USCCB Migration and Refugee Services (MRS)
On January 7, President Bush introduced an immigration reform proposal which would allow undocumented persons in the United States and foreign-born workers from abroad to obtain temporary work visas. In his remarks, the President made many positive comments about the contributions of immigrants to our nation. He also stated that the nation's immigration system was broken and that making the undocumented population legal and able to "come out of the shadows" made the country more secure. These are comments which reflect statements made by the U.S. bishops and other immigration advocates over the years and should be welcomed and used in advocacy initiatives in the future.
Summary of Proposal. While the details of the plan still remain somewhat vague, enough information was provided to give an outline of the proposal.
- The program will be administered by the Department of Homeland Security, in cooperation with other agencies of government, such as the Department of Labor;
- Both individuals abroad and undocumented "currently working" in the United States would be eligible for temporary work visas, provided they have an employer who is willing to offer them a job;
- Visas issued under the program would last three years, with at least one renewal of three years;
- Temporary workers would be able to bring their spouses and minor children with them, provided the worker can support them. Family members would be allowed to work only if they work in a job under the program;
- There would be no cap on the number of visas issued, provided a job matches a worker. The program is not limited to any specific employment sector;
- Workers in the program would be extended the same labor protections as U.S. workers. Portions of a worker's wages would be deferred for Social Security benefits and workers would have the option of placing earnings in a tax-preferred savings account;
- No labor-market test would be employed in the program to ensure that U.S. workers are not adversely impacted. Employers would have to "make every reasonable effort" to find an American to fill a job, but there is no enforcement mechanism to ensure this would occur. Employers with current undocumented workers can maintain that worker without searching for an American worker to fill that job;
- A fee to participate in the program will be assessed to undocumented workers in the country, but no fee would be required of temporary workers from abroad. Employers would have to report those workers who are hired and those fired;
- The program would allow workers to "move to another employer in the program," and would allow workers to travel to and from their homelands without penalty.
- No path to permanent residency is provided to those in the program outside current categories. The program would not preclude participants from accessing permanent residency through "normal channels," as long as "they are not given an unfair advantage over people who have followed legal procedures from the start." A "reasonable increase" in permanent visas ("green cards") will be pursued so that participants have a better chance to become permanent residents.
- Enforcement against employers who hire undocumented workers will be increased, although the types of penalties were not specified.
Broad-based legalization: In the pastoral letter, the bishop's call for a broad-based legalization of undocumented in the United States, regardless of nationality. Legalization in this context means permanent residency leading to U.S. citizenship. While the Administration proposal would make undocumented persons "legal" by giving them a temporary visa, there is no avenue for a worker to "earn" permanent residency other than through an employer-based sponsorship or familial relationship (marriage/parent), in which an employer or family member petitions for the individual. From the perspective of the U.S. and Mexican bishops, this is a major flaw in the program.
Family-Based Immigration: The U.S. and Mexican bishops call for changes in the family-based immigration system as part of a comprehensive immigration reform, since migrants come here not only to work but to join family members. The Church historically has stated that family reunification should be the cornerstone of any immigration system. Currently, spouses and children of legal permanent residents in the United States must wait for a lengthy period before being able to join their loved one legally in the United States. Mexican permanent residents in the United States, for example, must wait for up to eight years before their families can join them. The Administration proposal does not address the backlogs in the family-based immigration system.
Temporary Worker Program: Basically, the Administration proposal creates a new temporary worker program ("guest worker" program) which is designed to match a "willing employer with a willing worker." It fails to include many of what the U.S. and Mexican bishops consider as necessary protections for workers in such a program, as follows:
a. Wage levels and benefits necessary to support a family in dignity. The U.S. and Mexican bishops call for wages and benefits sufficient to support a family in dignity, i.e. out of poverty. Workers in the program will be governed by current wage and labor laws, including the minimum wage. Workers will be most likely paid the minimum wage unless competition is such that employers are forced to pay a higher wage. This is highly unlikely, since employers will have control over the worker and thus be able to replace the worker without much restriction. There is no provision for health coverage or housing. However, through totalization agreements with twenty countries and Mexico (pending), workers will be able to accrue Social Security benefits and place these benefits in a tax-preferred savings account, if they so choose.
b. Worker protections that U.S. workers possess. The Administration proposal states that temporary workers will enjoy the same protections as U. S. workers, specifically minimum wage laws and worker safety rules. It does not outline how these protections would be enforced. Since foreign workers currently do not enjoy the same protections as U.S. workers, such protections would have to be spelled out in any legislation.
c. Family Unity. Immediate family members will be able to join the worker in the United States, but will be unable to obtain work unless they are able to obtain work through the program. Workers in the program will have to demonstrate that they can support their family members who do not nor cannot (children) participate in the program. This is a positive aspect of the proposal, but the U.S. bishops would prefer to see immediate family members with the same privileges as the main family wage earner, i.e. work authorization and, ideally, permanent residency.
d. Labor-market tests to ensure that U.S. workers are not adversely impacted. The proposal does not include any labor-market test by an independent entity to determine if an influx of foreign-born workers would adversely impact the wages and labor market for U.S. workers. It does require employers to make "every reasonable effort" to recruit U.S. workers but offers no enforcement mechanism to ensure this outcome. So, an employer could conceivably undercut wage levels by paying foreign-born workers minimum wage while an industry wage would be much higher.
e. Easy movement between the United States and country-of-origin. The proposal allows for such movement, but does not provide transportation costs as the current H-2A program does. It is unclear how workers will be able to afford to return on a regular basis.
f. Path to residency. As mentioned, there is no path to permanent residency through the program, either for undocumented already in the United States or for those coming from abroad. Workers would have to access permanent visas through employment or family avenues. More permanent visas will be created for this purpose.
g. Enforcement mechanisms. The pastoral letter calls for enforcement mechanisms to ensure that worker's rights are protected. This may include additional enforcement resources to investigate alleged abuses, a transparent and independent complaint process, and the right to bring action in federal court. None of these provisions exist in the Administration proposal.
h. Social Security accounts. The pastoral letter calls for the extension of Social Security benefits to foreign workers. The proposal includes provision for the accrual of Social Security benefits. Tax-deferred savings accounts would be created for those who choose to place a portion of their earnings in them.
Although it falls short of many of the elements outlined in the pastoral letter, it is important to acknowledge some of the positive aspects of the proposal. First, the President recognizes that the undocumented here and those who migrate should be allowed an opportunity to become legal. This is significant in that legal avenues would be created to allow persons who have a job offer to come, hopefully alleviating the pressure to cross the border via smugglers and other means and reducing border deaths.
Second, the President indicated that more permanent visas ("green cards") would be made available, although he did not specify in which categories or the number. Currently, only 5,000 such visas are available to low-skilled workers; many more would be needed. Finally, it is not insignificant that the temporary worker program allows immediate family members to join the worker in the United States, which helps address the social consequences of family breakdown, an important concern of the Church.
Other Issues. There are other potential weaknesses in the proposal. For example, some would argue that there is little incentive for undocumented workers who have lived here for several years to join the program, since they would have to return to their homeland after the expiration of their visa. Since employers would be required to report new workers, workers will be justifiably fearful of deportation if they lose a job. They also will be fearful to assert their rights in the workplace for fear of losing their job.
Others are concerned with the use of some of the worker's wages for social security benefit accrual. This was done under the Bracero program of the 1940s, but workers never recouped any of that money.
Despite its flaws, the U.S. bishops see the Administration proposal as a welcome step in restarting the immigration debate in this country. The proposal represents the beginning of a process whereby the Administration and Congress, with input from the public, will enact a comprehensive immigration reform measure. It is important not to be too critical or strident in addressing this proposal and others, since all parties and sides of the debate will have to come together to enact a fair proposal.
Here are some talking points which may be useful to you and your bishop.
Talking Points concerning the Bush Administration's proposal on immigration:
- On January 7, 2004, President Bush introduced an immigration reform proposal which would grant temporary legal status to undocumented workers in the nation and those coming from abroad who have been offered a job by a willing employer. While it would allow those workers a visa of up to three years, with a chance of renewal for three more years, it does not allow workers or their families an opportunity to obtain permanent residency ("green card") through the program. Workers would have to obtain permanent residency through "normal channels," either an employer-based or family-based petition.
- The Administration proposal helps restart the national debate on immigration and legalization, which stopped immediately after the attacks of September 11. We agree with the President that immigrants contribute to our nation economically, socially, and culturally and that our immigration system is broken and needs repair. It is significant that the President has acknowledged that the undocumented here should be made legal, albeit for a limited amount of time. It is also significant that the proposal seeks to add more permanent visas, or "green cards," to the current number so that more workers may access permanent residency.
- However, the proposal falls far short of meeting the criteria for immigration reform laid out by the U.S. and Mexican bishops in their pastoral letter, Strangers No Longer: Together on the Journey of Hope. In that letter, the bishops call for comprehensive immigration reform which legalizes the undocumented (permanent residency) and addresses all aspects of the U.S. immigration system, including the family-based and employment-based immigration systems. The Administration proposal provides no path to permanent residency for undocumented workers and fails to adequately address either the family-based or employment-based immigration systems in a comprehensive manner.
- Essentially, the Administration proposal creates a new and unlimited temporary worker program ("guestworker") which, although providing legal means for migrant workers to work, does not contain adequate safeguards to ensure that workers are not abused or exploited. For example, there is no requirement that an independent entity, such as the Labor Department, investigate whether an influx of foreign workers would adversely impact U.S. workers. Technically, employers, after making "every reasonable effort" to recruit U.S. workers, would be able to bring in temporary workers at the minimum wage, undercutting workers in some industries who are making well above the minimum wage.
- The temporary worker program does not conform to other requirements laid out by the bishops, including adequate enforcement mechanisms to ensure the rights of workers are protected and wage levels and benefits sufficient to support a family in dignity. The proposal does indicate that foreign workers will have the same worker protections as U.S. workers, but does not spell out how these protections would be enforced. Immediate family members of workers would be allowed to join their loved ones in the United States, but, if they do not or cannot participate in the program, the worker will have to demonstrate that he/she can support them.
- While some aspects of the Administration proposal are encouraging ( the availability of more "green cards" for those who are sponsored by an employer or family member; social security accrual and tax-deferred accounts; and family unity under specific circumstances), it fails to meet all the criteria necessary for a just immigration reform program. No path to permanent residency is provided and the family-based immigration backlogs are not addressed. In the temporary worker program, too much control is given to the employers who control the jobs. There are no mechanisms for ensuring that workers are not wrongfully dismissed for raising concerns or asserting their rights, allowing unscrupulous employers to threaten their workers with dismissal and deportation.
- There are also many unanswered questions. For example, the Administration does not specify how many more permanent visas would be available for this population, nor does it outline how it will enforce the worker protection aspects of the program. (Although the proposal does call for more interior and border enforcement to apprehend undocumented who do not participate in the program as well as more enforcement against employers who hire illegal workers.) Some of these questions may be answered once legislation is proposed in the next few months.
- There are other concerns with the program which must be addressed. Those in the United States in an undocumented status may pause before joining the new program, since they will have to eventually leave the United States unless they obtain residency through "normal channels." Another concern is the channeling of worker's earnings into tax-deferred saving accounts, which was done under the old Bracero program. At the end of that program, workers were not able to access those funds and have not been able to recover them.
- The U.S. and Mexican Catholic bishops believe that comprehensive immigration reform should address all aspects of the immigration system, including the employment-based and family-based immigration systems. A legalization path which leads to permanent residency should be a central component of any plan. In addition, policies should be enacted to promote sustainable economic development in sending communities. The Administration proposal addresses only one aspect of our immigration system and without the protections needed to ensure that worker's rights are protected.
- We look forward to working with the Administration and Congress to enact immigration reform which comprehensively addresses our nation's immigration system. The Administration proposal marks the beginning of a long process which hopefully will end with a comprehensive and just solution to our current immigration crisis.