Let the states lead on immigration

One-size-fits-all na­tional laws aren’t work­ing. Lo­cal so­lu­tions might.

Los Angeles Times - - OPINION - By Alex Nowrasteh Alex Nowrasteh is the immigration pol­icy an­a­lyst at the Cato In­sti­tute.

Texas and Cal­i­for­nia are try­ing to re­form le­gal mi­gra­tion on their own. The pol­i­tics in these two states couldn’t be more dif­fer­ent, but leg­is­la­tors in both states re­cently pro­posed run­ning their own guest-worker visa pro­grams to get around the fed­eral immigration re­form grid­lock. Re­ly­ing on states to cre­ate their own mi­gra­tion sys­tems may well be the so­lu­tion to Amer­ica’s immigration woes.

One-size-fits-all na­tional immigration laws aren’t work­ing. Fed­eral re­form ef­forts have re­peat­edly failed, so why not let states take a crack at it? States experiment with ed­u­ca­tion, wel­fare and drug poli­cies — immigration should be next.

A state-based guest-worker visa seems like a rad­i­cal idea be­cause immigration rules gen­er­ally fall un­der fed­eral ju­ris­dic­tion in the United States. How­ever, Canada and Aus­tralia — which like the U.S. are con­ti­nent-span­ning, eco­nom­i­cally di­verse coun­tries with tra­di­tions of fed­er­al­ism — each have such pro­grams.

In a re­cent re­port, Canada called its Pro­vin­cial Nom­i­nee Pro­gram a suc­cess; 96% of the pro- gram’s im­mi­grants to Man­i­toba, Bri­tish Columbia, Al­berta and Saskatchewan were em­ployed within a year, many fill­ing niche rolls in the la­bor mar­ket.

If the U.S. gov­ern­ment fol­lowed that ex­am­ple and re­lin­quished some mi­gra­tion pow­ers to state gov­ern­ments, we’d see a pro­lif­er­a­tion of dif­fer­ent visas reg­u­lated in var­i­ous ways.

Cal­i­for­nia might cre­ate a state visa for high-tech work­ers and agri­cul­tural la­bor­ers, while Texas might cre­ate visas for agri­cul­ture, con­struc­tion and high tech. Michigan could cre­ate one for real es­tate in­vestors in Detroit. There could be hun­dreds of dif­fer­ent visas all tuned to lo­cal eco­nomic de­mands rather than just one or two tem­po­rary fed­eral visas forced to fit the needs of the en­tire U.S. econ­omy

Texas and Cal­i­for­nia could be the first to suc­ceed with pi­lot pro­grams. Texas’ brief leg­isla­tive ses­sion saw three bi­par­ti­san bills in­tro­duced to cre­ate a state-based guest-worker visa pro­gram. The Cal­i­for­nia Assem­bly just passed a guest-worker visa bill au­thored by Assem­bly­man Luis Alejo (D-Salinas).

Af­ter not­ing the fail­ure of fed­eral immigration re­form, Alejo said, “If Cal­i­for­nia wants change in immigration pol­icy, we as state of­fi­cials must stand up and lead.” His bill would cre­ate a guest visa work per­mit for unau­tho­rized farm­work­ers al­ready work­ing in the state. None of the Texas bills would have le­gal­ized any cur­rent un­law­ful mi­grants, but they would have pro­vided for the fu­ture en­try of le­gal mi­grant work­ers to Texas.

In both states, the bills re­quire that the fed­eral gov­ern­ment grant a waiver or per­mis­sion to run their own pro­grams. That has been a stum­bling block for Kansas, Utah and Colorado, which have also tried to es­tab­lish their own guest­worker pro­grams in re­cent years. The waivers weren’t forth­com­ing, but Washington would have a much harder time ig­nor­ing po­lit­i­cally pow­er­ful Cal­i­for­nia and Texas, which have the two largest economies in the United States.

State-based guest-worker pro­grams ad­mit­tedly bring up some po­ten­tially thorny is­sues. One is that mi­grants who en­ter the U.S. in one state could sim­ply leave and work in another il­le­gally. That prob­lem would prob­a­bly be a mi­nor one. Only about 2% of cur­rent visa “over­stays” in­volve guest work­ers, while 87% are tourists and va­ca­tion­ers. Guest work­ers are more closely reg­u­lated than tourists, and they have much more to fear from de­por­ta­tion, so fewer of them over­stay.

If, how­ever, state guest work­ers do dis­ap­pear, states have more flex­i­bil­ity to experiment with re­sponses and preven­tion mea­sures. They might make guest work­ers pay a bond that they for­feit if they vi­o­lated the pro­gram, or levy fines against em­ploy­ers when their work­ers leave, or deduct some amount of wages to be re­turned when the worker leaves the U.S. as agreed.

Another con­cern is abuse of guest work­ers, as has hap­pened in the past. Al­low­ing guest work­ers’ visas to be tied to em­ploy­ment in a state rather than to spe­cific em­ploy­ers would go a long way to­ward pre­vent­ing such abuses. States are in a bet­ter po­si­tion than the fed­eral gov­ern­ment to dis­cover, ap­pro­pri­ately pun­ish and de­sign pro­grams to pre­vent worker abuse.

State guest work­ers would not be el­i­gi­ble for cit­i­zen­ship. The Con­sti­tu­tion un­am­bigu­ously as­signs nat­u­ral­iza­tion — the process of be­com­ing a U.S. citizen — to the fed­eral gov­ern­ment. A de­cen­tral­ized guest-worker visa would merely al­low states to cre­ate nar­row and en­force­able mi­grant worker pro­grams tai­lored to lo­cal needs.

With immigration re­form dead­locked on the fed­eral level, Washington should get out of the way and let the states de­vise their own mi­gra­tion poli­cies.

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