens, but employers kept hiring illegals and more illegals kept coming to the United States. For those reasons I am no longer a supporter of what always turns out to be free-standing amnesties, with no vigorous enforcement.

The task of running the IRCA legalization was given to the Justice Department's Immigration and Naturalization Service (INS), which up to that date had been largely a law-enforcement outfit. The agency seemed to rise to the occasion of running a huge, brand-new benefits program and we sensed it was stimulated by the experience.

Among other things, INS created a whole new network of legalization-only field offices, so that aliens did not have to enter the old offices, which were felt to be fear-producing. These were short-term operations and were closed as the program wound down. During IRCA, INS changed its benefit operations from being tax-supported to fee-supported, and it was during IRCA that the current de-emphasis on face-to-face interviews with applicants took hold. (While there were interviews, the interviewing officer, unless dealing with an extremely obvious case, did not make the final decision on applications — this was done in four regional centers that I dubbed "decisions factories".) In short, IRCA made a major impact on how the government grants immigration benefits — something we did not understand at the time.

We were aware, however, of the crushing problem of fraud, and how it eventually just about overwhelmed INS. Toward the end, the agency simply gave up on efforts to detect it in the SAWs program. And it was in the farm program, with its casual requirements, where fraud was most present, rather in the larger part of the program that dealt with non-agricultural workers and their families.

Unfortunately a lot of time has passed and few of the INS people who struggled with the IRCA amnesty are still working for the government. Since that is the case, I fear that the lessons of the IRCA experience are not likely to shape the next amnesty, which will be run by ideologues whose focus will be solely on rights of the aliens, and not on the broader needs of society.

Read the 1989 study here: http://files.cis.org/US-Alien-Legalization-Program-7.pdf

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David S. North, now a senior fellow at CIS, is a long-time student of immigration and immigration management policies. He was with Linton & Company, a D.C.-based research organization, when the study was conducted.