Looking Back to Move Forward: Examining Past Legalization Programs

Looking Back to Move Forward Examining Past Legalization Programs

ABOUT THE PROJECT

The Institute for the Study of International Migration, with the support of the MacArthur Foundation, is organizing a series of public presentations, as well as expert roundtables that address the multiple challenges of immigration reform. The aim of the project is to inform debate on immigration reform, with a focus on addressing the challenges of implementation

Report on an experts’ roundtable Georgetown University, Washington D.C.

SUMMARY The Institute for the Study of International Migration at Georgetown University’s workshop on legalization of unauthorized migrants in the United States brought together experts on the implementation and impact of past legalization programs to draw lessons from their experience of program outreach and administration; the role of state and local actors; outcomes for the immigrants and the economy; and evaluation metrics and methods.

The Immigration Reform and Control Act (IRCA) of 1986 legalized 2.7 million individuals. While today’s unauthorized population differs in size and complexity, the IRCA experience holds lessons for any possible future amnesty. We know from the IRCA experience that there will be significant challenges to any program adopted by Congress or under Executive Branch authorities to regularize unauthorized migrants. Any lack of strategic preparation will compound those challenges. Many administrative agencies, nevertheless, are waiting to see final legislation authorizing legalization and have not adequately prepared for implementation of a large-scale program.

Workshop participants concluded that federal agencies likely to be charged with carrying out a legalization program should engage in planning exercises based on possible scenarios — assuming different legislative language and likely facts on the ground — that facilitate the implementation of the timely, orderly and fraud-free amnesty of eligible individuals if they are so tasked. Learning the lessons from prior experiences with legalization, including the current program for Deferred Action for Childhood Arrivals (DACA) is essential for effective implementation of any new and larger programs. The US Citizenship and Immigration Services (USCIS), the Federal agency likely to shoulder the greatest responsibility for an amnesty program, should consider developing an advisory board for scenario building exercises. Experts should be drawn from the public and private sphere, have programmatic and subject area knowledge, and include those with experience from IRCA’s implementation.

Other general findings derived from IRCA and other experiences with legalization include: •

Flexibility should be built into legalization programs because circumstances change over the course of any regularization initiative.

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Public-private partnerships are effective in encouraging and preparing unauthorized migrants to come forward, but to be most effective there must be significant scaling up of organizational and personnel capacity.

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The fee-funded system in IRCA and other legalization initiatives ensured that money to administer the program came from the applicants themselves. A significant disadvantage, however, is the up-front costs of training, infrastructure and outreach, which if not adequately funded, can compromise implementation.

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The IRCA experience helped establish that community-based offices were most efficient in serving the applicants.

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Resources for applicants who speak indigenous languages will be required. The IRCA outreach focused primarily on Spanish-speaking communities and did not serve smaller communities as effectively.

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IRCA left a large residual population of unauthorized migrants who were ineligible for the legalization program because they arrived in the United States after January 1, 1982. Participants urged that steps be taken to minimize the residual population and to plan for the admission of families of the newly legalized who reside abroad.

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A longitudinal survey was required under IRCA, which resulted in useful information; similar studies should be authorized by any new legislation.

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Language and civics requirements in IRCA were covered by the State Legalization Impact Assistance Grants (SLIAG), which provided useful resources to educational institutions. If legislation links adjustment to permanent residence and to English language acquisition, it will be essential to ensure adequate resources.

Participants also cited a number of ways in which current proposals for legalization, including the versions in the comprehensive immigration reform bill passed by the Senate, differ significantly from previous legalization efforts. For example, some current proposals would involve a very lengthy provisional status before the legalized could become permanent residents. Participants noted it was difficult to calculate and anticipate the unintended consequences for the next 10-13 years, as there could be a lot of unexpected issues arising over time. Participants felt it would be prudent to put in place studies to assess the longer-term impacts of the lengthy provisional status to inform future policymaking.

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INTRODUCTION The challenge of regularizing unauthorized migrants in the United States today is larger and more complex than it was in prior years. The unauthorized population is several times larger than it was in the 1980s, the last time there was a major legalization initiative. Estimates of the unauthorized population today vary between 11-12 million, as compared to 2.5-5 million in the early 1980s. The population is also more complex, composed largely by established households, many with citizen spouses and US born children. If the response rate observed during the IRCA program is applied to today’s numbers, we can expect between seven and eight million potential applicants for legalization.

Despite the differences in scale, the lessons of earlier legalization programs will prove invaluable in designing programs for the future. Identifying those lessons and how they apply to today’s situation was the principal theme of the Workshop on Legalization held by the Institute for the Study of International Migration in September 2013. This report re-issues the conclusions and recommendations emanating from the meeting in light of the stalemate on legislation in the House of Representatives and the discussion within the Executive Branch about administrative actions to stay removals.

IRCA The Immigration Reform and Control Act (IRCA) of 1986 authorized the largest legalization program in US history. Smaller programs have been implemented through legislation (e.g., Nicaraguan Adjustment and Central American Relief Act) and administrative action (e.g., the Deferred Action for Childhood Arrivals (DACA) program). As the scope of IRCA was the most significant of these initiatives, its lessons are the most relevant, but the experiences of the other programs also bring useful perspectives for future action.

IRCA was designed as a three-legged stool calling for: (1) scaled up border enforcement, (2) work authorization or employer sanctions, and (3) legalization. The legalization portion of the program was largely successful in its implementation. Unlike today’s immigration debate, IRCA’s development and implementation were not part of a broad national conversation. At the time that IRCA was debated, immigration had a major impact on only six states in the country: New York, California, Texas, Illinois, Florida, and New Jersey. Even in Congress it was considered to be a “closed box debate,” e.g., the debate over its elements was primarily confined to Congress and it was tacitly assumed that the legislation would result in a lasting solution to the problem of unauthorized migration. Debate on IRCA was led by a small number of members of Congress who had expertise or political interest in immigration policy. Many of these members had served on the US Select Commission on Immigration and Refugee Policy (SCIRP), a blue

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ribbon panel that issued its final report in March 1981. The SCIRP recommendations tended to guide the debate on legislative reform.

The most controversial provisions of the legislation pertained to legalization of the unauthorized migrants already in the country. Tensions over legalization led to failure to adopt any immigration reform legislation in 1982 and 1984. When the legislation finally passed in 1986, it included two separate legalization provisions, one for agricultural workers and the other for other unauthorized workers who had entered prior to January 1, 1986. These are discussed in greater detail below.

IRCA’S MAIN PROGRAM Under IRCA, persons in the country illegally could regularize their status if they had entered prior to January 1, 1982 and had maintained continuous residence since that date.

They were permitted only brief, casual and innocent absences since the time of enactment of IRCA. Applicants could present a range of documents to demonstrate eligibility, including rent and utility receipts, employment records, and affidavits from landlords, employers and others who could attest to their continuous residence. They also had to meet all of the grounds of admissibility as an immigrant and demonstrate they had not been convicted of any felony or three or more misdemeanors.

Successful applicants initially received temporary legal status and authorization to work.

After 18 months they could adjust to legal permanent residence. The same continuous residence, admissibility and criminal provisions applied. Furthermore, applicants for permanent residence had to show they could meet the English language and civics requirements for naturalization, or were successfully pursuing language and civics courses approved by the Attorney General. Only the principal applicants and family members already in the United States were eligible for legalization. Immediate relatives who were still living in the countries of origin would have to apply for admission through the regular immigration policies. Subsequently, Congress passed Family Unity legislation, which provided additional visas to accommodate the increased demand for admission. The backlog of applications far exceeded these numbers, however, leading to very large backlogs and long waiting times for the spouse and minor children of the legalized migrants.

The information provided in the application process could not be used for any purpose other than adjudication of the application. It could not be used for any enforcement purposes unless the applicant had engaged in fraud. To help ensure the confidentiality of the process, the Immigration and Naturalization Service, the agency charged with implementing the legislation, established separate legalization offices that operated apart from the district offices responsible for enforcement and other activities. The legislation

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also blocked deportation of those apprehended prior to the successful adjudication of their applications if they could demonstrate a prima facie eligibility for legalization.

IRCA established an administrative review process for cases that were denied. It explicitly denied a role to the federal judiciary to hear appeals of individual applications.

Nevertheless, a number of cases did move through the federal courts, generally reflecting a challenge to the implementation procedures established to carry out the legalization program. The courts ended up playing an important role in expanding eligibility through their interpretations of IRCA provisions.

Throughout the debate on IRCA, states and localities had expressed concern about unfunded mandates on their resources deriving from legalization. They pointed out that newly legalized migrants would likely need and use public services for which they had previously been ineligible. The pending legislation made the newly legalized ineligible for federal cash, medical and food stamp programs, but they would qualify for many state and local services. Moreover, IRCA created demand on educational services due to the requirement that those granted temporary status meet the naturalization requirements or enroll in a course of English and civics study.

In response to these concerns, IRCA authorized State Legalization Impact Assistance Grants (SLIAG) of up to $1 million per year for four years to help defray some of the costs likely to be incurred by states and localities. SLIAG was a formula grant program that awarded funding based on the state’s population, in addition to a small state minimum. Allocated funds could only be spent on health, education and other specific integration activities. States were required to pay for these services up front, and later request federal reimbursement. Since the requests for reimbursement were slow initially, the federal government reduced the available amount in later years even though state spending on allowable programs increased over time.

IRCA also included provisions for Qualified Designated Entities (QDEs) to assist the legalized move through the application process. Most of the QDEs were voluntary agencies, many of which resettled refugees, and other community based groups that had close ties to the immigrant communities. These associations provided outreach and orientation services, helped migrants determine if they were eligible for legalization, and assisted the applicants with filling out forms. Confidentiality provisions in the legislation restricted the information collected by QDEs from being used for enforcement purposes.

Fewer applications were formally submitted via this process than had been expected, but the outreach activities proved very useful in educating undocumented migrants about the options for legalization.

Finally, IRCA required that a longitudinal study be undertaken to measure the impact of regularization on those receiving legal status, and to learn more about the processes

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through which the legalized had entered and worked illegally in the United States.

Because of the confidentiality provisions in the application process, much of the information collected at the time of application could not be made available for this type of research. Instead, a separate survey was taken of those legalizing under the regular program (another survey of agricultural workers has been ongoing since the early 1990s).

The survey resulted in several evaluations of the program on the newly legalized use of public services and progress toward integration that are often fed into today’s analysis and debate.

SPECIAL AGRICULTURAL WORKER PROGRAM IRCA’s Special Agricultural Worker (SAW) program was the path to legalization for those who did at least 90 days of farm work during the 12 month period ending on May 1, 1986. As with the regular legalization program, those legalizing under the SAW program had to demonstrate they were otherwise admissible to the United States. There were two paths to permanent residence for those legalized under the SAW program.

Those who had also done 90 days of agricultural work in 1984 and 1985 were eligible to become permanent residents one year after approval of their temporary legal status. The number eligible to adjust under this provision was capped at 350,000. Other SAWs would need to wait an additional year before becoming a permanent resident. The cap was set at 350,000 because that was the number experts gave of the total unauthorized seasonal agricultural workforce. The number that received SAW status—about 1.1 million— greatly exceeded the estimates.

While most observers believed there was little fraud in the regular legalization program, it appeared that the SAW program received a great deal of fraudulent applications. Yet, despite repeated concerns about the level of fraud, there was a relatively low denial rate of 15 percent for SAW applicants. Many applicants used affidavits from labor contractors as proof that they had spent 90 days in agricultural work in the prior year. These generally consisted of one or two sentences (for example, an affidavit might read: "Joe Smith picked strawberries for me for 93 days between June 1985 and May 1986.

Affidavits were accepted because it is often very difficult for agricultural workers who legitimately worked the right number of days to gain proof and documentation of their work. The burden was on the government to disprove an applicant’s assertions of work history. This was often a difficult task for the agency. Some of the migrants may have worked in agriculture at some point but they had not necessarily been employed during the period specified in the legislation. Others had never been employed in agriculture but the documentation they provided appeared legitimate on its face.

Many of those who legalized as SAWs left agriculture soon after obtaining legal status (assuming they had been in agriculture in the first place). Their experience is not too different from the norm in seasonal agriculture. There is a constant revolving door of new 4

workers, with the typical worker being an 18-25 year-old male. Those who leave the agricultural sector at relatively young ages often work in construction, but beyond that we do not have a great deal of information on this group. An additional factor is that those who were legalized under the SAW program have now essentially aged out of agricultural workforce (a person who was eighteen in 1989 would be forty-two today).

DEFERRED ACTION FOR CHILDHOOD ARRIVALS August 2012, President Obama authorized Deferred Action for Childhood Arrivals (DACA), which granted relief from deportation and work authorization to unauthorized migrants who had arrived in the United States as minors and had continuously resided here thereafter. The President used the discretion that the Executive Branch has in determining whether to prosecute someone for a violation of the law. Noting that those who had arrived as children bore little responsibility for having entered or remained illegally, the administration argued that deferral of their removal made good policy as well as humanitarian sense. After analyzing the applicants through March 2013 (via FOIA request) and interviewing service providers to see who is missing in the applicant pool, researchers noted those who applied early tended to have simpler cases and were overwhelmingly approved. A lag in applications followed, in part because remaining cases were more complicated. Advocacy and legal aid groups report that those who are not being served typically do not know they are eligible through lack of information or misinformation. In some cases, eligible applicants lack financial resources for fees and the collection of documents. Still others fear that their undocumented parents and siblings will be put at risk if they apply for DACA. OTHER LEGALIZATION PROGRAMS AT HOME AND ABROAD The United States has used various other mechanisms to provide relief to regularize individuals without legal status in the country. Many of these were adopted in the context of forced migration. For example, prior to passage of the Refugee Act of 1980, Hungarian, Cuban and Soviet Jewish refugees were admitted to the United States under the parole authority of the Attorney General. Parole permitted them to enter, reside and work in the United States but did not give them a path to permanent residence or citizenship. In each of these cases, Congress passed legislation that permitted the refugees to adjust to legal permanent residence and then naturalize. Most of this legislation applied only to those who entered as enactment of the law. The Cuban Adjustment Act is the only one without a cut-off date. Those individuals who are paroled into the country today may apply for legal permanent resident status one year after arrival. More recent examples of special, nationality-based legislation that provided for adjustment to permanent residence includes the Chinese Student Protection Act, passed after the tragedy in Tiananmen Square; Nicaraguan Adjustment and Central American Relief Act and the Haitian Refugee Immigration Fairness Act.

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A program that protects people from deportation but does not give access to permanent residence is Temporary Protected Status (TPS). TPS was authorized in the Immigration Act of 1990 but involves a considerable degree of Executive Branch discretion. Under TPS, the President may provide temporary relief to those already in the United States who cannot return home because of conflict or severe natural disasters. There is no judicial review of decisions to designate specific groups as eligible for TPS or to approve individual applications. The status is generally provided for 18 months at a time and can be renewed. In fact, TPS has been renewed every 18 months for Nicaraguans and Honduras after Hurricane Mitch in 1998 and Salvadorans after the twin earthquakes in 2000. Recipients of TPS have work authorization but they are not eligible for most public benefits. They are also unable to petition for the admission of their immediate relatives.

Adjustment of status is authorized only with the approval of a supermajority in the U.S. Senate. The program effectively keeps people in limbo for very lengthy periods.

European legalization efforts provide some relevant lessons to inform our current debate in the United States. In Southern Europe, there has been a strong trend towards the proliferation of legalization programs. Thus far, these seem to be poor examples to follow as they have not been managed very well. For example, Italy and Spain have had repeated legalizations during the past few decades. These programs provided work authorization for irregular migrants but, if the workers lost their jobs, they often fell out of legal status. Once they were re-employed, they would apply for status in a new legalization program. At the same time, few steps were taken in these countries to curb future illegal immigration.

The European Union provides evidence for another type of legalization. The historic enlargement of the European Union in 2004 was associated with upwards of 700,000 Eastern Europeans, who had been illegal residents in Western Europe, were automatically legalized as a result of the expansion. In this case, the new union superseded national immigration law.

One participant noted that perhaps the most common form of ‘legalization’ in both the U.S. and Europe is benign neglect. Authorities choose to ignore the presence of undocumented migrants as long as they do not violate other laws.

LESSONS OF PREVIOUS LEGALIZATION EFFORTS A number of lessons from IRCA’s legalization programs are applicable to the current debate on legalization.

•

IRCA left a large residual population who had entered the country after January 1, 1982 and were still living in the U.S. when IRCA was enacted in 1986. Some of the residual population had entered as a result of conflict and political instability in Central America and the Caribbean; and were unlikely to return to still troubled

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situations. Most had been denied asylum. Subsequently, the government acknowledged that the asylum system imposed criteria that were inconsistent with the Refugee Act of 1980 and agreed to re-adjudicate many of the cases. Special legislation was passed to provide an alternative route to legal status for some of the residual population (for example, under the Nicaraguan Adjustment and Central American Relief Act—NACARA). Others remained in the country illegally unless they qualified under family or employment based admissions programs.

•

Second, as discussed above, IRCA required family members abroad to apply for admission through the regular immigration admission systems. The demand for admission post IRCA was larger than expected, partly because the SAW program led to far larger numbers of permanent settlers than anticipated, adding to the number of visa applications from the family members of those legalized under the regular program. Although the Immigration Act of 1990 expanded the total number of visas available for admission, it capped the numerically limited visa categories for family admissions at a level well below the demand for visas emanating from legalization. As a result, throughout the 1990s and into the 21st century, there were exceedingly long waiting times for spouses and minor children of legal permanent residents, sometimes reaching 7 or 8 years. The US Commission on Immigration Reform pointed to these backlogs as a contributor to illegal immigration, as many eligible for visas chose to enter without them rather than be separated for so long from their families in the U.S.

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One major lesson from IRCA came in the form of a strategic organizational decision made by INS—to establish separate legalization offices, headed by directors who viewed large numbers of application approvals as a measure of success. Separating this service function from the traditional enforcement functions of the INS District Offices helped dispel negative perceptions within local communities and groups of undocumented migrants. INS also modernized its hiring processes in order to respond quickly to an emerging program, bringing in new staff with a background in service, rather than law enforcement. The specialized legalization offices also represented a significant improvement in the agency’s physical facilities, with the building of more accessible locations proximate to immigrant communities, as well as modernized equipment and facilities. The strategy of separating services from enforcement was replicated in the reform of the asylum system in the early 1990s and, then, in the 2003 legislation that created US Citizenship and Immigration Services (USCIS).

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This does not mean that administration of the program was problem free.

Workshop participants who had been involved in standing up the legalization processes reported that policy implementation and decision-making processes were slow. Public outreach did not begin until just before the program started running, which was a result of a reactive response strategy during the legislative process, rather than proactive scenario-driven planning. Further problems stemmed from the funding mechanism used in the legalization program. All

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funding for INS’ administrative support came from fees, which were then appropriated to the agency to cover their expenses. There was little money, however, to prepare the infrastructure needed to carry out the program because the fees were not generated until after migrants applied. Moreover, fees paid in one fiscal year were not necessarily made available to the agency when the actual services were rendered in another fiscal year. This might not be a major problem in a program with a steady flow of applications; it proved problematic, however, for keeping on top of demand for services in a time-limited program. Currently pending legislation authorizes $1.2 billion for startup costs to administer legalization programs. The lesson of IRCA is that such funding is essential to a well-run system.

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The assumption that QDEs would be responsible for much of the case preparation proved inaccurate. Payment arrangements proved problematic since QDEs were paid based on the number of applications submitted and not according to the work they did in outreach and orientation. Often, those applying for legalization submitted their own applications after benefiting from the services the QDEs provided. If they were reported as self-submitted applications, however, the QDE received no payments. Therefore, these organizations were typically underpaid.

Over time, many QDEs shifted their role from providing information to advocating in more complicated cases. Moving forward, there will be a significant need for front-loading resources, particularly in parts of the country with weak existing NGO networks (such as in new settlement areas in the Southeastern part of the country). The experts also highlighted a need to think about how to identify non-Spanish speaking applicants as well as those in isolated situations, such as domestic workers, the elderly and stay at home women. They pointed out that the NGO community is a lot more sophisticated today. These groups now provide legal services, represent cases in court, provide screenings, and help applicants to complete applications. They are now much better at performing outreach, communicating with immigrant communities, and coordinating with each other compared to in 1986. Moreover, the NGO community has been planning for legalization since at least 2006. Most of the key players have agreed on a complicated organizational chart so that efforts will be well coordinated. NGO’s have studied IRCA extensively, interviewing government and non-government representatives. They have also been heavily involved in implementation of DACA. However, they still do not have the research and the data needed to make legalization work. In particular, more detailed sub-state level data is needed to ensure effective coverage of all populations.

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IRCA legalization programs confirmed the importance of maintaining strict confidentiality of the information collected for application purposes.

Unauthorized migrants and the organizations working with them were more likely to participate in the legalization process knowing that the information they provided would not be used for enforcement purposes.

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•

The SAW program also demonstrated the need for fraud prevention measures to be put in place from the beginning of the program. Even the best estimates of those eligible for legalization may underestimate the volume of applications but a tripling of those numbers, as occurred in the SAW program, should have triggered greater scrutiny.

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The longitudinal survey authorized by IRCA proved invaluable in two respects.

First, it provided useful information about the patterns of unauthorized migration that preceded the legalization program. Second, it enabled an assessment of the impact of legalization on earnings, income, use of benefit programs, improvements in English language capability and other measures of immigrant integration. Participants urged that funding for the collection of solid data on immigrant communities be built into this round of legislation. Longitudinal studies would provide the best data on the impact of legalization, especially if a long period of temporary residence remains in legislation. Such research is expensive, however, so it is necessary to consider other options as well. Greater use could be put to administrative data, such as questions asked as part of the application process, as long as privacy and confidentiality protections are in place to ensure that sensitive information is not breached.

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As occurred with IRCA, currently pending legislation includes a number of requirements that will likely result in increased state and local costs, at least in the short term. Given the requirement in pending legislation, that legalized temporary migrants learn English and civics prior to adjusting to permanent residence, the impact on community colleges and other local educational services will likely be significant. Since unauthorized immigration now affects all fifty states, unlike the 1980s when immigrant populations were more geographically concentrated in six states, the impacts of legalization will be more broadly felt throughout the country. Compounding this issue is the fact that there has been a significant loss of institutional memory at the state and local levels, as the vast majority of the staff that worked on these issues during IRCA are no longer with those agencies.

Successful implementation of any new legalization program will hinge on states’ ability to plan ahead. Workshop participants noted that, in general, states want to see a legalization pathway for undocumented migrants, but they are worried that federal legislation will be enacted without careful consideration of the budgetary impacts that would disproportionately affect states and their respective municipalities. On the other hand, state legislatures tend to wait to act until after federal legislation passes, or after orders have been issued from the executive branch, before taking actions of their own. They are typically too overstretched to address issues in a proactive manner.

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IRCA explicitly barred newly legalized migrants from the Medicaid program for the first five years after they obtained temporary legal status. SLIAG permitted reimbursement of certain public health costs incurred by state governments associated with the legalized population. Since IRCA, much has changed in the health care environment, particularly with implementation of the Affordable

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Health Care Act. The goal of universal health insurance is seen as a realistic aim today. Yet, current proposals for legalization would bar the legalized from subsidies under the state and federal health exchanges through which many low wage workers purchase insurance. Workshop participants noted that the population likely to legalize is fairly healthy now, but the picture may be different ten years hence. County governments, in particular, are concerned about unnecessary costs for emergency services if the legalized are unable to afford insurance on their own.

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IRCA’s legalization programs succeeded far more than the other legs of the stool.

There were few additional resources allocated to border enforcement until the mid-1990s and no significant increase until the early 2000s. Employer sanctions failed from the start because no effective system was in place for employers to verify work authorization. Without a serious commitment to enforcement, and a booming economy in the 1990s and first half of the 2000s, unauthorized migration grew significantly. The economic crisis beginning in 2008, combined with belated but more effective border enforcement and increased removals, appears to have stemmed the tide of illegal entries but, with economic recovery, unauthorized migration could resume if there is a lag in enforcement, particularly in the labor market. An effective enforcement strategy serves two purposes in the context of legalization.1 First, it becomes an incentive to apply for legalization; second, the credibility of legalization programs is greatly reduced if those who legalized are quickly replaced by new unauthorized migrants. At the same time, unnecessary barriers should not be placed in the way of maintaining legal status.

If the Senate passed bill becomes law, many of those who legalize will have a hard time meeting requirements for achieving Legal Permanent Resident (LPR) status, such as proving continuous work, because of the fragility of low-wage employment sectors. Some may even fall back into illegality if they are unable to renew their temporary legal status because of restrictive requirements.

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As in the current debate over legalization, the regular legalization program in IRCA was rooted in the concept that undocumented immigrants had to earn their legal status and eventual citizenship. The program applied only to long term residents who first obtained temporary status and could only adjust to permanent residence if they could pass the English and civics tests for naturalization or demonstrate that they were pursuing a course of study to help them pass these tests. They held temporary status for only 18 months, however, in contrast to the decade or more envisioned in the Senate bill.

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Some participants argued that the reverse is also true—that effective worksite enforcement requires legalization because some employers who would otherwise cooperate with a new employment verification system would instead violate the law if they were in danger of losing their existing workforce in the absence of legalization.

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CONCLUSION The Immigration Reform and Control Act of 1986 and other legalization initiatives provide today’s policymakers with valuable lessons as the nation continues to engage in the pressing debate on modern immigration reform. These programs have resulted in many successful outcomes as well as challenges that will likely affect any new legalization effort.

The bottom line is that if comprehensive immigration reform ultimately takes place, there will be significant implementation challenges, especially for federal agencies, state and local governments, and community organizations. On the other hand, if reform efforts fail in Congress and the nation is left to continue with the existing legal framework, other implementation challenges will arise, particularly if the Executive Branch uses its considerable prosecutorial discretion to defer removal and provide work authorization for groups aside from those currently benefiting from DACA. Any new legalization program will look very different at the end than in the beginning, likely expanding in scope throughout the implementation process and requiring flexibility within the agencies in charge of administering the program. Many individuals who were not in IRCA’s original eligibility guidelines were added during the period of application.

INS largely succeeded in demonstrating flexibility during IRCA’s implementation.

Program administrators responded to issues by customizing rules at different points throughout the implementation process. In this respect, IRCA points to a challenging paradox that will be experienced in any new, massive legalization effort: Agencies are, by necessity, cautious of acting pre-emptively when Congress is still deliberating on these issues, but if they wait until legislation passes to plan for administering the program, they are more likely to fail in the implementation stage. Moreover, they may ignore actions that can be taken without legislation to ameliorate the situation of those in the country without authorization who are unlikely to be apprehended or removed.

Strategic planning based on multiple scenarios—some legislative, others administrative—is essential to successful implementation.

To conclude, the following lessons of prior legalization programs should be part of any strategic planning process: •

Flexibility should be built into legalization programs because circumstances change over the course of any regularization initiative.

•

Public-private partnerships are effective in encouraging and preparing unauthorized migrants to come forward but, to be most effective, there must be significant scaling up of organizational and personnel capacity. More recently, DACA has forged new partnerships that should be utilized in any future legalization efforts.

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•

The fee-funded system in IRCA and other legalization initiatives ensured that the monies to administer the program come from the applicants themselves and, with proper setting of fees, can be proportional to the number of applicants. A significant disadvantage, however, is the up-front costs of training, infrastructure and outreach, which if not adequately funded, can compromise implementation.

That experience suggests that some funding be provided through tax revenues to help agencies and NGOs properly hire and train staff. Funding also needs to be relatively fluid and not constrained too tightly by fiscal year as some applications will arrive in one fiscal year but be adjudicated in a subsequent year.

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Substantial thought should be given to the siting or physical location of processing offices. The IRCA experience helped establish that community based offices were most efficient in serving the applicants.

•

Resources for other than Spanish speaking applicants will be required. The IRCA outreach focused primarily on Spanish-speaking communities and did not serve smaller communities as well. Attention also needs to be paid to isolated groups, such as domestic workers, stay at home women, the elderly and the disabled, as well as those in new settlement areas with little infrastructure for serving immigrants.

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IRCA left a large residual population of unauthorized migrants that was not eligible for the legalization program as they arrived in the United States after January 1, 1982. This resulted from delays in passage of the legislation; the date of arrival was set in 1982 but did not advance as the date of passage moved to 1986. Participants urged that steps be taken to minimize the residual population and to plan for the admission of the families of the newly legalized who reside abroad.

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A longitudinal survey was required under IRCA, which resulted in very useful information about patterns of illegal migration and the impacts of legalization on earnings, employment and other immigrant integration measures. Similar studies should be authorized by any new legislation.

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Language and civics requirements in IRCA led to significant engagement by public educational facilities. The costs were covered by the State Legalization Impact Assistance Grants (SLIAG), which was slow to implement but provided useful resources for states and localities that needed to provide services to the newly legalized. Particularly if legislation links adjustment to permanent residence to English language acquisition, it will be essential to ensure adequate resources for community colleges and other organizations providing classes.

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APPENDIX: ROUNDTABLE AGENDA AND LIST OF EXPERTS

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Institute for the Study of International Migration, Georgetown University

Looking Back to Move Forward: Examining Past Legalization Programs This invitation-only roundtable brings together experts on the implementation and impact of past legalization programs including IRCA, NACARA and others in the US and abroad. We seek to draw lessons from their experience of program outreach and administration; the role of state and local actors; outcomes for the immigrants and the economy; and evaluation metrics and methods. Discussion proceeds under Chatham House Rules.

Wednesday September 4th, 2013 Capitol Hill, Washington, D.C. – Rayburn House Office Building, Room B369 Continental Breakfast (7:45-8:30) Introductions (8:30-8:45) Past Legalizations Panel: An Overview of Lessons for Today (8:45 – 10:00) Three experts present and discuss their assessment of the challenges of legalization programs from the past and for the future.

Break (10:00-10:15) IRCA’s Main Program (10:15-12:00) IRCA’s main program legalized individuals present in the country since 1982. It was thought a general success at the time, what lessons does it hold and how is it judged in hindsight?

Lunch (12:00-1:00) Special Agricultural Worker Legalization (1:00 – 2:00) The SAW program legalized a significant percentage of the seasonal workforce, but many fraudulent applicants were turned away. Could fraud have been prevented? What impact was there on labour supply?

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Comparative Lessons: Legalizations at Home and Abroad (2:00-3:00) What lessons do smaller scale legalizations hold, e.g., the Nicaraguan Adjustment and Central American Relief Act; or the Chinese Student Protection Act? What can we learn from European experiences?

Concluding Observations (3:00-3:30)

LIST OF EXPERTS Jason Ackleson, US Citizenship and Immigration Services Susan Gonzalez Baker, Virginia Commonwealth University Randy Capps, Migration Policy Institute Barry Chiswick, George Washington University Elyse Golob, University of Arizona Jacqueline Maria Hagan, University of North Carolina Donald Kerwin, Center for Migration Studies of New York Irene Lee, Annie E. Casey Foundation Tiffany Lightbourn, US Citizenship and Immigration Services B. Lindsay Lowell, ISIM Tara Magner, MacArthur Foundation Philip Martin, University of California at Davis Susan Martin, ISIM Doris Meissner, Migration Policy Institute Mark Miller, University of Delaware Ann Morse, National Conference of State Legislatures David North, Center for Immigration Studies Jay Nunamaker, University of Arizona Jeffery Passel, Pew Research Center Lisa Roney, Independent Immigration Consultant Marc R. Rosenblum, Congressional Research Service Father Rick Ryscavage, Fairfield University's Center for Faith and Public Life Audrey Singer, Brookings Institution Sharon Bissell Soto, MacArthur Foundation Sheri Steisel, National Conference of State Legislatures Bob Warren, Demographic Consultant Ruth Wasem, Congressional Research Service Michele Waslin, Pew Charitable Trusts Karen Woodrow-Lafield, University of Maryland *Congressional staff has been invited.

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