Leaving justice out of immigration “reform”

June 17, 2013

Justin Akers Chacón, author of No One is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border, explains what you need to know about immigration "reform."

THE "BORDER Security, Economic Opportunity and Immigration Modernization Act of 2013," known as S. 744, is a proposal that only Corporate America should love.

Although the bipartisan "Gang of Eight" senators who drafted it, like their counterparts in the House of Representatives, present S. 744 as a reasonable and measured approach to legalization, an in-depth read of the 844-page document tells a different story. It is laden with punitive measures, disqualifications and exclusions, and ramped-up enforcement. It is so prohibitive that it should be seen, in its current form, as the continuation of the attack on immigrant workers, not a genuine–or even partial--reform.

The proposal does represent a consensus among the ruling class to move forward with the restructuring of immigration policy. This can be attributed to the defeat of the "enforcement-only strategy"--in the streets and at the polls in 2012--that has been dominant over the last several years.

Nevertheless, S. 744 does not break with the underlying policy doctrines that have continued from George W. Bush to Barack Obama. This includes the treatment of immigration and the border as a national security issue in the context of the "war on terror," encouraging the militarization of enforcement and criminalization of migrants. It also strongly reflects a continuation of the effort to further subordinate workers' rights to the needs of big business.

Members of the Senate Judiciary Committee discuss proposed immigration legislation
Members of the Senate Judiciary Committee discuss proposed immigration legislation

Thus, while partisan debates over details have begun in various congressional committees, there is a high level of agreement of the principal components: increased spending on the enforcement apparatus, at the border and in the interior, to control current and future migration flows; the development of a substantial non-citizen, low-wage workforce through expansion of a guest-worker program; a merit-based visa system; and a long and arduous legalization process designed to disqualify any who speak up, step out of line or stop working.

Expanding the War on Immigrants (Again)

At the heart of the proposal is the requirement that before any legalization for the estimated 11 million undocumented can be considered, border enforcement agencies must achieve an effective apprehension rate of 90 percent or higher in all high-risk border sectors by the end of a 5-year period. Despite the tide turning in favor of legalization, this was a pre-emptive concession to Republicans.

While it isn't exactly clear what criteria will be used to determine this "effectiveness rate," three current aspects of border reality belie the urgency to "take control of the border."

First, according to a Pew Hispanic Research Center, net cross-border migration fell to zero in 2011--in other words, an equal number of migrants were returning to Mexico as coming in.

Second, though the drop in migration has been attributed to increased enforcement, the economic recession is the primary reason. Even the Border Patrol acknowledges that the recession played a key role, while still inventing convoluted formulations to "prove" that their work has been a success and to justify their bloated budgets.

Third, economic and demographic trends point to decreased migration from Mexico into the foreseeable future.

Since the implementation of the North American Free Trade Agreement in 1994, millions of workers have been economically displaced as the treaty opened up Mexico's economy to foreign capital. Direct competition with U.S., European, and Asian multinational corporations wiped out small farmers, many domestic producers and Mexico's teetering state-owned sector. At least 1 million economic refugees left Mexico each year until the recession hit. As a result, the country is now experiencing a generational gap--the population of young workers most likely to migrate has rapidly declined because many are already in the U.S.

At the same time, substantial foreign investment has fuelled the growth of Mexico's economy, along with increased rates of inequality and deep poverty. Nevertheless, declining wages in the United States has narrowed the wage gap between the two countries. Increased demand for labor in Mexico as a result of a labor shortage, alongside declining wages in the U.S., will reduce future migration flows.

To achieve its stated goals on enforcement, S. 744 calls for adding $6.5 billion more per year to the $18 billion already spent on border measures in 2012. This additional spending will go towards increased surveillance and detection hardware, double- and triple-layer fencing, mobile surveillance equipment, command centers and other infrastructure, forward-operating bases and vehicles, as well as more drones, helicopters and fixed-wing aircraft. The legislation would add an additional 3,500 Border Patrol agents to the 21,790 already in the field.

This will accelerate the border militarization that began during the presidency of Ronald Reagan in the 1980s and has continued under presidents of both parties. According to the Migration Policy Institute, the U.S. government has spent $219 billion on border enforcement since 1986.

Anticipating the border budget engorgement, defense companies have expanded their repertoire of border-adaptable military-grade wares and are rushing to the trough. According to the New York Times:

[M]ajor military contractors, including Raytheon, Lockheed Martin and General Dynamics, are preparing for an unusual desert showdown here this summer, demonstrating their military-grade radar and long-range camera systems in an effort to secure a Homeland Security Department contract worth as much as $1 billion.

Northrop Grumman, meanwhile, is pitching to Homeland Security officials an automated tracking device--first built for the Pentagon to find roadside bombs in Afghanistan--that could be mounted on aerial drones to find illegal border crossers. And General Atomics, which manufactures the reconnaissance drones, wants to double the size of the fleet under a recently awarded contract worth up to $443 million.

To assist in the project, the bill also activates the National Guard to participate in all aspects of border enforcement. This includes surveillance, communications, deployment of drones, construction of checkpoints and providing direct assistance during enforcement operations on a full-time basis. There are already 71 traffic checkpoints and 32 permanent checkpoints in eight of the nine border region sectors, but the bill proposes more.

The increased border militarization packaged in this bill will only intensify the warlike atmosphere that already defines the Southwest border region. Far from making the country safer, it will produce more rampant racial profiling, detention and incarceration, deportations, and, more grimly, increased deaths.

Despite the decreased migration rates of the past few years, the rate of deaths of migrants crossing the border has increased. For instance, 2012 saw the highest recorded number of migrant deaths in Texas (271) and the second-highest number on record in Arizona (142). Since S. 744 would add to the current dynamic--of increased border enforcement pushing migrants to cross in more deadly terrains--the death rate will continue to rise in the years to come.

From the Border to the Workplace

The expansion of enforcement extends beyond the border region and into the interior of the country, demonstrating the comprehensive approach to controlling migrant labor, from border to workplace.

To accomplish internal control, the bill mandates nationwide use of E-Verify by all employers (Title 3, Section 3101). E-Verify is a federal database system used by employers to determine the legality of their workers, based on the Employment Eligibility Verification (Form I-9). The section of the bill about E-Verify also requires the collection of biometric data on all immigrant workers and contains language that could extend the requirement to all workers seeking employment, regardless of citizenship status. This would necessitate the establishment of a national biometric database--an alarming prospect in light of recent revelations of increased government spying on citizens.

Currently, only about 7 percent of the 6 million employers in the U.S. use E-Verify, which is notoriously prone to error. According to an independent government audit in 2009, E-Verify had an error rate of 4.1 percent. If applied nationally, this would negatively affect the employment of millions of workers.

And that doesn't even take into account how E-Verify would "incentivize discrimination" against Latino/a workers, as one commentary at the Huffington Post put it. Recent experience with E-Verify suggests that employers have used the program to racially profile, harass and push out Latino/a workers. This was illustrated recently in San Diego when nine hotel workers employed at the Hilton Mission Valley were fired because E-Verify. As some of the workers had been employed at the hotel for as long as 15 years, they don't think it was a coincidence that their removal coincided with their support for a union organizing drive led by UNITE-HERE.

The national implementation of E-Verify would likely lead to mass firings, since many undocumented workers won't qualify for the so-called "legalization" component of S. 744. Employers will have up to four years to comply, giving them the power to determine the pace of implementation and removal. The removal of thousands of ineligible workers would likely create a new layer of the underground economy, where the industries most dependent on cheap labor will find or develop mechanisms to avoid the program--pushing wages down even further.

Furthermore, anyone caught using, buying, or distributing a false or duplicate Social Security number for purpose of employment faces a maximum five-year prison term and monetary fine (Section 3102). Given the likelihood of future unauthorized immigration from different regions of the globe, the further criminalization of something so essential for the undocumented will almost certainly lead to increased incarceration and further growth of the ranks of the undocumented living precariously in the shadows.

The vast, vulnerable pool of undocumented workers that this bill would create would make harder to unionize immigrant workers, currently one of the most dynamic sectors of union growth.

Once the new interior measures for exclusion are in place, future migrants caught in the U.S. would face draconian punishments reminiscent of the notorious Sensenbrenner-King Bill, known as HR 4437, that was defeated in 2006.

If an undocumented crosser is apprehended, they will face up to a year in prison and a fine ranging from $250 to $5,000. For a second offense, the prison term increases to up to three years, and the fine is doubled. If the violation occurred after the migrant had committed three misdemeanors or one felony, the individual could be locked up for 10 to 15 years. Those re-entering after deportation would face up to two years in prison, and anyone caught producing, selling or distributing fake passports could face up to 20 years in prison (Section 3704).

Despite the emphasis on cracking down on labor "traffickers," the vague wording of the bill will likely result in the targeting of end users of false documents, since they are commonly needed by undocumented workers to obtain employment. This was the basis for the military-style workplace raids that began in 2006.

Legalization Without Rights

When you look at the fine print, the promise of "legalization" that sponsors of S. 744 talk about betrays the meaning of the word.

Millions of workers would be able to transition to a "legal" status--but it is very far from full or even partial citizenship. It can be better understood as a carefully crafted strategy to create a subclass of workers without rights, made perpetually vulnerable by an austere and rigid set of immigration rules and regulations.

For the first step in the "legalization" process, qualified migrants are placed into a specially created category of legal laborer: Registered Provisional Immigrant (RPI) status. Under this status, immigrants begin a minimum 10-year period during which they must work consistently, pay all taxes, be disqualified from publicly funded services and benefits (including the Obama health care law), register for the Military Selective Service and pay up to $2,000 dollars in fines (Section 2101).

To qualify--and remain qualified for the duration of the long process, migrants must have been present in the U.S. before December 31, 2011 and must not have committed a felony or three misdemeanors (excluding traffic violations) before or during the period.

Perhaps most revealing about how this bill is designed to control immigrant labor, RPIs "must be regularly employed throughout the period of admission...allowing for brief periods lasting not more than 60 days," according to the bill. In other words, workers who don't maintain consistent employment or who quit or get fired from their jobs for any reason can be disqualified. This will make workers fearful and dependent on their employers, who can then leverage this power to keep wages low, and harass or intimidate workers.

Workers can also be disqualified if they fall into poverty, even while working. According to the bill, workers must be able "to demonstrate average income or resources that are not less than 125 percent of the Federal poverty level throughout the period of admission as a registered provisional immigrant." This also reinforces dependency on employers, who will have an incentive to goad workers into hyper-productivity to maintain the minimal threshold of income.

Not only will this arrangement be profitable for employers, who can still keep wages low, but it will also be lucrative for the state. Since these workers will have to pay taxes, they will continue to subsidize the U.S. economy and fill government coffers without the right to get benefits from government programs. This is already the experience for the undocumented. For instance, a recent study revealed that immigrants contributed an estimated $115.2 billion more to Medicare than they took out in the years 2002-09.

After immigrant workers complete 10 years under this status--and if the border control effectiveness rate of 90 percent is achieved--they can then apply for Legal Permanent Residence. After three years in this secondary status, they can then apply for citizenship. The whole process amounts to 13-plus years of walking a tightrope without one slip-up--guaranteeing a stable, low-wage, non-citizen workforce into the next generation.

No Relief for Undocumented Youth

While the proposal allows for shorter waiting periods for undocumented youth, they must still endure a long delay. Young people who were eligible under the DREAM Act proposal and under Barack Obama's Deferred Action for Childhood Arrivals executive order can also transition to Registered Provisional Status. If they complete a high school diploma, two years of college or four years of military service, they can get five years off the waiting period (Section 2103).

Still, for youth to have to wait eight years for before becoming eligible for citizenship is a step backward from the growing momentum and high level of support--gained through several years of high-profile and heroic activism--for expedited citizenship for undocumented youth.

Blue Card Status: Indentured Servitude for the 21st Century

Another form of labor subjugation embedded in the bill is the Blue Card status of the Agriculture Worker Program.

To deal with the persistent labor shortages wracking U.S. agriculture due to stringent internal immigration enforcement and perpetually low wages, the bill creates a special classification, under which agricultural workers will be bound to growers. Under this program, agricultural workers who have engaged in agriculture for at least two years prior to the legislation and who agree to work in agriculture for at least 100 days a year for five years can qualify for permanent legal residence at the end of that five-year period. After three more years of residency, they can apply for citizenship.

Since agricultural workers must show consistent documentation of farm work provided by employers, this makes them beholden to growers. Reminiscent of indentured servitude in the days when America was a colony ruled by Britain, the Blue Card status is designed to keep a cheap and exploitable workforce in place and bound to employers, especially during harvesting season, in exchange for being allowed to apply for citizenship.

This will perpetuate a largely unorganized agricultural workforce and ensure that farm work continues to be the lowest-paying and most dangerous work in the U.S. economy--for the benefit of agriculture profits.

High-tech Exploitation

As for future migration, the bill would overhaul the visa system in favor of those with higher levels of education and technical skills, aligned with the needs of the U.S. economy.

The new "merit-based system" for determining who gets into the U.S. would allow for up to 250,000 visas, distributed based on a point system. The most points go to those with the highest levels of education, to entrepreneurs, to those who speak English fluently, to the young and to those with skills in "high-demand industries." Unlike the Registered Provisional Immigrants, these "top-tiered" immigrants enter immediately as Legal Permanent Residents.

This provision can be understood as a concession to the high-tech industry, exemplified by the lobbying group FWD.us Fronted by Facebook founder Mark Zuckerberg and including industry heavies like Microsoft, Google and Intel, FWD.us describes itself as "a diverse group of leading innovators, job creators, business owners and founders from Silicon Valley's tech sector."

In reality, say critics of this program, high-tech companies face a dwindling pool of U.S. workers with the requisite skills, and so they want the merit-based system as a way to expand the current, more limited version of the H-1B visa system. According to the Washington Post:

[S]ome experts say these big firms have been using the system to pay foreign-born employees less than their American counterparts, and that immigrant workers with H-1B visas end up being completely beholden to their employers. The path to a green card that confers permanent legal residence can take years, and workers in the middle of the process are often loath to switch companies--an enormous advantage for companies that want to retain workers.

A second track of merit-based visas favors employment-based applicants (along with their families) whose applications have been pending five years or more under the current system.

While the merit-based visa system will expand the number of skilled workers getting visas, the number of family-based visas will remain the same (480,000). The legislation also removes the category for sibling-based family migration and for married sons or daughters of U.S. citizens who are over 30 years of age.

For workers who are not tech-savvy, highly educated or wealthy, they get bumped into lower "non-immigrant" temporary worker categories. This includes the W-Visa and the Non-Immigrant Agricultural Worker Program, which are also referred to as "guest worker" programs.

You Can Work, But You Can't Stay

Working-class immigrants employed in manual labor jobs make up the largest proportion of immigrants in the U.S. They are concentrated in low-wage industries and have been historically excluded from legal paths to immigration, making them the largest proportion of the undocumented population since they tend to find long-term employment--two-thirds of undocumented workers have been in the U.S. for over 10 years--and establish family roots.

The exclusion of pathways to citizenship for working-class undocumented immigrants will continue in the form of a new guest-worker program. This will allow for the creation of a vast army of non-citizen labor, used by employers to expand the low-wage sectors of the economy.

The W-Visa program (Section 7401) and Non-Immigrant Agricultural Worker Visa (NAIW; Section 2232) are based on the needs of industries that employ "unskilled" workers. These industries can petition the government based on what they describe as labor shortages, with caps varying by industry but expandable.

To qualify, workers must apply in their home country and can be granted a renewable three-year work permit. With the W Visa, guest workers can only work for registered employers. Although they can leave an employer and seek work elsewhere, it must be with another registered company. With the NAIW Visa, workers must have three years of previous experience in U.S. agriculture, and they can be as young as 16. For agricultural workers entering through a contract with an employer, they can only work for that employer for the duration of the contract, and the employer also has the right to terminate the contract unilaterally. "At-will workers" can be admitted, but must work for registered employers.

In reality, there is no shortage of "unskilled" labor in the U.S. Employers, with the complicity of the state, have leveraged the vulnerabilities of undocumented workers to create lower wage floors in multiple sectors of the economy, such as agriculture, food service, landscaping, construction and domestic service. Nevertheless, immigrant worker mobility and the willingness of some to fight for better wages, conditions and union representation are clearly a threat to employers in these sectors.

That's why they look to the bipartisan immigration "reform" proposal. With these guest-worker programs, industries can count on a permanent stream of workers bound to their industries, without the right to establish roots or engage in political activities. What's more, workers cannot be unemployed for longer than 60 consecutive days. If they cannot find work, they must leave voluntarily or be subject to forced removal. Like the old-fashioned bracero programs, this places power in the employer's hands to determine wages, conditions and length of employment.

The Reform We Need...Is Not This

Repressing people's movement and restricting their ability to work, participate in the political process and integrate into society serves only the interests of big business.

Immigrant workers have historically subsidized the economic development and expansion of the U.S. economy, and today is no different. S. 744 is designed to continue this process, while at the same time hurtling society backward by introducing new forms of segregation and exclusion through the cynical manipulation of citizenship.

Immigrant workers have historically used a human rights and labor rights framework to advance their own vision for social inclusion. The mass marches, strikes, boycotts and sit-ins for immigrant rights over the last decade have demonstrated this with slogans emphasizing unconditional legalization, family unification, and full and equal rights.

Because of immigrant rights activism, the most reactionary pieces of immigration legislation--like the Sensenbrenner bill--have been defeated. But sustained action culminating in an alternative platform for unconditional legalization has not materialized. Instead, elections and the empty promises of Democratic Party politicians have drawn activists away from the streets and into electoral strategies that have hit a dead end.

This current piece of legislation illustrates the problem. Without an immigrant rights-based social movement to push the process forward, toward a more just and humane resolution, anti-immigrant reactionaries will feel confident to push the whole process off the rails. Already, hard-line right-wingers, though a minority in Congress on this issue, feel emboldened by the conservative and punitive nature of the bipartisan proposal--and by Obama's incessant "tough talk" on immigration--to believe they can push the Gang of Eight's proposal even further to the right.

Despite the uphill battle we face, the potential to re-activate immigrant rights mobilization remains. This will depend on how quickly immigrant rights activists and organizations across the country see through S. 744 for the anti-worker and anti-immigrant proposal it is--and return to organizing in their communities and workplaces.

Further Reading

From the archives