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Illegal Aliens - Domestic Council Committee, (2)
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Illegal Aliens - Domestic Council Committee, (2)
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The original documents are located in Box 9, folder "Illegal Aliens - Domestic
Council Committee, (2)" of the Richard D. Parsons Files at the Gerald R. Ford
Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 9 of the Richard D. Parsons Files at the Gerald R. Ford Presidential Library
OF
Office of the Attorney General fortarsons
Original to grme.
lnb
PRO
SEQUITUR
Washington, D. C. 20530
POLICY
JUSTITIA
January 6, 1976
MEMORANDUM
To:
James M. Cannon
Assistant to the President for Domestic Affairs
From:
Edward H. Levi y/u
Attorney General
Subject:
Domestic Council Committee on Illegal Aliens
In response to your memorandum of December 10, 1975
regarding the status of the Domestic Council Committee on
Illegal Aliens you should know that after discussing this
matter with the President, I had several meetings with
Secretary Dunlop to review the Administration position re-
garding H.R. 8713, the "Rodino bill," and the desirability of
seeking a bilateral agreement with Mexico to regulate the ad-
mission to the United States of temporary Mexican workers and
discourage unauthorized entry. Secretary Dunlop and I have
each discussed the illegal alien problem with our Mexican
counterparts.
A meeting of all of the Cabinet members of the Committee
will be held this month. The agenda will include a discussion
of the pending legislation affecting the illegal alien issue
and a plan for organizing task forces to report by June 1, 1976.
As you know, we believe it is premature for the President
to make a major statement on the illegal alien issue at this
time. However, pursuant to your conversations last week with
the Deputy Attorney General, attached is a brief statement on
this issue suitable for the President's use.
1868819 GERALD K FORD
Domestic Council Committee on Illegal Aliens
The United States has, throughout its history, been the
most hospitable nation in the world for immigrants. We continue
to accept more immigrants each year than any other country. Immi-
gration to the United States is intended to be governed by the
Immigration and Nationality Act which has, as a primary goal, the
reunification of families. In addition, it offers asylum to cer-
tain refugees and admission of some workers whose skills are in
short supply domestically.
Yet immigration into the United States today is primarily
characterized by large numbers of people, probably numbering in the
millions, who enter the country illegally each year. They come in
a variety of ways, but their purpose in coming is that which has
historically motivated many immigrants -- a search for economic
opportunity.
This influx of unauthorized immigrants has important impli-
cations. Many compete for jobs which are of interest to American
workers. Many others, however, seem to accept employment for which
Americans are unavailable and in this way contribute to our economy
and country. Nevertheless, because of their illegal status, all
must live in fear of apprehension and subject to economic exploita-
tion or abuse. Thus, we share an interest with the countries from
which they come, notably Mexico, in assuring adequate opportunities
for authorized immigration and discouraging illegal entry.
At my direction a Domestic Council committee, composed of
the heads of agencies with a clear interest in illegal immigration,
has initiated an in-depth examination of the many interrelated
issues involved in the illegal alien problem. Its work will re-
sult in a full-range of recommendations directed at dealing more
effectively with the unauthorized flow of people into this country.
The Congress has also been concerned about the illegal alien prob-
1em and presently has under consideration two measures directed at
ameliorating it. The first, H.R. 8713 would prohibit the knowing
employment of illegal aliens. It is intended to greatly reduce
the opportunities for work which attract most unauthorized immigrants.
The second, H.R. 981, would create a preference system for the
Western Hemisphere identical to that now applicable to the Eastern
Hemisphere, establish Western Hemisphere country quotas, and improve
the current provisions for admittance of needed temporary and per-
manent workers. These changes would create an orderly system for
Western Hemisphere immigration, reduce for eligible individuals
the now lengthy delay in obtaining visas, and facilitate the author-
ized admission of those whose skills are determined to be required
in the United States. Their cumulative effect should be to diminish
the incentives for illegal immigration without unacceptable costs
or compromise of fundamental values. I support the principles
embodied in these measures and urge their speedy passage.
We must continue to try to assure that our immigration policies
are both fair and enforceable, realistically sensitive to economic
limitations, but faithful to our tradition as a nation of immigrants.
OPTIONAL FORM NO. 10
JULY 1973 EDITION
GSA FPMR (41 CFR) 101-11.6
UNITED STATES GOVERNMENT
Memorandum
TO
:
Richard Parsons, Associate
DATE:
Jan. 14, 1976
Director, Domestic Council
FROM :
Mark L. Wolf, Special Assistant
to the Attorney General
SUBJECT:
Meeting of the Domestic Council Committee
on Illegal Aliens
As we discussed, attached are the materials dis-
tributed in connection with next week's Cabinet level
meeting of the Domestic Council Committee on Illegal Aliens.
Please let me know if you, Mr. Cannon, or someone else from
your office will be attending.
Thank you.
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
5010-110
Office of the Attorney General
will
Washington, B. C. 20530
JUSTITIA
To:
Secretary of Agriculture
Secretary of Commerce
Secretary of Health, Education and Welfare
Secretary of Labor
Secretary of State
Secretary of the Treasury
Director, Office of Management and Budget
Special Assistant to the President Baroody
From:
Edward H. Levi
Attorney General
Subject: Meeting of the Domestic Council Committee
on Illegal Aliens
As Chairman of the Domestic Council Committee on
Illegal Aliens, I wish to confirm the Cabinet level meeting
of the Committee to which you have been invited on Wednesday,
January 21, 1976 at 1:00 p.m. in Suite 5111 of the Department
of Justice.
The purpose of the meeting is two-fold. First, it
should provide opportunity to discuss current programs, pend-
ing legislation, and other possible proposals relating to the
illegal alien problem. It would be appreciated if you would
be prepared to speak briefly on the programs of your Depart-
ment which bear upon this issue. Second, it will be an occasion
to consider an organization plan for the Committee's work. A
short background paper, proposed plan, and description of the
relevant pending legislation are attached.
I have appointed Doris Meissner of the Department
of Justice as Executive Director of the Committee and hope you
will contact her if you have any questions about the meeting.
We look forward to seeing you on January 21st.
FORD & LIBRARY 070835
DOMESTIC COUNCIL COMMITTEE ON ILLEGAL ALIENS
Background and Proposed Organization Plan
The Committee
In January 1975, President Ford established the Domestic
Council Committee on Illegal Aliens, chaired by the Attorney General,
"to develop, co-ordinate and present policy issues that cut across
agency lines to provide better programs for dealing with this
national problem." Surveys of agency attitudes and approaches
to various aspects of the illegal alien problem were prepared and
certain possible legislative proposals were explored. Subsequently,
the President refined the Committee's mandate, requesting develop-
ment of a legislative strategy, initiation and evaluation of long
range studies on key questions regarding the impact of illegal aliens,
and review of the U.S. immigration laws to assess whether they should
be modified in light of the influx of illegal aliens. A task force
approach to discharging these responsibilities was suggested.
The Illegal Alien Problem
Immigration to the United States is intended to be governed
by the Immigration and Nationality Act of 1965, under which approxi-
mately 400,000 aliens are admitted annually. Actual immigration,
however, bears little relation to the program prescribed by law.
In 1974, 788,000 deportable aliens were located, about twice the
number authorized admission that year. Latest estimates indicate
that there are now 8 million illegal aliens in the United States.
GERALD FORD LIBRARY
- 2 -
Historically, illegal aliens have been Mexicans, concen-
trated upon our Southwest border, performing agricultural work.
Today, however, only about 60% of illegal aliens are Mexican and
there are increasing concentrations of illegal aliens in urban,
industrialized areas throughout the country. There are, for
example, estimated to be 1 million in the New York City metropoli-
tan area alone. While most Mexicans seem to enter the United States
surreptitiously and illegally, the majority of others enter legally
in a temporary status and become illegal aliens when their visas
expire.
Illegal aliens come to the United States seeking economic
opportunity. Population trends in the countries from which they
primarily come suggest that the incentive to emigrate in search
of jobs should be expected to increase in the foreseeable future.
The influx of unauthorized immigrants has important, but some-
what unclear, implications for the United States. Many compete for
jobs which are of interest to American workers. Many others, how-
ever, seem to accept employment for which Americans are unavail-
able. Nevertheless, because of their illegal status, all live in
fear of apprehension and are subject to economic exploitation or
abuse. The question of how illegal immigration and the proposals
to deal with it affect the needs and interests of the United States
is of central importance.
FORD is LIBRARY 07V830
- 3 -
Immigration should be controlled by a system of laws which
are fair and effective. The Committee's goal should be to de-
velop an improved immigration policy, sensitive to economic
realities, reflecting democratic values and faithful to our tradi-
tion as a nation of immigrants.
Organization of the Committee
The Committee consists of the Attorney General, the Secretaries
of Agriculture; Commerce; Health, Education, and Welfare; Labor;
Treasury; and State; the Director, Office of Management and Budget;
and Special Assistant to the President Baroody.
It is proposed the Committee be organized into 5 task forces:
Economic and labor market impact
Immigration law and policy
Enforcement
Social and community impact
Foreign Relations *
The task forces are intended to be working committees whose
members are available to commit a substantial percentage of time
and agency resources, including travel if necessary, to this effort.
Task force chairmen should be senior officials of their departments
selected by their respective Secretaries. The task force chairmen
will comprise a steering committee for coordination and immediate
* Note: This subject will be handled by a previously constituted
group, the Interagency Committee on Mexican Migration to the U.S.
The Committee is chaired by the Department of State and was estab-
lished pursuant to meetings between President Ford and President
Scheverria of Mexico in 1972. The scope of its activities as origin-
ally defined will be broadened for purposes of the Domestic Council
Committee.
GEBALD FORD
- 4 -
response purposes. A modest level of staff support, located in
the Department of Justice, will be available.
It is proposed that task force reports to the Committee be
made by June 1, 1976. Task force efforts should include recommenda-
tions on pending legislation and other proposals, development of
studies and pilot programs, identification of new areas for inter-
agency cooperation, new contracts or use of existing resources to
develop needed data, and contacts with affected constituencies
within and outside government. The advice of interests and experts
from outside the federal government should be considered parti-
cularly important. The task force reports should provide a basis
for a full range of recommendations from the Committee to the Presi-
dent.
The membership and responsibilities of the proposed task
forces are as follows:
1. Economic and Labor Market Impact Task Force
Chair: Labor
Members: Agriculture
Commerce (Bureau of Economic Analysis-
Balance of Payments)
Treasury (Internal Revenue Service)
Office of Management and Budget
As indicated earlier, most illegal aliens enter the U. S.
in search of jobs. Many believe they take agricultural and indus-
trial jobs normally filled by American workers, compete as low-
skilled laborers most directly with unskilled ethnic or minority
GERALD FORD LIBRARY
- 5 -
groups, depress wages of American workers, adversely affect the
balance of payments by sending money out of the U. S., and impose
costs on American taxpayers by using public services and directly
or indirectly contributing to the cost of welfare. There are indi-
cations, however, that illegal aliens perform economically essential
functions for which Americans are unavailable, thus contributing to
our economy and country. Analysis and consensus on the economic
impact of illegal aliens are critical. This task force would
analyze the economic impact of illegal aliens from two vantage
points: (a) the labor-market economic sector and geographical
distribution of illegal workers, their behavior and movement in the
labor market, and their effects on native workers; and (b) the fiscal
effect of illegal aliens on public expenditures, tax revenues and
the balance of payments.
2. Immigration Law and Policy
Chair: Justice (Immigration and Naturalization Service)
Members: State (Security and Consular Affairs)
Labor
Office of Management and Budget
The goals of the Immigration and Nationality Act are the re-
uniting of families and the admission of needed workers and cer-
tain refugees. However, the Act has had several unforeseen effects,
contributing to the long backlog in obtaining admittance from the
Western Hemisphere which is itself an inducement to illegal immi-
BERALD FORD
- 6 -
gration. This task force would evaluate the basic premises of
the Act and how it might be improved. This would include con-
sideration of the approaches to immigration of other countries,
the numerical limits on authorized U. S. immigration, the possi-
bility of a preference system and country quotas for the Western
Hemisphere, and means of improving the process for admitting needed
workers on a permanent or temporary basis, including the possibility
of bilateral arrangements to control the flow of what is now illegal
immigration.
3. Enforcement Task Force
Chair: Justice (Immigration and Naturalization Service)
Members: State (Security and Consular Affairs)
HEW (Social Security Administration)
Treasury (Internal Revenue Service)
Special Assistant to the President for
Hispanic Affairs.
Law enforcement resources appear to be inadequate to meet
the demands posed by present levels of illegal immigration. This
task force would examine ways to organize and utilize these re-
sources more effectively. This would include consideration of
means of preventing visa abuse and use of fraudulent documents,
compliance with and enforcement of FICA and withholding tax require-
ments, INS enforcement programs, and present practices in issuing
social security numbers. The task force would also evaluate the
resource implications of other possible law enforcement techniques.
In the case of both present and possible law enforcement programs,
explicit consideration should be given to their impact on U. S.
citizens and authorized aliens.
FORD ELBRARA
- 7 -
4. Social and Community Impact
Chair: Health, Education and Welfare
Members: Commerce (Bureau of the Census)
Assistant to the President
Agriculture (Food and Nutrition Service)
Justice (Community Relations Service)
The influx of large numbers of immigrants has traditionally
created community tensions, animosity from those who feel most
threatened and sympathy from many others. It has also imposed
additional public responsibilities on the communities in which
they settle. These factors are complicated by the secret, illegal
status of much of the current generation of immigrants. This task
force would also be a vehicle for communication and cooperation
between the Committee and the many ethnic, immigrant and state and
local groups intensely interested in this area. This task force
would assess the social ramifications of illegal immigration,
including its effect on federal, state and local tax-supported
services and programs, its population growth and distribution
implications, and its consequences for legal resident aliens and
minority groups.
5. Foreign Relations
Existing Interagency Committee on Mexican Migration
chaired by the Department of State.
This task force would be responsible for co-ordination and
communication with those countries from which illegal aliens pri-
marily come. In conjunction with the other task forces it would
also develop short-run proposals which might be adopted by foreign
BERATO FORD LIBRANY
- 8 -
countries to discourage emigration and long range recommendations
for assisting in the alleviation of conditions which cause aliens
to emigrate. The primary emphasis of this task force would be
on Mexico.
GERALD R. FORD
Pending Legislation Relating to the Illegal Alien Issue
H.R. 8713 - The "Rodino Bill"
H.R. 8713 would prohibit the knowing employment of illegal
aliens. It is intended to eliminate the opportunities for employ-
ment which attract illegal aliens. H.R. 8713 would not require an
applicant to show proof of citizenship or eligibility to work in
order to obtain a job and would not require that an employer in-
quire as to his status. The bill proposes a three-step penalty
structure, with a warning for a first offense, a civil fine for a
second offense and criminal penalties for subsequent offenses. It
would also provide for legalization of status for most illegal aliens
who have been in the United States since 1968.
H.R. 8713 has been criticized for conflicting reasons. Some
have asserted that a requirement that an applicant show proof of
citizenship or eligibility to work is necessary if the prohibition
is to be effective. Others argue that it is inappropriate to involve
employers in enforcing the immigration laws. Strong concern has been
expressed, by the U. S. Commission on Civil Rights among others, that
the bill would encourage illegal discrimination against members of
minority groups seeking employment.
The Administration has supported H.R. 8713 in the belief that
a prohibition against the knowing employment of illegal aliens would
be widely complied with voluntarily and that the many compromises
reflected in the bill adequately meet the various criticisms of it.
The bill has passed the House of Representatives in each of the last
- 2 -
two Congresses, but has not been acted upon by the Senate. In
this session it has been favorably acted upon by the House Judi-
ciary Committee, but is unlikely to be reported for floor action
soon.
H.R. 981
H.R. 981 would amend the Immigration and Nationality Act to
create for the first time a preference system and annual country
quotas for Western Hemisphere immigration, for which visas are now
issued on a first come - first serve basis. The preference system
and annual 20,000 per country quota now applicable to the Eastern
Hemisphere would be applied to Western Hemisphere, except for
Mexico and Canada which would receive annual quotas of 35,000 each.
In addition, the bill would simplify and expedite the labor certi-
fication process for the admission of needed workers.
The bill would serve to create more orderly Western Hemi-
sphere immigration. It would reduce for those entitled to prefer-
ences the current two to three year waiting period for obtaining
a visa and make the labor certification process a more viable
means of obtaining needed labor legally. In these ways it whould
alleviate some of the incentive for illegal immigration. Alter-
ing its prior position, the Administration now supports applying
the 20,000 quota to Mexico and Canada. Providing for immigration
subject to the quotas of either 35,000 or 20,000 would, however,
- 3 -
reduce authorized immigration from Mexico, although it could in-
crease immigration from Canada. Thus, it might exacerbate the
pressures for illegal immigration from Mexico.
With the exception noted, the Administration supports H.R.
981. There is a general consensus among the interested parties that
H.R. 981 is a desirable effort to improve the system of Western
Hemisphere immigration, but would not alone substantially reduce
illegal immigration. It is still being considered by the House
Judiciary Committee and, absent a strong effort, its enactment
in this Congress is not anticipated.
DRAFT
3-1-76
DOMESTIC COUNCIL COMMITTEE ON ILLEGAL ALIENS
Social and Community Impact Task Force
The Social and Community Impact Task Force in its first meeting
held on March 1, 1976 discussed the issues and problems
surrounding these issues and decided to approach
goal
through
the following activities:
1. Develop a review of the literature to determine what
information is available which bears on the problem
and how it can be used to address the social and
community perspectives.
2. Develop an assessment of descriptive data on ethnic
communities which can be used in determining extent
of use of domestic programs and services by illegal
entrants. The task force anticipates developing a
rationale which would permit generalization to the
illegal alien segment from the descriptive portrait
developed for the like domestic minority community.
3. Examine the effects of enforcement activities on
the domestic minority communities to determine what
their impact is on the social activities of these
communities and their illegal alien members.
4. Assess the social impact of current and proposed
immigration policies on the domestic minority
communities, as well as upon the broader domestic
scene.
-2-
ideas
5. Identify data gaps and develop research
which
can be presented to the Domestic Council Committee
on Illegal Aliens with recommendations for further
development and eventual funding.
In general, the Task Force was painfully aware not only of the
lack of data on social impact issues, but also of the apparent lack
of mechanisms for obtaining this information. The members felt that
ways for obtaining the needed information would
have to be found and that some empirical data base would have to be
developed before any meaningful discussion of the issues could be held.
It was with this perspective in mind that the Task Force identified
the following activities to be completed prior to their next meeting
scheduled for March 15, 1976:
1. develop and circulate a "mini" review of the available
literature
2. circulate copies of key studies to Task Force members
an
3. prepare outline of data available which may be useful in
developing a descriptive profile of minority communities
for use in assessing utilization of programs and services
by their illegal alien status members. (Bureau of the Census)
4. develop for presentation at next meeting an outline of
available program data which may be useful in determining
extent of service delivery to illegal aliens. (each member agency)
Enforcement Task Force
I. History of Immigration Enforcement
A.
Traditional U.S./Mexico Border problem
1.
Past experience with importation of Mexican
workers
2.
Concept of an "open" border policy.
B.
Public's increasing sensitivity to immigration
enforcement during difficult economic periods
C.
Illegal alien problems defined to some extent
by allocation of resources
1.
Geographical deployment of resources
2.
Inherent nature of system geared to keeping
persons out -- ill equipped to deal with persons
once they are here
D.
Court decisions
1.
Individual aliens rights
2.
Impact on enforcement techniques
II. Present Enforcement System
A.
Department of Justice: Immigration and Naturalization
Service
1.
Basic authorities
2.
Enforcement techniques
3.
Resources
4.
Priority of programs
B.
Department of State: Bureau of Security and
Consular Affairs
1.
Basic authorities
2.
Screening mechanisms
3.
Resources
4.
Priority of function
2
C. Indirect Involvement
1. Department of Labor
2. Department of Treasury (Customs and IRS)
3. State and local law enforcement
III. Further Interagency Cooperation
A. Test case: 1972 Social Security Act Amendments
1. Administrative difficulties
2. Extent of INS/SSC cooperation
3. What has been the impact?
4. What experience tells us about future
interagency cooperation efforts
B. Administrative improvements in INS/Visa Office
cooperation
1. Greater exchange of currency
2. Additional information needed
3. Pilot programs
C. Department of Labor
1. Laws that affect illegal aliens
2. Extent of current enforcement
3. Pilot programs
D. IRS
1. Studies
2. Experience of pilot projects
3
IV. Dilemmas for Future Enforcement
A. The relative priority assigned to immigration
enforcement within total criminal justice system
1. Ratio of immigration violations to prosecution
as compared to other violations
2. Incompatibility of system for immigration
enforcement, e.g., U.S. Attorney's policy
and penal system
B. Inadequacy of System's Controls
1. Fradulent documentation and problems of
identification
2. Lack of departure controls
3. Records keeping
C. What level of compliance are we aiming for?
V.
Disincentives
A. Aimed at individual
1. Deprive from economic benefits
2. Deprive from benefits under ITNACT
3. Increased sanctions
B. Aimed at employer
1. Sanctions, e.g., criminal and civil
2. Eliminate tax benefits
C. Narrow benefits that can be obtained
1. Develop consistent federal guidelines
2. Work to insure consistency of state and
local regulations
4
D. Other
1. Harsher punishment for smuggling
2. Greater restrictions on travel and stay.
Foreign Relations Task Force
Work Outline
I.
Meeting with Mexican government officials -- scheduled
for early April
Agenda
A.
Overview of problem of undocumented aliens -
advance exchange of papers
B.
Exchange of basic research documents and information
C.
Legislation
1.
Review of current and proposed U.S. and Mexico
legislation dealing with undocumented migration
2.
Review of obligations and commitments assumed
by each country in the light of international
law and opinions rendered by international
bodies.
D.
Suggestions for ameliorating the problem of the
migratory flow of Mexican laborers to the U.S.
E.
International coordination or cooperative measures
which might result in slowing the flow.
F.
Proposals for regularizing the status of undocumented
Mexicans in the U.S.
G.
Protection of undocumented migratory workers in U.S.
II. Migration causal factors
A.
Push forces: Unavailability of economic opportunity
-- rural to urban migration -- political oppression --
uneven economic development -- population pressures
B.
Pull forces: International economic disparity --
U.S. demand for cheap labor -- cultural and family
ties -- lack of penalties.
III. Major illegal alien sending countries
A.
Identify characteristics
B.
Analysis of U.S.-sending country relations
IV. Foreign policy implications of changes in U.S. immigration
policy or illegal alien constraints
- 2 -
V. Competing foreign policy actions
A.
Foreign student and foreign visitor travel policies
B.
Foreign aid priorities
Domestic Council Committee on Illegal Aliens
June 1, 1976 Task Forces Report
Preliminary Outline
Task Forces - key
TF#1 - Immigration Law and Policy
TF#2 - Economic and Labor Impact
TF#3 - Social and Community Impact
TF#4 - Enforcement
TF#5 - Foreign Relations
A.
Introduction - staff
1.
Domestic Council committee - description
2.
Illegal Aliens - nature of the issue, definitions
B.
U.S. immigration - TF#1
1.
Early laws and their effects
2.
1965 I&N Act amendments
-
theoretical premises, i.e. numerical
limitations, preference system, family
reunification
-
administrative and substantive impact of
current law, i.e. problems, who has come,
unintended effects of the law.
C.
Research - TF#2 and TF#3
1.
State of the art and knowledge about illegal
aliens
2.
Discussion of research underway
3.
Proposal for necessary research and data with
realistic plan for obtaining it.
D.
Law enforcement - TF#4
1.
Current authorities and their effectiveness
-
I&N Act
-
Social security amendments of 1974
-
Labor laws
-
Tax laws
-
Tax supported services
-
Other
- 2 -
2.
Areas for improvements in coordination and
cooperation, e.g. State-INS
3.
New enforcement strategies
4.
Proposals for legislative change
Analysis of current proposed legislation
E.
Domestic impact of illegal aliens - TF#2 and TF#3
1.
Demographic dimension - population growth
and distribution, ethnic composition of the
society.
2.
The job issue
3.
The use of services issue
4.
The macro-economic questions:
balance of payments, gross revenues and
expenditures
5.
Control and the discrimination issue
6.
Experiences of other nations
F.
International aspects of illegal aliens - TF#1 and TF#5
1.
Migration of people - causal factors
2.
Immigration policies of other nations
3.
Major illegal alien sending countries
-
characteristics
-
U.S.-sending country relations
-
policies which affect illegal immigration
4.
Mexico
5.
Foreign policy considetations of changes in U.S.
behavior regarding illegal aliens
G.
Conclusions and recommendations - to be determined
EXTRA EDITION NO. 2
The United States
Supreme Court
Opinions
BNA
LAW WEEK
February 24, 1976
THE BUREAU OF NATIONAL AFFAIRS, INC., WASHINGTON, D.C.
Volume 44, No. 33
OPINIONS ANNOUNCED FEBRUARY 25, 1976
The Supreme Court decided:
have an adverse effect on lawful resident workers, held not to be
unconstitutional as a regulation of immigration or as being pre-
ALIENS AND CITIZENSHIP-Employment
empted under the Supremacy Clause by the Immigration and
Nationality Act (INA).
California statute that bars knowing employment of
(a) Standing alone, the fact that aliens are the subject of a
aliens not entitled to lawful residence in U.S. if such em-
state statute does not render it a regulation of immigration. Even
ployment would adversely affect lawful resident workers is
if such local regulation has some purely speculative and indirect
not unconstitutional attempt to regulate immigration and is
impact on immigration, it does not thereby become a constitution-
not, if construed as consistent with federal Immigration and
ally proscribed regulation of immigration that Congress itself
Nationality Act, preempted under Supremacy Clause.
would be powerless to authorize or approve.
(b) Pre-emption on the basis of congressional intent to "occupy
(DeCanas V. Bica, No. 74-882)
page 4235
the field" and thereby invalidate even harmonious state regulation
is not required in this case either because "the nature of the reg-
STATES-Business Regulation
ulated subject matter permits no other conclusion" or because
Mississippi health regulation, which prohibits sale in
"Congress has unmistakably SO ordained" that result. Florida
Lime & Avocado Growers V. Paul, 373 U. S. 132, 142. Section
Mississippi of milk and milk products from another state
2805 (a) is clearly within a State's police power to regulate the
unless such state permits sale of Mississippi milk and milk
employment relationship SO as to protect workers within the
products on reciprocal basis, unduly burdens interstate
State, and it will not be presumed that Congress, in enacting the
commerce in violation of Commerce Clause and cannot be
INA, intended to oust state authority to regulate the employment
justified as permissible exercise of any state power. (Great
relationship covered by § 2805 (a) in a manner consistent with
Atlantic & Pacific Tea Co., Inc. V. Cottrell, No. 74-1148)
pertinent federal laws, absent any showing of such intent either
page 4240
in the INA's wording or legislative history or in its comprehensive
scheme for regulating immigration and naturalization. Rather
than there being evidence that Congress "has unmistakably
ordained" exclusivity of federal regulation in the field of employ-
ment of illegal aliens, the Farm Labor Contractor Registration Act,
whose provisions prohibiting farm labor contractors from em-
ploying illegal aliens were enacted to supplement state action, is
persuasive evidence that the INA should not be taken as legisla-
Full Text of Opinions
tion expressing Congress' judgment to have uniform federal regu-
lations in matters affecting employment of illegal aliens, and
therefore barring state legislation such as § 2805 (a). Hines V.
No. 74-882
Davidowitz, 312 U. S. 52; Pennsylvania V. Nelson, 350 U. S. 497,
distinguished.
Leonor Alberti DeCanas
(c) It is for the California courts to construe § 2805 (a), and
then to decide in the first instance whether and to what extent
and Miguel Canas,
On Writ of Certiorari to the
§ 2805 (a), as construed, is unconstitutional as conflicting with the
Petitioners,
Court of Appeal of Cali-
INA or other federal laws or regulations.
v.
fornia for the Second Ap-
40 Cal. App. 3d 976, 115 Cal. Rptr. 444, reversed and remanded.
Anthony G. Bica and
pellate District.
BRENNAN, J., delivered the opinion of the Court, in which all
Juan Silva.
Members joined except STEVENS, J., who took no part in the con-
sideration or decision of the case.
(February 25, 1976]
Syllabus
MR. JUSTICE BRENNAN delivered the opinion of the
Court.
Section 2805 (a) of the California Labor Code, which prohibits an
employer from knowingly employing an alien who is not entitled
California Labor Code § 2805 (a) provides that "No
to lawful residence in the United States if such employment would
employer shall knowingly employ an alien who is not
NOTICE: These opinions are subject to formal revision before
NOTE: Where it is deemed desirable, a syllabus (headnote) will be
publication in the preliminary print of the United States Reports.
released * at the time the opinion is issued. The syllabus constitutes
Readers are requested to notify the Reporter of Decisions, Supreme
no part of the opinion of the Court but has been prepared by the
Court of the United States, Washington, D.C. 20543, of any typo-
Reporter of Decisions for the convenience of the reader. See United
graphical or other formal errors, in order that corrections may be made
States V. Detroit Lumber Co., 200 U.S. 321, 337.
before the preliminary print goes to press.
Section 4
Copyright © 1976 by The Bureau of National Affairs, Inc.
Rights of redistribution or reproduction belong to copyright owner.
44 LW 4235
44 LW 4236
The United States LAW WEEK
2-24-76
entitled to lawful residence in the United States if such
peal further indicated that state regulatory power over
employment would have an adverse effect on lawful resi-
this subject matter was foreclosed when Congress, "as
dent workers." The question presented in this case is
an incident of national sovereignty," enacted the INA
whether § 2805 (a) is unconstitutional either because it is
as a comprehensive scheme governing all aspects of
an attempt to regulate immigration and naturalization
immigration and naturalization, including the employ-
or because it is pre-empted under the Supremacy Clause,
ment of aliens, and "specifically and intentionally de-
Art. VI, cl. 2, of the Constitution, by the Immigration
clined to add sanctions on employers to its control
and Nationality Act, 8 U. S. C. § 1101 et seq. (INA), the
mechanism." Ibid.* The Supreme Court of California
comprehensive federal statutory scheme for regulation
denied review. We granted certiorari, 422 U. S. 1040
of immigration and naturalization.
(1975). We reverse.
Petitioners, who are immigrant migrant farmworkers,
I
brought this action pursuant to § 2805 (c) against re-
Power to regulate immigration is unquestionably ex-
spondent farm labor contractors in California Superior
clusively a federal power. See, e. g., Passenger Cases,
Court. The complaint alleged that respondents had re-
7 How. 283 (1849); Henderson V. Mayor of New York,
fused petitioners continued employment due to a surplus
92 U. S. 259 (1876); Chy Lung V. Freeman, 92 U. S.
of labor resulting from respondents' knowing employ-
275 (1876); Fong Yue Ting V. United States, 149 U. S.
ment, in violation of § 2805 (a), of aliens not lawfully
698 (1893). But the Court has never held that
admitted to residence in the United States. Petitioners
every state enactment which in any way deals with
sought reinstatement and a permanent injunction against
aliens is a regulation of immigration and thus per se
respondents' wilful employment of illegal aliens.2 The
pre-empted by this constitutional power, whether latent
Superior Court, in an unreported opinion, dismissed the
or exercised. For example, Takahashi V. Fish & Game
complaint, holding "that Labor Code 2805 is unconstitu-
Comm'n, 334 U. S. 410, 415-422 (1948), and Graham
tional
[because] [i]t encroaches upon, and inter-
V. Richardson, 403 U. S. 365, 372-373 (1971), cited a
feres with, a comprehensive regulatory scheme enacted
line of cases that upheld certain discriminatory state
by Congress in the exercise of its exclusive power over
treatment of aliens lawfully within the United States.
immigration
The California Court of Appeal,
Although the "doctrinal foundations" of the cited cases,
Second Appellate District. affirmed, 40 Cal. App. 3d
which generally arose under the Equal Protection Clause,
976, 115 Cal. Rptr. 444 (1974). The Court of Appeal
e. g., Clarke V. Deckebach, 274 U. S. 392 (1927), "were
held that § 2805 (a) is an attempt to regulate the condi-
undermined in Takahashi," see In re Griffiths, 413 U.S.
tions for admission of foreign nationals, and therefore
717, 718-722 (1973), Graham V. Richardson, supra, at
unconstitutional because, "in the area of immigration
372-375, they remain authority that, standing alone,
and naturalization, congressional power is exclusive."
the fact that aliens are the subject of a state statute
Id., at 979, 115 Cal. Rptr., at 446.3 The Court of Ap-
does not render it a regulation of immigration. which
is essentially a determination of who should or should
1 Section 2805 of the California Labor Code reads in full text as
follows:
not be admitted into the country, and the conditions
"(a) No employer shall knowingly employ an alien who is not
under which a legal entrant may remain. Indeed, there
entitled to lawful residence in the United States if such employment
would have been no need, in cases such as Graham,
would have an adverse effect on lawful resident workers.
Takahashi, or Hines V. Davidowitz, 312 U. S. 52 (1941),
"(b) A person found guilty of violation of subdivision (a) is pun-
even to discuss the relevant congressional enactments in
ishable by a fine of not less than two hundred dollars ($200.00) nor
more than five hundred dollars ($500.00) for each offense.
Canning Co. V. Howard, 40 Cal. App. 3d 673, 686, 115 Cal. Rptr.
"(c) The foregoing provisions shall not be a bar to civil action
435, 442 (1974). Dolores Canning also invalidated § 2805 (a),
against the employer based upon a violation of subdivision (a)."
however, relying, inter alia, on Guss V. Utah Labor Board, 353 U.S.
2 We assume arguendo in this opinion, in referring to "illegal
1 (1957), and San Diego Unions V. Garmon, 359 U. S. 236 (1959),
aliens," that the prohibition of § 2805 (a) only applies to aliens who
and stating that the statute "does or could affect immigration in
would not be permitted to work in the United States under pertinent
several ways." 40 Cal. App. 3d, at 686, 115 Cal. Rptr., at 442-443.
federal laws and regulations. Whether that is the correct construe-
It is also uncertain that the Court of Appeal viewed § 2805 as a
tion of the statute is an issue that will remain open for determination
constitutionally proseribed state regulation of immigration that
by the state courts on remand. See Part III, infra.
would be invalid even absent federal legislation; the court's dis-
3 Insofar as the determination of § 2805's objective is a matter of
cussion of the INA seems to imply that the court assumed that
state law, the Court of Appeal's view that § 2805 (a) is an attempt
Congress could clearly authorize state legislation such as § 2S05, even
to regulate the conditions for admission of foreign nationals may be
if it had not yet done SO,
questioned. Another division of the Court of Appeal has said that
4 H. R. 982, now pending in Congress, would amend 8 U. S. C.
"the section is not aimed at immigration control or regulation but
§ 1324 (a) to provide a penalty for knowingly employing an alien not
seeks to aid California residents in obtaining jobs
Dolores
lawfully admitted to the United States.
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2-24-76
The United States LAW WEEK
44 LW 4237
finding pre-emption of state regulation if all state regula-
problems and is tailored to combat effectively the per-
tion of aliens was ipso facto regulation of immigration, for
ceived evils.
the existence vel non of federal regulation is wholly irrele-
Of course, even state regulation designed to protect
vant if the Constitution of its own force requires pre-
vital state interests must give- way to paramount federal
emption of such state regulation. In this case, Cali-
legislation. But we will not presume that Congress, in
fornia has sought to strengthen its economy by adopting
enacting the INA, intended to oust state author-
federal standards in imposing criminal sanctions against
ity to regulate the employment relationship covered by
state employers who knowingly employ aliens who have
§ 2805 (a) in a manner consistent with pertinent federal
no federal right to employment within the country; even
laws. Only a demonstration that complete ouster of state
if such local regulation has some purely speculative and
power-including state power to promulgate laws not in
indirect impact on immigration, it does not thereby be-
conflict with federal laws-was "the clear and manifest
come a constitutionally proscribed regulation of immigra-
purpose of Congress" would justify that conclusion.
tion that Congress itself would be powerless to authorize
Florida Lime & Avocado Growers, Inc. V. Paul, supra,
or approve. Thus, absent congressional action, § 2805
at 146, quoting Rice V. Santa Fe Elevator Corp., 331
would not be an invalid state incursion on federal power.
U. S. 218, 230 (1947).5 Respondents have not made
that demonstration. They fail to point out, and an
II
independent review does not reveal, any specific indi-
Even when the Constitution does not itself commit
cation in either the wording or the legislative history of
exclusive power to regulate a particular field to the Fed-
the INA that Congress intended to preclude even har-
eral Government, there are situations in which state
monious state regulation touching on aliens in general,
regulation, although harmonious with federal regulation,
or the employment of illegal aliens in particular.
must nevertheless be invalidated under the Supremacy
Clause. As we stated in Florida Lime & Avocado Grow-
5 See also, e. g., New York Department of Social Services V. Dub-
ers, Inc. V. Paul, 373 U. S. 132, 142 (1963) :
lino, 413 U. S. 405, 413-414 (1973); Schwartz V. Texas, 344 U. S.
"federal regulation
should not be deemed pre-
199, 202-203 (1952); California V. Zook, 336 U. S. 725, 732-733
emptive of state regulatory power in the absence
(1949).
Of course, even absent such a manifestation of congressional
of persuasive reasons-either that the nature of the
intent to "occupy the field," the Supremacy Clause requires the
regulated subject matter permits no other conclusion,
invalidation of any state legislation that burdens or conflicts in any
or that Congress has unmistakably SO ordained."
manner with any federal laws or treaties. See Part III, infra.
In this case, we cannot conclude that pre-emption is
However, "conflicting law, absent repealing or exclusivity provisions,
should
be
pre-empted
'only to the extent necessary to protect
required either because "the nature of the subject matter
the achievement of the aims of' the federal law, since "the proper
[regulation of employment of illegal aliens] permits no
approach is to reconcile 'the operation of both statutory schemes
other conclusion," or because "Congress has unmistak-
with one another rather than holding [the state scheme] com-
ably so ordained" that result.
pletely ousted." Merrill Lynch, Pierce, Fenner & Smith V. Ware,
414 U. S. 117, 127 (1973), quoting Silver V. New York Stock Ex-
States possess broad authority under their police pow-
change, 373 S. 341, 361, 357 (1963).
ers to regulate the employment relationship to protect
6 Of course, state regulation not congressionally sanctioned that
workers within the State. Child labor laws, minimum
discriminates against aliens lawfully admitted to the country is
and other wages laws, laws affecting occupational health
impermissible if it imposes additional burdens not contemplated by
Congress:
and safety, and workmen's compensation laws are only a
"The Federal Government has broad constitutional powers in deter-
few examples. California's attempt in § 2805 (a) to pro-
mining what aliens shall be admitted to the United States, the
hibit the knowing employment by California employers
period they may remain, regulation of their conduct before natural-
of persons not entitled to lawful residence in the United
ization, and the terms and conditions of their naturalization. See
States, let alone to work here, is certainly within the
Hines V. Davidowitz, 312 U. S. 52, 66. Under the Constitution
mainstream of such police power regulation. Employ-
the states are granted no such powers; they can neither add to nor
ment of illegal aliens in times of high unemployment de-
take from the conditions lawfully imposed by Congress upon admis-
sion, naturalization and residence of aliens in the United States or
prives citizens and legally admitted aliens of jobs; accept-
the several states. State laws which impose discriminatory burdens
ance by illegal aliens of jobs on sub-standard terms as to
upon the entrance or residence of aliens lawfully within the United
wages and working conditions can seriously depress wage
States conflict with this constitutionally derived federal power to
scales and working conditions of citizens and legally ad-
regulate immigration, and have accordingly been held invalid."
mitted aliens; and employment of illegal aliens under
Takahashi V. Fish & Game Commission, 334 U. S. 410, 419 (1948)
(emphasis supplied).
such conditions can diminish the effectiveness of labor
See also, e. g., Graham V. Richardson, 403 U. S. 365, 376-380
unions. These local problems are particularly acute in
(1971); Truax V. Raich, 239 U. S. 33, 41-42 (1915) ef. also Sugar-
California in light of the significant influx into that State
man V. Dougall, 413 U. S. 634, 641-646 (1973); In re Griffiths, 413
of illegal aliens from neighboring Mexico. In attempt-
U. S. 717 (1973). But California Code § 2805 appears to be
ing to protect California's fiscal interests and lawfully
designed to protect the opportunities of lawfully admitted aliens
resident labor force from the deleterious effects on its
for obtaining and holding jobs, rather than to add to their burdens.
The question whether § 2805 (a) nevertheless in fact imposes bur-
economy resulting from the employment of illegal aliens,
dens bringing it into conflict with the INA is open for inquiry on
§ 2805 (a) focuses directly upon these essentially local
remand. See Part TII, intro
44 LW 4238
The United States LAW WEEK
2-24-76
Nor can such intent be derived from the scope and
and San Diego Unions V. Garmon, 359 U. S., at 243,
detail of the INA. The central concern of the INA is
admonished that "due regard for the presuppositions
with the terms and conditions of admission to the coun-
of our embracing federal system, including the principle of
try and the subsequent treatment of aliens lawfully in
diffusion of power not as a matter of doctrinaire localism
the country. The comprehensiveness of the INA scheme
but as a promoter of democracy, has required us not to find
for regulation of immigration and naturalization, with-
withdrawal from the States of power to regulate where
out more, cannot be said to draw in the employment of
the activity regulated was a merely peripheral concern
illegal aliens as "plainly within
[that] central
of the [federal regulation]
aim of federal regulation." San Diego Unions V. Gar-
Finally, rather than evidence that Congress "has un-
mon, 359 U. S. 236, 244 (1959).' This conclusion is
mistakably ordained" exclusivity of federal regulation
buttressed by the fact that comprehensiveness of legisla-
in this field, there is evidence in the form of the 1974
tion governing entry and stay of aliens was to be ex-
amendments to the Farm Labor Contractor Registration
pected in light of the nature and complexity of the
Act, 7 U. S. C. § 2041 et seq., that Congress intends that
subject. "Given the complexity of the matter addressed
States may, to the extent consistent with federal law,
by Congress in
[the INA], a detailed statutory
regulate the employment of illegal aliens. Section 2044
scheme was both likely and appropriate, completely
(b) authorizes revocation of the certificate of registra-
apart from any questions of pre-emptive intent." New
tion of any farm labor contractor found to have em-
York Department of Social Services V. Dublino, 413
ployed "an alien not lawfully admitted for permanent
U. S. 405, 415 (1973).
residence, or who has not been authorized by the Attor-
It is true that a proviso to 8 U. S. C. § 1324, making
ney General to accept employment." Section 2045 pro-
it a felony to harbor illegal entrants, provides that "em-
hibits farm labor contractors from employing "an alien
ployment (including the usual and normal practices
not lawfully admitted for permanent residence or who
incident to employment) shall not be deemed to con-
has not been authorized by the Attorney General to
stitute harboring." But this is at best evidence of a
accept employment." 10 Of particular significance to our
peripheral concern with employment of illegal entrants,
inquiry is the further provision that "This chapter and
the provisions contained herein are intended to supple-
7 In finding § 2805 pre-empted by the INA, the Court of Appeal
ment State action and compliance with this chapter shall
cited Guss V. Utah Labor Board, 353 U. S. 1 (1957), and San Diego
not excuse anyone from compliance with appropriate
Unions V. Garmon, 353 U. S. 26 (1957), and 359 U. S. 236 (1959) as
State law and regulation." Id., § 2051 (emphasis sup-
controlling authority. Reliance upon those decisions was misplaced.
plied). Although concerned only with agricultural em-
Those decisions involved labor management disputes over conduct
ployment, the Farm Labor Contractor Registration Act
expressly committed to the National Labor Relations Board to
is thus persuasive evidence that the INA should not be
regulate, but concerning which the Board had declined to assert
jurisdiction; the Board had not ceded jurisdiction of such regulation
§ 1324 (a) nor Congress' failure to enact general laws criminalizing
to the States, as it was empowered to do. 353 U. S., at 6-9. This
knowing employment of illegal aliens justifies an inference of congres-
Court rejected the argument that the inaction of the NLRB left
sional intent to pre-empt all state regulation in the employment area.
the States free to regulate the conduct. Section 10 (a) of the Na-
Indeed, Congress' failure to enact such general sanctions reinforces the
tional Labor Relations Act, 29 U. S. C. § 160 (a) expressly excluded
inference that may be drawn from other congressional action that
state regulation of the disputed conduct unless the Board entered
Congress believes this problem does not yet require uniform national
into an agreement with the state ceding regulatory authority. The
rules and is appropriately addressed by the States as a local matter.
Court held in that circumstance that "To leave the States free to
The cited statutory provisions would, in any event, be relevant. on
regulate conduct so plainly within the central aim of federal regula-
remand in the analysis of actual or potential conflicts between
tion involves too great a danger of conflict between power asserted
§ 2805 and federal law. See also 8 U. S. C. §§ 1101 (a) (15) (H),
by Congress and requirements imposed by state law." San Diego
1182 (a) (14), 1321-1330.
Unions V. Garmon, 359 U. S., at 244. Guss and Garmon recog-
nize, therefore, that in areas that Congress decides require na-
10 Section 2044 (b) provides:
tional uniformity of regulation, Congress may exercise power
"Upon notice and hearing in accordance with regulations pre-
to exclude any state regulation, even if harmonious. But nothing
scribed by him, the Secretary may refuse to issue, and may suspend,
remotely resembling the NLRA scheme is to be found in the INA.
revoke, or refuse to renew a certificate of registration to any farm
""Little aid can be derived from the vague and illusory but
labor contractor if he finds that such contractor-
often repeated formula that Congress 'by occupying the field' had
excluded from it all state legislation. Every Act of Congress
"(6) has recruited, employed, or utilized, with knowledge, the
occupies some field, but we must know the boundaries of that field
services of any person, who is an alien not lawfully admitted for
before we can say that it has precluded a state from the exercise
permanent residence, or who has not been authorized by the Attor-
of any power reserved to it by the Constitution. To discover the
ney General to accept employment;"
boundaries we look to the federal statute itself, read in the light of
Section 2045 provides:,
its constitutional setting and its legislative history." Hines V.
"Every farm labor contractor shall-
Davidowitz, 312 U. S. 52, 78-79 (1941) (Stone, J., dissenting).
A construction of the proviso as not immunizing an employer
"(f) refrain from recruiting, employing, or utilizing, with knowl-
who knowingly employs illegal aliens may be possible, and we
edge, the services of any person, who is an alien not lawfully
imply no view upon the question. As will appear infra, other fed-
admitted for permanent residence or who has not been authorized
eral law that criminalizes knowing employment of illegal aliens in
by the Attorney General to accept employment;"
the agricultural field sanctions "appropriate" state laws eriminalizing
Violations of the Act are made criminal, and aggrieved persons
the same conduct. Accordingly, neither the proviso to 8 U. S. C.
are accorded the right to civil relief.
2-24-76
The United States LAW WEEK
44 LW 4239
taken as legislation by Congress expressing its judgment
"can be enforced without impairing the federal superin-
to have uniform federal regulations in matters affecting
tendence of the field" covered by the INA. Id., at 142.
employment of illegal aliens, and therefore barring state
For example, § 2805 (a) requires that to be employed
legislation such as § 2805 (a).
an alien must be "entitled to lawful residence." In its
Hines V. Davidowitz, 312 U. S. 52 (1941), and Penn-
application, does the statute prevent employment of
sylvania V. Nelson, 350 U. S. 497 (1956), upon which
aliens who, although "not entitled to lawful residence in
respondents rely, are fully consistent with this con-
the United States," may under federal law be permitted
clusion. Hines held that Pennsylvania's Alien Registra-
to work here? Petitioners conceded at oral argument
tion Act was pre-empted by the federal Alien Registra-
that, on its face, § 2805 (a) would apply to such aliens
tion Act. Nelson held that the Pennsylvania Sedition
and thus unconstitutionally conflict with federal law.
Act was pre-empted by the federal Smith Act. Although
They point, however, to the limiting construction given
both cases relied on the comprehensiveness of the federal
§ 2805 (a) in Administrative Regulations promulgated
regulatory schemes in finding pre-emptive intent, both
by the California Director of Industrial Relations. Cali-
federal statutes were in the specific field which the States
fornia Administrative Code, Title 8, part 1, c. 8, art. 1,
§ 16209 defines an alien "entitled to lawful residence" as
were attempting to regulate, while here there is no indi-
follows: "An alien entitled to lawful residence shall mean
cation that Congress intended to preclude state law in
any non-citizen of the United States who is in possession
the area of employment regulation. And Nelson stated
of a Form I-151, Alien Registration Receipt Card, or any
that even in the face of the general immigration laws,
other document issued by the United States Immigration
States would have the right "to enforce their sedition
and Naturalization Service which authorizes him to
laws at times when the Federal Government has not
work." Dolores Canning Co. V. Howard, 40 Cal. App.
occupied the field and is not protecting the entire country
3d 673, 677 n. 3, 115 Cal. Rptr. 435, 436 n. 3 (1974).
from seditious conduct." 350 U. S., at 500. Moreover,
Whether these regulations were before the Superior
in neither Hines nor Nelson was there affirmative evi-
Court in this case does not appear, and the Court of
dence, as here, that Congress sanctioned concurrent state
Appeal found § 2805 (a) unconstitutional without ad-
legislation on the subject covered by the challenged state
dressing whether it conflicts with federal law.1 Ob-
law. Furthermore, to the extent those cases were based
viously it is for the California courts to decide the effect
on the predominance of federal interest in the fields of
of these administrative regulations in construing § 2805
immigration and foreign affairs, there would not appear
(a), and thus to decide in the first instance whether and
to be a similar federal interest in a situation in which
to what extent, see n. 5, supra, § 2805 as construed would
the state law is fashioned to remedy local problems, and
conflict with the INA or other federal laws or regulations.
operates only on local employers, and only with respect
It suffices that this Court decide at this time that the
to individuals whom the Federal Government has already
Court of Appeal erred in holding that Congress in the
declared cannot work in this country. Finally, the
INA precluded any state authority to regulate the em-
Pennsylvania statutes in Hines and Nelson imposed
ployment of illegal aliens.
burdens on aliens lawfully within the country that
The judgment of the Court of Appeal is reversed and
created conflicts with various federal laws.
the case is remanded for further proceedings not incon-
III
sistent with this opinion.
It is so ordered.
There remains the question whether, although the INA
contemplates some room for state legislation, § 2805 (a)
MR. JUSTICE STEVENS took no part in the consideration
is nevertheless unconstitutional because it "stands as an
or decision of this case.
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress" in enacting the
ROBERT S. CATZ, Washington, D.C. (RALPH SANTIAGO,
INA. Hines V. Davidowitz, supra, at 67; Florida Lime
HOWARD SCHER, BURTON D. FRETZ, MICHAEL L. STERN
and ROBERT B. JOHNSTONE, with him on the brief) for petitioners;
& Avocado Growers, Inc. V. Paul, supra, 373 U. S.,
WILLIAM S. MARRS, Berkeley, Calif. (ROBERT L. TRAPP, JR.,
at 141. We do not think that we can address that
with him on the brief) for respondents.
inquiry upon the record before us. The Court of Ap-
peal did not reach the question in light of its decision,
12 It would appear the regulations were not before the Superior
today reversed, that Congress had completely barred
Court since that court held § 2805 (a) to be in conflict with federal
state action in the field of employment of illegal aliens.
immigration laws, stating:
Accordingly, there are questions of construction of § 2805
"[T]he statute forbids hiring of an 'alien who is not entitled to
(a) to be settled by the California courts before a deter-
lawful residence in the United States,' and under the U. S. Immi-
gration laws, there are many such aliens who may work in the
mination is appropriate whether, as construed, § 2805 (a)
United States, under certain classifications, and Labor Code 2805
is in direct conflict with Federal law."
11 The Solicitor General, in his Memorandum for the United
Dolores Canning Co. V. Howard quotes the definition in a foot-
States as Amicus Curiae, concedes that the "Act contemplates some
note, 40 Cal. App. 3d, at 677 11. 3, 115 Cal. Rptr., at 436 n. 3, but
limited room for state law," but argues that § 2805 is not "appro-
the opinion states nothing respecting its significance in construing
priate" in light of various alleged conflicts with federal regulation.
§ 2805 (a).
OF JUSTICE SECUITURE QUI PRO * #
United States Immigration
and Naturalization Service
ILLEGAL ALIEN STUDY
PRESENTATION TO
DOMESTIC COUNCIL COMMITTEE
ON ILLEGAL ALIENS
GLRALD R.FORD KARA
MARCH 4, 1976
IMMIGRATION AND NATURALIZATION SERVICE
$1 MILLION RESEARCH EFFORT ON ILLEGAL ALIENS
MANAGEMENT AND TECHNICAL ASSISTANCE
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FRAUDULENT DOCUMENT STUDY
ON LEGALS AND
(LANDPORT AND AIRPORT)
RELATED MINORITY GROUPS
FLOWS
STOCK
CHARACTERISTICS
IMPACT
BORDER PATROL SENSOR
EXPERIMENT
CHARACTERISTICS
STUDY
BORDER PATROL STAFFING
INDUSTRIAL SURVEY
EXPERIMENT
OTHER
STUDIES
$1 MILLION RESEARCH EFFORT ON ILLEGAL ALIENS
STOCK
FLOWS
Nationwide and state estimates
Estimate of malafide "get-throughs"-
of resident illegal aliens
air and land ports
Nationwide and state estimates
Estimate of EWI's
of illegal aliens in labor market
- Repeaters
- Get-aways
CHARACTERISTICS
IMPACT
Age, sex, nationality, etc.
Estimate of illegals in welfare
and amount
Education
Estimate of illegals that pay
Occupation
taxes and amount
Salary
Estimate of illegals sending
money out of the country and
Family
amount
Assimilation
Estimate of illegals holding jobs
over minimum wage
Mode of entry
Estimate of crimes related to
illegals
Estimate of illegals participat-
ing in health and school systems
AREAS NOT COVERED BY $1 MILLION RESEARCH EFFORT
STOCK
FLOWS
Detailed data by neighborhood,
Outflow of illegal aliens
city, county
CHARACTERISTICS
IMPACT
Upward mobility of each
Impact on specific programs at
nationality
Federal, State and local levels
Geographic mobility of
Burden displaced citizens contri-
illegal aliens
bute to welfare programs, unemploy-
ment compensation, etc.
Progeny of illegal aliens
- occupation
Impact of second generation illegals
- salary
on labor market
- assimilation
- education
Impact of pockets of illegals on
particular schools, health systems,
etc.
Population impact of illegals
and their progeny
- fertility rate
- mortality rate
FURTHER STUDIES ON THE ILLEGAL ALIEN POPULATION
The Illegal Alien Study to be conducted by the Immigration and
Naturalization Service in 1976 is designed to provide information on the
stock, flows, characteristics and impacts of the illegal alien population
in the United States. While the I&NS research effort will provide preli-
minary data on the impact of the illegal alien on the U.S. health, welfare,
school, criminal justice and tax systems, the agencies responsible for
each program need to conduct indepth studies, some of which might include:
The Illegal Aliens' Movement within the U.S. Labor Market.
Although some work has been done in this area no information is
available on the upward mobility of the illegal alien. Data is
also absent on the geographical movement within the labor market,
the persons the illegals are displacing, the displacement effect,
the variances from nationality to nationality and the labor market
characteristics of the second generation of the illegal aliens.
The Impact of Illegal Aliens on the Criminal Justice System.
Data will become available on the number of arrests of the sample
groups of illegal aliens to be interviewed in the I&NS Study. No
basic data is currently available on the extent to which illegals
are a problem, on a national level nor in localities of particular
interest such as New York and Los Angeles.
The Relationships between Illegal Aliens and the Social Security
Administration. As the illegal alien regards a Social Security
Card as a meal ticket, more information on the participation and
contributions of illegal aliens and their employers needs examin-
ing. No information is available on how much money illegal aliens
are receiving in benefits either here or back in their country of
origin.
Impact of Illegal Aliens on the Tax Collection Systems. Although
the recent Department of Labor Study reports that illegals do
pay their fare share of taxes, this data is preliminary and not
representative of the total illegal alien population. The I&NS
Study will provide preliminary representative data of the amount
of taxes paid by illegal aliens. There is no information on State
and local taxes nor on the variance of these payments by nationa-
lity. No information is available on the employer's participation
in deducting taxes.
Impact of Illegal Aliens on the Welfare Systems. Only gross
figures of participation in the welfare system will be available
from the I&NS Study. No data will be collected on State and local
welfare systems. The geographic areas of the United States where
the problems are most prevalent have not been identified.
Impact of Illegal Aliens on U.S. Balance of Payments. No firm
data is available from a representative group of illegal aliens
on how much money is sent home. The Department of Labor study
has provided some information on this subject. However, "un-
official" channels through which the wages of illegals are being
transferred across American borders have not been identified.
Reliable data on the amount of wages earned by illegal aliens
which are sent out of the country is imperative.
Impact of Illegal Aliens on the School System. Although data
will be gathered on the numbers of illegal aliens and legal alien
children of illegal aliens in the school systems nationwide, no
data will be gathered on the impact in specific locations. In-
formation is needed on the specific locations where the ratio of
illegal alien students to legal alien and citizen students is
necessary to calculate to what extent the illegals are receiving
a totally "free" education.
In summary, the Illegal Alien Study conducted by I&NS this year
will produce gross figures but will not address extensively the impact
of the illegal alien on a specific government program or service.
Geographical and nationality variance of the impact of the total illegal
alien population on government programs is an all-important variable in
determining how to solve the challenging problem of an ever increasing
illegal alien population.
OTHER ITEMS OF INTEREST FOR FEDERAL AGENCIES
Department of Labor
Unemployment issuance impacts caused by
- Depression of wage levels
Department of Agriculture
Food Stamp program impacts
Department of Commerce
Census Bureau - Revenue sharing disbursements are based on
population - cities like New York are feeling the pinch because
of unaccounted for population
Department of Housing and Urban Development
Impacts on housing
PRELIMINARY DATA
DETECTION OF ALIEN DOCUMENT ABUSE AT MAJOR AIRPORTS, FRAUDULENT DOCUMENT STUDY
SEPTEMBER 1975 - FEBRUARY 1976
Port Hit Ratio
Airport
Entrants Inspected
Nonadmissions
Team Hit Ratio
FY 1975
"Better-Than" Ratio
Kennedy (NY)
14,868
85
175/1
3,593/1
1/21
San Juan
2,672
18
148/1
2,310/1
1/16
Miami
6,460
35
185/1
2,032/1
1/11
Honolulu
5,699
0
NA
5,259/1
NA
Los Angeles
3,692
15
246/1
5,974/1
1/24
O'Hare (Chi)
1,410
14
101/1
1,073/1
1/11
Logan (Bos)
954
9
106/1
65,667/1
1/620
San Francisco
973
1
973/1
13,744/1
1/14
Houston
1,594
2
797/1
5,573/1
1/7
Seattle
670
1
670/1
2,209/1
1/3
TOTALS
38,990
180
217/1
3,001/1
1/14
PRELIMINARY DATA
DETECTION OF COUNTERFEIT AND ALTERED DOCUMENTS AND IMPOSTERS AT LAND PORTS
FRAUDULENT DOCUMENT STUDY -- SEPTEMBER 1975-FEBRUARY 1976
Counterfeit & Altered
Documents and
Team Hit
Port Hit Ratio
"Better-Than"
Port of Entry
Aliens Inspected
Imposters Detected
Ratio
FY 1975
Ratio
(col 1)
(col 2)
(col 3)
(col 4)
(col4/col 3)
Brownsville
10,063
21
479/1
22,067/1
1/46
Hidalgo
9,219
28
329/1
5,199/1
1/16
Roma
1,293
2
646/1
160,313/1
1/248
Laredo
11,038
37
298/1
18,814/1
1/63
Eagle Pass
5,848
11
532/1
20,355/1
1/38
Del Rio
1,504
5
301/1
15,015/1
1/50
E1 Paso
26,879
30
896/1
21,930/1
1/24
Douglas
3,210
11
292/1
34,214/1
1/117
Nogales
11,066
10
1,111/1
22,967/1
1/21
San Luis
4,189
4
1,047/1
21,594/1
1/21
Calexico
27,549
17
1,618/1
11,574/1
1/7
San Ysidro
32,345
65
497/1
3,038/1
1/6
TOTALS
143,129
241
594/1
7,936/1
1/13
NOTE: Data does not include 352 aliens apprehended who were misusing legitimate documents and 123 false claims
to US citizenship.
Landports: Borderwide Distribution of Fraudulent Entrants Intercepted by Special
INS Team, by Sex and Age Groups
(as percent of those with known ages)
TOTAL
MEN
WOMEN
AGE GROUP
No. of
Percent of
No. of
Percent of
No. of
Percent of
Fraudulent
Column
Fraudulent
Column
Fraudulent
Column
Entrants
Subtotal
Entrants
Subtotal
Entrants
Subtotal
Under 20
163
23.5
78
25.3
85
22.2
20 - 24
180
26.0
83
26.9
97
25.3
25 - 29
105
15.2
47
15.3
58
15.1
30 - 34
74
10.7
31
10.1
43
11.2
35 - 39
60
8.7
25
8.1
35
9.1
40 - 44
42
6.1
18
5.8
24
6.3
45 - 49
34
4.9
11
3.6
23
6.0
50 - 54
19
2.7
10
3.2
9
2.3
55 - 59
5
0.7
2
0.6
3
0.8
60 & Over
9
1.3
3
1.0
6
0.6
No. of Intercepted Fraudulent Entrants
With Known Ages
691
308
383
1
SUBTOTAL
99.8
99.9
99.9
Age Unknown
25
3.2
15
4.6
10
2.5
Total No. of Intercepted Fraudulent
Entrants
716
323
393
1
Percentages may not add to 100 due to roundoff.
Source: INS Fraudulent Document Study, 1975
Domestic Council Committee
Steering Committee Meeting
March 4, 1976
Agenda
A. Opening remarks
B. Reports on work of task forces
1. - Immigration Law and Policy - INS, Gen. Chapman
- Economic and Labor Market Impact - DOL,
Abraham Weiss
- Social and Community Impact - HEW, Wm. Morrill
- Enforcement - INS, James Greene
- Foreign Relations - State, Wm. Luers
2.
Clarify areas of overlap; identify issues overlooked
C. Information and data needs
1.
Presentation of INS research plans - Edward Guss,
Director, Office of Planning and Evaluation, INS
2.
Additional data needs; how to meet them
D. June report
E. DeCanas V. Bica - February 25, 1976 Supreme Court
decision - Sam Bernsen, General Counsel, INS
F. Other
UNITED STATES DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
OFFICE OF
POLICY AND PLANNING
March 3, 1976
MEMORANDUM
To:
Steering Committee Members
Domestic Council Committee on Illegal Aliens
From:
Doris M. Meissn
Executive Director
Domestic Council Committee on Illegal Aliens
Subj:
Attached
Attached please find background materials for the
first meeting of the Steering Committee of the Domestic
Council Committee on Illegal Aliens. The meeting will
be held on Thursday, March 4, 1976, room 5111, Department
of Justice. Attorney General Levi will chair the meeting.
The purpose of the Steering Committee meeting is to
review the work plans for each of the five task forces and
eliminate any unnecessary overlap or add areas which may
have been overlooked. An outline of each task force's
work plan is attached. Task force chairmen will be asked
to discuss their outlines.
Each task force has conveyed a degree of confusion
about the nature of the June report. A preliminary outline
of the report is also attached and will be discussed by
the Steering Committee in order to aid in developing a
common view of what can or should be accomplished by the
committee.
Attachments
am REVOLUTION
1778-1976
DOMESTIC COUNCIL
STEERING COMMITTEE MEETING, 9:30 a.m.
MARCH 4, 1976
TENTATIVE AGENDA
A. Introductory remarks
B. Reports on task forces work
-- Clarify areas of overlap
-- Identify areas overlooked
C. June report - see preliminary outline
D. Information and data needs
-- INS presentation of its research plans
-- Technical panel
E. DeCanas V. Bica - recent Supreme Court decision on statute
prohibiting employment of illegal aliens.
F. Other.
IMMIGRATION LAW AND POLICY TASK FORCE
Work Outline
1. Brief historical run-down on U.S. immigration. (For INS)
A. Early laws.
B. Who came (nationalities, workers, relatives) when
and why?
Need I
2. Theoretical premises of 1965 amendments of Immigration
and Nationality Act. (For State)
A. Exclusion of undesirables and unneeded workers.
valimity these tines
B. Numerical limitation on immigration with preferences
for relatives, workers and refugees.
C. Control of non-immigrants.
still
3. Impact of the 1965 amendments and their administration.
A. Who came since 1965? (For INS)
1. Immigrants
2. Non-immigrants.
3. Illegal aliens and workers.
B. Who wants to come? (For State)
1. Documented demand
2. "Invisible" demand factors
C. How are we administering the present law. (For State,
INS and DOL)
4. Relevant immigration policies of other countries.
A. Canadian and Australian immigration systems. (For State)
B. Western Europe's guest worker system. (For DOL)
5. Conclusions and recommendations including options for
revising basic immigration system and administration --
to be considered later.
RALE FORD LIBRARY
DOMESTIC COUNCIL COMMITTEE ON ILLEGAL ALIENS
Economic and Labor Market Impact Task Force
Work Outline
The initial charge to the task force was to analyze
the economic impact of illegal aliens from two vantage
points: (a) the labor-market economic sector and geograph-
ical distribution of illegal workers, their behavior and
movement in the labor market, and their effects on native
workers; and (b) the fiscal effect of illegal aliens on
public expenditures, tax revenues and the balance of payments.
(Organization Plan adopted January 21, 1976)
In view of time and staff constraints, it has been
agreed by the chair and the Executive Director of the
committee that this task force would outline the state of
the art within the purview of the task force and propose a
plan to find some solutions to any knowledge gap deemed
critical in determining the economic impact of illegal aliens..
Below is the work outline for this task force:
1. Demographic Profile (Basic data collection-INS)
a) Definition: distinction between nonimmigrants
who overstay, those who enter illegally, and
nonimmigrants who engage in work.
b) Description: Size, composition, marital status,
sex, age, education level, place of origin,
current location, and length of stay.
- 2 -
c) Labor market status: earnings, industry,
occupation.
d) Economic objectives of illegal aliens (acquisition
of low-skill, labor occupation and/or higher
status?)
e) Is illegal immigration largely a rural phenomenon,
an urban phenomenon, or both?
f) Frequency of illegal entry in a year. Any
previous apprehensions? If so, this year? other
years? Frequency of apprehensions.
2. Labor Market
a) What is the extent of jobs held by illegals at
the expense of those which citizens and legal
immigrants would otherwise fill (displacement
effect) ?
b) What is estimated cost of displacement in lost
earnings to American workers and what is increase
in tax burden as the result of such displacement
(unemployment compensation, welfare, etc.) ?
c) How do wages paid illegals, by industry and
occupation, compare with average wages paid for
comparable jobs in the labor market area?
d) If citizens and/or legal aliens spurn jobs held
by illegals, are illegals filling appropriate
labor market function and enabling marginal firms
to continue to operate? (In absence of illegal
- 3 -
alien labor supply, would firms redesign pro-
duction function in direction of more capital
intensive operation?)
e) Are lower wages paid illegals reflected in lower
prices and hence possibly offsetting disemployment
of American workers (in broad economic terms) ?
f) Proportion of total working population accounted
for by illegals.
g) What is the extent of substandard wages and
working conditions encountered by illegal aliens
and who are the most frequent offenders?
h) Dynamics of occupation and geographical movement.
i) Projections for the future.
3. Balance of Payment/International Income Transfer
If in work status, do illegal aliens send part of
savings to country of origin?
a) If so, approximate amount per year?
b) What is aggregate amount of money sent outside
U.S. by illegals?
c) What is percent of money sent by illegals to total
balance of payments status for that year?
- 4 -
d) What is percent of money sent out to other countries
by citizens and legal aliens?
e) What is percent of money sent out to other countries
by Federal agencies e.g., social security payments?
f) What is effect of such outflow on economies of
foreign countries? (e.g. is this a form of informal
foreign aid?)
g) What is effect of such outflow on U.S. economy?
4. Are wages paid to illegal aliens subjected to
either Federal or State taxation procedures? What
is extent of tax evasion?
5. Critique of current labor certification and FLCRA
programs (DOL programs)
a) Effectiveness
b) Cost
c) Labor market impact
d) Court cases
e) Desired legislative changes in program
6. Economic implications of enforcement costs (apprehension,
detention, deportation) 1/
7. Domestic and foreign experience with guest and/or
imported labor and/or illegals.
1/ The data will be collected by the Enforcement Task Force.
However, the economic analysis will be performed by this
task force.
FK/pml 3/2/76
UNITED STATES DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
OFFICE OF
March 16, 1976
POLICY AND PLANNING
MEMORANDUM
To:
All Task Force Chairmen and Members
Domestic Council Committee on Illegal Aliens
From:
Doris M. Meissner, Executive Director
Domestic Council Committee on Illegal Aliens
Subj:
Meeting with Charles B. Keely, March 22, 1976
No
Charles B. Keely of Fordham University, New York,
will meet with the Economic and Labor Market Impact Task
Force at 10:30 a.m., Monday, March 22, 1976, in room
S2006, new Department of Labor building. Members of
other task forces are invited to attend this session.
Mr. Keely is a professor of sociology and demography
and has done extensive research and writing on immigration
and population. He works closely with the Center for
Migration Studies, New York, and the Population Council.
The discussion will concentrate on research and information
regarding the impacts of illegal aliens.
Please notify my office (739-4608) by noon Friday,
March 19, if you plan to attend.
FORD is LIBRARY GERALD
REVOLUTION
1778-1976
I. As.
Q. What should be done about illegal aliens? Do you
support the Rodino bill?
A. We have anywhere from 6,000,000 to 8,000,000 illegal
aliens in this country, which is, roughly, the total
number of unemployed in this country. This is a very
serious matter, but let me tell you what we are trying
to do about it.
Number one, we are working very closely in a new
program with the Mexican Government. There has been
a tremendous increase in the flow of illegal aliens
from Mexico. The cooperation that we are developing
with the Mexican Government will, I think, produce
some results in stopping that flow.
When I was in Mexico about nineteen months ago, I
personally talked to President Echeverria about this.
Number two, in my budget I have recommended additional
employees for the Immigration and Naturalization Service
SO it can doing a better job of finding illegal aliens
and seeking to deport them.
There is one other thing we are trying to do. I have
favored legislation that passed the House, last year
as I recall, that makes it mandatory for an employer
to ask whether a prospective employee is an illegal
alien. That would be helpful.
319.76
OPTIONAL FORM NO. 10
JULY 1973 EDITION
GSA FPMR (41 CFR) 101-11.6
UNITED STATES GOVERNMENT
Memorandum
TO
:
Richard D. Parsons,
DATE:
March 5, 1976
Associate Director, Domestic Council
FROM :
Mark L. Wolf, Special Assistant MLW
to the Attorney General
SUBJECT:
Illegal Aliens
The Attorney General thought the enclosed paper
on illegal aliens might be helpful to you.
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
5010-110
OPTIONAL FORM NO. 10
JULY 1973 EDITION
GSA FPMR (41 CFRI 101.11.6
UNITED STATES GOVERNMENT
Memorandum
TO
:
The Attorney General
DATE: Sept. 4, 1975
FROM
: Mark L. Wolf
SUBJECT: Immigration
Introduction
This paper is an attempt to identify some of the issues
raised by existing U.S. immigration law. It is essentially
an analysis of existing statutory provisions intended to de-
scribe policies, the extent to which they are being achieved,
and possible reforms. It should be noted, however, that our
immigration policy has symbolic, as well as practical, sig-
nificance. Immigration policy has historically reflected
an ambivalence in the American character which seems to per-
sist today. The official response to these competing pressures
may prove to be one measure of these times.
The United States has been the most hospitable nation in
the world for immigrants. We still accept more immigrants
annually than any other country and although immigration is
restricted, humanitarian principles even-handedly applied
are intended to guide the selection process.
It is common to approach immigration questions with a
view to what the United States can do for those who wish to
Buy U.S. Savings Bonds Regularly on the Payroll Savings Plan
5010-110
come here. It should be noted, however, that immigrants have
and still do contribute much to this country, individually
and collectively. More than 40% of American Nobel prize
winners and 1/4 of the National Academy of Science are foreign-
born. In virtually every field of endeavor foreign-born Ameri-
cans, like Toscanini, Frankfurter, Einstein or Kissinger, have
excelled.
Immigration has also contributed to the development of our
most essential social and political values. As Oscar Handlin
has written:
A society compelled to tolerate a multitude
of significant ethnic differences had to de-
velop in a pluralistic fashion, recognizing
the right of each group to operate in its own
way and yet to suffer in consequence no dis-
crimination of rights of citizenship. Then,
too, such a society had to give wide scope of
activity to voluntary as distinguished from
governmental organization. The logical cor-
rollary of pluralism in a free society was
the absention by government from interference
in spheres in which the points of view of the
people it served were not uniform or homogeneous.
However, while Americans have generally welcomed immigrants
as a group in prosperous, secure times, there has been a latent
but persistent nativism -- an intense opposition to an internal
minority because of its foreign (i.e., "Un-American") connec-
tions -- which has emerged in times of economic distress or con-
flict. As described and documented by historian John Higham,
hard times have historically been accompanied by doubt regarding
- 3 -
our capacity to ecnomically or politically accommodate immi-
grants, who often become scapegoats for our national insecurity.
There are hard choices to be made in establishing or imple-
menting immigration policy. This is, in a sense, a difficult
period to be addressing them. With a relatively poor economy
and recent cause to question whether our democratic institutions
should continue to command confidence, there is a potential
that focusing attention on immigration issues will provide a
forum for intensified nativism. Last year passage of the bill
to prohibit the knowing employment of illegal aliens was deemed
the highest legislative priority of the Department of Justice.
This year illegal aliens have been designated top priority by
the Ku Klux Klan. Similarly, some Vietnamese refugees and those
inclined to assist them have become targets for abuse and this
sentiment could grow.
Some of the questions raised by reviewing immigration policy
today are familiar. A central question is how much immigration,
legal and illegal, can the United States afford. Those opposed
to immigration have traditionally been influenced by a pessi-
mistic outlook regarding the future economic growth of the
United States. Oscar Handlin has noted that:
The nation was barely founded before a Con-
gressman rose to say on the floor of the
House of Representatives in 1797 that while
a liberal immigration policy was satisfactory
when the country was new and unsettled, now that
the U.S. had reached maturity and was fully
populated, further immigration should be stopped.
- 4 -
This does not suggest that concern today for our economic
potential is unimportant, but only that it is not new.
Similarly, reviewing our immigration policy today re-
news the question of our confidence in our capacity to accom-
modate diversity. The Immigration and Nationality Act of 1965
permitted for the first time in this century large scale immi-
gration from Asia and certain other areas. It is said by some,
most notably Daniel Moynihan, that the changing composition of
the immigrant population will generate new competing pressures
and problems in formulating foreign policy. While it is too
early to test this, it should not be surprising if it proves
true. But it does raise the question of whether we should wel-
come or fear this phenomenon.
In addition, our attitudes toward immigration also test
our consistency and fidelity to certain ideals. In enacting
the Jackson-Vanik amendment, the United States asserted there
is a universal human right to emigrate, to not live where one
does not want to live. A logical corrollary would be the view
that every man has a right to live where he wants. Yet this
assertion would be anomolous for a nation which denies entry
to many who wish to come here. This need not suggest that
U.S. immigration policy and attitudes toward nations which for-
bid free emigration must be logically consistent, but it does
raise the question of whether these policies are substantially
influenced by similar concerns and values.
- 5 -
Our immigration law today is based on the assumption that
for economic reasons immigration must be limited. In the process
of selecting immigrants, top priority is intended to be given
to re-uniting families, following which preference is to be
given to needed workers and certain refugees.
In many respects, however, the immigration law does not
operate as intended. Rather than regulating all entry to the
United States, it is accompanied by large scale unauthorized
immigration. Instead of giving highest priority to re-uniting
families, it often operates to keep them apart for years. In
addition, the provisions for authorizing entry of needed workers
are inefficient and relatively ineffective.
Furthermore, there is a basic lack of hard data to sup-
port some of the fundamental assumptions upon which our immi-
gration is based. There is great debate about whether immi-
grants, legal or illegal, generally take jobs which Americans
are willing and able to perform. Yet there is little more than
anecdotal evidence with which to answer this question.
It is desirable to seek an immigration policy, and other
policies, that is fair and workable. Limits on immigration,
particularly, should reflect a decision on acceptable costs for
enforcing them. This cost should not be calculated in dollars
alone. Some measures which might be useful in enforcing the
law may be more harmful to the quality of life in the United
- 6 -
States than the increment of aliens who would enter in their
absence. Yet, if we choose not to adopt these measures, per-
haps we should not adopt prohibitions which will not be effec-
tive without them, for there is also a cost to having prohibi-
tions which are unobserved and unenforceable. In any event,
the lack of reliable evidence on certain central questions
(which hopefully will be remedied by the $1 million LEAA-
funded INS study now being conducted) suggests a need for
caution in proposing sweeping changes in the law or adopting
extreme measures to enforce existing provisions which may be
based on faulty assumptions.
Statutory Framework
Prior to 1924, the United States permitted virtually un-
limited immigration. From 1921 to 1965 U.S. immigration policy
was based on the "national origins quota system" under which
each foreign country's quota was determined by reference to the
composition of the U.S. population. This policy was based on
the theory that maintaining the then existing racial and ethnic
composition of the United States was important to preserving
individual liberty and economic opportunity. It operated to
permit the admission of Northern and Western Europeans and ex-
clude all but a few others.
- 7 -
The Immigration and Nationality Act of 1965 (the "INA"),
which is now in effect, significantly changed U.S. immigration
policy. It replaced the national origins quota system with
one intended to end substantially discrimination based on race
and national origin. The INA establishes a dual quota system
for the Western and Eastern Hemisphere, but immediate relatives
of American citizens (parents of citizens over 21, unmarried
children and spouses) are exempt from the quotas.
Eastern Hemisphere immigration has been subject to numeri-
cal limits since 1924 and for most countries supply regularly
exceeded demand. The INA establishes an annual quota of 170,000
for the Eastern Hemisphere, with a maximum of 20,000 from any
one country. Anticipating continued excessive demand, the INA
includes a seven-point preference system for admission. It
gives highest priority to relatives not exempt from the quota
system, followed by needed workers and some refugees.
The INA imposed for the first time an annual quota on
Western Hemisphere immigration, limiting it to 120,000 per year.
Continuation of our policy of permitting unlimited Western Hemi-
sphere immigration was contemplated in the early versions of
the INA because significantly increased Western Hemisphere immi-
gration was not anticipated. Attorney General Katzenbach testi-
fied that "there is not much pressure to come to the U.S. from
- 8 -
these (Western Hemisphere) countries.
It is not a
practical problem." Accordingly, the House did not include
a Western Hemisphere quota in its bill, but did accede to
the Senate version which included the 120,000 quota as a pre-
caution. As excessive demand for Western Hemisphere visas
was not anticipated, the INA does not include a preference
system or per country limitation for the Western Hemisphere.
Western Hemisphere visas are granted on a first-come, first-
serve basis.
The INA also imposed new restrictions on the entry of per-
sons seeking to work in the United States. Prior to the INA,
entry of an applicant was precluded only if the Secretary of
Labor certified that his entry would adversely affect the
wages and working conditions of American workers. There was,
however, no requirement that the Secretary be notified of aliens
seeking entry to work and such aliens generally came to his
attention only if seeking entry in groups larger than 25 expect-
ing employment in the same area.
Under the INA, no Western Hemisphere immigrant (other than
parents, spouses or children of U.S. citizens or permanent resi-
dent aliens) or Eastern Hemisphere immigrant seeking an occu-
pational preference on non-preference entry is admitted unless
the Secretary of Labor determines that qualified workers are not
- 9 -
available at his intended destination and that his employ-
ment will not adversely affect wages or working conditions
in the United States. The broader coverage for Western
Hemisphere applicants seems to be a vestige of the INA as
originally proposed, without a Western Hemisphere quota, in
which the labor certification would have been the sole means
of regulating Western Hemisphere immigration.
Except for professionals, each applicant for admission
subject to the certification requirement must have a specific
job offer. While a professional may file his own application
for certification, the prospective employer must seek certi-
fication for all other applicants who require it. An applica-
tion by a professional is sent to the appropriate Department
of Labor regional office for review. In the case of non-
professionals, the application is sent by the Department of
Labor to the appropriate State employment service for investi-
gation. All applications are returned to the Department of
Labor through its regional office for a decision on certification.
The INA also contains a provision permitting temporary ad-
mission of alien workers if the Secretary of Labor certifies
that such workers will not adversely affect U.S. workers. This
process is initiated by a petition from an employer. If the
Secretary of Labor certifies that there is a need for temporary
foreign workers, the employer is free to obtain the workers
wherever he chooses.
- 10 -
In addition, the INA provides two mechanisms for ad-
mitting refugees to the United States. The seventh prefer-
ence for Eastern Hemisphere applicants authorizes admission
of up to 10,200 refugees from Communist or Middle Eastern
countries. In addition, the Attorney General may, for emer-
gent reasons or reasons deemed in the public interest, parole
refugees, or others, into the United States.
Two other provisions of the INA worthy of note are those
which afford an immigrant who is in the United States unlaw-
fully a means of legalizing his status. Any alien here unlaw-
fully and continuously since 1948 is eligible to adjust his
status. In addition, an alien unlawfully in this country for
7 or 10 years, depending on the grounds for deportation, may
apply to INS for suspension of deportation which might be
granted if he can demonstrate that his departure would be a
hardship for a close relative who is a citizen or permanent
resident alien. This is a cumbersome procedure, however, re-
quiring a favorable recommendation by INS and submission to
Congress for two sessions without adverse action.
Authorized Immigration
A. Numerical Limits
While it is generally agreed that there should be some
limit on immigration, there is a question of what that limit
- 11 -
should be. The INA authorizes entry of 290,000 immigrants
per year, plus an unlimited number of immediate relatives.
The total number of immigrants authorized entry in 1973 was
about 400,000.
The numerical limits on immigration established by the
INA are not based on a formula restricting immigration to a
certain percentage of national or international population or
population growth, or tied to the rate of unemployment in the
United States. The level of immigration authorized by the INA
was simply deemed to be the "present absorptive capacity of
the U.S." While it is not clear how this conclusion was reached,
annual immigration before and since the INA has ranged between
200,000 and 400,000.
In the 1970s, there has been some criticism of the INA,
mainly from advocates of zero population growth, because it
does not tie immigration to U.S. population growth. It is
asserted that authorized levels of immigration are too high.
As evidence of this it is noted that immigration represents
a growing percentage of total population growth, now approach-
ing one-fourth. Analysis indicates, however, immigration con-
stitutes a significant portion of total population growth not
because of an increase in immigration, but because of a decrease
- 12 -
in natural population growth. Thus, the growing proportion
of population growth immigration represents may be evidence
of the general success of those who advocate zero population
growth, rather than cause for alarm.
Legal immigration adds about 1/5 of 1% to the U.S. popu-
lation each year. At the present rate, by the year 2000 only
6% of the U.S. population will be composed of immigrants ad-
mitted between 1970 and 2000 and their dependents. Assuming
the legal limits on immigration are observed, the choice posed
by zero population growth advocates is between 266 million
Americans in 2000 at the present rate of immigration or 250
million without any immigration.
B. Religious Diversity
As expected, the INA has altered the religious and ethnic
composition of the immigrant population. In 1965 about one of
14 immigrants was Asian. In 1973, the figure was about one in
three. This changing pattern of national origins will result
in greater diversity of American religious life. Aside from
Filipinos, most Asian immigrants are Buddhists, Hindus, or mem-
bers of other religions largely unknown in the United States.
Increased immigration for the Middle East is also creating a
growing Moslem population. The proportion of white Protestants
among the immigrants is small.
- 13 -
C. Brain Drain
While the proportion of highly skilled and professional
workers in the immigrant population has not been greatly altered
by the INA, the pattern of national origins of these workers
has been changed. As the preference system is only applicable
to the Eastern Hemisphere, immigrants from developing countries
are more likely to be highly skilled working or professionals
than those from other areas. In 1970 about one-fourth of the
Asian immigrants and one-third of the Africans were professionals
admitted because of a certified need for their skills and services.
Admission of immigrants who are highly trained is an
efficient means of obtaining needed skills, saving the time
and money needed to train Americans. It has, for example,
been estimated that the United States saved four billion dollars by
admitting 100,000 scientists between 1949 and 1967. This policy,
however, creates some surprising results. In some recent years
more doctors have been admitted as immigrants than graduated
from American medical schools. In addition, there are now more
Filipino doctors than black doctors in the United States.
This practice has been criticized by some, including the
President's Commission on Population Growth which stated:
A readily available source of trained professionals
from other countries may slow the development of
domestic talents and the expansion of training
facilities. While this importation of talent may
be economical to the U.S., it is not fair either
- 14 -
to foreign countries which educate pro-
fessionals or to our own citizens -- parti-
cularly those minority groups and women whose
access to professional training and economic
advancement has been limited.
D. Western Hemisphere Immigration
Contrary to what was generally anticipated when the INA
was enacted, the demand for Western Hemisphere visas now far
exceeds the supply. An applicant for admission from the Western
Hemisphere must wait two to three years to obtain a visa. By
contrast, for the Eastern Hemisphere, visas are current for
relative preferences for all countries except the Phillipines.
The increase in demand for visas has been particularly
great in the Caribbean countries, South America and Latin
America. There seems to be no single explanation for this.
It is due in part to the emergence of new Caribbean nations
which as colonies were allotted only 200 visas per year. It
may be that higher educational levels and increased urbaniza-
tion make the United States more familiar and attractive, while
increased affluence makes a trip to the United States more
affordable. Certainly the explosive population growth in these
countries and the related high rates of unemployment and under-
employment contribute significantly to the increased demand for
visas. Finally, there are indications that natives of these
countries are directly or indirectly recruited for jobs in the
- 15 -
United States which might previously not have been available
to them.
The lack of a preference system for Western Hemisphere
immigrants and the delay in obtaining visas they experience
frustrates the purposes of the INA. While the primary goal of
the INA is to permit reunification of families, protracted delay
serves to keep family members not exempt from the quotas apart.
Similarly, the unavailability of visas undermines the
operation of those provisions of the INA intended to make the
INA responsive to conditions of the economy. Employers are un-
likely to offer a job and participate in the certification process
on behalf of an alien who will not be permitted to come here for
two or three years. This problem has become particularly acute
with regard to Canada. Many Canadians could qualify for a labor
certification, but cannot receive a job offer because of the
anticipated subsequent delay in obtaining a visa. As a result,
annual immigration from Canada has dropped from about 40,000
to about 10,000 and this is a matter of concern to the Govern-
ment of Canada. The delay in obtaining visas is injurious to
the United States, as well as potential immigrants, because it
is probably most discouraging to skilled workers and professionals
who are most successful at home and best able to contribute to
the United States.
- 16 -
E. Labor Certification for Permanent Admission
The labor certification provisions of the INA appear to
be intended to protect American workers from the potentially
adverse effects of immigration. They do not, however, seem to
serve this purpose well. Highest priority is given by the INA
to reuniting families and many immigrants with relatives in
the United States are exempt from the labor certification re-
quirement. Therefore, the vast majority of immigrants are not
subject to the labor certification requirement. Only ten to
fifteen percent of the immigrants each year, representing only
one-fourth to one-third of those expected to work here, have a
labor certification. In addition, an immigrant is not obligated
to stay on the job or in the area for which he was certified.
One study indicates that 57 percent of those with labor certi-
fication change occupations shortly after entry.
Although the labor certification program has little impact
in terms of the national labor market, it probably does dis-
courage employers in certain areas from seeking groups of alien
laborers when Americans would perform the same jobs for a reason-
able price, thus protecting some local markets. However, it is
questionable whether this benefit justifies the program.
The individual scrutiny of alien admission and standards
in a labor market is expensive and time consuming. Nevertheless,
the process does not actually indicate whether there are Americans
- 17 -
willing and able to do the jobs sought by aliens. The Depart-
ment of Labor seems to concentrate its investigations on the
availability of similar workers, ignoring their willingness
to actually accept the employment in question. The Congressional
hearings and newspaper articles are replete with embarrassing
cases of small businessmen who cannot find Americans to work
for them, although the Federal government has determined that
there are many who are willing and able to do so. The inade-
quacy of the Department of Labor efforts to determine whether
U.S. citizens are truly willing to accept the position being
offered has been recognized by the courts which have been re-
quiring increasing evidence of actual availability of Americans
to support a denial of certification. In addition, they have
been requiring more elaborate administrative procedures in the
determination process.
The combination of the delay in obtaining a Western Hemi-
sphere visa and the cumbersome labor certification process
creates some undesirable results. Principle among these is the
incentive they create for immigrants to enter or remain in the
United States unlawfully and for employers to hire them. For
many immigrants, particularly from the Western Hemisphere, labor
certification requires a specific job offer. The difficulty of
obtaining such an offer from abroad and the unwillingness of
employers to participate in the certification process if the
worker will not soon be available, encourage many aliens to
enter the United States illegally or on temporary visa without
- 18 -
permission to work and immediately seek work. If U.S. citizens
are unobtainable and the labor certification process is not
regarded as practical, employers are likely to be tempted to
hire an alien without regard to his legal status.
This problem is aggravated by the adjustment of status
provisions of the INA applicable to Western Hemisphere natives.
A person from the Eastern Hemisphere in the United States on
a temporary visa not permitting work may adjust his status
while in the United States and become eligible to work. A
Western Hemisphere native must return home, however, to adjust
his status. The purpose of this provision is to discourage
illegal immigration. However, it does not seem to have this effect
because some Western Hemisphere immigrants who are here unlaw-
fully merely begin work illegally and return home briefly when
their visa is available. Many others, however, accept jobs
illegally and simply accept that status indefinitely.
F. Labor Certification for Temporary Employment
Generally, fewer than 20,000 aliens are admitted to the
United States annually under the INA provisions permitting the
temporary admission of foreign workers. The vast majority are
British West Indians with skills like Jamican cane cutters who
are imported for the Florida sugar harvest.
- 19 -
The certification process for temporary labor is slow
and, therefore, not a viable option for many employers, parti-
cularly those seeking agricultural workers. In addition,
high levels of unemployment in border areas makes approval
of a petition from an employer in these areas rare. Once
again, however, employers often claim that while statistics
suggest American workers are available, they are unobtainable.
To the extent this is true, the lack of viable legal means of
importing temporary alien labor probably encourages unlawful
immigration and the hiring of illegal aliens.
G. Refugees
While the INA has a provision authorizing admission ot
up to 10,200 Eastern Hemisphere refugees annually, the vast
majority of refugees authorized entry in the past 15 years
have been admitted as exceptions to this provision pursuant
to a grant of parole. These include over 600,000 Cubans and
130,000 Indochinese.
The legislative history of the parole provision indicates
it was intended to be exercised on a case-by-case basis for
individuals or families, rather than for classes of refugees or
others. It affords, however, broad discretion to authorize the
entry of large classes of people, substantially altering the
dimensions of lawful immigration. This is, in theory, subject
- 20 -
to abuse. Parole was granted for what surprisingly amounted
to 600,000 Cubans without any participation by Congress. Argu-
ably, it is anomalous to have an elaborate statutory scheme
which can be significantly changed by the Executive Branch alone.
While the present practice is to consult Congress before author-
izing parole, one might question whether this offers Congress a
meaningful opportunity to participate or provides adequate guid-
ance to the Attorney General contemplating an exercise of his
broad, discretionary authority.
Illegal Aliens
Although it is U.S. policy to admit a limited number of
aliens meeting certain criteria annually, total immigration
bears little relation to this policy. In 1974, INS located 788,000
deportable aliens, about twice the number admitted legally. INS
estimates that this represents only one-half to one-fourth of
those who entered illegally in 1974. Although all of the esti-
mates are highly speculative, INS believes there are now about
8 million illegal aliens in the United States. To put this in
perspective, if these figures are reliable, the illegal alien
population is about one-third as large as the black population
and three-fourths the size of the black labor force.
The pace of illegal immigration appears to be accelerating.
The number of illegal aliens apprehended by INS has risen steadily
- 21 -
from 110,000 in 1965 to 788,000 in 1974. While this in-
crease reflects, in part, the greater resources being devoted
to the illegal alien problem, it also indicates dramatic growth
in the rate of illegal immigration.
In addition, the profile of the illegal alien is changing
somewhat. Historically, illegal aliens have been concentrated
along the Mexican border and performed agriculture work. There
are still substantial and probably growing numbers who fit this
description. There is today, however, an increasing concentra-
tion of illegal aliens in industrial areas throughout the coun-
try. Even in the Southwest, the greatest growth seems to have
occurred in the urban areas of California. Mexican illegal
aliens now often migrate to urban, non-border areas where they
are harder to detect than along the border.
It is also now apparent that there are substantial numbers
of non-Mexican illegal aliens in the United States, particularly
in the Northeast. In each of the last five years about 75,000
non-Mexican illegal aliens have been found in the United States.
They are predominently from Caribbean and Latin American coun-
tries. About 90% of them were authorized entry to the United
States on a temporary basis and have extended their stay un-
lawfully. There are an estimated one million illegal aliens
in the New York metropolitan area and 90% of those deported
found there entered the country legally.
- 22 -
In view of these facts, it may be misleading to dis-
cuss "the illegal alien problem"as if it was one-dimensional.
Today, we have large numbers of unauthorized Mexican agricul-
tural workers in border areas and many Mexican and non-Mexican
illegal aliens in urban areas. The proper response to each
of these problems may be different.
Virtually every illegal alien comes to the United States
in search of economic opportunity. The disparity in standards
of living between their homes and the United States make this
motive understandable. Mexico, for example, has substantial
unemployment and underemployment. In 1972, the per capita
income of the poorest 40% of the Mexican population was less
than $150 per year. The short-term prospects for improvement
of this situation is poor, particularly in Mexico. Mexico has
been experiencing explosive population growth which should accel-
erate because there is now an inordinately large percentage of
the population approaching the child-bearing years.
As a practical matter the only official penalty for illegal
entry to the United States is expulsion, known as "voluntary
departure." Deportation or criminal proceedings are too time-
consuming and cumbersome to be used for the vast majority of
unauthorized immigrants, particularly those apprehended near
the border.
- 23 -
There are, however, unofficial penalties paid by illegal
aliens. Their desire to avoid detection makes them reluctant
to register with any legal authority. Thus, they frequently
are afraid to send their children to school or use emergency
rooms at hospitals. In addition, they are susceptible to
being exploited by employers who know they cannot complain to
officials about substandard working conditions or wages. An
extreme example of this are employers who reportedly hire illegal
aliens for low wages and then refuse to pay them. However, the
extent of these abuses is not clear and INS attempts to minimize
them by assisting illegal aliens to collect wages earned before
they are expelled.
Fear of detection is not limited to those who have recently
entered the United States illegally. There are many illegal
aliens who entered the country when lower priority was given
to enforcing the immigration laws. However, they now face ex-
pulsion if identified by the recently increased effort to appre-
hend those here unlawfully.
The opposition to illegal aliens is usually stated in
economic terms. Illegal aliens are widely believed to take jobs
normally filled by American workers, not only agricultural jobs
in the Southwest, but high-paying jobs in metropolitan areas;
compete as low-skilled laborers most directly with unskilled
- 24 -
ethnic or minority groups, many of whom are Mexican Ameri-
cans or lawfully admitted permanent resident aliens; depress
wages of American workers; adversely affect the balance of
payments by sending money out of the United States; and impose
costs on the American taxpayer by using public services and
taking jobs which would otherwise be performed by individuals
on welfare.
The view that illegal aliens adversely affect the American
labor force is widely held. It has been asserted by the Presi-
dent's Commission on Population Growth, the House Judiciary Com-
mittee, the Department of Justice and numerous prominent pri-
vate groups. The leading spokesman for this view today is
General Chapman who has often said that enactment of the Rodino
bill would make available 1 million jobs for American workers.
This view seems logical and there are striking examples
of illegal aliens holding well-paying jobs that Americans would
gladly accept. However, nothing more than economic theory and
examples seem to exist to support the position that illegal
aliens are generally taking jobs which Americans could and
would accept or are adversely affecting wages and working con-
ditions.
There are some who believe that illegal aliens are not
generally injuring American workers. As evidence that illegal
- 25 -
aliens are not taking jobs from competing Americans, they cite
the fact that aliens, legal or illegal, do not seem to have
special difficulty in finding jobs, despite high rates of
unemployment and their language problem. They suggest that
illegal aliens work at jobs which Americans are able, but un-
willing to perform, like domestics and dishwashers.
One recent study supports this view with respect to urban
areas. In a paper furnished by John Dunlop, Michael Piore of
M.I.T. reports the findings of his study of Puerto Rican migra-
tion to Boston and his preliminary study of illegal aliens on
the East Coast.
Piore believes that it is significant that massive illegal
immigration, particularly to urban areas, has started relatively
recently rather than a decade or two earlier when the income
disparity between the United States and neighboring nations
was even greater. He attributes this to the new availability
of jobs for illegal aliens. Illegal aliens in urban areas are
concentrated in the "secondary labor market," jobs which are
characterized by low wages, poor working conditions, instability,
lack of advancement opportunities, and slight skill requirements.
These are jobs which have been traditionally filled by immigrants,
blacks and youth. Piore found that there is now a shortage at
the bottom of the labor market which "newcomers", legal or illegal,
are being recruited to fill.
- 26 -
Piore believes this labor shortage is largely due
to the reluctance today of black workers to accept or keep
these types of jobs. He attributes this change in attitude
to a shift in the black urban population from a first genera-
tion recently arrived from the rural South to a second genera-
tion which has grown up in urban areas. His basic hypothesis
is that:
This shift in generations is a
systematic characteristic in the process
of industrial societies. Adult native
workers in any industrial society tend
regularly to reject secondary jobs be-
cause of low social status and the instabil-
ity and lack of career opportunity which they
carry. These jobs, however, tend to carry
much higher relative status in the social
structures of rural agricultural communities.
That and the fact that rural workers who
migrate to urban areas generally expect
to stay only temporarily and are therefore
less interested in career opportunity and
work stability, make migrants an attractive
source of labor for the secondary sector
and they are recruited for that purpose.
Whatever their original intentions, however,
many migrants do remain in urban areas and
raise their children there. The children
share the attitudes of the native population --
indeed, whatever their place of birth, they
are in this sense native. This inter-
generational shift thus requires the continual
generation of new migration streams to main-
tain a labor force for secondary jobs.
- 27 -
In Piore's view, certain jobs will be filled only by
newcomers and youth. With a diminishing youthful population
and the depletion of labor reserves in the rural South, legal
and illegal aliens are recruited, largely by friends and rela-
tives who preceded them, to fill the available jobs in urban
areas.
Piore notes that his findings challenge an important
assumption upon which national manpower policy has recently been
based. According to Piore, in the past decade the focus of this
policy has shifted from unemployment to the quality of jobs.
The assumption has been that a labor shortage, natural or created
by radical improvement of the legally acceptable terms and con-
ditions of employment, would cause elimination of secondary market
jobs or an upgrading to them. Piore believes the shortage has
occurred, but the anticipated result has not. The job structure
and associated wages have proved rigid. Rather than jobs and
wages adjusting to the characteristics of the labor supply, the
labor supply appears to adjust to the characteristics of demand,
even if this entails drawing in a whole new labor force from
abroad.
If the existence and characteristics of a secondary market
are largely fixed, our immigration policy may be combatting a
force which is economically inexorable. Increased enforcement
efforts are essential, however, if wages and conditions of employ-
- 28 -
ment for illegal aliens are below the lawful minimum for
then their employment does adversely affect U.S. workers.
However, because there are not now penalties for employing
illegal aliens, but penalties do exist for failing to employ
them on terms meeting legal standards, Piore believes that in
urban areas most illegal aliens are employed on terms and under
conditions which are deemed acceptable for natives. If this is
the case, illegal aliens in urban areas are being hired to do
jobs which Americans will not do at an acceptable wage rate,
or at least because they do them better. This suggests to
Piore that the United States should not increase its efforts
to enforce existing restrictions on immigration, but rather
regularize and control a process which has become inevitable.
Many questions can be raised regarding Piore's thesis.
The increase in illegal immigration may be primarily attribut-
able to the end of the Bracero program in 1965, rather than new
job availability for aliens in urban areas. The increased con-
centration of illegal aliens in urban areas may be explained
by their desire to escape apprehension, which is easiest in cities,
or simply a new preference for urban life. In addition, illegal
aliens may be adversely affecting domestic workers even if they
are employed on legally acceptable terms by depressing wages
and conditions to the legal minimum for certain jobs which
domestic workers would accept on better terms. Nevertheless,
- 29 -
Piore's findings seem to merit serious consideration and
further testing.
However, if Piore's thesis regarding illegal aliens in
urban areas is correct, it does not necessarily assist in
evaluating the impact of illegal aliens in agricultural areas.
Apparently, no study similar to Piore's has been done regarding
illegal aliens in rural areas. However, despite the apparent
absence of data, the Department of Agriculture believes illegal
aliens do adversely affect American farm workers. It is their
view that the supply of native workers is responsive to wage
rates, which the availability of illegal alien workers depress.
Demand for farm labor, however, is deemed to be relatively wage
inelastic, suggesting farm jobs would be upgraded if illegal
aliens were not part of the labor force.
Both Piore and the Department of Agriculture could be
correct, suggesting that illegal aliens do not generally harm
Americans in urban areas, but do adversely affect them in
agricultural areas. Virtually all discussion about admitting
foreign temporary workers concerns Mexican agricultural workers.
If both Piore and the Department of Agriculture are correct,
however, this focus is misplaced and increased consideration
should be given to a possible program to meet the needs in
urban areas.
- 30 -
Statutory Reform
Although the policies embodied in the INA are basically
sound, it does not in significant respects achieve its goals.
A primary goal should be to improve its efficacy in reuniting
families, permitting entry of needed workers and accommodating
refugees.
A. Numerical Limits
While advocates of zero population growth are distressed
by the dimensions of authorized immigration, this concern seems
misplaced, or at least understated, when the magnitude of illegal
immigration is recognized. Illegal aliens should be included
in any equation to determine appropriate, or tolerable, levels
of immigration. If approximately 400,000 immigrants per year
is to be deemed the "absorptive capacity" of the United States,
then authorized immigration should be sharply curtailed because
unlawful entrants alone already exceed this amount. If, however,
it is recognized that there is flexibility in the number of
immigrants the United States can afford and certain economic
factors make a measure of what is now illegal immigration inevit-
able, or at least too costly to control, at least part of that
immigration might be regularized.
B. Western Hemisphere
The provisions of the INA concerning Western Hemisphere
natives are an obvious starting point for reform. Since demand
FORD & 07V850 LIBRARY
- 31 -
for visas in the Western Hemisphere now exceeds the supply,
at a minimum the preference system for the Eastern Hemisphere
should be applied to the Western Hemisphere as well. This
change would promote achievement of the INA's primary purpose,
reuniting families. A bill presently pending before the House
Judiciary Committee, H.R. 981, would make this change. The
Department of Justice has supported this aspect of the bill
in the past, but has not expressed a view on it in this session.
Expanding the applicability of the preference system also
suggests making the 20,000 annual country quota applicable to
the Western Hemisphere. H.R. 981 adopts this approach, which
would substantially reduce authorized immigration from Mexico,
which was in 1973 over 70,000, of whom about 45,000 would have
been subject to the quota if then in effect. The Department of
Justice has never endorsed this aspect of H.R. 981. While the
equal treatment it would offer all countries appears fair, it
is questionable whether this is either desirable or practical.
Arguably, any reform of the INA regarding Western Hemi-
sphere natives should go beyond parity with the Eastern Hemi-
sphere provisions. Such changes would be consistent with the
original intent of the INA. Although a Western Hemisphere quota
was adopted as a precaution, it was widely expected that all
Western Hemisphere applicants would be admitted each year. In
- 32 -
addition, there were no Western Hemisphere country quotas.
Thus, Western Hemisphere applicants, particularly those in
countries with large numbers potentially interested in coming
here, were originally expected to be treated more favorably
than applicants from the Eastern Hemisphere. Authorizing
increased Western Hemisphere immigration now could be justified
as acknowledging that we have a special relationship with certain
countries like Mexico, Canada and those in Latin America, or by
recognizing that many natives of these countries will come here
illegally if not authorized entry. Increased authorization of
Western Hemisphere immigration should reduce to some degree the
need for unlawful immigration.
Authorizing increased admission of our neighbors would re-
quire either raising the total limit on immigration or reducing
Eastern Hemisphere immigration. If the latter option were
chosen, the preference system would operate to exclude many
Eastern Hemisphere skilled workers and professionals who are
now admitted. Their admission, however, is not now entirely
advantageous to this country or those from which they come.
Furthermore, some, and perhaps all, of them would be replaced
by similarly skilled Western Hemisphere natives.
C. Labor Certification for Permanent Admission
Increased authorization of Western Hemisphere immigration
could serve to alleviate the incentive for illegal immigration.
- 33 -
Reform of the labor certification process for permanent and
temporary employment is also desirable. Improvement of this
process should reduce the economic opportunities available to
illegal aliens. If penalties are to be imposed on employers
for hiring illegal aliens, it is particularly important that
they be able to obtain essential alien workers legally.
There are several options for altering the labor certi-
fication requirement. The requirement could be abolished
completely. This would recognize that the INA is geared to
family reunification rather than protection of the labor market,
which is to be protected by quotas. It would further acknowledge
that in a free movement labor force, efforts to channel aliens
into work Americans will not do are not effective and the cost
of trying is far out of proportion with the results.
If the labor certification process is retained, it could
be simplified and expedited. This could be accomplished by
establishing a quota for immigrant workers, perhaps 30,000, to
be issued on a first-come, first-serve basis regardless of occu-
pation, or limited to certain occupations. To protect local
markets where the increased availability of alien labor might
be abused, the number who could be hired by a single employer
could be limited unless the Secretary of Labor made a finding
similar to the one now required.
Another means of simplifying the labor certification process
would be to condition certification for all jobs on area shortages
- 34 -
in particular types of labor, rather than upon case-by-case
determinations of the availability of American workers now
used for non-professionals. The right of a worker to move
anywhere would, however, undermine the efficacy of this
approach. While this right could be restricted, such a limita-
tion might engender a form of indentured servitude we would not
deem tolerable today. Alternatively, determinations by the
Secretary of Labor could be made more discretionary and be
based on national labor market information.
Increased reliance on statistics to determine availability
of American workers, however, would enhance the importance of
the question of whether there are many positions which Americans
are able, but unwilling to fill. The Department of Labor's tacit
assumption that "able" and "willing" are synomous should be
empirically tested. If, as Piore suggests, this is not a valid
assumption, at least in certain areas, devices to compel Ameri-
cans to accept and keep the jobs in question could be refined
or immigration policy could be revised to recognize this.
If reforms are not adopted to expedite the availability
of Western Hemisphere visas and facilitate obtaining labor
certifications from abroad, there are likely to continue to be
many Western Hemisphere natives who have already qualified for
or are exempt from a labor certification working in the United
- 35 -
States illegally while waiting for their visa. Authorizing
them to remain here and work until their visas are issued
would seem to be in the interest of American citizens as
relatives and employers. In addition, it would eliminate
those in transitional status from the ranks of the "illegal
aliens. A corrollary to this would permit Western Hemisphere
natives to adjust their status in the United States, rather
than requiring their return home to do so. H.R. 982, (the
"Rodino bill") provides for these reforms.
Facilitating adjustment of status for temporary immigrants
not authorized to work could provide an added incentive for
aliens to misrepresent their intentions in seeking temporary
visas. Stricter screening and higher standards, including per-
haps requiring a bond, could be used in granting visas for stu-
dents, tourists and others who are not eligible to work. Some
measures in this direction would be desirable because in terms
of efficiency and fairness it is best to deal with a potential
illegal alien before he enters the United States.
D. Labor Certification for Temporary Admission
If alien workers are needed, revisions in the certification
process for temporary employment might be particularly appro-
priate. If this process is to be viable, the need to expedite
decisions is particularly acute. Last year the proposed Senate
version of the Rodino bill, endorsed by the Department of Jus-
- 36 -
tice, would have altered present practice by requiring
action on an employer's request for certification within 60
days generally and 20 days for farm workers.
Furthermore, expanded opportunities for temporary em-
ployment of illegal aliens could be expanded. Piore's theory
that "newcomers" are needed to perform some jobs in urban areas
suggests the possibility of an "urban Bracero program," permitting
the entry of aliens for a fixed period, perhaps several years,
without a prospect for citizenship. To a certain extent, this
would regularize and subject to control what is occurring now.
It is believed that most Latin American immigrants, legal and
illegal, come here only to earn enough money to enable them
to return home and live decently. The fact that legally ad-
mitted Mexicans have the lowest rate of naturalization of any
nationality is evidence of this.
Authorizing the temporary admission of urban workers
would create a pool of "newcomers" while limiting the number
of second generation individuals who are able, but unwilling to
work in jobs held by their parents. However, if this approach
were adopted, many who came "temporarily" might stay unlaw-
fully or develop relationships which would, under current law,
permit them to adjust their status. In addition, their children
born here would be U.S. citizens, a second generation entitled
to live here which might resent their parents status.
- 37 -
Although greater public attention has been focused on
the temporary admission of increased numbers of farm workers,
this question remains particularly difficult because of the
absence of well developed evidence to challenge the presumption
that Americans are available to perform agricultural work under
reasonable conditions and that Americans are adversely affected
by the importation of agricultural labor.
If desirable, however, the admission of temporary farm
workers could be increased unilaterally, by facilitating certi-
fications under the existing provisions, or bilaterally pursuant
to a renewed Bracero program. Under the Bracero program which
operated from 1951 to 1964, up to 500,000 Mexican nationals were
admitted to this country pursuant to agreements between the
United States and Mexico which, among other things, guaranteed
them free transportation, an opportunity to work at least a
specified number of days, free housing meeting certain standards,
insurance and payment of the prevailing wage.
Renewal of the Bracero program is highly valued by Mexico.
The exodus of large numbers of Mexican citizens, their illegal
status in the United States and highly publicized accounts of
exploitation of Mexican nationals in the United States are
offensive to Mexico. Yet the United States is a potential
safety valve for their own problems of unemployment and under-
employment. The question of facilitating temporary emigration
- 38 -
to the United States is often characterized as the principle
Mexican concern in its dealings with the United States
/
A renewed Bracero program could have several favorable
effects. Since it is so desirable to Mexico, it could prove
effective in stimulating improvement of their efforts to
secure the border and discourage unauthorized emigration. It
might also assist INS which believes it was better able to con-
trol the border when the Bracero program was in effect. A re-
newed Bracero program would, to some extent, only legitimate
existing migration, with the favorable effect of making temporary
workers less vulnerable to abuse and improving our ability to
enforce government regulations intended to protect all workers.
Apart from the important question of whether temporary
admission of farm labor is needed, a renewed Bracero program
would have some undesirable effects. It would be viewed, and
could be used, to break emerging farm unions, primarily injuring
struggling minority groups. In addition, there is no assurance
that such a program would significantly reduce illegal entry be-
cause any feasible program would only satisfy a small part of
the demand for work in Mexico. Further, many who come to work
temporarily might develop equities to remain, by marrying U.S.
*/ An interagency task force, chaired by the State Department,
with a counterpart in Mexico, was established last year, to work
on this and associated issues. James Greene and Leon Ulman of OLC
represent the Department of Justice on the Committee. To date
it has done relatively little, but this committee should be con-
solidated or closely coordinated with the Domestic Council Com-
mittee on Illegal Aliens.
GERALD FORD
- 39 -
citizens or having children, resulting in an increased pool
of unskilled labor. Finally, it must be questioned whether, in
a rural or urban context, what has been characterized as a form
of "coolie labor" is appropriate in this country today.
E. Refugees
The provisions of the INA concerning admission of refugees
could be revised to reduce the need to rely on the parole author-
ity and to legitimate the use of that authority in appropriate
cases. The former could be accomplished by extending the prefer-
ence for Eastern Hemisphere refugees to Western Hemisphere natives
as well. In addition, the requirement that refugees be flee-
ing a Communist or Middle Eastern nation could be eliminated to
provide for those, like the Chilean refugees, who present com-
pelling cases which do not meet current criteria.
In any event, it is desirable to retain the speed and
flexibility for dealing with emergencies and extraordinary
cases afforded by the parole provision. Parole for classes does
alter the level of immigration anticipated by Congress and it
is appropriate, as well as politically necessary, to consult
Congress when admission of a class of refugees is being con-
sidered. This process could be legitimized by legislation
defining consultation and removing doubt about situations in which
it required, including emergency exceptions to the requirements.
DERALO FORD LIBRAGO
- 40 -
Reducing the Economic Incentive for Illegal Aliens
A. The Rodino Bill
As the primary incentive for illegal immigration is
economic, it is desirable to reduce economic opportunities
available to illegal aliens. If potential illegal aliens are
discouraged from seeking entry to the United States, the expense
of enforcement and the perceived need to adopt offensive means
of apprehending them should be reduced.
The Rodino bill seeks to reduce economic opportunity for
illegal aliens by prohibiting the knowing employment of them.
Piore suggests, however, that the Rodino bill could promote
rather than prevent illegal immigration and create a large
"underground" labor market. He feels that although there is
now an underground market in transport of alien labor, the exist-
ing penalties on employers for paying illegal aliens less than
the minimum wage or evading payment of social security and in-
come taxes impels most of them to employ illegal aliens on
minimally acceptable terms. Piore believes that if employers
are also penalized for employing illegal aliens, the balance
of risk will shift. In his view, they will continue to hire
illegal aliens and, having violated one law, violate the other
applicable statutes.
Piore believes that the Rodino bill would generate an under-
ground labor market which would be larger than the current labor
- 41 -
market because the legislative and social sanctions, which
create a floor on conditions in the secondary sector, will be
removed. In his view, the possibility of paying bargain wages
and producing goods and services cheaply will swell the demand
for underground labor in the secondary market.
However, as indicated earlier, if the availability of
authorized alien labor is increased, the legitimate economic
incentive for an employer to hire an illegal alien should be re-
duced, altering Piore's equation and perhaps changing his con-
clusion. In any event, the Rodino bill in its present form
reflects many compromises designed to promote voluntary com-
pliance with its prohibition. It eschews certain measures which
would make it more enforceable, but also more onerous for employers
and intrusive for job applicants.
The Rodino bill would not require an employer to ask an
applicant if he is a U.S. citizen or alien authorized to work
and the unknowing employment of an illegal alien would not be a
violation. Some have suggested that if the Rodino bill is to
be effective, each applicant should be required to show proof
of citizenship or eligibility to work when applying for a job.
They note that Social Security cards are now available only to
citizens and aliens eligible to work and that satisfying the
proposed requirement would eventually be no more burdnesome than
displaying a Social Security card. This proposal, however, has
FORD LIBRAND
- 42 -
received little support because of a reluctance to impose
an affirmative duty on employers or to take another step to-
ward what might become a domestic passport system.
The Rodino bill has been criticized on several other,
related grounds. Some fear that a prohibition on the knowing
employment of illegal aliens would abet job discrimination
against Spanish speaking or surnamed citizens or aliens eligible
to work by employers who do not want to run the risk of hiring
an illegal alien. There is concern that the Civil Rights stat-
utes prohibiting such discrimination are not adequate protection.
Others claim that the prohibition would unfairly expose employers
who inadvertently hire illegal aliens to prosecution.
The Rodino bill as passed by the House of Representatives
last year addressed these concerns. It provided that an em-
ployer would not be deemed to have violated the prohibition
if he had made a bona fide inquiry to determine whether an
applicant was a citizen or alien entitled to work. Obtaining
a signed statement from the applicant would have constituted
a prima facie case of a bona fide inquiry.
This provision was criticized, however, for conflicting
reasons. Some believed that it would itself promote discrimina-
tion since only Spanish speaking or surnamed individuals were
likely to be asked to submit a statement. Others suggested
CERALD FORD
- 43 -
that the provision would complicate enforcement without pro-
viding added protection because an alien in the United States
unlawfully would not hesitate to sign a false statement re-
garding his eligibility to work.
In response to this criticism, the House Judiciary Com-
mittee has deleted this provision from the version of the Rodino
bill it will soon report. The Committee expects the deletion
will improve the enforceability of the bill. To deal with the
problem of discrimination, however, the Committee has added a
provision which authorizes the Attorney General to seek an in-
junction against employers who are believed to have refused to
hire applicants because of their national origin. The Depart-
ment of Justice did not express a view on this provision, which
would be inconsistent with the recent transfer of related
authority from the Department to the Equal Employment Oppor-
tunity Commission.
The Rodino bill contains a 3-step penalty structure de-
signed to deal mildly with first offenders and to reduce the
incentive for discrimination which would exist if criminal penal-
ties were applied to them. A citation would be issued for a
first offense. A second violation within two years would per-
mit a civil fine of up to $300 for each alien illegally em-
ployed. Any subsequent violation would expose the offender to
a criminal conviction with a maximum punishment of a $1000 fine
and one year imprisonment for each alien illegally employed.
- 44 -
An alternative or complementary remedy for the know-
ing employment of illegal aliens would be a private right of
action for injunctive or monetary relief by domestic workers
and employers who are allegedly injured by competition from
illegal alien labor. The private right of action could com-
pensate for any lack of governmental resources or interest in
enforcing the new prohibition. However, such a right of action
might be susceptible to abuse, particularly by labor organiza-
tions. It also could, in certain areas, impose a significant
added burden to already crowded courts. In addition, to the
extent that illegal aliens would be needed as witnesses in
either a civil or criminal case, problems of prolonged custody
or supervision, detrimental to the alien, would arise.
It has been proposed that the prohibition against the
knowing employment of illegal aliens not apply to employment
in domestic service in a household in which one or two persons
are employed; other areas which might be exempt could also be
identified. This proposal reflects the belief that Americans
who may be able to perform domestic services, or certain other
jobs, are generally unwilling to do so, that the existing labor
certification process is not adequate, and that the federal gov-
ernment should direct its enforcement resources toward employers
FORD & 07V839 LIBRARY
- 46 -
in an INA detention center, with attendant cost to the govern-
ment and hardship to the alien.
Similarly, efforts could be made to recover welfare pay-
ments from those illegal aliens who have received them. How-
ever, HEW believes limited amounts of money are involved, only
about $16 million annually. Thus, the reservations expressed
concerning collection of taxes also apply to recovery of wel-
fare payments.
It has been suggested that economic penalties be imposed
on illegal aliens who are apprehended in order to punish them
and deter others. Such penalties could include civil fines
and confiscation of vehicles or other property. However, the
procedures which due process probably requires could make im-
position of such penalties a time-consuming process. In addi-
tion, the fairness of applying harsh economic penalties to those
whose crime might be characterized as seeking to work is question-
able.
Another means by which the United States may discourage
illegal immigration is the promotion of economic development in
Mexico and other nations from which illegal immigrants come.
Mexico is now engaged in a number of population control and
economic development projects. U.S. assistance in these efforts
is not simply altruism, but recognition of our interdependence.
Support for such projects could receive higher priority in our
foreign policy.
- 47 -
C. Enforcement
Any efforts to reduce the economic incentive for illegal
immigration must continue to be complemented by efforts to en-
force the law. The major thrust of INS' effort has been to try
to apprehend at or near the border those attempting illegal
entry. This seems to be the easiest and most efficient way to
identify and apprehend aliens, achieving maximum deterrence
while minimizing the adverse impact on Americans and authorized
aliens because the better settled an illegal alien is, the more
intrusive the means which may be necessary to identify him or one
who might be mistaken for him. The number of illegal aliens
apprehended in border areas in each year has risen with the
increase in the resources devoted to this effort. INS received
for the present fiscal year 750 new positions and an increase
of almost $30 million for apprehending and removing illegal
aliens. It is likely that continued increased border re-
sources would prove a good investment. However, INS has also
identified many illegal aliens in urban areas, but does not
have the manpower to apprehend them. Additional resources in
these areas could also be effectively utilized.
Increased efforts by the Mexican government to secure the
border would also be highly desirable. Preventing illegal immi-
gration from the Mexican side of the border would diminish the
opportunity for exploitation of illegal aliens in the United
- 48 -
States and the possibility that enforcement efforts here
would constitute harassment of Spanish speaking Americans.
U.S. efforts to encourage a foreign country to restrict emi-
gration may seem anomalous, but more effective efforts by
Mexico would be of assistance to the United States.
Amnesty
Improved operation and enforcement of the immigration
laws will still leave a question of what to do with the many
illegal aliens who have been in the United States for pro-
longed periods. The relevant existing provisions seem inade-
quate to deal with this problem efficiently and humanely.
It has been suggested that a general amnesty be declared
for all aliens unlawfully in this country. There are, however,
compelling objections to this approach. Such an amnesty would
reward those who entered illegally, encouraging others to do
the same with the expectation that amnesty will again be granted
in the future.
However, it is desirable to have a fair and efficient means
of assisting those with compelling reasons for remaining in the
United States and to relieve the anxiety of those who have been
here a long time. The present version of the Rodino bill pro-
vides for adjustment of status for all illegal immigrants here
continuously since 1968 who are closely related to an American
- 49 -
citizen or permanent resident alien and who apply for such
an adjustment within one year. INS estimates that 265,000
people would be eligible under this provision.
While the 1968 date is necessarily arbitrary, it does
not seem inappropriate. This provision would assist many of
those who came here before the United States gave high priority
to apprehending illegal aliens. However, it might be prefer-
able to place a statute of limitations on unlawful entry, keep-
ing the possibility of adjustment of status in the future open
to those who entered the United States after 1968. Such a
provision might, however, offer a greater incentive for illegal
immigration than the fixed date approach.
The provision now in the Rodino bill continues the re-
quirement that an illegal alien seeking adjustment of status
have a close relationship with a U.S. citizen or permanent resi-
dent alien. This requirement would exclude some illegal aliens
with compelling equities to support their desire to remain here
and might be eliminated for this reason.
OF
UNITED STATES DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
OFFICE OF
POLICY AND PLANNING
March 23, 1976
MEMORANDUM
To:
Domestic Council Committee on Illegal Aliens
From:
Doris M. Meissne MEXECUTIVE Director
Domestic Council Committee on Illegal Aliens
Subj:
Steering Committee Meeting Minutes,
March 4, 1976
Attached please find minutes from the Domestic
Council Committee on Illegal Aliens Steering Committee
meeting of March 4, 1976 and work outline for each
task force which were reviewed and adopted at that
meeting.
Attachments
3 REVOLUTION
1778-1978
DOMESTIC COUNCIL COMMITTEE ON ILLEGAL ALIENS
STEERING COMMITTEE MEETING
March 4, 1976
Attendees:
Edward H. Levi, Chairman
Sam Bernsen, INS
Leonard F. Chapman, INS
Barry Chiswick, CEA and Technical
Adviser to Steering Committee
John Dreyfuss, State
Ronald Gainer, DOJ
Ira Goldstein, HEW
James F. Greene, INS
Edward Guss, INS
Fred Kahn, DOL
Norbert Krieg, State
Doris Meissner, DOJ
John Nahan, INS
Richard Parsons, Domestic Council
James Purcell, OMB
Dennis Roth, DOL
Victor Vazquez, HEW
Abraham Weiss, DOL
Michael Wenk, DOJ
Mark Wolf, DOJ
Each of the five task forces established at the
January 21, 1976 meeting of the full committee reported
its progress and future agenda.
For the Immigration Law and Policy Task Force, General
Chapman, chairman, reported that the work of the task force
would proceed in two phases: the first, to be completed in
March, will recount the history and basis of our present
law and will assess its impact; the second will be an
attempt to articulate what our law ought to be and will
be based on the findings of the other task forces. It will
consider the full range of options from no immigration to
unrestricted immigration.
Because the other task forces may not report with
sufficient information or time prior to the June 1 reporting
date, Attorney General Levi urged the Immigration task force
to develop some assumptions of what the impact of illegal
aliens might be in order to analyze possible policy
alternatives.
1 1 2
Abraham Weiss, chairman of the Economic and Labor
Market Impact Task Force, reported that his group had
developed a broad outline of questions that need to be
answered before any definitive statements about illegal
alien impacts can be made. The basic data needs on illegals
will be supplied by a census-type study which will be funded
by INS but is not yet underway. Mr. Weiss offered the
technical services of his staff to INS in structuring the
study.
The main interest of the Economics task force is in
labor-related questions. It will assess experience with
the worker certification and farm labor contractor programs
and offer modifications as necessary. It sees the June
report as a status report outlining the state of the art
and does not believe any definitive information can be
available by that time. Census and related data on the
foreign born were suggested as useful sources of information
for comparison group analysis to further the work of this
task force.
The Economics task force suggested inviting a resource
group of experts to meet with all task forces and lend
assistance with the difficulties of learning about illegals.
Mr. Levi cautioned against the danger of not giving equal
opportunity for interested parties to be heard. It was
agreed that individual meetings of task forces with
select researchers and academics were appropriate but
should not create high visibility or be accompanied by
circulation of task force papers.
Victor Vazquez, chairman of the Social and Community
Impact Task Force, reported that his group would produce
a descriptive portrait of the social impact of illegals
to be based on statistics where possible. They will also
outline perceptions of illegals and propose research
which would serve to validate or disprove these perceptions.
Both the Economics and Social task forces propose to
consider social services programs in their work. The
former will take a cost-benefit approach and the latter
will look at program use and impact.
For the Enforcement task force, James Greene, chairman,
explained that his group will report on four areas: (1) how
to enforce current authorities more effectively; (2) law
enforcement priorities; (3) necessary legislation; and
(4) disincentive measures to decrease the flow of illegals.
Conclusions from other task forces should affect the work
product of the Enforcement group and will be incorporated
when they become available.
1 1 w
John Dreyfuss, State, reported for the Foreign
Relations Task Force in the absence of William Luers,
chairman. This task force will meet in April with
government of Mexico officials. The U.S. wishes to
convey to Mexico our belief that the illegal alien issue
is a serious one and that the status quo may change.
In addition to the Mexico meeting this task force will
develop information for the June 1 report on international
migration push-pull forces and foreign policy aspects of
changes in immigration policy.
The remainder of the meeting was devoted to a discussion
of (a) the proposed INS census survey on the numbers,
characteristics and flows of illegal aliens in the U.S.
and (b) a recent Supreme Court decision, DeCanas V. Bica,
February 25, 1976, which upheld California's right to
pass a state law regulating the employment of illegal
workers but remanded the statute in question to the
California courts for a ruling on whether or not it
conflicts with federal immigration laws.
Respectfully submitted,
Doris Merisaes Doris M. Meissner
Executive Director
Domestic Council Committee
on Illegal Aliens
Domestic Council Committee
Steering Committee Meeting
March 4, 1976
Agenda
A. Opening remarks
B. Reports on work of task forces
1. - Immigration Law and Policy - INS, Gen. Chapman
- Economic and Labor Market Impact - DOL,
Abraham Weiss
- Social and Community Impact - HEW, Wm. Morrill
- Enforcement - INS, James Greene
- Foreign Relations - State, Wm. Luers
2.
Clarify areas of overlap; identify issues overlooked
C. Information and data needs
1.
Presentation of INS research plans - Edward Guss,
Director, Office of Planning and Evaluation, INS
2.
Additional data needs; how to meet them
D. June report
E. DeCanas V. Bica - February 25, 1976 Supreme Court
decision - Sam Bernsen, General Counsel, INS
F. Other
IMMIGRATION LAW AND POLICY TASK FORCE
Work Outline
1. Brief historical run-down on U.S. immigration. (For INS)
A. Early laws.
B. Who came (nationalities, workers, relatives) when
and why?
2. Theoretical premises of 1965 amendments of Immigration
and Nationality Act. (For State)
A. Exclusion of undesirables and unneeded workers.
B. Numerical limitation on immigration with preferences
for relatives, workers and refugees.
C. Control of non-immigrants.
3. Impact of the 1965 amendments and their administration.
A. Who came since 1965? (For INS)
1. Immigrants
2. Non-immigrants.
3. Illegal aliens and workers.
B. Who wants to come? (For State)
1. Documented demand
2. "Invisible" demand factors
C. How are we administering the present law. (For State,
INS and DOL).
4. Relevant immigration policies of other countries.
A. Canadian and Australian immigration systems. (For State)
B. Western Europe's guest worker system. (For DOL)
5. Conclusions and recommendations including options for
revising basic immigration system and administration --
to be considered later.
DOMESTIC COUNCIL COMMITTEE ON ILLEGAL ALIENS
Economic and Labor Market Impact Task Force
Work Outline
The initial charge to the task force was to analyze
the economic impact of illegal aliens from two vantage
points: (a) the labor-market economic sector and geograph-
ical distribution of illegal workers, their behavior and
movement in the labor market, and their effects on native
workers; and (b) the fiscal effect of illegal aliens on
public expenditures, tax revenues and the balance of payments.
(Organization Plan adopted January 21, 1976)
In view of time and staff constraints, it has been
agreed by the chair and the Executive Director of the
committee that this task force would outline the state of
the art within the purview of the task force and propose a
plan to find some solutions to any knowledge gap deemed
critical in determining the economic impact of illegal aliens.
Below is the work outline for this task force:
1. Demographic Profile (Basic data collection-INS)
a) Definition: distinction between nonimmigrants
who overstay, those who enter illegally, and
nonimmigrants who engage in work.
b) Description: Size, composition, marital status,
sex, age, education level, place of origin,
current location, and length of stay.
- 2 -
c) Labor market status: earnings, industry,
occupation.
d) Economic objectives of illegal aliens (acquisition
of low-skill, labor occupation and/or higher
status?)
e) Is illegal immigration largely a rural phenomenon,
an urban phenomenon, or both?
f) Frequency of illegal entry in a year. Any
previous apprehensions? If so, this year? other
years? Frequency of apprehensions.
2. Labor Market
a) What is the extent of jobs held by illegals at
the expense of those which citizens and legal
immigrants would otherwise fill (displacement
effect) ?
b) What is estimated cost of displacement in lost
earnings to American workers and what is increase
in tax burden as the result of such displacement
(unemployment compensation, welfare, etc.) ?
c) How do wages paid illegals, by industry and
occupation, compare with average wages paid for
comparable jobs in the labor market area?
d) If citizens and/or legal aliens spurn jobs held
by illegals, are illegals filling appropriate
labor market function and enabling marginal firms
to continue to operate? (In absence of illegal
- 3 -
alien labor supply, would firms redesign pro-
duction function in direction of more capital
intensive operation?)
e) Are lower wages paid illegals reflected in lower
prices and hence possibly offsetting disemployment
of American workers (in broad economic terms) ?
f) Proportion of total working population accounted
for by illegals.
g) What is the extent of substandard wages and
working conditions encountered by illegal aliens
and who are the most frequent offenders?
h) Dynamics of occupation and geographical movement.
i) Projections for the future.
3. Balance of Payment/International Income Transfer
If in work status, do illegal aliens send part of
savings to country of origin?
a) If so, approximate amount per year?
b) What is aggregate amount of money sent outside
U.S. by illegals?
c) What is percent of money sent by illegals to total
balance of payments status for that year?
- 4 -
d) What is percent of money sent out to other countries
by citizens and legal aliens?
e) What is percent of money sent out to other countries
by Federal agencies e.g., social security payments?
f) What is effect of such outflow on economies of
foreign countries? (e.g. is this a form of informal
foreign aid?)
g) What is effect of such outflow on U.S. economy?
4. Are wages paid to illegal aliens subjected to
either Federal or State taxation procedures? What
is extent of tax evasion?
5. Critique of current labor certification and FLCRA
programs (DOL programs)
a) Effectiveness
b) Cost
c) Labor market impact
d) Court cases
e) Desired legislative changes in program
6. Economic implications of enforcement costs (apprehension,
detention, deportation) 1/
7. Domestic and foreign experience with guest and/or
imported labor and/or illegals.
1/ The data will be collected by the Enforcement Task Force.
However, the economic analysis will be performed by this
task force.
FK/pml 3/2/76
3-1-76
DOMESTIC COUNCIL COMMITTEE ON ILLEGAL ALIENS
Social and Community Impact Task Force
The Social and Community Impact Task Force in its first meeting
held on March 1, 1976 discussed the issues and problems
its
surrounding these issues and decided to approach
goal
through
the following activities:
1. Develop a review of the literature to determine what
information is available which bears on the problem
and how it can be used to address the social and
community perspectives.
2.
Develop and assessment of descriptive data on ethnic
communities which can be used in determining extent
of use of domestic programs and services by illegal
entrants. The task force anticipates developing a
rationale which would permit generalization to the
illegal alien segment from the descriptive portrait
developed for the like domestic minority community.
3. Examine the effects of enforcement activities on
the domestic minority communities to determine what
their impact is on the social activities of these
communities and their illegal alien members.
4. Assess the social impact of current and proposed
immigration policies on the domestic minority
communities, as well as upon the broader domestic
scene.
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5. Identify data gaps and develop research ideas which
can be presented to the Domestic Council Committee
on Illegal Aliens with recommendations for further
development and eventual funding.
In general, the Task Force was painfully aware not only of the
lack of data on social impact issues, but also of the apparent lack
of mechanisms for obtaining this information. The members felt that
ways for obtaining the needed information would
have to be found and that some empirical data base would have to be
developed before any meaningful discussion of the issues could be held.
It was with this perspective in mind that the Task Force identified
the following activities to be completed prior to their next meeting
scheduled for March 15, 1976:
1. develop and circulate a "mini" review of the available
literature
2. circulate copies of key studies to Task Force members
an
3. prepare outline of data available which may be useful in
developing a descriptive profile of minority communities
for use in assessing utilization of programs and services
by their illegal alien status members. (Bureau of the Census)
4. develop for presentation at next meeting an outline of
available program data which may be useful in determining
extent of service delivery to illegal aliens. (each member agency)
Enforcement Task Force
I. History of Immigration Enforcement
A.
Traditional U.S./Mexico Border problem
1.
Past experience with importation of Mexican
workers
2.
Concept of an "open" border policy.
B.
Public's increasing sensitivity to immigration
enforcement during difficult economic periods
C.
Illegal alien problems defined to some extent
by allocation of resources
1.
Geographical deployment of resources
2.
Inherent nature of system geared to keeping
persons out -- ill equipped to deal with persons
once they are here
D.
Court decisions
1.
Individual aliens rights
2.
Impact on enforcement techniques
II. Present Enforcement System
A.
Department of Justice: Immigration and Naturalization
Service
1.
Basic authorities
2.
Enforcement techniques
3.
Resources
4.
Priority of programs
B.
Department of State: Bureau of Security and
Consular Affairs
1.
Basic authorities
2.
Screening mechanisms
3.
Resources
4.
Priority of function
2
C. Indirect Involvement
1. Department of Labor
2. Department of Treasury (Customs and IRS)
3. State and local law enforcement
III. Further Interagency Cooperation
A. Test case: 1972 Social Security Act Amendments
1. Administrative difficulties
2. Extent of INS/SSC cooperation
3. What has been the impact?
4. What experience tells us about future
interagency cooperation efforts
B. Administrative improvements in INS/Visa Office
cooperation
1. Greater exchange of currency
2. Additional information needed
3. Pilot programs
C. Department of Labor
1. Laws that affect illegal aliens
2. Extent of current enforcement
3. Pilot programs
D. IRS
1. Studies
2. Experience of pilot projects
3
IV. Dilemmas for Future Enforcement
A. The relative priority assigned to immigration
enforcement within total criminal justice system
1. Ratio of immigration violations to prosecution
as compared to other violations
2. Incompatibility of system for immigration
enforcement, e.g., U.S. Attorney's policy
and penal system
B. Inadequacy of System's Controls
1. Fradulent documentation and problems of
identification
2. Lack of departure controls
3. Records keeping
C. What level of compliance are we aiming for?
V.
Disincentives
A. Aimed at individual
1. Deprive from economic benefits
2. Deprive from benefits under ITNACT
3. Increased sanctions
B. Aimed at employer
1. Sanctions, e.g., criminal and civil
2. Eliminate tax benefits
c. Narrow benefits that can be obtained
1. Develop consistent federal guidelines
2. Work to insure consistency of state and
local regulations
4
D. Other
1. Harsher punishment for smuggling
2. Greater restrictions on travel and stay.
Foreign Relations Task Force
Work Outline
I.
Meeting with Mexican government officials -- scheduled
for early April
Agenda
A.
Overview of problem of undocumented aliens -
advance exchange of papers
B.
Exchange of basic research documents and information
c.
Legislation
1.
Review of current and proposed U.S. and Mexico
legislation dealing with undocumented migration
2.
Review of obligations and commitments assumed
by each country in the light of international
law and opinions rendered by international
bodies.
D.
Suggestions for ameliorating the problem of the
migratory flow of Mexican laborers to the U.S.
E.
International coordination or cooperative measures
which might result in slowing the flow.
F.
Proposals for regularizing the status of undocumented
Mexicans in the U.S.
G.
Protection of undocumented migratory workers in U.S.
II. Migration causal factors
A.
Push forces: Unavailability of economic opportunity
-- rural to urban migration -- political oppression --
uneven economic development -- population pressures
B.
Pull forces: International economic disparity --
U.S. demand for cheap labor -- cultural and family
ties -- lack of penalties.
III. Major illegal alien sending countries
A.
Identify characteristics
B.
Analysis of U.S.-sending country relations
IV. Foreign policy implications of changes in U.S. immigration
policy or illegal alien constraints
- 2 -
V. Competing foreign policy actions
A. Foreign student and foreign visitor travel policies
B. Foreign aid priorities
3