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SHORTFALLS OF THE 1986 IMMIGRATION

REFORM LEGISLATION

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

CITIZENSHIP, REFUGEES, BORDER SECURITY, 

AND INTERNATIONAL LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

APRIL 19, 2007

Serial No. 110–16

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES,

BORDER SECURITY, AND INTERNATIONAL LAW

ZOE LOFGREN, California, Chairwoman

LUIS V. GUTIERREZ, Illinois 

HOWARD L. BERMAN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

LINDA T. SA ́ NCHEZ, California 

ARTUR DAVIS, Alabama 

KEITH ELLISON, Minnesota 

STEVE KING, Iowa 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas

UR MENDOZA JADDOU, Chief Counsel 

GEORGE FISHMAN, Minority Counsel 

(III)

C O N T E N T S 

APRIL 19, 2007

OPENING STATEMENT 

Page 

The Honorable Zoe Lofgren, a Representative in Congress from the State 

of California, and Chairwoman, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 1

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship, 

Refugees, Border Security, and International Law ........................................... 3

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 5

WITNESSES 

Mr. Stephen Pitti, Ph.D., Professor of History and American Studies, Director 

of the Program in Ethnicity, Race and Migration, Yale University 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 11

Mr. Muzaffar Chishti, Director, Migration Policy Institute’s Office, New York 

University School of Law 

Oral Testimony ..................................................................................................... 30

Prepared Statement ............................................................................................. 33

Mr. Stephen Legomsky, D.Phil., John S. Lehmann University Professor, 

Washington University in St. Louis 

Oral Testimony ..................................................................................................... 50

Prepared Statement ............................................................................................. 52

Ms. Rosemary Jenks, Director of Government Relations, NumbersUSA 

Oral Testimony ..................................................................................................... 61

Prepared Statement ............................................................................................. 63

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on 

Immigration, Citizenship, Refugees, Border Security, and International 

Law ........................................................................................................................ 2

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 6

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law ....... 6

Prepared Statement of the Honorable Elton Gallegly, a Representative in 

Congress from the State of California, and Member, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law ... 7

Page

IV

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Study entitled ‘‘The Underground Labor Force Is Rising To The Surface,’’ 

by Robert Justich and Betty Ng, Bear Stearns, submitted by the Honorable 

Steve King, a Representative in Congress from the State of Iowa, and 

Ranking Member, Subcommittee on Immigration, Citizenship, Refugees, 

Border Security, and International Law ............................................................ 106

Study entitled ‘‘The Fiscal Cost of Low-Skill Households to the U.S. Taxpayer,’’ by Robert Rector, Christine Kim, and Shanea Watkins, Ph.D., The 

Heritage Foundation, submitted by the Honorable Steve King, a Representative in Congress from the State of Iowa, and Ranking Member, Subcommittee on Immigration, Citizenship, Refugees, Border Security, and 

International Law ................................................................................................ 120

Article entitled ‘‘Enacting Immigration Reform, Again,’’ by the Honorable 

Romano L. Mazzoli and the Honorable Alan S. Simpson, former Members 

of the United States Senate, submitted by the Honorable Sheila Jackson 

Lee, a Representative in Congress from the State of Texas, and Member, 

Subcommittee on Immigration, Citizenship, Refugees, Border Security, and 

International Law ................................................................................................ 176

(1)

SHORTFALLS OF THE 1986 IMMIGRATION

REFORM LEGISLATION 

THURSDAY, APRIL 19, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, 

REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 3:06 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Zoe Lofgren 

(Chairwoman of the Subcommittee) presiding. 

Present: Representatives Lofgren, Gutierrez, Berman, Delahunt, 

Ellison, King and Forbes. 

Also Present: Representative Conyers. 

Staff Present: Ur Mendoza Jaddou, Chief Counsel; R. Blake 

Chisam, Counsel; Benjamin Staub, Professional Staff Member; and 

George Fishman, Minority Counsel. 

Ms. LOFGREN. This hearing on the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law 

will come to order. 

I would like to welcome everyone to the second Immigration Subcommittee hearing on comprehensive immigration reform; and I especially welcome the Subcommittee’s Ranking Member, Mr. King, 

the Members of the Subcommittee, our witnesses and the public 

and press who have joined us here today. 

Our opening hearing on comprehensive immigration reform at 

Ellis Island provided us with an analysis of immigration in the 

United States in the past and present and with an eye to the future to help us better understand the need for comprehensive immigration reform. 

At Ellis Island, in the shadow of the Statute of Liberty and 

amidst the Great Hall where 12 million immigrants were processed 

in a controlled, orderly and fair manner, we heard Border Patrol 

Chief David Aguilar tell us that we need comprehensive immigration reform because a policy that relies solely on enforcement is 

bound to fail. 

We heard from a demographer, Professor Dowell Meyers, who 

told us that because of the declining birth rate and an aging population, future flows of new, young immigrants will be critical to 

sustain a strong economic future in the United States. 

We heard from an economist, Professor Dan Siciliano, who 

taught us that the more we look at the roles immigrants play in 

our economy, the jobs they fill, the money they spend and the jobs 

2

they create, the more we see immigration is good for the economy, 

good for jobs and a critical part of our Nation’s future prosperity. 

We also heard from a historian, Professor Daniel Tichenor, who 

stated that our rich immigration history provides us with important lessons for contemporary immigration reform. Our past reveals that each wave of new immigrants has been scorned by critics, only later to distinguish themselves among our most loyal and 

accomplished citizens, and that the times we have restricted immigration the most have only fueled future waves of illegal immigration. 

This macro view of immigration in America through the lens of 

Ellis Island has set the stage for a series of hearings to discuss the 

specific issues that concern this Congress and the American public 

with regard to immigration reform. As we did with our first hearing, it is important for us to learn from the past in an effort to 

avoid mistakes in the future. This is why we are turning our attention today to the shortfalls of the 1986 immigration reform legislation, the Immigration Reform and Control Act, otherwise known as 

IRCA. Tomorrow, we will do the same with 1996 immigration legislation at a 10 a.m. Immigration Subcommittee hearing. 

I very much look forward to the testimony of the expert witnesses here to help us as we develop the appropriate ingredients 

for comprehensive immigration reform. Although IRCA was certainly a well-intentioned attempt to resolve the problem of illegal 

immigration, we now have what many experts tell us is 12 million 

undocumented immigrants in the United States 21 years after 

IRCA was signed into law by President Reagan. It is clear that any 

attempt at immigration reform today should be informed by the actual results of past efforts and not resulting in an additional 12 

million undocumented immigrants 20 years from now. 

This hearing is to learn what went wrong and how we in Congress can fix our broken immigration system now and for the future. We hope with this and other hearings to learn what legislation is necessary to end illegal immigration once and for all. That 

is what comprehensive immigration reform is all about. 

[The prepared statement of Ms. Lofgren follows:]

PREPARED STATEMENT OF THE HONORABLE ZOE LOFGREN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON

IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL

LAW

I would like to welcome everyone to the second Immigration Subcommittee hearing on comprehensive immigration reform. I especially welcome the Subcommittee’s 

Ranking Member, Mr. King, the members of the Subcommittee, our witnesses and 

the the public and press who have joined us here today. 

Our opening hearing on comprehensive immigration reform at Ellis Island provided us an analysis of immigration in the United States in the past and present, 

and with an eye to the future to help us better understand the need for comprehensive immigration reform. 

At Ellis Island, in the shadow of the Statue of Liberty and amidst the Great Hall 

where 12 million immigrants were processed in a controlled, orderly, and fair manner, we heard Border Patrol Chief David Aguilar tell us that we need comprehensive immigration reform because a policy that relies solely on enforcement is bound 

to fail. 

We heard from a demographer, Professor Dowell Meyers, who told us that because 

of a declining birth rate and an aging population, future flows of new, young immigrants will be critical to sustain a strong economic future in the U.S. 

3

We heard from an economist, Professor Dan Siciliano, who taught us that the 

more we look at the roles immigrants play in our economy, the jobs they fill, the 

money they spend, and the jobs they create, the more we see immigration is good 

for the economy, good for jobs, and a critical part of our nation’s future prosperity. 

We also heard from a historian, Professor Daniel Tichenor, who stated that our 

rich immigration history provides us with important lessons for contemporary immigration reform. Our past reveals that each wave of ‘‘new’’ immigrants has been 

scorned by critics, only later to distinguish themselves among our most loyal and 

accomplished citizens, and that the times we’ve restricted immigration the most 

have only fueled future waves of illegal immigration. 

This macro view of immigration in America through the lens of Ellis Island has 

set the stage for a series of hearings to discuss the specific issues that concern this 

Congress and the American public with regard to immigration reform. 

As we did with our first hearing, it is important for us to learn from the past in 

an effort to avoid mistakes in the future. This is why we are turning our attention 

today to the shortfalls of the 1986 immigration reform legislation, the Immigration 

Reform and Control Act, otherwise known as IRCA. Tomorrow, we will do the same 

with 1996 immigration legislation at a 10:00 AM Immigration Subcommittee hearing. 

I very much look forward to the testimony of the expert witnesses here to help 

us as we develop the appropriate ingredients for comprehensive immigration reform. 

Although IRCA was certainly a well-intentioned attempt to resolve the problem of 

illegal immigration, we now have what many experts tell us is 12 million undocumented immigrants in the U.S. 21 years after IRCA was signed into law by President Reagan. 

It is clear that any attempt at immigration reform today should be informed by 

the actual results of past efforts and not resulting in an additional 12 million undocumented immigrants 20 years from now. This hearing is to learn what went 

wrong and how we in Congress can fix our broken immigration system now and for 

the future. We hope with this and other hearings to learn what legislation is necessary to end illegal immigration once and for all. That is what comprehensive immigration reform is all about.

Ms. LOFGREN. I would now like to recognize our distinguished 

Ranking minority Member, Steve King. 

Mr. KING. Thank you, Madam Chair; and I appreciate the witnesses coming forward to testify. 

When President Ronald Reagan signed the ’86 Immigration Reform and Control Act, which we will refer to here in this hearing 

probably as IRCA, into law, he said the legislation’s goal was to establish a reasonable, fair and orderly and secure system of immigration into this country. Unfortunately, 20 years later, we have 

the exact opposite. There are an estimated 20 million illegal immigrants in the United States. 

For many years, there has been virtually no interest in enforcing 

the employer sanctions instituted under IRCA. There are drug 

smugglers running 65 billion—that is billion with a B—dollars 

worth of illegal drugs across our southern border every year. American taxpayers are forced to pay the education, welfare, healthcare 

and other costs of lawbreakers who ignore the U.S. Immigration 

laws that are now demanding U.S. citizenship. 

The blame for the current disastrous policy rests on several 

prongs, not the least of which is the ’86 bill itself. For instance, the 

IRCA amnesty for special ag workers, and that is agricultural 

workers, or those illegal immigrants who have lived in the United 

States since 1982, acted as an incentive for new illegal immigrants 

to come to this country. The lesson was if they could get here they 

would eventually be granted amnesty. In fact, according to an INS 

report, the inflow of illegal aliens averaged an incredible 716,000 

in each of the first five post-amnesty years; and the fact that 

4

IRCA’s employer sanctions were never enforced let employers know 

that they would never be held accountable for hiring illegal aliens. 

IRCA was supposed to be an exception to the rule, an amnesty 

that would once and for all fix the Nation’s illegal immigration 

problem so we could seriously and effectively control our borders. 

Senator Alan Simpson, who helped author the legislation, called 

IRCA a ‘‘one-time-only legislation program.’’ It was supposed to be 

covered with tough enforcement, but that never happened. 

Despite the IRCA promise of enforcing employer sanctions, few 

employers have been fined or prosecuted for hiring illegal immigrants. In fact, only 412 work-site enforcement cases were imposed 

in 2005; and only four notices of intent—only four notices of intent—to fine employers for violations were issued in 2005. Thankfully, ICE Director Julie Myers is now showing significant leadership in actually making concerted efforts to enforce the law. 

Despite the IRCA promise to secure the borders, there are more 

people than ever before trying to enter our country illegally. Over 

1 million were apprehended trying to do so last year. There was 

1,188,000 by my memory. And it is estimated that for every one apprehended two or three successfully enter, according to testimony 

before this Committee just last year. 

Despite the IRCA one-time-only amnesty promise, there have actually been six amnesties since that time, including the 1994 245(i) 

amnesty that rewarded 600,000 illegal immigrants for breaking 

U.S. laws and amnesties to Central America and Asian refugees. 

And this year we are faced with a possibility of another amnesty 

on this legislation of anywhere from 12 to 20 million illegal immigrants and maybe more than that. That policy is the biggest most 

destructive amnesty in U.S. history, Americans will pay dearly for 

it, and there is no rolling back once we make a decision. 

The 1986 bill not only created amnesty but also a large market 

for fraudulent identity and employment eligibility documents. According to University of California Professor Philip Martin, up to 

two-thirds of the applications for the IRCA agricultural worker amnesty were fraudulent. Illegal immigrants submitted fraudulent affidavits and documents from employers who substantiate their 

claim that they had been engaged in the required prior agricultural 

employment, which was 90 days. They also routinely used fraudulent documents to obtain employment. 

Even the 1986 Attorney General Ed Meese argues that IRCA did 

not do what was intended. In May of 2006, in a New York Times

article, Mr. Meese noted: ‘‘The ’86 Act did not solve our immigration problem.’’ So, 20 years later, we are back to the same problem, 

a lack of respect for the rule of law which some things should be 

rewarded with amnesty, such as a pardon for breaking immigration 

law and a reward of the objective for their crime. 

Without careful consideration, the issue before us is true commitment to security; border and interior. 

A number of the witnesses before Ellis Island did answer some 

questions ‘‘I don’t know’’ because they are not thinking for the long 

term, they are giving us testimony for the short term. I am looking 

for the long-term vision here in the witness’s testimony. 

I appreciate it, Madam Chair; and I yield back the balance of my 

time. 

5

Ms. LOFGREN. Thank you, Mr. King. 

We are pleased to be joined by the Chairman of the full Committee today. I will now recognize Chairman Conyers for any opening statement he may wish to make. 

Mr. CONYERS. Thank you, Subcommittee Chair. 

I am so happy to be here, and actually I better be here because 

this is probably one of the larger bills that we are going to handle 

in the Judiciary Committee. I must commend you on the way you 

thought about lifting up some of the issues for us to discuss in a 

frame of reference that doesn’t have to work around bill A or bill 

B or bill C, and what I wanted to do was run through just a couple 

of things that occurred to me. 

But Steve King, our Ranking Member, said that there were 20 

million illegal immigrants living in our Nation. Now, mistakenly, 

I have been using the number 12 million for all too long, so after 

this hearing I am going to check with him and we are going to 

match our research to see what is happening here. 

Now, what has made the system that our Ranking Member 

talked about so dysfunctional? Well, for one thing, we have been 

approaching this from an enforcement-only approach. And enforcement-only is wonderful, but what we are really talking about is 

driving hard-working people underground in an economy where 

they are even more subject to problems. 

Second, the Mazzoli-Simpson Bill of 1986—and I all of our colleagues remember it very well—it imposed sanctions for the first 

time against employers for hiring unauthorized aliens. 

Now, in the absence of enforcement of these sanctions, the flow 

of illegal immigrants illegal increased. So this is beginning to 

turn—we want to analyze the enforcement—illegal enforcementonly approach, but, at the same time, we want to have meaningful 

sanctions. They are like two ends of the same issue. And I hope, 

as Chair, that you go into that really carefully. 

Now the next item that I lift up for your consideration is the use 

of subcontractor arrangements which hurt everybody. The laws 

document requirements and verification systems promoting a widespread use of subcontract arrangements; and I think that, with any 

examination, you will see that these were far less than transparent 

because they put the immigrant workers at risk by lessening employers’ responsibilities to provide safe workplaces and fair wages. 

Then we have to look beyond legalization provisions which 

amounted to amnesty. Now I know amnesty is going to be a big 

theme here; and I would recommend that we all take a deep 

breath, a couple of deep breaths, and try to put this amnesty concept into some perspective. 

When I find the Southern Baptist Ethics and Religious Liberty 

Commission joining with Congress on rejecting the reflective label 

on amnesty, I think we are onto something big here, frankly. So 

what we need is an immigration system whose features are controlled and fair. I am looking for that, I want to work on it, I come 

with an open mind, and I congratulate the Chairwoman and the 

Ranking Member for the kind of approach that they are taking in 

this matter. 

[The prepared statement of Mr. Conyers follows:]

6

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

JUDICIARY

America’s immigration system is in disarray. Families coming to our shores looking for a better life are caught in a tangle of confusing requirements and traps for 

the unwary. The latest estimate is that 12 million illegal immigrants our living in 

our nation. 

Employers risk serious business disruptions when law enforcement officials conduct an unannounced sweep of their premises to round-up their employees. Businesses that pay good wages to its employees must compete with disreputable companies that essentially pay slave wages and substandard working conditions. 

Our immigration laws have created a dysfunctional system in dire need of reform. 

To begin the task of reform, we will first focus on the 1986 and 1996 laws, in particular—on what has worked and what has not—so we hopefully can get it right this 

time. 

Here are a few themes that I think will surface from today’s and tomorrow’s hearings. First, an enforcement-only approach to illegal immigration does not work. In 

fact, it promotes more illegal immigration. It drives hardworking, otherwise law 

abiding individuals into an underground economy and encourages fraudulent activities, like identity theft. 

Second, meaningful enforcement is absolutely essential. Although the 1986 Act, 

for the first time, imposed sanctions against employers for hiring unauthorized 

aliens, these sanctions have hardly ever been imposed. In the absence of their enforcement, the flow of illegal immigrants has surged given the availability of employment. 

Third, the law’s document requirements and verification systems have promoted 

the widespread use of subcontractor arrangements. These arrangements hurt both 

American citizens and immigrant workers. They force Americans to compete with 

below-market laborers. They put immigrant workers at risk by lessening employers’ 

responsibilities to provide safe workplaces and fair wages, and by weakening the 

ability of these workers to organize. 

When examining the 1986 law, we need to look beyond whether its legalization 

provisions amounted to amnesty. As Richard Land of the Southern Baptist Ethics 

& Religious Liberty Commission recently suggested, we should reject the reflexive 

labeling of any good-faith reform efforts as amnesty. That is a false argument, designed to distract and delay. That is not what comprehensive immigration reform 

is about. 

What we do need is an immigration system that is controlled, orderly, and fair.

We need a system that puts an end to worker exploitation and does not drive down 

wages. We need a system that helps to unite families. We need a system where border crossings are orderly and enforcement is vigorous, yet fair and humane. 

It is my hope that as a result of today’s hearing and others that the Subcommittee 

will hold in the upcoming months, we will be able to develop a workable package 

of immigration reforms. 

So, let’s roll up our sleeves and get to work solving these problems.

Ms. LOFGREN. Thank you very much, Mr. Conyers. 

In the interest of proceeding to our witnesses and mindful of our 

need to go to votes shortly when they are called, I would ask that 

other Members submit their statements for the record within 5 legislative days. Without objection, all the witness’s statements will be 

placed into the record; and, without objection, the Chair will be authorized to declare a recess of the hearing. 

[The prepared statement of Ms. Jackson Lee follows:]

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

Thank you Mr. Chairman for holding this important meeting. This hearing will 

examine the shortfalls of the Immigration Reform and Control Act of 1986, which 

is referred to as, ‘‘IRCA.’’ It also is known as, the ‘‘Simpson-Mazzoli bill.’’ The coauthors of IRCA expressed their opinion on IRCA’s shortfalls in an op-ed last year. 

According to Senator Alan Simpson (R-Wyo., ret.) and Senator Romano Mazzoli (DKy., ret.), IRCA’s shortcomings are not due to design failure; they are due to a failure to execute the law properly. 

7

IRCA was referred to as a ‘‘three-legged stool.’’ The first leg was enforcement, improved border security and penalties against employers who knowingly hire undocumented workers. The second was a temporary worker program for agricultural 

workers which included built-in wage and workplace protections. Current legislation, such as the STRIVE Act of 2007, H.R. 1645, and my Save America Comprehensive Immigration Act of 2007, H.R. 750, would employ a similar framework. 

IRCA’s key enforcement measure was to be employer sanctions. Work was and 

still is a magnet that draws people from all over the world who need jobs. The employer sanctions, however, were not enforced. Until recently, the enforcement of employer sanctions has been a low priority for the Bureau of Immigration and Customs 

Enforcement (ICE). This is reflected in its record of initiating fine proceedings. Between FY1999 and FY2004, the number of Notices of Intent to fine that ICE issued 

to employers decreased from 417 to only three. 

One of the deterrents to vigorous enforcement of employer sanctions has been the 

fact that it is difficult for an American employer to determine whether a job applicant is an alien, and, if so, whether he has work authorization. Comprehensive immigration reform must address this problem. We are not likely to see effective enforcement of employer sanctions until a system is in place that permits employers 

to reliably and easily determine whether a prospective job applicant is an alien, and, 

if so, whether he has work authorization. 

One of the main criticisms of IRCA is that its legalization program granted amnesty. ‘‘Amnesty’’ is defined by the American Heritage Dictionary as a general pardon granted by a government, especially for political offenses. It was derived from 

the Latin word ‘‘amnesti,’’ which means amnesia. The STRIVE Act and the Save 

America do not have any provisions that would forget or overlook immigration law 

violations. 

Under IRCA, legalization eligibility depended on whether the applicant had entered the United States before January 1, 1982, and resided here continuously since 

that date. In contrast, the Strive Act and the Save America Act provide for earned 

access to legalization. The person seeking lawful status has to show that he or she 

has earned that privilege. 

The most serious shortcoming of IRCA, however, is that it was not comprehensive. 

Although it had legalization programs and new enforcement measures, it did not address all of the essential issues. For instance, it failed to provide enough employment-based visas to meet future immigration needs. American employers need foreign workers to meet their labor needs. 

Carlos M. Gutierrez, Secretary of Commerce, testified at a Senate hearing on July 

12, 2006, that, ‘‘The reality is that our economy is growing faster than any other 

large, industrialized nation. Our unemployment rate is below the average of the 

past four decades. Our economy—like other major industrial economies—faces the 

challenge of an aging and increasingly educated workforce. The result is that we 

have jobs that American citizens either aren’t willing or aren’t available to do. I continually hear from industries that they are having difficulty finding workers.’’

On account of IRCA’s failure to address this problem, the shortage of visas that 

contributed to undocumented immigration prior to IRCA’s enactment continued to 

do so afterwards. Consequently, American employers eventually returned to the 

practice of hiring undocumented foreign workers, and the availability of these jobs 

encouraged foreign workers who could not get visas to enter unlawfully. 

We will not be able to secure are borders until enough visas are available to meet 

our country’s employment needs without having to resort to employing undocumented workers. People from around the world who need work will find some way 

of entering the United States without documents so long as there are jobs waiting 

for them in this country, and American employers will continue to hire them.

[The prepared statement of Mr. Gallegly follows:]

PREPARED STATEMENT OF THE HONORABLE ELTON GALLEGLY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND INTERNATIONAL LAW

Madam Chairwoman, thank you for holding this hearing to explore the Shortfalls 

of the 1986 Immigration Reform and Control Act (IRCA). 

IRCA attempted to discourage illegal immigration through a combination of increased border security, an employment verification system, and granting amnesty 

and a path to citizenship for 3 million people who had crossed our borders illegally. 

Clearly, IRCA failed to deter illegal immigration. Twenty years after IRCA, we 

have as many as 20 million illegal immigrants. 

8

IRCA failed to turn off the ‘‘job magnet.’’ Successive administrations have chosen 

to ignore worksite enforcement, as well as other anti-immigration laws Congress has 

passed in the years since 1986—including many provisions that I authored. 

More importantly, rewarding people who break the law only encourages others to 

do the same. 

Madame Speaker, until we demonstrate to the American people that we are serious about enforcing our immigration laws, we should not consider any provision that 

would reward law breakers. I look forward to hearing from our witnesses. I yield 

back the balance of my time.

Ms. LOFGREN. We have four distinguished witnesses here today 

to help us consider the important issue before us. 

I am pleased to welcome Dr. Steven Pitti, a Professor of History 

and American Studies at Yale University and Director of the Program in Ethnicity, Race and Migration. Professor Pitti teaches an 

array of undergraduate and graduate courses at Yale, ranging from 

20th century immigration to courses in Latino studies. Raised in 

Sacramento, California, Dr. Pitti received his Ph.D from Stanford 

University in 1988. 

We will next hear testimony from Muzaffar Chishti, the Director 

of the Migration Policy Institute’s Office at the New York University School of Law. Mr. Chishti’s work is focused on the intersections between civil liberties immigrant integration, and immigration and labor law. Mr. Chishti worked as a labor organizer during 

the 1980’s and became intricately involved in the passage and implementation of the 1986 legislation. 

I am also pleased to welcome Dr. Stephen Legomsky, the John 

S. Lehmann University Professor at Washington University in St. 

Louis. Professor Legomsky authored the standard tome in American law schools, Immigration and Refugee Law and Policy—thank 

you very much; we all use it—and has served as an advisor to 

President George H.W. Bush’s Commissioner of Immigration, 

former President Bill Clinton’s transition team, and immigration 

officials from Russia and Ukraine. He currently sits on the Board 

of Advisors for the United Nations Educational, Scientific and Cultural Organization chair in Migration and Human Rights. 

Finally, we are pleased to have before us Rosemary Jenks, the 

Director of Government Relations at NumbersUSA. Prior to her 

tenure at NumbersUSA, Ms. Jenks worked as an independent immigration consultant and as Director of Policy Analysis at the Center for Immigration Studies. Ms. Jenks received her bachelors degree from Colorado College and her law degree from Harvard University School of Law. 

Now, each of you have your written statements, and I have read 

them all. They are lengthy and very informative. They will all be 

made part of the record in their entirety. I would ask that each of 

you summarize your testimony in 5 minutes or less and stay within 

that time. There is a timing light at the table. When 1 minute remains, the light will switch from green to yellow; and then when 

it turns red it starts to blink. 

Ms. LOFGREN. If we could begin with Professor Pitti. Again, 

thank you very much for being with us. 

9

TESTIMONY OF STEPHEN PITTI, Ph.D., PROFESSOR OF HISTORY AND AMERICAN STUDIES, DIRECTOR OF THE PROGRAM IN ETHNICITY, RACE AND MIGRATION, YALE UNIVERSITY 

Mr. PITTI. Thank you, Madam Chair, Members of the Subcommittee. Thank you for inviting me to provide historical perspective on IRCA. 

My name is Stephen Pitti and I am Professor of History and 

American Studies at Yale, where I direct the undergraduate program in Ethnicity, Race and Immigration. I am here today to urge 

this Congress to face some difficult truths about our past and 

present in order to think differently about our future. 

We have long lived in a migrant world, and today some 180 million people live outside of their home nation. Recent migrations are 

products of history: the near continuous movement of Latin Americans into the U.S. since the Gold Rush in the 1840’s, our Nation’s 

long-term reliance on low-wage immigrants in work forces in agriculture, forestry, food processing, meat packing, mining, fishing, 

construction and other industries during the 20th century, and the 

20th century’s global economic and political restructuring, often directed by the United States, which escalated in the late 20th century. 

Recent migrations to the U.S. were prompted by our foreign policy in Central America in the 1970’s and 1980’s. They were also 

prompted by our economic policies abroad. Migrants left rural Mexico and other countries in massive numbers during those years as 

their elected officials established new austerity measures to service 

debts to U.S. banks. 

With these fundamental facts in mind, we must think outside the 

logic of border control which IRCA embodied. In the face of massive 

global hemispheric and national development, that Act sought to 

control immigration through new border enforcement mechanisms—both a massive build-up of the Border Patrol and new enforcement technologies, and new employer sanctions which would 

deny undocumented residents jobs in the U.S. 

If we are to avoid the growing animosity and spectacular violence 

which erupted recently between noncitizen migrants in Denmark, 

Germany, France and other European countries, we must talk far 

more about why migrants leave their homeland and how the U.S. 

might work in cooperative ways, new ways, with other nations to 

address emigration, not just immigration. In this spirit, we must 

remember that foreign debts and INS-dictated fiscal policies during 

the 1980’s and 1990’s, eliminated large segments of Mexico’s middle class and made making a living far more difficult in that country. They assured that 40 percent of Mexico would live in poverty, 

some 25 percent in extreme poverty by the late 20th century. 

We must also understand while IRCA had a mild deterrent effect 

on subsequent undocumented migration, its way of conceptualizing 

border control brought new difficulties for all of us. As unauthorized crossings from Mexico became far more dangerous in the aftermath of IRCA, IRCA paradoxically led to the dramatic rise in the 

power of militarized criminal syndicates trafficking in drugs and 

people near the border. It also led to the deaths of ever-larger numbers of border crossers in the late 20th century who moved into 

10

more remote desert regions to cross into the United States. It divided families in Mexico and the United States and exposed a 

growing number of female migrants to rape and other forms of sexual exploitation at the border. 

We must understand that IRCA had other unintended effects. As 

the border became more dangerous, migrants within the U.S. who 

had once hoped to return to Mexico felt trapped in the U.S., unable 

to move back and forth across the border. 

We must understand IRCA as a labor bill that changed the nature of workplaces throughout the U.S. Sanctions helped drive 

down real wages, promoted discrimination on the basis of race or 

nationality in the workplace, and encouraged subcontracting arrangements in many industries, all of which hurt both immigrants 

and the U.S. born. What is more, employer sanctions put undocumented workers at greater risk of deportation or job loss if they 

complained about wages or working conditions, making them more 

vulnerable to mistreatment on the job and less inclined to stand up 

with U.S. workers to better everyone’s circumstances. 

We need also to remember that IRCA, in fact, established guest 

worker programs that have been, to echo one American, a shame 

of our Nation. Congressman Charles Rangel has called these IRCA 

programs, quote, the closest thing I have seen to slavery. These 

H2A guest worker systems imported 125,000 guest workers to the 

U.S. in 2005, 32,000 of them in agriculture and 89,000 in forestry, 

seafood processing, landscaping, construction and other nonagricultural industries. 

Like the Act’s employer sanction provision, the H2 program encourages a growth of subcontracting and low pay. We must investigate the past and present circumstances of guest workers in advance of formulating new policies and control. H2A and 2B deserve 

far greater governmental scrutiny and far greater media attention. 

Human rights groups have documented some of these abuses in 

North Carolina. The New York Times recently brought greater attention to Guatemala H2A workers imported by Imperial Nurseries 

to North Carolina and Connecticut. 

I urge all Members of the Committee to read the Southern Poverty Law Center’s recent report, Close to Slavery: Guest Worker 

Programs in the United States. 

Finally, we must understand why migrants have left their own 

counties to work in the United States. History provides a useful 

guide toward new policies responding to global dynamics and the 

basic human needs. Thank you. 

Ms. LOFGREN. Thank you very much, Dr. Pitti. 

[The prepared statement of Mr. Pitti follows:]

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PREPARED STATEMENT OF STEPHEN PITTI


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Ms. LOFGREN. Mr. Chishti. 

TESTIMONY OF MUZAFFAR CHISHTI, DIRECTOR, MIGRATION 

POLICY INSTITUTE’S OFFICE, NEW YORK UNIVERSITY 

SCHOOL OF LAW 

Mr. CHISHTI. Thank you very much, Madam Chair and distinguished Members of the Subcommittee. I am so glad to be back at 

the Subcommittee. 

My name is Muzaffar Chishti. I am a lawyer. I direct the Migration Policy Institute’s office at NYU Law School. Before that, I ran 

the Immigration Project of UNITE, and in 1986 I helped implement 

the illegalization program of this union. So I bring that perspective 

as I discuss the shortfalls of IRCA, and I will make my comments 

in three groups, very quickly. 

The first is one good failure about IRCA in terms of predicting 

future labor needs of the country. Ultimately, I think the big failure of IRCA was it was a narrow piece of legislation, focused exclusively, almost exclusively, on the issue of undocumented immigration. 

The backdrop of this is that IRCA’s informative background came 

from the Select Commission on Immigration and Refugee Policy. It 

showed the demographic picture of the 1980’s. By the time the Judiciary Committee here was looking at the needs of the labor market, it was based on the assumption of 1981. It was actually in 

1987 that we had a major study by the Department of Labor called 

the Workforce 2000 Report which started establishing the longterm demographic needs of the labor market trends across the 

country. So, in 1986, we were actually looking at assumptions that 

were 5 years old about the needs of the labor market. 

What everyone failed to look at was at how we are going to be 

increasingly dependent on the immigrant labor force in our labor 

market, especially in the low-wage sector of the labor market. And 

today the evidence is compelling. If you look at the growth of the 

labor market between 2000 and 2005, about 60 percent of that is 

due to new immigrants. 

What is more important is to look at the aging of our society and, 

also, the educational levels of our society. We have fewer and fewer 

workers available to fill the jobs that are going to be generated in 

our economy. 

We all know baby boomers are retiring in big numbers in 2012. 

The Bureau of Labor Statistics has stated that we will have about 

56 million jobs created in this country by 2014. About more than 

half of them require less than a high school diploma. So who is 

going to fill the jobs? Obviously, immigrants. But we don’t have 

any legal channels for them to come. In fact, after IRCA, we have 

actually reduced the legal channels for immigrants to come to fill 

these jobs. There are only about 5,000 visas available to fill these 

jobs in the low-wage sector of the economy. 

So the laws of supply and demand are actually working very 

well, except that illegal channels are being used to fill that demand 

instead of legal channels. We obviously need to have a new channel 

for illegal workers to come. And, as I propose in my testimony, we 

have a program which is of a different form, a temporary and permanent worker program for people who would come to work for 

31

employers but they would have mobility to move between employers. Both U.S. workers and immigrant workers would have protections. People would have the ability to go back to their counties if 

they choose to or they have the right to remain in our society. 

Let me just quickly do the lessons of sanctions. There is a huge 

legacy here. Sanctions had a compelling dual promise. They were 

going to reduce illegal immigration and help change and improve 

the wages and working conditions of U.S. workers. Neither happened. 

We heard today how illegal immigration has grown, and we also 

know that employers will circumvent the letter of the law by putting people off the books, by using independent contractors, by 

using employment agencies and by a huge use of fraudulent documents. 

We also know by various studies since 1986 that IRCA has led 

to significant discrimination in the work place, and it has been 

used systematically by many employers to circumvent the labor 

laws and employment laws of our country. I think evidence of that 

has been compelling since the 1980’s. 

Now we all know the verification system now that has been in 

practice since 1997 called the Basic Pilot. It is a small program, but 

evaluation of it by independent evaluators show that it is fraught 

with problems, both with respect to accuracy of the data in the 

database of the Social Security Administration and the DHS; and 

that it has been abused by employers in a variety of ways, from 

looking at accessing the records before people actually are hired 

and other forms of abuse, which I have highlighted in my testimony. 

We obviously need an expanded verification program because we 

need new ideas to control the level of immigration; but we have to 

do it in a very thoughtful and gradual way. 

Today, there are about 15,000 employers in the Basic Pilot system. If we want to make it universal and mandatory, we are looking at 8 million employers and 144 million workers; and 50 million 

hiring decisions made every year. To scale it up to the level that, 

obviously, is a huge, massive amount of commitment; and I think 

we should do it in a very systematic time line, where we first sort 

out data inaccuracies and look at the validation in terms of the 

abuses of the Basic Pilot. 

Let me just go, lastly, to the legalization program, of which I 

know a little bit. It was actually one of the most successful components of IRCA. A large number of people did get legalized, but it 

had some important lessons for us to teach, and I will just quickly 

outline two or three of them. 

This legalization program should be as inclusive as possible and 

should invite as little fraud as possible. Which means if you have 

various tiers of people who qualify, it only increases the tendency 

of people to get into a better tier and use the fraudulent documents 

to do that. 

And, second, the regulations that are going to be implemented 

should be extremely unambiguous and clear. Regarding those fees, 

litigation would result often to immigration in America; and they 

should be avoided. Family members of people who get legalized 

should be included. Otherwise, we split families. And I think there 

32

is a huge role here for the private sector. The private sector played 

a very critical role in 1986 in both the outreach to the communities, 

and it actually helped the INS. 

Lastly, the States where people are going to be immigrated 

should be compensated for their costs. 

Thank you. 

Ms. LOFGREN. Thank you very much. 

[The prepared statement of Mr. Chishti follows:]

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PREPARED STATEMENT OF MUZAFFAR A. CHISHTI


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Ms. LOFGREN. Dr. Legomsky. 

TESTIMONY OF STEPHEN LEGOMSKY, D.PHIL., JOHN S. LEHMANN UNIVERSITY PROFESSOR, WASHINGTON UNIVERSITY 

IN ST. LOUIS 

Mr. LEGOMSKY. Madam Chair and Members of the Subcommittee, thank you very much for the privilege of appearing before you to talk about the shortfalls of IRCA. 

In my view, the single largest gap in both IRCA and subsequent 

legislation is in the failure to update the criteria for legal immigration into the U.S. Families have to be reunited, and employers 

have to have practical ways in which to fill their labor needs. Until 

those goals can be achieved legally, illegal immigration will continue to be the path that we choose, whether we like it or not. 

I would like to devote these few minutes to just one of the issues 

covered in my written testimony. 

If you are a U.S. citizen, and you either marry a noncitizen or 

have a child overseas who is not a citizen, your new spouse or child 

would be classified as immediate relative. Immediate relatives are 

admitted as permanent residents without numerical limits and 

therefore may come in fairly quickly. 

In contrast, if you are a lawful permanent resident—a green card 

holder—and you marry a noncitizen or have a child who is not a 

citizen, your new spouse or your newborn child will have to wait 

to join you. Currently, it is more than 5 or 6 years. These are the 

so-called 2As, and the current statute caps the number of these 

2As whoh can be admitted in any one fiscal year. 

These long waiting periods cause massive problems. The most obvious are the humanitarian ones. Husbands and wives are separated for the first 5 or 6 years of their marriages. Newborn children 

are separated from one or both of their parents for the first 5 or 

6 years of the child’s life. Whatever one’s views on immigration 

preferences for extended families, prolonged separations of newlywed, husbands and wives and newborn children from their parents are heartbreaking. If we are going to talk about family values, 

then I think this is a problem we have to fix. 

Humanitarian concerns aside, these long separations practically 

beg people to violate the immigration laws. Countries expect people 

to obey their laws. But human nature will have to be remade before husbands and wives willingly separate for the first 5 or 6 

years of their marriages, amd before parents willingly separate 

from their newborn children for the first 5 or 6 years of a child’s 

life. For too many people, illegal immigration is an irresistible 

temptation. 

In 1990, Congress did raise the 2A numerical ceilings, which 

wass a very good step. For a while, the waiting periods for the 2As 

did drop sharply as a result. But, inevitably, they began to creep 

up again to the current level of 5 or 6 years. 

Some of the current bills, including the STRIVE Act introduced 

by Representatives Gutierrez and Flake, would further raise the 

total ceiling on family sponsored immigrant visas generally and on 

2As in particular. I very much applaud those steps, but I would respectfully urge Congress to go one step further. I submit it is not 

enough simply to increase the statutory ceiling, as was done in 

51

1990, and just hope the new number proves to be optimal in the 

long run. Better, I would suggest, is to make these 2As immediate 

relatives, just like the spouses and the children of U.S. citizens. 

This would exempt them from the numerical ceilings and would finally end the prolonged waits that not only cause needless hardship but also encourage illegal immigration. 

At first glance, I realize the proposal might seem like one to 

greatly increase total legal immigration, but in fact it shouldn’t. 

Because every single person who would benefit from the proposal 

is somebody who is going to be admitted in a future year anyway. 

The total number of immigrants in the long term is unaffected. The 

only change is one of timing. Instead of making you wait overseas 

for several years while the rest of your family is here, we admit 

you now. There would be more 2As immediately after enactment 

but fewer later. And if Congress wished to minimize any short-term 

interruption, it could always phase in such a change over several 

years. 

So, to be clear, this is not a proposal to increase legal immigration, although for independent reasons Congress might very well 

wish to do precisely that. 

Anyway, this, however, is just a proposal to expedite the admission of those nuclear family members who eventually will be admitted in any case. It would solve the humanitarian problem and as 

a bonus, it would remove one of the most powerful incentives for 

illegal immigration. 

I’m in the uncustomary position of having time left, so I will actually stop right here. 

Ms. LOFGREN. Thank you, very much, Doctor. 

[The prepared statement of Mr. Legomsky follows:]

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PREPARED STATEMENT OF STEPHEN LEGOMSKY


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Ms. LOFGREN. Ms. Jenks, you are doing clean-up here. 

ROSEMARY JENKS, DIRECTOR OF GOVERNMENT RELATIONS, 

NumbersUSA 

Ms. JENKS. Madam Chairwoman, Ranking Member King, Members of the Subcommittee, thank you for the opportunity to appear 

before you today to talk about the shortfalls of the 1986 IRCA. I 

commend you for holding this hearing to examine the lessons we 

can learn from past legislation so that we may avoid the same mistakes in future legislation. We inside the Beltway too rarely engage 

in this kind of exercise. 

My organization, NumbersUSA, is a nonprofit, nonpartisan, 

grassroots immigration reduction organization representing close to 

300,000 Americans from every State and congressional district in 

the country. 

Not having read the provisions of IRCA for several years, I, like 

most people, had come to think of IRCA as being comprised of 

three main elements: employer sanctions, the general amnesty and 

the Special Agricultural Worker, or SAW, amnesty. In fact, though, 

IRCA had all the same basic elements as the comprehensive immigration reform proposals we have seen coming out of the Senate, 

the White House and even the House. 

In addition to employer sanctions, IRCA included several enforcement provisions, including increased Border Patrol resources. It increased legal immigration by creating a visa lottery and adding a 

new category of special immigrants. It added a new guest-worker 

program for temporary agricultural workers, and then it had the 

two amnesties: those who had been illegally present since before 

January 1st of 1982 and one for illegal aliens who claim to have 

performed agricultural work during a specified period. 

There seems to be almost universal agreement now on two key 

things: one, IRCA was in fact an amnesty; and, two, IRCA failed 

to accomplish its purpose, which was to wipe the illegal immigration slate clean and deter future immigration by removing the jobs 

magnet. 

I think the American public understands intuitively something 

that seems elusive here in Washington and that is what constitutes 

amnesty. Amnesty is pardoning immigration lawbreakers and rewarding them with the objective of their crimes. Any legislation 

that rewards illegal aliens who came here for jobs by giving them 

a work permit is amnesty. It makes no difference whether they are 

granted temporary residence or green cards, whether they have to 

pay a fine or back taxes, whether they have to learn English or 

civics or whether they have to touch back across the border to launder their status. If the end result is that they get legal permission 

to work, it is amnesty. 

One of the more interesting twists in the debate inside the Beltway is the fact that some elected officials hold out IRCA as the big, 

bad amnesty which they repeatedly insist they oppose. In the next 

minute, though, they have signed onto or introduced a bill that is 

just as much an amnesty as IRCA. 

The White House’s latest proposal is a good example of this. The 

very first page of the document states that one of the first prinVerDate 0ct 09 2002 10:59 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\041907\34758.000 HJUD1 PsN: 34758
62

ciples is to, quote, bring illegal workers out of the shadows, offering 

them what we call a Z visa, without amnesty. 

First, I would point out that the public no longer buys the outof-the-shadows argument, since they saw huge groups of self-identified illegal aliens marching in the streets last year. More importantly, though, offering illegal aliens a Z visa or any other kind of 

visa is, by definition, amnesty, rewarding the lawbreaker with the 

objective of his crime. 

In the end, it is all about perceptions. If people outside the 

United States believe that Congress has changed the law in such 

a way that illegal aliens are legally permitted to stay and work, the 

message to all of those people is that we are not serious about our 

immigration laws. We have seen this play out in real life over and 

over again. The chart on page 5 of my written statement shows a 

significant spike in illegal immigration immediately following passage of IRCA. 

Perhaps most noticeable in our post 9/11 world is the fact that 

the spike in other than Mexicans, or OTM, entries exceeded the 

spike for Mexico, even though Mexicans made up a majority of 

those actually legalized under IRCA. None of these illegal entrants 

would have qualified for either amnesty, and yet they perceived an 

advantage in entering illegally following its passage, and so they 

did. 

In the past decade, we have seen sustained high levels of illegal 

immigration that have not only replaced the entire estimated illegal population of 1986 but have exceeded that population by more 

than two times over. During the same period, Congress enacted 

five additional amnesties. The message these actions send is clear. 

If we are to deter future illegal entries, we have to change the message so that people around the world perceive we are serious about 

our immigration laws and those who violate them will be penalized, 

not rewarded. 

There are a number of specific reasons why IRCA failed, the 

most obvious being the Government’s failure to enforce the employer sanctions system and the resulting growth of the fraudulent 

documents industry. Another was the fact that it suddenly and dramatically increased the workload of a Federal agency that was unprepared and ill-equipped to handle it. 

The sheer numbers of applicants bogged down INS processing almost immediately. Pressure on the agency to speed up processing 

led to shortcuts being taken; and the shortcuts led to widespread 

fraud and national security breaches, including the legalization of 

terrorists like Mahmud Abouhalima, who was involved in the 1993 

bombing of the World Trade Center. 

Clearly, there are a number of reasons why IRCA failed to solve 

the illegal immigration problem that existed in 1986. Primarily, 

though, IRCA failed because it was an amnesty. We will never 

solve illegal immigration by rewarding illegal aliens. 

The late Congresswoman Barbara Jordan had it right when she 

said the credibility of immigration policy can be measured by a 

simple yardstick. People who should get in, do get in; people who 

should not get in are kept out; and people who are judged deportable are required to leave. 

Thank you. 

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Ms. LOFGREN. Thank you very much. 

[The prepared statement of Ms. Jenks follows:]

PREPARED STATEMENT OF ROSEMARY JENKS


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Ms. LOFGREN. As everyone is aware, the bells have rung. What 

that means is that we have a vote on the floor of the House. Luckily, it is only one vote. So I would ask Members to go cast their 

vote and then immediately return. We will not have another vote 

for at least 2 hours, so we will have an uninterrupted opportunity 

to pose our questions to the witnesses. 

So we will recess for the next 15 minutes. 

[Recess.] 

[4:12 p.m.] 

Ms. LOFGREN. The Committee will return to order, and we will 

begin our question process. As with your testimony, we will attempt to limit our questions and answers to 5 minutes, but as the 

Members have already noticed, I don’t have a very heavy hand on 

the gavel but let’s try and stick within our 5 minutes. 

Let me ask Dr. Pitti, first, in your testimony you talk about some 

of the economic impacts, and thinking about the Bracero program, 

the Federal Government really failed to ensure that employers 

complied with protections that were built into the program. And as 

a result, I think it is widely acknowledged that the individuals in 

the Bracero program received lower wages than native workers and 

had substandard living and working conditions. There is discussion 

now, and the White House in particular has been discussing a new 

worker program, a temporary program, as part of any immigration 

reform. What lessons do you think we could learn from the Bracero 

program to avoid if we were to do a temporary worker program as 

part of comprehensive reform? 

Mr. PITTI. Thank you for the question. I think of a few things off 

the top of my head. It is important to remember that the Bracero 

program was commonly understood by the early 1960’s, by the late 

1950’s as driving down wages for U.S. resident workers, for displacing many U.S. resident workers and keeping Bracero workers 

who were imported in very low wage positions. They were not paid 

the amount of money that they were supposed to have been paid 

under the terms of the contract. The other thing that is important 

here is the terms of the contract were actually quite generous. 

So I think it is important in any discussion of another guest 

worker program to really think critically and clearly about enforcement mechanisms because the terms of the contracts under which 

Bracero came were actually quite explicit that they were not to be 

used to undermine domestic labor, they were not to be used—they 

were not to be paid less than the prevailing wage, and so forth. But 

in fact in the enactment of the Bracero program and the way it was 

carried out, it was anything but that. 

So I would say this about any new efforts to think about a contract labor program, a guest worker program. First of all, I think 

portability is very important. I think workers need to be able to 

move from job to job. That was denied in Bracero and it kept them 

trapped under the thumb of employers and really vulnerable to a 

particular employer. I think portability is very important. I think 

that the ability—the guaranteed ability to join local organizations, 

including that collective bargaining is a very important part of any 

new guest worker program. And I think scrutiny, I think we need 

to think a lot about Department of Justice, the funding for the Department of Justice, funding for OSHA to investigate complaints 

81

among guest workers, and I think actually also nongovernmental 

agencies ought to be brought into this, whether that is churches, 

citizens groups or others, also to play a role in monitoring working 

conditions among employed workers. 

Ms. LOFGREN. Thank you very much. Mr. Chishti, in your testimony you state that a major failure of IRCA, what you call this 

narrow focus; namely, that it dealt almost exclusively with legalizing the people who are here, and then deterrence, border deterrence, and failed to provide for continuing market forces, for lack 

of a better word, and continuing demand for workers. But we have 

heard the IRCA also was basically in a sense a comprehensive bill 

in that it provided for future flows to the H-2A seasonal worker 

program. Now we have heard criticism of that program, but why 

was H-2A insufficient to meet the market demand in your opinion? 

Mr. CHISHTI. Thank you so much for that question. I think it is 

a complete misrepresentation, I think, of IRCA with respect to the 

future flows. I think in this Committee no one knows this more 

than Congressman Berman that IRCA did not create a new program for temporary workers. We already had a temporary worker 

program since 1952 in the context of H-2 program. All that IRCA 

did was to split the H-2 program into H-2A and H-2B. H-2A is precisely meant for what it says, seasonal agricultural workers. So you 

can’t use seasonal agricultural work for anything that is nonseasonal and nonagricultural. So obviously we didn’t create any new 

channels in IRCA for future flows. That is basically positive and 

comprehensive in that regard by creating another channel. 

Ms. LOFGREN. Finally, Dr. Legomsky, you have testified as to the 

family reunification issue. But you are a huge expert on immigration law, and I thank you for that. Some Members have recently 

said that IRCA is exactly like what we are considering, what is 

being discussed today, there were fines then and there was—they 

went to the back of the line. But what are the differences between—not to say that we would do—you know we don’t have a bill 

before us, but what are the differences between say what the President is proposing as you know it and IRCA? 

Mr. LEGOMSKY. As a couple of people have noted, IRCA imposed 

no fines or any other penalties whatsoever on the legalization beneficiaries. There were application fees to cover the cost of the process, but there was no punishment whatsoever. And as a result I 

think it is fair to call IRCA an amnesty. In my view, I don’t know 

how anything else could be an amnesty if it involves punishing the 

person for what the person has done. Normally when you hear the 

word amnesty, it means you violated the law but for some particular policy reason, we will forgive you and not punish you in any 

way. The present legislation, most of the bills that have been introduced in both Houses, contain specific provisions for stiff fines. People could quibble about how severe the fines should be or whether 

these are severe enough but there was clearly a punishment. And 

the idea is that after you have suffered that punishment, then you 

are free to apply through regular channels like anyone else. And 

if you meet a long list of requirements, which are then laid out in 

the proposed bills, you will be permitted to become a permanent 

resident, but even then you go to the back of the line. 

82

Ms. LOFGREN. I am going to interrupt you because I am going to 

live by the lights myself if I am going to ask others to try to keep 

within that rough time frame. So I will—we may have a second 

round if time permits and you are able to stay. So Mr. King. 

Mr. KING. Thank you, Madam Chair. I do appreciate the testimony by the witnesses here today, and it piqued my curiosity for 

each of you. First, I should reference the issue raised by the esteemed Chairman of the Judiciary Committee as to where I might 

come up with a number of 20 million illegals in America. And I 

would reference Bear Stearns study here that I am referring to 

that was dated January 3, 2005 and ask unanimous consent to introduce it into the record. 

Ms. LOFGREN. Without objection. 

[The information referred to is available in the Appendix.] 

Mr. KING. Thank you. And then I direct my first question then 

to Dr. Pitti. And as I listened to your testimony, Dr. Pitti, it occurs 

to me that there is a certain amount of focus on the compassion 

of America and what kind of Nation that we could and should become. My point comes down to, how many are too many? At what 

point does the geographical boundaries and their natural resources 

and the assimilation ability of the United States get saturated to 

where it sinks the lifeboat, so to speak; how many would be too 

many? 

Mr. PITTI. Thank you for the question. With respect, I don’t feel 

that I or most people can answer that sort of crowded lifeboat question. I think it really comes down to a subjective analysis of what 

we think are the relative capacities of different sorts of immigrants 

and the relative desirability of different groups in American society. What I often say to people who ask me that sort of question 

is that we have long lived with these sorts of questions in the 

United States. As I think you know from the hearings at Ellis Island, that there have long been concerns in the United States that 

the number of immigrants in this country is far too many already, 

far disproportionate to the number that we want, wheter be they 

Italian, too many Italians, too many Chinese, too many Japanese. 

Mr. KING. You wouldn’t speculate to that answer but wouldn’t 

that be the very first question they would advocate for a policy that 

couldn’t be undone or redone? Wouldn’t that be the principle question if we were to deduct a reasoning path down through this immigration question? 

Mr. PITTI. What I tried to offer in my testimony, Congressman, 

as you know, is the reminder that we need to think about sending 

countries and about solutions that brings sending countries into a 

real vibrant part of the discussion of how we are going to solve immigration migration problems in the 21st century, to note that migration problems are global problems that they develop out of U.S. 

policies, out of the policies of governments and economies. 

Mr. KING. I also admit again, that is a central question. I turn 

to Ms. Jenks. First of all, in the definition of amnesty that we just 

heard from Dr. Legomsky, would you agree with that definition? 

Ms. JENKS. I wouldn’t. I don’t think that some or any kind of 

penalty is sufficient here if you are giving the person who broke 

the law what they broke the law for. If someone comes here for a 

job and they get the job but they have to pay $2,000, $5,000, 

83

$10,000, they still get the job. That is what they came for, and 

therefore the message that goes out is if you want to go to the 

United States for a job, you can go illegally and you will get your 

job. 

So I think the strings that are attached are much less important 

and the people—I mean, the whole point of amnesty—we are not 

opposed to amnesty because it is the word ‘‘amnesty.’’ We are opposed to it because of the message it sends and results that it has. 

I mean that message has consequences. Other people are going to 

come. 

Mr. KING. And undermine the rule of law? 

Ms. JENKS. Absolutely. 

Mr. KING. You also in your written testimony, I noticed you referenced a study done by Robert Rector of the Heritage Foundation. 

Would you care to expand on that a little bit? 

Ms. JENKS. He has just in the last couple of weeks released the 

first of three studies that he is working on that looks at the cost 

to taxpayers of households headed by high school dropouts. There 

are 171⁄2 million of those households in the United States, native 

born and foreign born, and those numbers he looked at include all 

expenditures and all revenues, Federal, State and local, and using 

the same methodology as the National Academy of Sciences did in 

the late nineties, for all U.S. households he found that these households cost $394 billion a year; the net average cost is about $22,500 

per household. He is now working on a study that breaks out the 

foreign born portion of those households and he has given me some 

of the new numbers he has come up with. The average net annual 

cost is $18,500 of these high school dropouts, foreign born headed 

households. So if you are looking at, for example, the people who 

are legalized under IRCA, the annual net cost of that population 

would be roughly $19.4 billion. 

Mr. KING. Thank you, Ms. Jenks. I would ask unanimous consent 

to introduce the Rector study into the record. 

Ms. LOFGREN. Without objection, the study will be made part of 

the record. 

[The information referred to is available in the Appendix.] 

Mr. KING. Thank you, Madam Chair. And then would I turn to 

Mr. Chishti. In your written testimony I noticed that you discussed 

Social Security and how we are going to fund the baby boomer generation. If we bring in a massive number, tens of millions of new 

immigrants into the United States, who funds their retirement? 

Mr. CHISHTI. The generation of people who come after that? I 

mean, the critical thing about the number is that by the year 2030 

I think really more than—pretty close to one-third of our population is going to be more than 55 years old. That is a huge, staggering number. So if you are going to have that many retirees, we 

need active workers to contribute to the Social Security system. 

That is our more urgent problem. We can’t solve the more urgent 

problem unless we get a new flow of workers into that. 

Mr. KING. I would submit we need to look a few generations 

down the road. 

Mr. CHISHTI. We need a continuing supply of workers to be able 

to do that. 

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Mr. KING. Thank you, Mr. Chishti, and thank you, Madam 

Chair. 

Ms. LOFGREN. Thank you. I would turn now to the Chairman of 

the full Committee, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you. In the spirit of which the second hearing was called, I wanted to look at the Simpson-Mazzoli bill, IRCA, 

and from the perspective of worker exploitation. And that seems to 

be something that we need to be cognizant of as we try to put together the legislation in 2007. Now, Simpson-Mazzoli, one-time fix, 

no consequences, no fines, we concede—this is the one time I will 

concede amnesty was applicable here, folks. Remember that limitation. There was amnesty involved. But what about what happened 

there, the subcontractor relationships, the fictitious relationships? 

What do you think about that? I want to ask Dr. Legomsky about 

that. And all of you, as a matter of fact. 

If you weren’t following the question——

Mr. LEGOMSKY. I think I understand. The question is really what 

went wrong with employer sanctions and some of the related provisions? 

Mr. CONYERS. And to the worker exploitation. It is the exploitation that I am really trying to get at is how that happened. 

Mr. LEGOMSKY. Yeah. I think——

Mr. CHISHTI. As I said early on, Congressman, there are various 

ways in which employers have circumvented their liability under 

employer sanctions. The one you point out is one of the most 

charged ones. People use independent contractors and get away 

from the definition of an employee. Now that problem is a huge 

problem in our country, not just related to sanctions. I think the 

Department of Labor itself has found out that like 30 percent of 

companies in the U.S. use independent contractors or people who 

normally should be called employees. 

Mr. CONYERS. Even now. 

Mr. CHISHTI. Even now. Even now. Then we know people use 

fraudulent documents. We have a growth industry in fraudulent 

documents so that people can comply with the letter of the law 

while they are actually hiring undocumented workers. So we have 

paper compliance but a huge prevalence of undocumented population at the same time, and that is obviously not good for the rule 

of law. And then employers have used middlemen, as we call them, 

the employment agencies, to hire people. Wal-Mart had a very celebrated big case last year. Wal-Mart settled for $11 million because 

they were using janitors in their stores which were supplied by 

some other company. Wal-Mart finally gave up and they settled for 

$11 million. It was one of the largest awards in this country where 

an employer has paid, admitting essentially that they use undocumented workers. 

So all these ways in which people have circumvented this law 

should be stopped. And my suggestion about this is threefold. With 

respect to the employment agencies, we should make employers directly liable for hiring undocumented workers and not let them 

take the refuge in using employment agencies. If the employer-employee relationship is with the actual employer, that employer has 

to be responsible. With respect to independent contractors, I respectfully say that this Congress should revisit the definition of an 

85

employer of an independent contractor. We had a very important 

commission all of you are familiar with, in 1995, look at this issue 

and basically said we should be honest about who an independent 

contractor is. Unless these people are willing to take risks for their 

own jobs, if they work for multiple employers, only in those kind 

of contexts we should treat someone as an independent contractor 

and not just let an ordinary employee be called a contractor. And 

I think those things are very important. The first thing is people 

are off the books. And people are off the books because we have 

stopped enforcing minimum wage laws in our country. There is less 

enforcement of wage in our laws today in the United States than 

there was in 1975. 

Mr. CONYERS. Attorney Chishti, has worker exploitation increased since Simpson-Mazzoli days? 

Mr. CHISHTI. I mean Simpson-Mazzoli as you full know, Congressman, was intended to improve wages and working conditions. 

We now know that about 8 million people in this country live below 

the poverty level. That is not—it certainly hasn’t helped the—we 

know there are industries out there, especially labor intensive industries where DOL has demonstrated that there is huge violation 

of wage and law provisions, overtime law, health and safety law. 

It clearly has not improved, and unionization has clearly gone 

down since IRCA. And we know especially in the unionizing context, employers have very effectively used sanctions as a way to 

avoid a union. 

Mr. CONYERS. Well, thank you so much. 

Ms. LOFGREN. Thank you, Mr. Conyers. I would turn now to my 

colleague from California, former Attorney General Mr. Lungren. 

Mr. LUNGREN. I thank the Chair for the time. And as one of 

those who worked on the 1986 bill, I am very interested in your 

comments. There was an expressed concern on many of our parts 

that the SAW program was a program that would potentially be 

subjected to fraud. And it was not our first choice, but it looked like 

that that is the one that ended up with the most fraud. I was interested in Ms. Jenks’ comments that there was a spike in illegal immigration immediately after the signing of the bill. That is not 

quite accurate. If you look at the figures, the bill was in 1986, you 

will see the numbers in 1987 were down actually, and they were 

down for about, as I recall—and I am doing this from memory—

for about 14 months. And then when it became clear that employer 

sanctions were not going to be imposed and the SAW program was 

rather fraudulently exploited, then the signal was very clear. We 

were going to have the legalization but we weren’t going to do the 

other part, which was supposed to be the balance of the program 

that we all signed off on. We would have enforcement, and that is 

not a criticism of any Administration or any Congress, that was followed through by both Democrat and Republican administrations 

and Congresses. We didn’t have the will to do it. 

So it seems crystal clear to me that we had better have the will 

to have enforcement and we had better have meaningful enforcement if we are going to have any type of legislation whatsoever. 

Now, our first two witnesses—I am sorry I was not here to hear 

your testimony, but in the written testimony it appears that you 

were suggesting exploitation of the workers as a result of some of 

86

the programs we had. It seems to me one of the worst parts—well, 

the real negative part of the Bracero program, for instance, was 

that it tied you inextricably to a particular employer. So that if you 

wished to make a complaint about that employer, you would probably find yourself back in Mexico before that could be heard. And 

it seems to me if we were able to have another temporary worker 

program, maybe it would make more sense to identify a geographic 

region and a particular line of work, make the determination as to 

how many jobs may be necessary, and allow people to come into a 

geographic region for a particular type of work but not necessarily 

tie them to a particular employer so they do have some mobility 

and the argument that you would find exploitation would be lost. 

I would just like the four panelists to answer this question, and 

that is, with the legalization program we had before, what is your 

opinion with respect to the argument that therefore, that is based 

on the history of the 1986 program, we cannot entertain any 

thought of any program that would regularize those who have been 

here illegally for a substantial period of time even if you were not 

to have citizenship as part of that because it would be tantamount 

to amnesty? 

Mr. PITTI. I will try to answer that quickly. I don’t think that is 

the lesson of IRCA. I think in fact that the regularization of residents who were in the United States prior to 1986 by providing 

them with amnesty and what might in the future of course might 

not be amnesty but some sort of regularization was the success of 

IRCA in some real way. That part of it allowed members of the 

U.S. society to come out of the shadows, to use 21st century parlance, to join with workers who were U.S. born and U.S. citizens. 

Mr. LUNGREN. Well, we made it very clear at the time that it was 

to be one time only. That is the way we broadcast it internally and 

externally. 

Mr. PITTI. You are asking me if the U.S. Congress cannot afford 

to be inconsistent on this question? 

Mr. LUNGREN. I am saying, what would the future hold for us if 

we enacted some sort of program to regularize those who are here 

short of citizenship? Would that set up the same scenario that we 

see now where we legalize 20 years ago 3.5 million people, now we 

have by your estimates I think 12, or whatever the number is that 

you are talking about. 

Mr. PITTI. I will just quickly say that you know my testimony 

was designed to argue that in fact flows northward from Latin 

America through the United States are so systemic and institutionalized that it is hard to imagine—one has to imagine very, very 

stringent enforcement to stop that migration from coming in the future. And I don’t think that another legalization program would encourage further migration. 

Mr. LUNGREN. So it is irrelevant? 

Mr. PITTI. I am sure it is relevant, but I don’t see it as a dominant problem. 

Mr. CHISHTI. Well, first of all, I mean it really depends, it is all 

nomenclature. I think the A word, that the concept of amnesty I 

think sort of diffuses the discussion of what we are trying to do in 

terms of integration of people here. I think most of them as you 

know full well, Congressman, have engaged in civil infractions. 

87

These are civil violations of our law. It is perfectly fine to have civil 

fines and have large civil fines exactly to punish people for large 

civil violations. I think if we do a heavy fine, I think that would 

not in my mind be called amnesty. 

The second question isn’t going to create a precedent, so we keep 

on doing this again and again. This was what was wrong with 

IRCA, and you were in the middle of that charged debate. What 

we didn’t do with IRCA was provide a mechanism for people to 

come for labor market needs in the future, and I said that while 

you were not in the room today. If as part of a comprehensive immigration reform we create more channels for people to come 

through for the labor needs of our country, we won’t have the need 

to do the amnesty in the future that we are doing now 20 years 

later. 

Ms. LOFGREN. Dr. Legomsky and Ms. Jenks. Be very quick if we 

could, please. 

Mr. LEGOMSKY. As a proponent of legalization, I have to acknowledge that I don’t think legalization will solve the undocumented 

problem any more than I think most backers of legalization in 1986 

really thought that this would solve the entire problem of legal immigration once and for all. It was never designed to accomplish 

anything that ambitious. But it does take into account the practical 

reality that today we have 12 million undocumented immigrants in 

the United States who clearly are not going to leave voluntarily. 

And therefore, if there is no legalization, the question becomes, 

what do you do with these 12 million people? 

Now one option is to simply do nothing and to say, okay, we have 

12 million undocumented folks here in the United States. But there 

are real disadvantages in doing that. One is that these people are 

living in underground subcultures that are not healthy for anyone. 

They certainly aren’t healthy for the immigrants themselves or for 

their children who live in daily fear that 1 day they or their parents are going to be apprehended or deported. Many of these children are U.S. citizens. 

Second, in this post-9/11 era, it is much better for the Government to know who people are, where they are, to have photographs, 

to have biometric information, et cetera, than for people to be underground. 

And third and last, illegal status renders you extremely vulnerable to exploitation by employers, which is bad not only for you but 

also for American workers who don’t get hired as a result. 

Ms. LOFGREN. Ms. Jenks. 

Ms. JENKS. I would say that if we have another regularization 

program of any sort where illegal aliens get legal status, temporary 

or permanent, we will see more illegal immigration. And we will 

be sitting here again 10 years from now 20 years from now, and 

there are additional issues if you make it no citizenship in the path 

because then you essentially create a second class of people in this 

country. Essentially we are importing a servant class if that is—

if these people can stay for any length of time and not get on the 

normal path to citizenship. But yes, absolutely we will see additional illegal immigration. 

Ms. LOFGREN. Thank you very much. I am going to call now on 

the gentleman from Illinois, our colleague, Mr. Luis Gutierrez. 

88

Mr. GUTIERREZ. Thank you. Mr. Pitti, I would like to ask you a 

question. In IRCA, the year everybody seems to know around here, 

1986, what year did you have to be in the United States and be 

able to prove you were in the United States if you were not an agricultural worker? I mean, you were washing dishes or some other 

function in our economy in order to benefit from the 1986 legislation? 

Mr. CHISHTI. January 1 of 1982. 

Mr. GUTIERREZ. January 1, 1982. And isn’t it true that the first 

offices that were opened by the Federal Government did not open 

until about mid-1987? 

Mr. CHISHTI. They opened on June 1, 1987. 

Mr. GUTIERREZ. Good. I was guessing. Actually, Mr. Berman 

helped me quite a bit in figuring out that day. Congressman Berman helped me quite a bit. So we passed the legislation in 1986. 

What do you think the figure was of undocumented workers that 

were locked out, that were here in the United States on June 1, 

1987, when the Government said, come on down, bring us your documents, we are going to take some fingerprints, make sure you are 

not a security risk, we want you to legalize. What do you think between 1982 and that date, how many people do you think didn’t 

make it because of that? 

Mr. CHISHTI. Again these are all estimates. At that point we had 

about 4 million people. 

Mr. GUTIERREZ. About 4 million people. 

Mr. CHISHTI. And 3 million, as we know, got legalized. 

Mr. GUTIERREZ. So about a million, a fourth of them? 

Mr. CHISHTI. Three-fourths of them did get legalized. 

Mr. GUTIERREZ. So a fourth of them didn’t make it because of the 

time lapse. 

Mr. CHISHTI. Time, yeah. And in response to Congressman Lungren’s question about the SAW fraud, this was I think what I was 

trying to point out in my earlier testimony, the fact that we had 

this huge 5-year gap from the enactment to eligibility. It created 

a huge incentive for people who were not eligible to try to be 

SAWs. SAWs fraud was created by people who became ineligible 

because of the long line. Then they found all kinds of fraudulent 

documents to become SAWs. 

Mr. GUTIERREZ. Thank you. And because the Chair may not be 

as generous with extra time for me——

Ms. LOFGREN. I am very even-handed. 

Mr. GUTIERREZ. So if we do it—if we overhaul our immigration 

system, there should be a date closer to the date we pass the legislation and actually open up the offices and the legislation so we 

don’t have that gap again? 

Mr. CHISHTI. As I said, the lesson from 1986 was the program 

should be as inclusive as possible because that is the way to avoid 

fraud. 

Mr. GUTIERREZ. Because that is the way to avoid fraud. And it 

also helps to bring the undocumented——

Mr. CHISHTI. Otherwise you would have split families because 

one family member would be eligible, the other would not, and we 

are not going to deport the spouse. In fact, that is what created the 

backlog in our present family immigration system. 

89

Mr. GUTIERREZ. I don’t know because this is a little bit outside, 

but given your expertise in this matter maybe you could help this 

Committee understand. Ms. Jenks says they are all here illegally, 

we shouldn’t give them any benefit, any right to regularize because 

it will cause another massive wave of illegal immigration. 

Let me ask you, of the 12 million undocumented workers that 

exist in this country, if those are workers, are we talking—when 

we use the figure 12 million, are we talking about the children and 

spouses that aren’t working? Is that the total number? 

Mr. CHISHTI. It is the total number. The best guess about workers is about 8 million. 

Mr. GUTIERREZ. And I have found that in my practice as a Member of Congress, as people come to my office, on a number of occasions that undocumented workers come with seventh, eighth grader, high school, even college children to my office, coming and seeking—I have the case regularly, I am 21 years old, you know, I was 

born in the United States. I would like to legalize my parents’ status and petition for them. But they can’t because there is a 10 and 

the 3-year bar; even if they are employed and can meet the other 

things, they can’t. And I ask them well, why didn’t you regularize 

before? And actually they were born after January 1 of 1982. What 

do you think the number—if we were to do a massive—if we were 

to use all the power of the Federal Government that could come 

and we had the political will and the requisite resources to deport 

them, how many American citizen children would have to be deported with their parents in order to keep that family unit? 

Mr. CHISHTI. Like 3.1 million in households where at least one 

member is undocumented. 

Mr. GUTIERREZ. So the question of undocumented workers has an 

impact on American citizens. And if we are going to do a comprehensive immigration reform, we stress many times our immigration, we always stress the undocumented, the undocumented, 

the undocumented. But I think, as Mr. Legomsky said, it impacts 

those of us that are here legally. Mr. Legomsky, do you know how 

many years it would take if I were a Filipino to petition my brother 

from the Philippines? Could you share how many years it would 

take? 

Mr. LEGOMSKY. I believe it is somewhere between 15 and 20. The 

estimates are not exact because all the visa bulletins will tell us 

is how many years those who are now receiving visas had to wait. 

We don’t necessarily know how many years a person who applies 

now would have to wait. But 15 to 20 I think would be a reasonable estimate. 

Mr. CHISHTI. I think for the Philippines it is exactly 22 years. 

Mr. GUTIERREZ. Okay. 22 years. That is to reunite—and I will 

end with this. That is to reunite, Ms. Jenks, an American citizen 

at their Thanksgiving table, and they have one brother still outstanding from the Philippines to bring him to America. Those are 

American citizens who did it the right way. So our immigration policy and our reform also has an impact on those of us who are here 

legally in the United States and the family unity and basis and the 

roots and the stability of our Nation. 

Thank you very much, Madam Chairwoman. 

Ms. LOFGREN. Thank you. And now we will turn to Mr. Forbes. 

90

Mr. FORBES. Thank you, Madam Chairman. And let me thank all 

of you for being here. I heard the distinguished Chairman of the 

full Committee mention the fact that we had an enforcement-only 

approach, but as I travel around and talk to people, we don’t have 

an enforcement-only approach. We basically have an enforcementwhen-you-feel-like-it approach. And that is what we feel are the 

most complaints about. We also hear a lot about nomenclature, and 

I know people don’t like words but as my good friend from California says over and over again, at some point in time, words really 

do mean something. And basically we look and we have immigrants 

that are here and some of them are here legally and some of them 

are here illegally. 

I had a friend one time who would never balance his bank account. And what he would do is each time he would get in trouble, 

he would close the bank account and then he would go to another 

bank and open up a new account and say he had solved the problem. And sometimes that is what we do. We come in here and one 

of the easiest things we can do to get rid of an illegal immigration 

problem is change the name and say that everybody who is here 

illegally is here legally. 

I have heard all this talk today about workers, but the problem 

is not just workers. One of the things we have heard testimony in 

here about are criminal gang members that are here criminally 

and under TPS are actually protected where they could be out on 

the sidewalk in front of somebody with a placard that says, I am 

here illegally and I am a member of the most violent criminal gang 

in America, and we can’t even reach down pick them up and get 

them out of the country. We don’t need a lot of hearings to do that. 

We could do something about that today. We have individuals who 

are here that are driving under the influence illegally, and they kill 

innocent people who are here legally. And you know, as I look at 

this problem 20 years ago by all the testimony I heard, we had 3 

million people. Today we have four to seven times that number, 12 

to 20 million. I don’t know how you ever get that number exact. 

There is no directory out there that tells how many people are here 

illegally. But 20 years from today if we do the same process that 

everybody is arguing to do and we fail again, we will have between 

48 million to 140 million illegal immigrants in the country. And 

just like a Casablanca movie, we will round up the same witnesses 

and we will come back and say let’s just change the bank account, 

let’s change the name and do it all over again. 

Ms. Jenks, this is the question I have for you. Go back to 1986. 

Look at the 3 million illegal aliens that were in the country. We 

paid $1 billion for 4 years to basically compensate for the reimbursement to States for public assistance, health and education 

costs resulting from that legalization. Was that $4 billion sufficient? And then given the fact that we are looking at today based 

on whichever numbers you want to pick, the 12 million or 20 million, how much would it cost us today if we began to reimburse the 

States for those costs? 

Ms. JENKS. Well, the $1 billion didn’t even come close to the actual cost. And according to Robert Rector’s numbers from the Heritage Foundation, if we are looking at a population of 12 million illegal aliens, conservatively 6 million households at a 49 percent high 

91

school dropout rate, according to DHS numbers, the average annual cost of this population to taxpayers right now is $54.4 billion. 

Mr. FORBES. $54 billion per year? 

Ms. JENKS. Per year. 

Mr. FORBES. And that is the annual cost today? 

Ms. JENKS. Right. That is Federal, State and local, so not just 

State. 

Mr. FORBES. Mr. Pitti, did I misread your testimony or did I read 

in there and basically hear you indicate that you think the poverty 

and crisis in Mexico was caused by the policies of the United States 

officials? 

Mr. PITTI. Certainly not exclusively U.S. officials, Congressman. 

That would be a real misreading of history and I would not like to 

be accused of that. 

Mr. FORBES. You might want to reread your testimony again. It 

kind of indicates that when you look at the testimony in there on 

page 3. But maybe I am just misreading that. 

Just to finish up with you, Mr. Chishti. I notice in your testimony you say the legalization program in hindsight was the most 

successful element of IRCA legislation. Yet only 3 years after that 

bill—here is the headlines that were in the papers. In 1989. ‘‘Border Patrol Losing Ground’’—that is The Washington Post—3 years 

after the signing of landmark immigration reform law designed to 

bring the border at San Diego under control, the nightly rush of illegal immigrants has begun again to overwhelm U.S. border patrol.’’

In 1989, New York Times, ‘‘Migrants’ False Claims, Fraud on 

Huge Scale. In one of the most extensive immigration frauds ever 

perpetrated against the United States Government, thousands of 

people who falsified amnesty applications will begin to acquire permanent resident status next month under the 1986 immigration 

law.’’

Finally, 1989, Los Angeles Times, ‘‘Border Arrests Rising Rapidly.’’ And then it says that there is a sweeping increase along 

U.S.-Mexico border has begun to surge, signaling a possible renewed wave of illegal entries, according to officials. 

How do we find success? 

Mr. CHISHTI. Thank you. That is a long question though. I think 

success means—I am talking about the legalization component of 

IRCA. That is why I say compared to other components. 

Mr. FORBES. So was I. 

Mr. CHISHTI. Yeah. That the people who were the—who were 

supposed to get legalized under that program about in the general 

legalization program, I think most evaluations thought that there 

was very little fraud. The fraud that happened was in the SAWs 

program. And as I said before, there was reason for the fraud in 

the SAWs program because the way we wrote that SAWs program 

and wrote this long time between the eligibility date and the implementation date. That is what created. 

Mr. BERMAN. Not in the SAW. In the regular program. 

Mr. CHISHTI. Exactly. Sorry. In the regular program, that created 

incentive for the fraud in the SAWs program. So legalization as a 

program I think was very successful both in terms of people it was 

supposed to legalize, and two, in terms of very effective, actually 

92

collaborative relationship between the Government and the not for 

profit sector. It was one of the best collaborative roles. 

Mr. FORBES. But not effective in stemming the tide of illegals? 

Mr. CHISHTI. I didn’t say anything about border enforcement or—

sorry. I wanted to say that if we had provided for future flows by 

increasing legal channels, we would not have had those kinds of 

pressures from the border that you point out. 

Mr. FORBES. Because we would have defined them as legal instead of illegal. 

Ms. LOFGREN. Thank you, Mr. Forbes. 

Mr. Berman. 

Mr. BERMAN. Well, that is—the last point Mr. Forbes made is an 

interesting one because in my way of thinking that is why the comprehensive approach is so important. I would never suggest that a 

legalization program will result in there not being future illegal immigrants. I don’t buy Ms. Jenks’ notion that it will incentivize it 

because it seems quite incentivized already. I don’t think passing 

a legalization program will do much more than—it is about availability of jobs and whatever else might be available and the ability 

to do it. 

Simply creating new legal avenues for people to come isn’t 

enough because whatever new avenues we create, there will be 

more people who want to come than slots we allow. So then you 

get to two other issues, one of which I think was the single biggest 

failure of IRCA was the fraud of—we know about the SAW fraud, 

but the fraud of employer sanctions was the big fraud. And I think 

Mr. Chishti spoke to that issue, and the importance——

If we want to be straight with the American people, we have to 

devise something which essentially tells them that because of 

things like a meaningful effectively implemented and very difficult 

to implement employer verification program involving biometrics 

and the ways in which an employer can quickly learn that the particular worker is authorized to work—by the way, the existing voluntary pilot program that some of my colleagues like to rave about, 

yeah, it tells you if you have a Social Security number that is a 

real Social Security number. It doesn’t tell you if you are the person who should be using that Social Security number. So you need 

a very sophisticated verification program. And then you need to do 

the things like holding the—sure, employers should be able to use 

labor contractors and employment agencies and all these other 

things. But they have to be accountable in the context of the employer-employee relationship for the decisions of their agents in 

those capacities. 

We know what happened in agriculture after 1986. A bunch of 

people were legalized. But the flow of illegal immigrants continued. 

Employers a little nervous about employer sanctions delegated 

whatever direct hiring they were doing to farm labor contractors, 

who in many cases were—I mean it was a total sham. And those 

new workers were cheaper than the ones who had been legalized, 

in part because there is a natural progression out of agricultural 

work and in part because they were pushed out by the availability 

of cheaper labor. You create a whole new wave of illegal immigrants. So I think—I mean that is the essence of it. 

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And to Ms. Jenks, I don’t accept your definition of amnesty because it would seem to me if all the people who tried to rob banks 

and were arrested, and in one decree we released them all from 

jail, they may not have gotten the money from the bank but I 

would call that an amnesty. So in other words,—and secondly, 

under—but accepting your definition for these purposes. So even a 

person who introduces a bill that says if they came here illegally, 

if they go back home they can come in as a legal guest worker, for 

you that would be an amnesty as well because in the end they 

would be part of a process which allowed them to get that for 

which they committed the illegal act. 

Ms. JENKS. If they could bypass the 3- or 10-year penalty that 

is an amnesty. Waiving that penalty is an amnesty. It is not a tax 

amnesty. 

Mr. BERMAN. When my friend from Virginia, Mr. Goodlatte, introduces a bill for agricultural guest workers to be eligible, you 

could have come here illegally, but if you go back and come through 

that program that is an amnesty, too. 

Ms. JENKS. I have had this discussion with his office in fact that, 

yes, that is waiving the penalty. 

Mr. BERMAN. What about the amnesty of doing nothing?

Ms. JENKS. Absolutely horrible. 

Mr. BERMAN. What about the amnesty of allowing 12 million people with all of the conditions of exploitation, the paralysis of the 

Congress unable to figure out how to deal with this, scared of 

words like ‘‘amnesty,’’ unable to find that kind of common ground 

to reach a sensible and effective solution, doing nothing because 

whatever those newspaper articles Mr. Forbes read about 1989 and 

illegal immigration, the numbers for many years later were much, 

much higher than they were in 1989. And why doesn’t that just 

continue? Why isn’t the biggest amnesty of all the amnesty of doing 

nothing? 

Ms. JENKS. It isn’t. I certainly would not say that this is what 

we want. We don’t advocate doing nothing at all. But in fact, the 

numbers were the highest that we have seen—that we saw for 

about a 10-year period in 1989. I mean, they spiked after the amnesty. 

Mr. BERMAN. When they really got high was after we passed that 

tough 1996 law that was going to stop illegal immigration with the 

3- and 10-year bar. Then we really saw the number of illegal immigrants—I don’t think you would call the 1996 law an amnesty. 

Ms. JENKS. No. But the 245(i) provisions that Congress was passing every 2 years were. 

Mr. BERMAN. In 1996 they repealed the 245(i) provisions, as a 

matter of fact. 

Ms. LOFGREN. Thank you, Mr. Berman. The gentlelady from 

Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. I thank the Chairwoman very much. I think 

these methodical building block hearings are both important for the 

thoughtful testimony that the witnesses have given and that we 

are allowed to share, and also it indicates the seriousness of the 

effort that we intend to engage in in this Congress. I have said on 

a number of issues, I think this takes a number one position in 

94

that, that this is the year, frankly, that you have to address a question that becomes a mounting crisis because of the inactivity. 

Just for the record, I want to make sure that the idea of amnesty 

is clearly defined, as I noted to be in the dictionary, because one 

of the main criticisms of IRCA is that its legalization program 

granted amnesty, and I have heard both humorous and other definitions of amnesty. But by the American Heritage Dictionary, it is 

considered a general pardon granted by Government, especially for 

political offenses. And it was derived from the Latin word 

‘‘amnesti’’ which means amnesia. 

The STRIVE Act, which is a bill that has been introduced and 

the Save America Comprehensive Immigration Reform Act that I 

authored that has been introduced, and what I have heard from 

the leadership of this Congress, the leadership of this Committee 

does not suggest that any underlying bill will have adopted the definition of amnesty. None of those will have any provisions that 

would forget or overlook immigration law violations. 

In addition, out of some respect for history, because certainly 

Senator Simpson and Senator Mazzoli obviously wanted to do the 

right thing, and I believe that as they have described the shortcomings were not necessarily due to design because they were looking at maybe a more limited picture of immigration, but really due 

to the failure to execute the law properly. So my frame of questions 

will be in that context to be able to try and address where we need 

to go. 

And might I also say to Ms. Jenks, I think the value of America 

is that we have diversity and diversity of opinion. But I couldn’t 

help analyze the 17 million high school graduates or, I am sorry, 

those who had not graduated from high school. And it cost about 

$300 billion, a small pittance to the billions upon billions of dollars 

that the war in Iraq is costing. And I would imagine you know if 

there was a group that was the NumbersUSA on poverty if they 

had indicated that these folk are really costing the country and 

what next train can we put them on, these are not helpful answers 

because out of those non-high school graduates, I would imagine 

there are any number of laborers that are doing constructive work. 

One of the failures that amounts to the $354 billion, whatever 

the number is that you have given us, is a systemic societal problem of a lack of access to health care. We don’t have universal 

health care. So we have poor Americans and poor others not because they are poor with a lack of education not working, it is because we don’t have a system to give them access to health care. 

So therefore, there is an enhanced burden on the system for the 

cost of their health care. But that is a cost of poverty as well. 

Let me go to Mr. Pitti on my overall framework and say to you, 

if we had had a better enforcement system under the MazzoliSimpson, would we have been more effective? And isn’t that what 

you see or perceive that we are trying to do now, measures of enforcement that work alongside the border but also work internally? 

Mr. PITTI. I think that had Simpson-Mazzoli had a more effective 

enforcement mechanism or set of mechanisms, indeed there might 

have been gains made in the 1980’s and in the 1990’s. And I certainly recognize that that is what this Congress is trying to think 

very carefully about as we move forward into the 21st century. 

95

These are labor market issues. As you know, they are regional, 

international labor market issues. They are difficult ones because, 

as we know, undocumented residents have come despite the enforcement mechanisms that we have put in place. And what I tried 

to call Congress’ attention to again, as it has been in the past, are 

the difficult—the real costs on migrants in trying to pass through 

the border in the era of the 1980’s and 1990’s. 

Ms. JACKSON LEE. This question to Mr. Chishti and Mr. 

Legomsky. I hope I have it almost correct. Ms. Jenks, why do we 

demonize the system of immigration and immigrants? And my red 

light. But if you could all each try to answer that. Why do we all 

try to demonize this issue? 

Mr. LEGOMSKY. I think that ‘‘demonize’’ is the right word because 

there are individuals and organizations who demonize the undocumented population. There are clearly harms associated with illegal 

immigration, and we shouldn’t sweep those under the rug. But by 

and large, we are talking about a population of fairly hard-working 

folks who come here because they want a better opportunity for 

themselves and for their children. That is not to say that we have 

an obligation to give people whatever they want. But at the same 

time I think we need to take pains not to exaggerate the harms associated with illegal immigration or to ignore the benefits. 

Many of the studies that have been done on the economic impact, 

and the one that Ms. Jenks mentions is just one of many, many 

studies, come up with very different conclusions. Undocumented 

immigrants do cost taxpayers money in services. But of course they 

also pay taxes. They pay Federal and State income taxes, they pay 

property taxes indirectly when they rent. They pay sales taxes. 

They pay gasoline taxes. Whether the total amount they pay exceeds the amount they receive in services is an issue on which 

economists are very much in disagreement. So I think we need to 

be very careful on this. 

Ms. LOFGREN. Mr. Chishti. 

Mr. CHISHTI. I think it raises really to me very compelling moral 

issues. I mean, people who prepare our food, people who take care 

of our children, people who take care of our grandparents, we find 

it okay for them to do it. But we don’t want to award them with 

membership in society. I mean that to me I think is fundamentally 

immoral. And you know, and that level of understanding I think 

on this issue has sadly been lacking. 

Ms. JENKS. I actually agree with that. I think it is absolutely 

wrong that anyone would blame the individual immigrants who are 

here illegally. They have only done what we have invited them to 

do. You know, we should be blaming our Government, blaming the 

people who are not willing to make the enforcement decisions that 

have to be made. But the fact is we are a country of laws, and we 

need to expect people, all people, Americans, foreign born, everyone 

to obey our laws. And of course we should not be blaming the immigrants. We should be—anyone who comes to our country as a 

legal immigrant should be welcomed with open arms. But the fact 

is we can’t do that economically or socially or any other way unless 

we have limits. It is the limits that allow us to spend the money 

that is needed to be spent. And I didn’t bring up the $394 billion 

to say that we shouldn’t be paying those costs. Of course these 

96

are—you know, the majority are America’s poor. Yes, we should be 

paying those costs, but do we need to add to the costs? Does the 

Government want—should the Government have a policy of adding 

to poverty in this country? I think the answer is no. 

Ms. JACKSON LEE. Thank you, Madam Chair. I just want to say 

we are a Nation of laws and immigrants, and I think we can do 

both enforcing of laws and providing a vehicle for immigrants. 

Ms. LOFGREN. Thank you. The gentlelady’s time has expired. I 

turn to our colleague from Virginia, Mr. Goodlatte, for 5 minutes. 

Mr. GOODLATTE. I thank the Chairman, and I thank her for holding this hearing. Back in 1986 she and I may be the only current 

Members of Congress who were practicing immigration law at the 

time, and I think it is a very pertinent——

Ms. LOFGREN. Actually, I had given it up by then. 

Mr. GOODLATTE. Well, I was still practicing immigration law and 

quite frankly very concerned what we did then, both from the 

standpoint of giving amnesty to millions of people and also from 

the standpoint of imposing sanctions on employers but not enforcing them. 

So I guess the first question I would like to ask of Ms. Jenks, 

do you believe that the granting of amnesty in 1986 created an incentive that has encouraged more illegal immigration across the 

border in the hopes these new illegal immigrants would 1 day receive amnesty as well? 

Ms. JENKS. I do. And I know Congressman Berman disagrees 

with me on this. But yes, I think amnesty does create an incentive 

to come. We have seen it bear out in the numbers. Every time 

there has been an amnesty, whether it is 245(i), whether it is the 

1986 amnesty, there has been an increase in illegal immigration. 

And every time there has been major talk in Washington of an amnesty, when the President first announced his plan in January 

2004, the Border Patrol first saw a spike. So yes, I think it creates 

an incentive. 

Mr. GOODLATTE. Well, I agree with you and I certainly saw that 

as well. Congress vowed then that it would crack down on illegal 

immigration following the massive grant of amnesty. Obviously we 

haven’t done so. Have we ruined our credibility on this issue, or do 

you believe it is possible to craft immigration reform that does not 

again encourage a flood of new aliens? 

Ms. JENKS. I think it is possible and it is necessary. But the 

thing we have to focus on is changing the message we are sending 

to the rest of the world. If we send the message that they will eventually get amnesty, they will eventually—they can come here now 

and get a job, that message will increase the number of people trying to come. If we send the message that we are going to take our 

immigration laws seriously, that we are going to enforce those 

laws, that there will be serious consequences, you will have to 

leave the country if you are here illegally, things will change. 

Not everyone will stop. I mean, we are not going to stop all attempts at illegal immigration. But we can certainly stop the majority of it just by changing that message. 

Mr. GOODLATTE. Let me ask the other members of the panel if 

they would like to respond to that as well, but also ask them if 

they feel that we have consistently through the last three AdminisVerDate 0ct 09 2002 10:59 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\041907\34758.000 HJUD1 PsN: 34758
97

trations, if you will, enforced those new employer sanctions and 

other aspects of our immigration law within the interior of the 

country, and rather than simply focusing on the border because 40 

percent of our illegal aliens enter the country legally on student 

visas, visitor visas, business visas. Obviously, what enables them 

to stay, what draws them to violate the terms of their visa or to 

come across the border is employment. And I am wondering if you 

would just simply tell us whether you think we should have been 

more strongly enforcing our immigration laws over the last 20 

years. This problem wasn’t created overnight, was it, Dr. Pitti? 

Mr. PITTI. The problem of nonenforcement of immigration laws? 

Mr. GOODLATTE. Of having 12 million or more people illegally in 

the United States. 

Mr. PITTI. No. Of course. There were of course many people on 

the American side in the early 20th century from Europe who 

under 21st century parlance would qualify as illegal aliens. So no, 

this is not something that does not have a history. 

Mr. GOODLATTE. No. But in 1986 we came up—I wasn’t here. Ms. 

Lofgren wasn’t here. Mr. Lungren was here, but that is another 

story. In 1986 we came up with a solution to this problem. We said 

for the first time we are going to impose sanctions on employers 

and we are going to give amnesty to millions of people who are 

here illegally. So therefore, the illegal immigration problem is 

going away. There will no longer be a magnet to draw them here 

and those who are already here have been taken care of. It obviously did not work out that way. Now there are those who are asking for amnesty, and I know there is a difference of opinion on how 

to define amnesty. But basically I would define it as not requiring 

somebody to leave the country to adjust their status before they 

can come back and gain a lawful status in the country. But be that 

as it may, I would like to have each of you address that. Should 

we be enforcing our current immigration laws much more aggressively than we are now? 

Mr. PITTI. Excuse me. As I tried to say in my testimony, I think 

that the enforcement of employer sanctions brings benefits, but it 

also brings costs to American workers. Those that have employer 

sanctions run the risk and have run the risk of creating a workforce that is more vulnerable to exploitation, to creating subcontracting relationships that hurt American workers. 

Mr. GOODLATTE. Well, I agree with that. I think illegal immigration undercuts the wage base of our current workforce, and I think 

there are sectors of our economy—clearly I have identified one in 

the agriculture sector where I was Chairman of this Committee 

and have introduced and reintroduced legislation to address the 

shortage of workers in that sector of our economy. 

However, the fact of the matter is, having workers here illegally 

does cause problems with the workforce. That is not my question. 

The question is, should we be doing it? Should we be enforcing our 

immigration laws? Would that help to drive us toward a better policy? Would that help get us back to the kind of better credibility 

that we need internationally? And would it help get the kind of 

confidence that we do not have today with the American people? 

Ms. LOFGREN. If the three remaining witnesses could very quickly answer. 

98

Mr. CHISHTI. Quickly. Of course we should. I think employer 

sanctions has built in problems. I distinctly remember the great 

colloquies between Congressman Frank and Congressman Lungren 

in the debates during those days. We gave a huge loophole to the 

employers first by saying, we are going to hold you guilty only if 

you knowingly hire undocumented workers. They have found so 

many ways of using the loophole of the knowing definition that has 

created a huge incentive. We have stopped enforcing our labor 

laws, Congressman. We enforce our labor laws much less today 

than we did in 1975. There are like 796 inspectors in the Wage and 

Labor Division. There is one inspector for like every 11,000 employers. We have to enforce our labor laws better. We have to enforce 

our employer sanctions, and I think you missed part of the colloquy 

between me and Congressman Berman. We have to improve our 

verification system, and that may get us to where we need to go 

in terms of the enforcement you are talking about. 

Mr. GOODLATTE. I agree with all of that. Thank you. 

Mr. LEGOMSKY. It is really a two-part question. On the credibility 

issue that Mr. Goodlatte has raised, I think it is a fair question to 

ask, but my view is that no Congress can bind future Congresses, 

and everyone knows that no Congress can bind future Congresses. 

And therefore, even though there is a legitimate debate about 

whether legalization is a good idea, I would counsel against opposing legalization simply because there are some Members of a Congress 20 years ago who said this would only be a one-time affair. 

It seems to me it is up to each Member of Congress to decide, given 

where we are now, how the pros outweigh the cons. On the issue 

of enforcement—would you like me to stop? 

Ms. LOFGREN. I think we—actually out of fairness to the other 

Members, we will thank you. And Ms. Jenks has waved off her answer. She says yes. And we will call on the gentlelady from Los Angeles, my colleague, Ms. Maxine Waters. 

Ms. WATERS. Thank you very much, Madam Chairwoman. I am 

very pleased that you are our leader on this issue. I know of your 

long experience, and it is going to help get us to comprehensive reform. I think it is going to happen. 

Just a word about the employer sanctions. I don’t think that employer sanctions will ever work. I hear the discussion about better 

verification, but America will not fine in any significant way or jail 

the business leaders of this country who violate the laws over and 

over and over again. And they will have the protection of the 

Chamber of Commerce, who on the one hand will rant and rave 

about illegal immigration, but on the other hand will protect the 

business sector from any real sanctions. 

So I am not going to even really deal with that because that is 

simply what I believe. 

But what I am fascinated with is this. I hear the numbers about 

what the cost has been to this country for illegal immigrants, and 

I wonder how these numbers are compiled, how do we get the bottom line, how do we get to the numbers? I have also heard some 

information over a period of time about the amount of revenue that 

is brought into our economy and the strengthening of the economy 

by undocumented workers, and I am anxious to see how we can get 

to some real facts about this. Because right now I don’t believe 

99

much of what I hear. But I would like some comments from the 

members of our panel about something that is happening right 

now. 

[5:05 p.m.] 

Ms. WATERS. I read an article recently where there are some accountants who have developed a niche, and the niche is helping undocumented workers file Federal income taxes. And the offices are 

springing up all over and out in Los Angeles, and they had a line 

of undocumented workers filing their income taxes. Can I get some 

discussion on that? Are we not counting revenue and monies that 

are being brought into this economy by undocumented? What is 

going on? 

Mr. LEGOMSKY. I can say a couple of small things about that. 

One is that the newspaper accounts to which Congresswoman Waters has just referred often make the point that much of this is 

happening in anticipation of legalization. So that is one thing to 

consider. 

The other thing, though, is that in most studies of the fiscal impact of immigration, of illegal immigration, I should say, it is very 

common, depending on the ideological slant of the particular researcher, either to ignore some of the services that have to be provided for immigrants on the one hand or to ignore the tax contributions of immigrants on the other hand. 

In addition to that, there are many other indirect positive impacts. One of them is that undocumented migrants, like anyone 

else present in the United States, consume goods and services. 

They create jobs in that way, in the same way that you and I do, 

and it is very difficult to quantify what the effect of that is. They 

also help in many cases to sustain marginal business enterprises 

that also employ Americans. And in addition, they give rise to economic growth, which increases demand, which in turn creates jobs. 

So it is very difficult for any serious researcher to piece all of this 

together, and that is why I would suggest that most of the studies 

are very difficult to draw hard conclusions from. 

Ms. JENKS. I would say that it is estimated that about 50 percent 

of illegal workers do actually pay taxes. They use ITINs to pay 

taxes. That is what the ITIN is generally used for, for illegal aliens. 

So clearly there is a contribution of income taxes. 

And I can tell you that the Heritage Foundation study looks at 

all revenues and all expenditures, and if you add up all the revenues that it looks at and all the expenditures, you get total Government spending and total Government revenues, Federal, State and 

local. That is sort of how he started out. But in any case, the problem is that the incomes are very low. So therefore, income taxes 

are very low. They also pay sales taxes. And they buy lottery tickets, it turns out quite a lot of lottery tickets, according to the Heritage study. 

So there are a lot of ways they can contribute, but there are also 

a lot of services. If you also take into account the services that have 

to increase as population increases, highways, infrastructure, 

things like that, then they have to pay a share of that as well. So 

when you add all that up, there tends to be the net loss that the 

Heritage study has found. 

100

Ms. WATERS. Is there an underground economy that you can 

quantify that we really don’t know what is going on with that underground economy? 

Ms. JENKS. You can quantify it to some degree because of census 

data. Obviously there is an undercount, and they try to add some 

number for the undercount. So there is a small portion of it that 

would probably be lost. 

Ms. WATERS. I am sorry, are you saying that the census will document the number of undocumented migrants? 

Ms. JENKS. Yes. The Census Bureau essentially is collecting data 

on everyone out there. You don’t just get a census form if you are 

here legally; you get a census form if you are living at a particular 

address. 

Ms. WATERS. And you think undocumented migrants are filling 

out census forms? 

Ms. JENKS. Some of them are. 

Ms. WATERS. What percentage of Americans don’t fill out the 

form? 

Ms. JENKS. Very few people who get the form actually fill out the 

form. The Census Bureau is getting data that is—I mean, it is all 

self-reported, so they are getting data that says it is from illegal 

immigrants, and they are also factoring in that the undercount 

would be greater for illegal aliens than for citizens. 

Mr. CHISHTI. First, just on the study. There are a number of 

studies completely on the other side of the cost/benefit analysis 

which say that the net contribution of immigrants is much larger, 

estimates have said $30 billion larger, than the benefit they receive. So that is not the only study on the table. And we will be 

glad to provide the Subcommittee with other studies on that issue. 

[The information referred to was not received by the Subcommittee prior to the printing of this hearing.] 

Mr. CHISHTI. When I read the tax study, there are three things 

that went through my mind. First of all, these people pay taxes, 

they actually pay taxes. That is good news to me. 

Second is that of all the immigrants in the country, the people 

who are eligible for the least benefits are undocumented. They get 

almost no benefits. They get basic public education and emergency 

healthcare. So they are the least drain among all immigrants and 

are paying taxes. 

The third good news for me was if so many of them are actually 

paying taxes, that means they are on a payroll. That means we 

have actually a way of getting through the employment verification 

system to the employer sanctions regime, which has been very good 

news to me. 

Ms. LOFGREN. I wonder if we could ask Mr. Ellison to take this. 

Mr. ELLISON. Thank you, Madam Chair. I want to join with the 

other Members of this Committee in applauding your efforts, and 

let me begin. 

Ms. Jenks, thank you for your presentation. Earlier when you 

made your opening remarks, I think you made the observation that 

amnesty is giving the criminal the rewards, the sought-after thing 

that they wanted, which is a job. And to use the word ‘‘criminal’’ 

and ‘‘crime’’ sort of struck me because I wasn’t aware that being 

in the United States without the proper documentation constituted 

101

a criminal offense. Did you mean to imply that it does, or maybe 

I am not informed? 

Ms. JENKS. No. Illegal presence is not a crime; however, entering 

the country without inspection is a misdemeanor the first time, a 

felony thereafter. So that is a crime. 

Mr. ELLISON. I guess what I am wondering is when you were 

using the term ‘‘crime,’’ that was just really kind of a rhetorical device in order to make your point; is that right? 

Ms. JENKS. No, not really. I am saying that if you have entered 

the country illegally, you have committed a crime. If you have overstayed a visa, you have committed a civil violation. 

Mr. ELLISON. Right. Ma’am, I do know what a civil violation is, 

but that is not a crime. You will agree with me, right? 

Ms. JENKS. I agree with you. 

Mr. ELLISON. So the term ‘‘crime’’ was sort of a loose use of the 

term; would you agree with that? 

Ms. JENKS. Sure. 

Mr. ELLISON. Because in this case being precise is important; 

wouldn’t you agree? 

Let me ask you this question. I think it was Representative King 

who was relying on a number of 20 million undocumented people 

in the United States. And Chairman Conyers said he heard the 

term 12 million. I heard the term 12 million. It doesn’t really matter which one, but is it your view that those individuals must be 

deported from the country in order to have what you would view 

a fair and just resolution to the problem here? 

Ms. JENKS. It is my view that they need to leave the country, not 

that they need to be deported. But, yes. 

Mr. ELLISON. But one way or another out, right? 

Ms. JENKS. Yes. 

Mr. ELLISON. Now, you have made some interesting observation 

about cost. What would it cost to do that? 

Ms. JENKS. That is why I am saying that we are not proposing 

that there be mass round-ups to pick up all these people and make 

them leave the country. What we are saying is that if you start to 

enforce employer sanctions, if you actually take away the jobs—we 

know that the vast majority are coming for jobs. Take away the 

jobs, they have no choice but to go home. Not all of them will go, 

clearly. There will be some residual population here. At that point 

we can decide as a Nation what to do with those people. But we 

can start a process of, yes, we need to ramp up enforcement so the 

number of deportations would increase, but then you also provide 

incentives essentially for self-deportation, and that would be the 

vast majority. 

Mr. ELLISON. But you would agree that for the United States to 

input resources, buses, trains, planes, whatever, to get everybody 

out, whether it is 12 million or 20-, that would be cost-prohibitive? 

Ms. JENKS. Sure. And I have not heard anyone propose that. 

Mr. ELLISON. Well, you said they have to go, so I was just thinking, assuming they are not all going to walk. 

Ms. JENKS. Well, they got here somehow. 

Mr. ELLISON. Right. Sure. They certainly did. And if they are 

going to get out, they are going to have to get out somehow, right, 

and that is going to cost something, right? 

102

So anyway, my next question is you cited some studies focusing 

on the expenses to our Government to have undocumented people 

here. Can you tell me, did those studies incorporate the contributions that these individuals make to our society, or were they simply just an assessment of the expense? 

Ms. JENKS. Well, it is an assessment of fiscal impact. So in terms 

of contributions, they are considering taxes paid, lottery tickets 

bought, you know, all of the fiscal contributions. If you are talking 

about adding to diversity, adding to ethnic flavor, things like that, 

no, of course not. But I don’t know how you would quantify those 

things. But on the other side of that there are costs that are nonquantifiable as well. 

So how does the Government make those decisions? I would suggest that the Government would be best off making decisions largely on the basis of things that it can quantify and are you as taxpayers going to be willing to continue to foot this bill. 

Mr. ELLISON. Thank you, ma’am. 

Now, Dr. Legomsky, you did mention, and I was going to bring 

it up, but I think you beat me to it, that there have been a number 

of studies, not just one. Could you kind of talk about what some 

of the other studies have found in terms of this question of whether 

or not undocumented people are a drain to the American economy 

or not? 

Mr. LEGOMSKY. I suspect that Dr. Chishti is probably more familiar with some of those studies than I am, but over the course of 

the past 20 or 30 years, there has been a proliferation of studies, 

as he has said. Many of them have found that the fiscal contributions of undocumented immigrants exceed the money that is spent 

on services, in large part because of some of the reasons that he 

mentioned. One of them is even though undocumented immigrants 

are subject to the same taxes as everyone else, they receive almost 

nothing in the way of Government assistance. They do by adding 

to the population, I suppose, increase the need for more roads, 

more infrastructures, et cetera. But the two main expenditures 

that States and local governments have been the most concerned 

about are public education and emergency medical care. They are 

eligible for almost nothing else. Moreover, and I don’t think this 

point has been mentioned yet, while they contribute tremendously 

to the Social Security System, they are ineligible to receive anything from it, so they have a very positive fiscal impact in that 

sense. 

Mr. ELLISON. Could you offer your views on the advisability of 

permitting students who have been educated in American high 

schools to be able to take advantage of in-State tuition in the 

States from which they graduated from those high schools without 

regard to their status, immigration status? Could you comment on 

that? 

Mr. LEGOMSKY. Thank you for the question. I would love to comment on that. I think this is one of the more heartbreaking issues. 

The vast majority of the students who are undocumented and who 

wish to attend a State college or university in the United States 

are kids who came to the United States typically at a very early 

age. They were in no position at the time to say to their parents, 

I am sorry, I can’t come with you, it would be wrong. They have 

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committed no more wrong than anyone in the United States, and 

yet in many cases, no matter how hard they work in high school, 

they are being deprived of any practical opportunity for a college 

education. 

The reason I assume that if they can’t go to State public universities, they will be deprived of an education is that undocumented 

kids are also ineligible for almost all forms of financial aid. So if, 

in addition to both those things, we have the current law which 

seems to say that a State may not regard an undocumented student as an in-State resident for tuition purposes, unless it also regards all U.S. citizens from other States in the same way, which, 

of course, they are not going to do, the combination makes it almost impossible for very deserving children to be able to go to college. 

Mr. ELLISON. The last question, if I have any time left. One of 

the things that has been sort of marketed in some of the communities of color that I represent—I represent the Fifth Congressional 

District of Minnesota, and we have communities of color there, as 

we all do, I guess, some of the ones that are native born and maybe 

been in the United States for many generations—is that somehow 

undocumented workers are taking their jobs. And it is interesting 

to me because some people who on the political spectrum seem to 

demonstrate not too much concern for these communities of color 

now all of a sudden want to champion their cause in terms of enlisting them in the fight against undocumented people. And my 

question is, is there any validity to that point of view? Do you understand my question? 

Mr. LEGOMSKY. Yes, I think. 

Mr. ELLISON. Should I make it tighter?

Is there any validity to the idea that, for example, native-born 

Hispanics and African Americans are being displaced by undocumented workers? 

Mr. LEGOMSKY. With all respect, I think there is some validity 

to that observation. There are distinguished economists who otherwise support liberal immigration rules who will say that one negative effect could be the impact on low-skilled American workers. 

There are other studies that say such an impact does not exist. But 

there really are credible points of view on both sides of that issue. 

Mr. ELLISON. Mr. Chishti, would you like to weigh in on that 

point? 

Mr. CHISHTI. I would be glad to. 

Again, I think what Dr. Legomsky said is true. Studies on this 

issue are all over the map, to be honest. But I think the best study 

shows the extent is minimal, and it is in pockets. African American 

workers should not get discriminated by immigrants taking these 

jobs. There is discrimination some places against African Americans, and we must enforce our discrimination laws to make sure 

that doesn’t happen. 

The second most important thing is the jobs that we should be 

training African Americans for, we have cut out a lot of training 

expenditures, and that is where we need to put more of an effort, 

because the jobs of the future are going to be more in the high end 

of our labor market, and some of the African Americans can’t comVerDate 0ct 09 2002 10:59 Jul 16, 2007 Jkt 000000 PO 00000 Frm 00107 Fmt 6633 Sfmt 6601 H:\WORK\IMMIG\041907\34758.000 HJUD1 PsN: 34758
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pete in these labor markets because they don’t have the access to 

that training, and we should beef up on those programs. 

Mr. ELLISON. Thank you. 

Ms. LOFGREN. Thank you, Mr. Ellison. And thanks to all of you 

for a very extensive and useful hearing. The witnesses, thank you 

so much for your testimony, both your written testimony, which as 

I said earlier will be part of the record, as well as your oral testimony. 

Without objection, Members will have 5 legislative days to submit any additional written questions to any of you, which we will 

forward and ask that you answer as promptly as you can to be 

made part of the record. Without objection the record will remain 

open for 5 legislative days for the submission of any other materials. 

Our hearing today I think has helped to illuminate some of the 

issues concerning the 1986 immigration reform legislation. I hope 

that this information will guide us and be of value to us as we 

move forward on looking at comprehensive immigration reform. 

I thank all of you and note tomorrow morning we will be here 

at 10 looking at shortfalls in the 1996 Act. And so thank you again, 

and this hearing is adjourned. 

[Whereupon, at 5:36 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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STUDY ENTITLED ‘‘THE UNDERGROUND LABOR FORCE IS RISING TO THE SURFACE,’’ BY

ROBERT JUSTICH AND BETTY NG, BEAR STEARNS, SUBMITTED BY THE HONORABLE

STEVE KING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA, AND

RANKING MEMBER, SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, 

BORDER SECURITY, AND INTERNATIONAL LAW


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STUDY ENTITLED ‘‘THE FISCAL COST OF LOW-SKILL HOUSEHOLDS TO THE U.S. TAXPAYER,’’ BY ROBERT RECTOR, CHRISTINE KIM, AND SHANEA WATKINS, PH.D., THE

HERITAGE FOUNDATION, SUBMITTED BY THE HONORABLE STEVE KING, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IOWA, AND RANKING MEMBER, 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND

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ARTICLE ENTITLED ‘‘ENACTING IMMIGRATION REFORM, AGAIN,’’ BY THE HONORABLE

ROMANO L. MAZZOLI AND THE HONORABLE ALAN S. SIMPSON, FORMER MEMBERS

OF THE UNITED STATES SENATE, SUBMITTED BY THE HONORABLE SHEILA JACKSON

LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, 

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP, REFUGEES, BORDER SECURITY, AND

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