Here's Exactly How the Senate's Bipartisan Immigration Plan Could Go Horribly Wrong

If Congress botches the details, it could end up driving immigrants further underground, wasting billions in the process.  

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(Reuters)

This year's drive for comprehensive immigration reform started off as well as anyone could hope. It officially kicked off yesterday, when the country was treated to the pleasantly surreal sight of chummy-looking Senate Democrats and Republicans standing together in front of the TV cameras to announce a bipartisan plan of actionBetter yet, their outline has the potential makings of a workable, even-handed solution not too far off from what President Obama himself has advocated. It even seems possible the House GOP caucus could get on board.

Yet if you look closely at what's been put on the table so far, there's ample reason for dread. Right now, there's no legislation to speak of -- just a broad set of goals designed to satisfy both sides of the aisle. And depending how Congress chooses to fill in the blanks, the resulting bill could easily turn into an outsized case study in the law of unintended consequences, creating a mess for immigrants, businesses, and the government. 

How big a calamity could we be talking about? Imagine illegal workers pushed further into the underground economy; legal residents kicked out of their jobs; lost tax revenues, small businesses collectively forced to spend billions on faulty software; and billions more spent on border enforcement overkill.

And that's the stuff that's easy to foresee. 

WHAT THE BILL DOES

In the abstract, the Senate plan's five main aims are all at least somewhat reasonable. It seeks to:

  • Secure the borders  
  • Create a path to citizenship for the estimated 11 million or so undocumented immigrants who are already in the country
  • Implement a national system that employers will use to verify whether workers are here legally
  • Encourage more high-skill immigration
  • And create flexible limits on overall legal immigration that rise and fall with the health of the job market. 

Again, this is all rational. Nobody is in favor of porous national borders. Nor is anybody really in favor of consigning 11 million people, most of whom just want to earn a living, to lives as permanent outlaws (not to mention easy exploitation by employers). We could try to deport that population, but aside from being impractical, the effort would deal a massive blow to our economy as their spending disappeared. We could offer undocumented immigrants permanent non-citizen status, where they would get to stay in the U.S. but never have the right to vote, as Boston College Professor Peter Skerry suggested in National Affairs this month, but that might sit wrong with many Americans' sense of decency. So citizenship seems like the best route. But offering today's undocumented residents a chance to one day take the pledge of allegiance poses its own problem: it might encourage more illegal immigration down the line, and those new arrivals could undercut the wages of the newly legal population. To overcome that hazard, we need a surefire system of keeping employers from hiring undocumented labor on the down low. 

Underlying all of this is the fact that America's system for importing workers is badly outdated, particularly when it comes to high-skill talent, but also regarding low-skill labor. We need to fix it. Preferably we'd do it in such a way that increased legal immigration overall, since without more migrants, America's at risk for an eventual population decline (and with it, a whole host of economic problems). 

So kudos to the Senate bipartisans for drawing up a plan to address those issues. Now here are three things that could go wrong.

(1) WE GET STUCK ON THE BORDER

Step one of the Senate plan involves securing the border -- or, as its authors put it, providing federal agents "with the latest technology, infrastructure, and personnel needed to prevent, detect, and apprehend every unauthorized entrant." It also vows to create a system that will alert the feds whenever someone overstays a visa, which is how around half of the undocumented end up inside the country illegally. Until those boxes are checked, no previously undocumented immigrants will be allowed to apply for their green cards.

Problem is, we don't know yet what will qualify as "securing the border." There are no benchmarks. John McCain yesterday simply told reporters: "I'll know it when I see it." One must ask, then: Will the Senate and House be happy to throw more resources at the border to pacify voters, then move on? Or will they set hard goals for reducing the number of border crossings and visa cheaters? And if they do, what will the magic number be? According to the Pew Hispanic Center, net migration from Mexico is already at zero, likely thanks to the recession, improvements in the Mexican economy, and stepped up border enforcement. But zero net migration isn't the same as zero immigration. Rather, it means more Mexican nationals are leaving the U.S. than arriving -- not that families have stopped trying to cross the desert. Does that mean the border still isn't secure enough?

And if not, how much are we willing to spend to go further? The U.S. border patrol's budget has more than doubled to over $3.5 billion since 2000, adjusted for inflation, and the number of southwest border patrol agents has surged, as you can see in the graph below.

Thumbnail image for DHS_Mexican_Border_Patrol_Agents_Edit_Final.PNG

The border debate casts a long shadow over the rest of immigration reform because, again, until Washington is satisfied that it's been secured, our undocumented population won't be permitted to apply for green cards. The wait will be layered on top of the interminably long time it usually takes to get a visa, since they'd be required to start at the back of the line (today, Mexicans and Filipinos face a 16-to-20-year wait for a family unification green card). The Senate plan suggests they'll try to add visas to clear through that backlog, but even cutting it in half would leave many immigrants marooned in semi-legal status for up to a decade. Delaying the process for too long while the border is fixed will only make permanent residency and eventually citizenship a more remote goal.

(2) THE PATH-TO-CITIZENSHIP ACTUALLY *DISCOURAGES* CITIZENSHIP

The path to citizenship itself is probably most controversial element of the plan, and it's certainly the part most likely to come under attack from cranky House conservatives. Unfortunately, that's the piece of the law where subtle changes could wreak the most havoc.

The Senate outline requires that all undocumented immigrants who came to the U.S. as adults register with the government. At that point, they'll have to pay back taxes and fines, pass a background check, learn English and a bit of U.S. civics, and demonstrate a work history and current employment. Only at that point will they get the right to apply for a green card, at which point they'll have to queue up behind the millions already waiting. Once they get the green card, it will take about five years before they can become full-fledged U.S. citizens. 

Judged by a standard of basic fairness, all of this might seem like common sense. We don't like tax dodgers. Green card holders on the way to becoming citizens are already required to learn English. Waiting your turn doesn't sound like a unreasonable imposition.

But common sense has its limits. The danger is that by making the path to citizenship too arduous, we could discourage immigrants from coming out of the shadows. Take the issue of fines and back taxes. In 2007, most immigrant households earned less than $40,000 a year, according to the Migration Policy Institute (MPI). The 2007 Senate reform bill would have charged $5,000 just to initially register with the government, and another $5,000 for a green card. As the MPI chart below shows, that would mean a quarter of household income for three in five families.

MIgration_Policy_Center.PNG 

Some past reform legislation has included smaller penalties. In 2010, New Jersey Democratic Senator Bob Menendez, one of the forces behind the new bipartisan plan, suggested a $500 registration fee. But add the price of English classes and back taxes, and the costs mount. Survey findings suggest that many immigrants who already have green cards don't go on to naturalization because of the costs involved. Despite our impulse to penalize immigrants who have broken the law, it's clear that each fine we place before undocumented workers is one more reason for many of them remain undocumented.

Fine, you might say. Their loss. But it's our loss, too. Limiting the number of undocumented workers is important so that they don't keep undercutting the wages of other low-skill legal immigrants, or even low-skill American workers. And while we can try to deal with that issue by making it more difficult for employers to hire undocumented labor. But as of now, our system for doing so is full of holes.

(3): E-VERIFY BECOMES A QUAGMIRE

The bipartisan Senate plan proposes to "create an effective employment verification system which prevents identity theft and ends the hiring of future unauthorized workers." But unless they're truly planning to build something from scratch -- in which case it could be a good long while before we see any useful software -- chances are the final product will be something based on E-Verify, the electronic employee ID system that was first piloted in 1997.

Today, 20 states require at least some employers to run their hires through E-Verify, which checks whether workers are legally in the country using data from the Social Security Administration and Department of Homeland Security. The federal government, meanwhile, checks all new workers against it. Two nasty problems in the system have revealed themselves.

First, it's expensive. A study by Bloomberg Government found that found that a national E-Verify law could cost small businesses $2.6 billion. That's on top of the hundreds-of-millions of government dollars needed to operate it each year.

Second, it's not effective. A December 2009 analysis commissioned by the government found E-Verify caught less than half of all undocumented workers because it was unable to detect identity fraud. In other words, a day laborer with a stolen Social Security number could slip right past Uncle Sam's watch. It gets worse: Overall, the system had an error rate of 4.1 percent. About one in six of those mistakes impacted legal workers who, for whatever reason, showed up as undocumented. In the end, the report found that about 0.5 percent of all workers are incorrectly flagged, and unable to correct their records. That may sound small, but as the Center for American Progress has noted, it means roughly 770,000 Americans could lose their jobs due to system error.

Those are the big, obvious issues with E-Verify, and it's possible they can be rectified. But if they're not, its easy to imagine the debacle that would follow. Consider what would happen if Washington makes a hash of fixing the identity fraud problems before rolling it out. At that point, instead of paying the full cost of legalizing, many undocumented workers could rationally decide that it would be more profitable to buy someone's Social Security number to evade the feds -- or just continue using one they've already purchased (as many as three quarters of illegal immigrants currently pay social security and medicare taxes using stolen numbers). If the problem is fixed, but the price of registering with the government is too high, E-Verify might encourage others to work entirely under the table -- off the books and off the tax rolls. In the meantime, hundreds of thousands of law abiding workers inappropriately blacklisted by the system might be faced with the bureaucratic nightmare of convincing Washington that they really should be allowed to have a job.

I could go on with the parade of pitfalls (note: I haven't even touched the guest-worker or high-skill-immigration plans.) But instead, I'll reiterate the takeaway: The framework for the plan isn't bad. But it's how Congress fleshes it out that counts. A system that's too punitive for aspiring citizens, or doesn't fix the glitches in employment verification, or doesn't create crystal-clear goals for the border could turn out to be as bad as the problems it was designed to fix. And while the spirit of compromise has been carrying this issue so far, some concessions for the sake of a deal might not be worth it. 

Presented by

Jordan Weissmann is a senior associate editor at The Atlantic.

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