It is time to try a different approach to comprehensive immigration reform


The Senate has passed two major immigration reform bills, and a republican majority in the House of Representatives has rejected both of them. On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act of 2006, S. 2611,[i] with a vote of 62 yeas and 36 nays. Although the bill was bipartisan, it was opposed by 58% of the senate republicans. This cast doubt on the reception S. 2611 would get from the republican majority in the House. Only 23 republican senators voted for it; the other 32 republicans and four democrats voted against it.[ii] This is a record of the roll call votes on S. 2611:

The House republicans reacted with a series of hearings on the problems they thought S. 2611 would create. For instance, on July 27, 2006, the House Subcommittee on Immigration, Border Security, and Claims held a hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare.” Among other negative remarks in his opening statement, Subcommittee Chair John Hostettler pointed out that, “In the Reid-Kennedy bill, the Senate proposes to replace our current rational immigration process with a scheme to allow an unknown number of additional aliens who came here illegally to stay forever.”[iii]

On June 27, 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, with 68 yeas and 32 nays. Although it was written by a bipartisan group of eight senators known as the “Gang of Eight,” it was opposed by 70% of the senate republicans. Only fourteen of the republicans voted for the bill; the other 32 voted against it.[iv] This was substantially worse than the Senate republican reaction to S. 2611 in 2006. It was a clear indication that S. 744 would not have a good reception from the republican majority in the House.

House Judiciary Chairman Bob Goodlatte (R-VA), made the following remarks in a press release when S. 744 was passed:

While I congratulate the Senate for working hard to produce immigration reform legislation, I have many concerns about its bill. The bill repeats many of the same mistakes made in the 1986 immigration law, which got us into this mess in the first place. Among my many concerns, the Senate bill does not adequately address the interior enforcement of our immigration laws and allows the Executive Branch to waive many, if not most, of the bill’s requirements.[v]

The 1986 immigration law Chairman Goodlatte was referring to is the Immigration Reform and Control Act of 1986 (IRCA), S. 1200, which established a legalization program that was used to grant lawful status to millions of undocumented aliens.[vi] IRCA was a bipartisan bill to a much greater extent than the two Senate bills discussed above. It was introduced by a republican senator, Alan K. Simpson,[vii] and signed into law by Ronald Reagan, a republican president.[viii] According to the statement President Reagan made at the signing ceremony, IRCA was --

The product of one of the longest and most difficult legislative undertakings of recent memory. It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.[ix]

Despite IRCA’s strong enforcement provisions, the 2.7 million people who were legalized under its provisions in the late 1980s and early 1990s were replaced entirely by a new group of undocumented aliens by the beginning of 1997.[x] The strongest provision, the employer sanctions, was not implemented, and the border was not secured. In fact, the sanctions still are not being enforced on a large-scale, nationwide basis, and the border still is not secure. In other words, the democrats got their legalization program, and the enforcement provisions the republicans expected in return have never materialized. Chairman Goodlatte addressed this and other IRCA issues at a Judiciary Committee hearing on May 22, 2013, on, “S.744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?”[xi]

Notwithstanding Chairman Goodlatte’s complaints about the fact that the IRCA enforcement and border security provisions were not implemented, IRCA shows what the republicans and the democrats can achieve when they work together on comprehensive immigration reform, and the mistakes that caused the failure to implement the enforcement provisions are well understood now. They do not have to be repeated. For more of my views on this topic, see the article I wrote for LexisNexis entitled, “What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform?”[xii]

How was IRCA different from the Comprehensive Immigration Reform Act of 2006 and the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013?

In an article that appeared in the Washington Post, IRCA cosponsors Representative Romano L. Mazzoli (D-KY) and Senator Simpson explain that IRCA was developed with assistance from the bipartisan Commission on Immigration Reform and unprecedented joint House-Senate hearings — not just in Washington but also all over the country. We heard from all sides and considered all points of view. We concluded that if immigration reform was to work and be fair it had to be a "three-legged stool." Leg one was intended to improve border security to prevent illegal crossings at the border with Mexico; and, to improve the effectiveness of interior enforcement of the immigration laws, we established penalties for employers who knowingly hire undocumented alien employees. Leg two was an H-2A temporary worker program for agricultural workers,[xiii] which included wage and workplace protections to prevent it from becoming another exploitative Bracero Program.[xiv] Leg three was a legalization program to permit some, but not all, of the undocumented aliens already living and working in the United States to regularize their unlawful status and begin a lengthy process to earn temporary residency and, if they chose to continue, to earn permanent residency and citizenship.[xv]

Summary of IRCA’s provisions.

Title I: Control of Illegal Immigration

Employment. Makes it unlawful to hire, recruit, continue to employ, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work; or to continue to employ an alien knowing of such person's unauthorized work status.

Establishes an employment verification system. Requires the employer to attest, on a form developed by the Attorney General, that the employee's work status has been verified by examination of certain types of documentation. Requires the worker to similarly attest that he is a U.S. citizen or national, or an authorized alien.

Limited Enforcement Use of Employment Authorization documents. The verification system or any required identification document can be used only to enforce the IRCA and 18 U.S.C. §§ 1001, 1028, 1546, and 1621.

National Identification Card. Nothing in this Act shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards.

Preemption. The employer sanction provisions preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

Discrimination. It is an unfair immigration-related employment practice for an employer of three or more persons to discriminate against any individual (other than an unauthorized alien) with respect to hiring, recruitment, firing, or referral for fee, because of such individual's origin or citizenship status. It is not an unfair immigration-related employment practice to hire a U.S. citizen or national over an equally qualified alien.

Essential Elements. Increased enforcement and administrative activities of the Border Patrol, the INS, and other appropriate federal agencies are essential.

Vigorous Enforcement. Expresses the sense of the Congress that the immigration laws of the United States should be vigorously enforced, while taking care to protect the rights and safety of U.S. citizens and aliens.

Title II: Legalization

Undocumented Aliens Who Entered Before 1982. Temporary Resident Status.

Provides temporary resident status for aliens who establish that they entered the United States before January 1, 1982, have resided here continuously in an unlawful status since then, and are otherwise admissible. Prohibits the legalization of persons convicted of a felony or three or more misdemeanors in the United States, or who have taken part in persecution.

Undocumented Aliens Who Entered Before 1982. Adjustment to Permanent Resident Status. Provides for adjusting the status of temporary resident aliens to permanent residents if they apply during the one-year period beginning with the nineteenth month following the grant of temporary resident status; have established continuous residence in the United States since the grant of temporary resident status; are otherwise admissible; and have not been convicted of a felony or three or more misdemeanors committed in the United States.

Criminal Sanctions for False Statements on Applications. Establishes criminal penalties for false statements on an application.

Waivers. Waives numerical limitations, labor certification, and specified entry violations for legalization applicants. Permits the waiver of other grounds for exclusion (except criminal, most drug-related, and security grounds) to assure family unity or when otherwise in the national interest.

Ineligible for Federal Financial Assistance Programs. Makes legalized aliens (other than Cuban/Haitian entrants) ineligible for federal financial assistance, Medicaid (with certain exceptions), and food stamps for five years following a grant of temporary resident status and another five years following a grant of permanent resident status (permits aid to the aged, blind, or disabled).

Legalization for Cuban and Haitian Entrants. Establishes procedures for the adjustment to permanent resident status for certain Cuban and Haitian entrants who arrived in the United States before 1982.

Legalization for Undocumented Aliens Who Entered Before 1972. Updates the registry provision from June 30, 1948, to January 1, 1972, to provide LPR status for qualified applicants who entered the United States before January 1, 1972.12

Title III: Reform of Legal Immigration

H-2A Visa (Temporary Agricultural Workers). Separates temporary agricultural labor from other temporary labor for purposes of nonimmigrant (H-2 visa) worker provisions. Requires an employer filing an H-2A visa petition to certify that there are not enough local U.S. workers for the job and that similarly employed U.S. workers' wages and working conditions will not be affected adversely. Prohibits approval of that petition if the job is open because of a strike or lockout; if the employer has violated temporary worker admissions terms; or if the employer has not made appropriate regional recruitment efforts.

Legalization for Agricultural Workers. Establishes a special agricultural worker adjustment program. Provides permanent resident status for aliens who apply during a specified period; have performed at least ninety man-days of seasonal agricultural work during the twelve-month period ending May 1, 1986; and are admissible as immigrants.

Waivers for Agricultural Workers. Permits waiver of exclusion grounds (except for specified grounds) for humanitarian or family purposes, or when in the national interest.

Visa Waiver Pilot Program. Authorizes a three-year pilot visa waiver program (since expanded and made permanent).[xvi]

The path forward.

I can sympathize with the democrats who still support S. 744, but that bill was opposed by 70% of the republicans in the Senate, and the House is controlled by a republican majority that clearly has no interest in moving it through the legislative process in the House -- or in putting it on the floor directly for a vote. This situation does not offer many promising alternatives. One possibility would be to wait for a future in which the democrats have majorities in the Senate and the House and a president in the White House, but that could be a very long wait. Another is to wait for the House republicans to pass an immigration reform bill and try to persuade them to agree to a conference on the House bill and S. 744, but there is little, if any, reason to expect the House republicans to agree to such a conference. On the other hand, the House republicans probably would agree to an informal, off-the-record conference with the Senate to discuss a new bill that could meet the political needs of both parties, particularly if the Senate indicates a willingness to put S. 744 aside if the meetings are fruitful. The main challenge would be to find a way to address the republican fear of giving the democrats another legalization program in return for enforcement measures that will not materialize this time either.

[i] The Comprehensive Immigration Reform Act of 2006, S.2611.

[ii] U.S. Senate Roll Call Votes 109th Congress - 2nd Session (May 25, 2006).

[iii] House Subcommittee on Immigration, Border Security, and Claims hearing on, “Whether the attempted implementation of the Reid-Kennedy Immigration bill will result in an administrative and national security nightmare” (July 27, 2006).

[iv] U.S. Senate Roll Call Votes 113th Congress - 1st Session (June 27, 2013).

[v] Chairman Goodlatte statement on passage of Senate immigration bill (June 27, 2013).

[vi] The Immigration Reform and Control Act of 1986.

[vii] Senator Alan K. Simpson.

[viii] President Ronald Reagan (1981-1989).

[ix] President Ronald Reagan’s Statement on Signing the Immigration Reform and Control Act of 1986 is available at

[x] Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 (January 2003).

[xi] Committee on the Judiciary, Hearing on, “S.744 and the Immigration Reform and Control Act of 1986: Lessons learned or mistakes repeated?” (May 22, 2013).

[xii] For more information on IRCA, see Nolan Rappaport, “What is IRCA, and What Does It Have To Do with Comprehensive Immigration Reform?” (Feb. 8, 2013).

[xiii] H-2A Temporary Agricultural Workers.

[xiv] The Bracero Program.

[xv] Romano L. Mazzoli and Alan K. Simpson, “Enacting Immigration Reform, Again” (Sept. 15, 2006).

[xvi] Taken from Congressional Research Service summary.


This post originally appeared on ... Reprinted with permission.

About The Author

Nolan Rappaport

Nolan Rappaport was an immigration counsel on the House Judiciary Committee for seven years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration, and he has spent time in private practice at Steptoe & Johnson. He is retired now, but he welcomes temporary and part time work.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.