Reinventing American immigration policy for the 21st century.

AuthorKatzenstein, Krissy A.

ABSTRACT

With an estimated eleven to twelve million undocumented workers currently in the United States, the need for immigration reform is critical. As lawmakers grapple with the question of how to best meet the needs of the country, they should keep in mind that the United States is a country of immigration. If the U.S. reverts to a guest worker program like that proposed by the Bush administration, it should expect the results that history suggests--worker exploitation, falling wages, deteriorating working conditions, and discrimination. However, proposals calling for immediate permanent legal status also fail to completely address the needs of the country because the United States is no longer the developing country it once was. Therefore, a fundamentally new policy is likely necessary to address the number of undocumented workers in the United States as well as the needs of the country. One such policy would allow guest workers to obtain permanent legal status through a points program that would award points for achievements that promote both social and economic integration, and thus preserve the melting pot.

TABLE OF CONTENTS I. INTRODUCTION II. AN OVERVIEW OF IMMIGRATION POLICY AND CALLS FOR REFORM A. The Changing Face of Immigration: Past and Present Immigration Policy in the United States and Germany 1. The United States a. Immigration Policy b. Migrant Worker Programs 2. Germany a. Immigration Policy b. The Gastarbeiter Program and Migration to Germany c. Current Immigration Policy in Germany B. Proposals for Immigration Reform in the United States 1. The Bush Administration's Proposal 2. An Alternative Proposal IV. A CRITICAL LOOK AT THE PROPOSALS FOR IMMIGRATION REFORM A. The Objectives of Immigration Reform in the United States and Germany B. Strengths and Weaknesses of the Bush Administration's Proposal 1. Problems with the Bush Administration's Proposal a. Ignoring the Melting Pot b. Adopting Bracero Problems c. Recreating the Gastarbeiter Dilemma 2. Benefits of the Bush Administration's Guest Worker Program a. A Solution for Undocumented Workers b. A Ready Source of Cheap Labor for Employers C. The Strengths and Weaknesses of the "Save America Comprehensive Immigration Act". 1. Flaws of SACIA a. Challenging "Earned Access to Legalization" b. Failing on Integration 2. Strengths of SACIA a. Maintaining the Melting Pot b. Hope for Foreign and Domestic Workers V. TRANSFORMING GUEST WORKERS INTO FULL CITIZENS: A PROPOSAL OF COMPROMISE A. The Basic Structure B. Compliance Incentives C. Incorporating the Strengths of both Bush's and Jackson-Lee's Proposals 1. The Melting Pot 2. The Effect on Foreign and Domestic Workers 3. Prioritizing Integration VI. CONCLUSIONS I. INTRODUCTION

As the United States juggles with the idea of immigration reform, one of the most fundamental principles of the United States is being threatened--the notion of the melting pot. Since elementary school, many U.S. students have learned that "America" has welcomed immigrants from around the world and that the success of this country has been built on the hard work of all Americans, including immigrants. However, with many proposals calling for a guest worker program, (1) it is unclear whether the melting pot can survive. Thus, when drafting proposals for reform, legislators should recognize that the implications of reform affect not only how foreign citizens enter this country, but also how the U.S., as a country, perceives itself.

In addition, legislators should acknowledge that they are not blindly embarking down a road to change. During and after World War II the United States experimented with a guest worker program, as have many other countries. The current proposals should be compared with programs of the past. Such comparisons are liable to reveal the very results, both positive and negative, that the United States can expect if it enacts such a program. But even if a guest worker program is not the best solution, it should be recognized that proposals calling for immediate permanent legal status are also not free from problems. By looking to history and considering the needs of the country, the U.S. may discover that the ideal solution requires a fundamentally new policy, rather than a slightly modified old policy.

Part II of this Note discusses the immigration history of the both the United States and Germany, and why the history of Germany may provide an excellent lesson for the United States. In addition, the section describes two immigration reform proposals that have been offered in the United States--one being the President's guest worker proposal and the other being a congressional representative's proposal for permanent legal status for immigrants. Part III provides an in-depth analysis of the proposals discussed in the previous section. The positives and negatives of each policy are highlighted. Finally, Part IV sets forth a solution to the immigration reform controversy that persists in this country. This solution attempts to offer a compromise between guest-worker and permanent-legal-status proposals. Ultimately, its objective is to ensure that immigration reform goals are met without endangering fundamental ideas regarding immigration into the United States.

  1. AN OVERVIEW OF IMMIGRATION POLICY AND CALLS FOR REFORM

    1. The Changing Face of Immigration: Past and Present Immigration Policy in the United States and Germany

      With imminent change to U.S. immigration policy on the horizon, the evolution of German immigration law should not be ignored in the United States. In several respects, the experiences of Germany are not so different from those of the U0S. (2) First, "[a]mong advanced industrialized countries, Germany and the United States have the highest immigrant populations." (3) Second, Germany and the United States are two of the largest industrialized economies in the world, and have experienced rapid population growth in the last century. (4) Third, both Germany and the United States have, at times, relied heavily on foreign workers during labor shortages. (5) Fourth, "the national backgrounds of immigrants who filled the labor vacuums changed over time" in both countries. (6) In the United States, Hispanic and Asian immigrants--rather than European immigrants--now account for the majority of the immigrant population; in Germany, Turkish immigrants have replaced traditional Polish and Italian immigrants. (7) Finally, tensions have arisen in both Germany and the United States with respect to foreign workers and immigrants. (8) Therefore, when analyzing the current immigration reform proposals in the United States and attempting to find a solution, it is helpful to compare and learn from Germany's experiences.

      1. The United States

        1. Immigration Policy

          The reference to the United States as a "melting pot" highlights the common notion that the United States is a country of immigration. While some may question the validity of this today, it was certainly true during the early years of nationhood. (9) For approximately one hundred years, foreign settlers were offered almost unrestricted access to the country. (10) This policy, while necessary to meet the demands of a growing nation, was also extremely popular among those already living in the United States. (11) In fact when policymakers passed legislation in 1798 that allowed for the deportation of dangerous aliens, the public reacted negatively; ultimately, the bill was not renewed beyond its initial two-year term. (12)

          The preference for unrestricted immigration began to shift in 1875 with the passage of legislation that "barr[ed] convicts and prostitutes from entering the country." (13) The enactment of similar legislation continued through the end of the nineteenth century and the beginning of the twentieth century. In 1882, legislation was passed that required immigrants to pay a fifty-cent head tax and prohibited lunatics, convicts, and paupers from entering the country. (14) By the mid to late 1880's, legislation was enacted that limited the inflow of low-wage workers in order to protect the domestic labor supply. (15) Additional legislation passed in 1891 prevented "idiots" and diseased individuals from entering the country and permitted the deportation of those individuals who were in the country illegally. (16) By 1921, a quota system was introduced in the United States to restrict immigration by nation of origin. (17) Changes to this quota system continued throughout the first half of the twentieth century, and ultimately culminated in the enactment of the Immigration and Nationality Act (INA) in 1952. (18) The INA is the basis for the quota system that persists today. (19)

        2. Migrant Worker Programs

          World War II created "domestic labor shortages" and "a need for migrant workers." (20) As a result of this need and increasing pressure from U.S. growers, the Immigration Service and the Departments of State, Labor, and Agriculture entered into an agreement with Mexico, birthing the Bracero Program. (21) Under the original Bracero Program, the United States government contracted directly with "braceros" (Mexican migrant workers). (22) These contracts required the United States to pay transportation, living, and reparation expenses, and guaranteed braceros that they would be paid at the same wage rate as domestic workers. (23) The Program was intended to end when the war ended. (24) However, it was not until 1963 that the Program came to an end. (25) At the conclusion of the War, the demand for braceros continued; eventually, braceros began to contract directly with U.S. growers rather than the government. (26) The Korean War only fueled demand as labor shortages became a concern yet again. (27) However, the program was ultimately forced to end because of the adverse affect that it was having on domestic workers and the negative public reaction that resulted when the living conditions of migrant workers were revealed. (28)

          Despite the...

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