During February, 2021, the new Biden Administration announced that it would begin to address the broken immigration system. The immediate response from advocates was to wonder aloud whether this time the nation might see a comprehensive approach to immigration. The last time anything close to a comprehensive approach was adopted occurred during the Reagan Administration (1981 to 1989). Thirty years later, we still see no realistic possibility of any major policy shift in immigration laws. The reason: there is no national political constituency with influence across both political parties. At best, one can expect that beneficiaries of the Deferred Action for Childhood Arrivals (DACA) may see a road to citizenship.
It is worth revisiting the history of the last major comprehensive immigration reform. In the Winter of 1983, Wyoming Republican Senator Alan K. Simpson and Kentucky Democratic congressman Romano L. Mazzoli sponsored a bill, many provisions of which would eventually be adopted as part of the Immigration Reform and Control Act of 1986.
The following note, published in 1983, outlines the nation’s immigration policy which predated Senators Simpson and Mazzoli’s Bill and its provisions.
Reprinted from Texas International Law Journal, Spring 1983, Vol. 18, No. 2 The Simpson-Mazzoli Bill: Altering the Policy of Neglect of Undocumented Immigration from South of the Border:
Although Congress defeated the Immigration Reform and Control Act of 1982 (the Simpson-Mazzoli Bill)(1), the debate(2) over a comprehensive immigration policy continues. Had that Bill passed, substantial decreases in immigration were expected as the proposed legislation would have been the most restrictive United States response(3) to all forms of immigration-undocumented as well as legal (4). This Note analyzes the major provisions of the Simpson-Mazzoli Bill, and briefly examines the history of modern United States immigration law, the proposed changes in legal immigration ceilings, and the three provisions in the Bill responsive to undocumented immigration.
The long-term objective of the proposed legislation was to limit net annual global immigration to 425,000 persons(5) by restricting legal immigration to the “immediate relatives”(6) of United States citizens. Immigration visas for all other persons would have been available only in the years when the global quotas were not filled by preferred “immediate relative” immigrants.(7) Two provisions of the Bill were designed to channel all temporary alien labor migrations(8) to the United States through legal ports of entry: (1) the imposition of civil sanctions on United States employers who knowingly hire undocumented workers(9) and (2) the temporary foreign agricultural worker provisions,(10) which would have liberalized the entry of temporary foreign workers. Finally, the Bill’s alien status adjustment procedures(11) were an attempt to regularize the status of some of the estimated 3.5 million undocumented aliens(12) who have set up permanent households in the United States.
I. THE STATUTORY SCHEME(13)
The amendments proposed by the Simpson-Mazzoli Bill can be classified as either changes in legal immigration policy(14) or disincentives to undocumented immigration. The former reflect changes in provisions governing numerically limited and unlimited immigration. The latter constitute a departure from the United States de facto policy of neglecting(15) labor migration to the United States.
A. Legal Immigration Policy Changes
The Bill proposed no changes in what had traditionally been unlimited immigration. Existing United States policy permitted the unlimited immigration of all immediate relatives(16) of United States citizens. Pursuant to the Bill, the spouse, children, and parents of a United States citizen would retain their right to unrestricted immigration.(17) The Simpson-Mazzoli Bill however, would have set annual global immigration ceilings at 425,000(18) for nonimmediate relative immigrants. Of this number, a maximum of 350,000 visas would be granted annually to “family reunification “immigrants.”(19) Additionally, a maximum of 75,000 visas would have become available each year to “independent” and “non-preference” immigrants.(20) The Bill would also have amended the system of preferences that allocates visas within the quotas among several categories of immigrants.(21) The number of immigrants from any one country would have remained limited to 20,000 persons annually.(22)
Under the Bill, 425,000 annual visas would have been available only to the extent they had remained unused by immediate relatives the previous year. For example, the 350,000 reunification immigrant visas would have been available only to the extent that unlimited immigration by preferred immediate relatives did not reach 350,000 the previous year.(23) Similarly, the number of visas available for independent and non-preference immigrants would have depended on vacancies not filled the previous year by “special immigrants” and their children.(24) Immigrants from Mexico and Canada were given favored nation treatment under the Bill.(25) All the general provisions of the Bill would apply to visa applicants from these two countries with two exceptions: (1) a maximum of 40,000 persons from each of the two bordering countries would have been granted immigration visas annually,(26) and (2) unused visas from either country would have been awarded to immigrants from the other.(27)
B. Undocumented Immigration Policy Changes
Undocumented immigration to the United States is perceived as a much greater threat than legal immigration.(28) In 1967, for instance, 162,000 undocumented aliens were apprehended.(29) Ten years later, apprehensions had increased to over one million annually.(30) Congress has recognized that the most important factor contributing to labor immigration and migration from south of the border is the availability of jobs in the United States.(31) The Simpson-Mazzoli Bill would have taken unprecedented steps in an attempt to restrict the alien labor supply. First, the Bill would have subjected United States employers to fines and penalties for knowing employment of undocumented workers.(32) Second, alien workers would have had an opportunity to enter the country legally on a temporary basis, but only for employment in jobs that domestic workers would not or could not fill. The objective of these provisions was to make more jobs available for American workers.
In addition, the Simpson-Mazzoli Bill provided a solution to the substantial permanent undocumented population by creating a status legalization procedure through which undocumented aliens would receive either permanent or temporary alien status and eventual United States citizenship via naturalization.(33)
1. Employer Sanctions
The Simpson-Mazzoli Bill proposed implementation of employer sanctions in an attempt to reduce labor migration by substantially restricting the number and types of jobs available to undocumented aliens. The Bill would have made it unlawful for an employer of four persons or more to hire anyone without verifying the worker’s documents.(34) The employer would also have been required to retain employment records for inspection by the Immigration and Naturalization Service (INS) for up to five years or one year after the employee’s termination date.(35) The bill would have subjected all employers to graduated civil penalties for “knowingly” employing unauthorized aliens. First-time violators would have faced fines of $1000 for each undocumented alien on the payroll.(36) Repeat offenders would have been subject to fines of $2000 per alien employed.(37) Finally, if the INS found a “pattern or practice” of violations, it was to be empowered to seek imposition of a maximum fine of an additional $1000 and a six month prison term.(38)
2. Temporary Agricultural Workers
The Bill also provided for the temporary entry of foreign agricultural workers as nonimmigrants.(39) Admission of temporary workers was made conditional on the Secretary of Labor’s certification (1) that there was an insufficient supply of farm laborers, and (2) that employment of aliens would not adversely affect wages and working conditions of United States workers.(40) The Attorney General would have had responsibility for entry permits and exit requirement procedures.(41)
3. Status Adjustment
The Simpson-Mazzoli Bill created a bifurcated status adjustment procedure for those undocumented aliens who had maintained a continuous residence(42) in the United States. Those aliens who maintained continuous residence prior to January 1, 1978 would have immediately qualified for permanent resident alien status.(43) Aliens continuously residing in the United States after January 1, 1982, and Cuban and Haitians on “entrant” status, would have immediately qualified for temporary resident alien status.(44)
II. MODERN UNITED STATES IMMIGRATION POLICY:
A HISTORICAL PERSPECTIVE
United States immigration policy during the twentieth century can be conveniently divided into pre-and post-World War II policy.(45) During the former period, immigration was disproportionately European.(46) European immigration was desired; immigration by others, particularly Asians, was severely restricted if not entirely prohibited.(47) The latter period, with its underpinnings in the Walter-McCarran Act of 1952,(48) reflects a more tolerant attitude of Congress toward non-European immigration.
In 1917 a major codification of immigration laws(49) provided the basic immigration law for the future. The 1917 law prohibited the immigration of natives of China, India and other Asian countries to the United States.(50) Other immigration, however, was virtually unrestricted. The subsequent adoption of the Quota Law of 1921(51) established a quota system that survived virtually without substantive modification(52) until 1965.(53) The Quota Law provided for both quota and non-quota immigration. Minor alien children of United States citizens were exempt from the quota provisions.(54) The quota provisions made nationality(55) the sole basis for qualification for an immigration visa to the United States. Every nationality was assigned an annual immigration ceiling equaling three percent of the foreign-born persons of that nationality living in the United States in 1910.(56) In 1924 Congress adopted a modified version of the quota system -the national origins system.(57) Although the formula changed, nationally remained the fundamental basis of United States immigration policy.(58) Only the alien wife and minor children of a United States citizen(59) were exempted from the quotas. This law favored labor immigration from the Western Hemisphere.(60)
During the 1940s major changes were made in United States immigration policy. The Chinese Exclusion Act was repealed in 1943.(61) In 1946 natives of the Philippines were granted admission and the right to naturalization.(62) After World War II Congress passed a series of acts designed to permit the immigration of alien spouses and children of service personnel,(63) alien fiancées of war veterans,(64) displaced persons,(65) and expellees(66) from Europe.
During World War II the need to provide manpower for the war effort decreased the available domestic labor force. The United States imported hundreds of thousands of men from Mexico to work in American agriculture and industry.(67) From 1950 to 1960, roughly 3.3 million Mexicans were imported legally into the United States to raise thirty-three million tons of agricultural products.(68)
Contemporary immigration law in the United States is derived from the Walter-McCarran Act of 1952.(69) Although hailed as a revolutionary reversal of the previous exclusionary immigration policy,(70) the Act expressed no such intent and attempted no major policy change. For example, although the law permitted the naturalization of persons of Asian ancestry, it retained the quota system that had been in place since 1924.(71) At most, two thousand persons of Asian ancestry were allowed admission annually under the new law.(72) The unlimited entry of the alien spouse and children of United States citizens, however, continued.(73) Furthermore, consistent with the policy under previous laws, immigration from the Western Hemisphere, especially from Mexico, continued without restriction.(74)
The Walter-McCarran Act serves as a prelude to the introduction of some of the provisions included in the Simpson-Mazzoli Bill. The Act authorized the temporary importation of foreign workers to alleviate labor shortages and the adjustment of status of illegal aliens. The Walter-McCarran Act created a new “non-immigrant class” of aliens and permitted their temporary importation upon the request of employers.(75) To placate American labor, the Department of Labor imposed a certification procedure that required, as a condition to importation, the Secretary of Labor to certify that the added labor supply would not adversely affect American workers.(76)
The law also included lenient provisions for the substantial number of aliens who had either overstayed a legitimate admission to the United States or had failed to maintain their immigrant status. Section 244(a)(1) of the Act established a status regularization policy that retained the family unit as the primary basis of immigration policy.(77) The Attorney General was empowered to prevent the deportation of an alien if the deportation would create an unusual hardship on the alien, or on his or her spouse or child who was either a United States citizen or a permanent resident alien.(78)
The unlimited immigration of persons from the Western Hemisphere to the United States came to an end in 1965.(79) The 1965 Act, while continuing the policy of unlimited immigration by the immediate relatives of United States citizens, imposed a ceiling on immigration by nonrelatives. Immigration from the Western Hemisphere was fixed at 120,000 persons annually; immigration from the Eastern Hemisphere was limited to 170,000.(80) Further, annual limits of 20,000 were imposed on persons originating from each country in the Eastern Hemisphere,(81) and a seven-class preference system for the Eastern Hemisphere replaced the system adopted in 1952.(82) In 1976 Congress amended the I.N.A. of 1952. The noncontroversial amendments extended the per-country immigration ceiling of 20,000 and applied the 1965 preference system to Western Hemisphere immigration.(83) In 1978 Congress combined the Eastern and Western Hemispheric ceiling to create a new global quota.(84)
III. THE UNDOCUMENTED ALIEN PROVISIONS
A. Employer Sanctions
The availability of jobs is undoubtedly the strongest incentive to undocumented immigration to the United States.(85) Indeed, it is well documented that United States immigration policy regarding its neighbors to the south has primarily reflected the needs of United States employers-in particular, the needs of agricultural producers in the Southwest.(86) Although economic conditions in Mexico and other countries of Central America and the Caribbean have permitted the labor migration,(87) the principal factors attracting migration are the needs of the United States economy for a labor Supply.(88) The employer sanctions contained in the Simpson-Mazzoli Bill were an attempt to change these active or “pull” factors. At the same time, however, the provisions were based on the recognition that certain sectors of the United States economy are substantially, if not entirely, dependent on inexpensive foreign labor.(89) These considerations resulted in a combination of employer sanctions that punish employers for hiring aliens and foreign labor provisions that permit the seasonal entry of aliens.
B. Temporary, Alien Workers
The temporary alien worker provisions(90) would have been indispensable if employer sanctions had been enacted. For decades, Mexico has supplied much of the United States demand for inexpensive, seasonal labor.(91) An abrupt cessation of the labor supply resulting from employer sanctions would stagger the fruit and vegetable industry in California and other parts of the Southwest.(92) Therefore, the temporary alien worker provisions, which have heretofore been relied on primarily for importation of non-Mexican workers(93), would have become more valuable after the un documented labor market was foreclosed.
The proposed amendments to the temporary alien worker provisions would have retained an available economical, seasonal supply of agricultural labor. These provisions have not been used previously, as agricultural producers could simply rely on the undocumented alien market to supply labor.(94) The liberalized provisions for H-2 agricultural workers would have lessened both the delay in supplying foreign labor (95)and the burden of showing that imported alien workers would not displace Americans.(96)
The intended benefits were two-fold. American workers would have moved into vacant jobs created by the sanctions and, at the same time, undocumented workers would have had the option either to return home or to obtain the documentation necessary to work in the United States in the less attractive, low-paying seasonal jobs. The result in either case would have been politically attractive. American workers would have been protected from foreign workers taking the choice jobs and foreign workers would have been available for jobs that American workers could not, or would not, perform.
Expenditures for the enforcement of immigration laws would have been reduced as a by-product of the employer sanctions and the temporary worker provisions. Legal entry by alien workers would have substantially decreased the costs of policing the United States-Mexico border. Similarly, increased documentation of foreign workers would have reduced the need for expensive seizure and deportation procedures(97).
C. Would Employer Sanctions Have Resulted in New Jobs?
The success of the employer sanctions in creating jobs for American workers would have depended largely on the extent to which alien laborers actually displaced American workers prior to the imposition of the sanctions(98). Some evidence suggests that thousands of undocumented aliens have been employed in jobs requiring some industrial skills.(99) Such jobs are apt to be the most attractive to American labor. (100) On the other hand, demographic data obtained from undocumented aliens apprehended upon their entry along the United States-Mexico border show that the typical alien is essentially non-English speaking, rural and can perform primarily unskilled manual labor(101). The range of jobs he can perform, therefore, is very limited.
Whether American workers would have taken the jobs presently held by aliens would have depended on how American workers perceived those jobs. In the past, because of the working conditions and wages of agricultural employment in the United States, few skilled American nationals have entered the agricultural labor force.(102) Restricting the supply of alien labor, however, could have improved wages and working conditions sufficiently to attract domestic workers.(103)
The provisions of the Bill as written, however, might not have actually increased the number of domestic agricultural jobs. Liberalized provisions for the entry of temporary foreign agricultural workers would have maintained the supply of seasonal alien labor from Mexico.(104) In the agricultural sector the Simpson-Mazzoli Bill might only have converted undocumented aliens to documented ones without any significant increase in domestic employment.(105) In the industrial sector, however, the existing H-2 provision gave employers more limited access to temporary foreign labor. Given the relatively higher wages and job security of even low skilled industrial jobs, the number of domestic workers might have increased in these jobs.
Other provisions in the Simpson-Mazzoli Bill might also have perpetuated, rather than diminished, the use of undocumented aliens by employers. The Bill provided for a one-year grace period prior to enforcement of the employer sanctions; during the first six months after passage, the government was to undertake a publicity campaign to alert employers of the law.(106) During the next six months, violators would receive warnings but no penalties.(107) Once employer sanctions became effective, various loop-holes in the law could have prevented the serious crackdown on violators that some observers believed the Simpson-Mazzoli Bill promised. “Transitional assistance” would have been available to help employers adjust to the new labor market situation. Initially, the employer sanctions would not have applied to employers with undocumented workers hired before the Bill was enacted.(108) Employers would also have been able to convert their present workers to documented H-2 workers.(109)
IV. LEGAL IMMIGRATION
As a result of changes in immigration policy that began in 1965, legal immigration from the Western Hemisphere has been significantly curtailed in recent years. Amendments to the I.N.A. of 1952 have limited total immigration by nonimmediate relatives of United States citizens to an annual global ceiling of 290,000(110). These provisions have had a substantial impact on individual countries. For instance, prior to application of the 20,000 annual immigration ceiling to countries of the Western Hemisphere, Mexico was one of the leading sources of immigration to the United States(111). Mexican immigration has dropped significantly, however, with the extension of this restriction. In 1978, approximately 92,000 Mexicans were given immigration visas.(112) But in 1979, after the amendments were implemented, only 52,000 were admitted.(113) The Simpson-Mazzoli Bill would have further reduced the total global immigration by its restriction of immigration to immediate relatives of United States citizens. Reunification immigrants would have been granted visas only in those years in which the 350,000 quota was not filled by immediate relatives.(114) Such a change would have been a withdrawal from the United States long-standing commitment to family reunification and could have resulted in permanent resident aliens being unable to reunify their families.(115)
Mexican immigration, however, might have fared better under the Simpson-Mazzoli Bill than in the period beginning in 1978. For instance, in 1978 and 1979, 25,538(116) and 27,889 (117)Mexicans, respectively, entered the United States as exempt immediate relatives. Under the existing law,(118) an additional 20,000 persons could have entered pursuant to the per-country ceilings on nonimmediate relatives.(119) As proposed in the Simpson-Mazzoli Bill, the per-country ceiling for Mexican reunification would have been 40,000 visas. If the 1978-1979 entry by immediate relatives remains constant, only approximately 15,000 reunification visas would be accessible. This is a reduction from the present ceilings. Mexican reunification petitioners, however, would have access to the Canadian allocation and could potentially increase their immigration to an additional 20,000 persons(120). This would increase future Mexican reunification immigration by approximately 15,000 persons annually beyond the 1978 ceiling.
V. RATIONALE FOR ADJUSTMENT OF STATUS
Two bases exist for the adjustment of status provisions in the Simpson-Mazzoli Bill. First, the burden and cost of deporting several million aliens are insurmountable obstacles that would make a massive deportation impossible.(121) Second, humane considerations for the aliens require the adjustment.(122)
The economic and social costs involved in a massive deportation of illegal aliens are clear. The cost of seizing, detaining and deporting several million aliens is itself prohibitive. In 1978, for example, the INS spent $23.6 million locating 10,607 deportable aliens in New York-a cost of $2225 for every man, woman and child.(123) Added to these costs is the considerable expense of compliance with statutory hearings and procedural due process.(124) It is also clear that the paramilitary deportation actions of the 1950s would be restrained under present day notions of due process.(125)
Even assuming arguendo that massive deportations could be economically feasible, they would prove highly visible and volatile. The resulting explosive situation would be aggravated because any efficient dragnet would inevitably catch substantial numbers of United States citizens-mostly Hispanics-and would be apt to revive tensions between enforcement agencies and members of this minority group.(126)
Supporters of the status adjustment procedures also base their justification for the procedures on humane considerations. They argue that significant numbers of undocumented aliens have acquired substantial equities during their presence in the United States and that forcing them to leave would be unfair(127). The Simpson-Mazzoli Bill tests those equities on the basis of continuous illegal residence in the United States.(128) Persons living continuously in the United States since 1978 would be permitted to seek permanent resident status and eventually citizenship.(129) The status of most other entrants would be made equivalent to that of a temporary resident alien who may subsequently receive permanent resident alien status.(130) These resident aliens, however, would be excluded from most forms of federal social services.(131)
Indications are that any adjustment of the status program would fan short of regularizing the status of the majority of the undocumented aliens unless strong incentives were provided.(132) This is because of two major constraints: the language barrier (133)and the fear and distrust(134) that aliens have for the host country. For the Mexican migrant(135), conversion to an H-2 temporary worker or a temporary resident alien may provide good incentives. If permitted to enter the United States pursuant to a temporary worker’s license, the Mexican migrant may prefer this option to surreptitious entry(136). The migrant would have much to gain from legal status-access to public transportation to and from employment, less risk of injury and disease from surreptitious travel, freedom to complain of abuse by others, and, perhaps most importantly, no risk of detainment and expulsion. Even if this change of status did not increase the migrant’s actual wages, the benefits of becoming a documented worker alone may be sufficient incentive for the migrant to seek regularized status. So long as employers are permitted to hire undocumented aliens, however, there is no incentive for the Mexican migrant to obtain work documents.(137)
Aliens in the United States who have decided to remain permanently(138) will require even stronger incentives. The Bill imposes the burden on them to prove their right to status adjustment(139). Most aliens would understandably be wary of applying for a status change that may also entail a risk of deportation. This is especially likely if some members of an alien family could meet the burden of proof while others could not. As a consequence, many aliens who could meet their burden of proof would probably forgo their right to legal status.
Some of these constraints could be alleviated by a better understanding of the proposed scheme. This could be accomplished by a public relations campaign through the mass media(140). The Simpson-Mazzoli Bill contained a small budget provision for such a campaign.(141) The grace periods in the Bill, however, favored employers as it gave them twelve months to learn of the new employer civil sanctions, while giving aliens only a twelve month period from enactment during which they could apply for adjustment of status. Another possible way to increase participation in a status adjustment program would be extensive use of outside organizations as intermediaries to assist aliens in applying for and proving their status.(142) Churches, foundations and minority organizations would play a viable role in helping aliens overcome their deep-rooted apprehensions.(143)
The 98th Congress has now been handed the opportunity to make comprehensive amendments to United States immigration law(144). Supporters of the Bill, however, still face serious opposition in guiding the Bill through the Congress.(145) The proposed law, if adopted, should succeed in fulfilling some of the Bill’s objectives. First, its adoption would raise Mexican legal immigration ceilings. This increase in immigration ceilings should ease the strain on the visa application process, which is undoubtedly a cause of some illegal entry by Mexican aliens. Yet, as long as the demand for immigration to the United States is strong, the probability of continued illegal entry by those seeking permanent residence in the United States remains. Second, foreign agricultural worker (H-2) permits should become an attractive commodity for Mexican aliens. Agricultural producers should be pleased with the availability of a cheap alien labor supply. Although the immediate effect of the agricultural H-2 provisions will be the ability of undocumented farm workers to change their status to legal workers, some risk persists that news of the H-2 permits will attract additional thousands of Mexican aliens to the border in search of jobs(146). The result could be devastating to the Mexican border cities as the additional population overburdens vital municipal services. In turn, any substantial increase in border worker populations also increases the probability of illegal border crossings and undermines the purposes of the Bill.
Legislative status adjustment, as proposed, remains the most sensible element of the policy proposed in the Simpson-Mazzoli Bill. No one has advocated a massive deportation of all undocumented aliens as a viable American policy. On the contrary, the INS, a law enforcement agency, has de facto authority to determine which groups of persons are to be deported. In its wisdom, the INS concentrates its efforts in deporting workers in key industries rather than in a wholesale deportation. Even if it were an acceptable American policy to deport some three million persons, it is unlikely that this would rank very high among policy priorities. Further more, the cost of implementing this policy on a consistent basis would be prohibitive. This may explain why administrative adjustment of status(147) has been a vital part of United States immigration policy since adoption of the Walter-McCarran Act in 1952. Status adjustment is a logical alternative to keeping in a state of limbo hundreds of thousands of persons who have increased their equity in the United States by residing there continuously, remaining employed and raising and educating an American family. Although the concept of status adjustment is sensible, serious concerns remain over how this adjustment can possibly be administered effectively.(148) No current official government estimate yet exists of the numbers of undocumented aliens now residing in the United States. In fact, no single federal agency has been authorized to conduct studies of illegal immigration patterns or to coordinate immigration policy. In short, there could be two, or six, or as many as twelve million undocumented aliens in the United States today. This lack of accurate data only complicates the function of, and increases the risk of error in policymaking. The Simpson-Mazzoli Bill, for instance, would limit to one year the period during which qualified aliens may apply for status adjustment. This period can neither be explained as rationally related to the time required to complete the status adjustment process for the number of aliens who would qualify for status adjustment, nor to the existing administrative capability of the INS to manage a massive status adjustment program.
Finally, employer sanctions are the backbone of the Simpson-Mazzoli Bill. Without these sanctions there is neither a disincentive for aliens to enter the United States illegally, nor a need for them to legalize their status. The strength of the sanctions has already been substantially diluted in Congress. During the one year period during which qualified aliens must apply for status adjustment, employers would not be subject to any penalties(149) for employing undocumented aliens. Therefore, for the twelve months following adoption of the Simpson-Mazzoli Bill, the availability of jobs for aliens-the primary incentive for illegal immigration-would persist despite the new law. Whether the Immigration and Naturalization Service can and will enforce the employer sanctions or whether there win be a reversion to the policy of benign neglect of undocumented immigration from south of the border is a question whose ultimate resolution will reflect the self-definition of a nation of immigrants.