Senate bill is a threat to sanctuary cities
© Getty Images

Sens. Ron Johnson (R-Wis.) and John McCain (R-Ariz.) recently introduced the State Sponsored Visa Pilot Program Act of 2017, which would allow the states to establish and manage their own guest worker programs for nonimmigrant workers, investors, and entrepreneurs.

According to Johnson, “We need to recognize that a one-size-fits-all federal model for visas or guest workers doesn’t work.  Let the states manage the visas, allocate them to the industries that need the workers, set prevailing wage rates.”

ADVERTISEMENT
This program would blur the distinction between federal and state immigration responsibilities and require information sharing to an unprecedented extent, which would eliminate the justification for sanctuary cities. The states could no longer claim that enforcement was a solely federal responsibility.  

How many visas?

The bill would allocate 5,000 renewable three-year visas for each state and give them a share of 245,000 additional visas which would be distributed on a population basis.  Also, the guest workers would be allowed to bring their spouses and children, and there would not be a limit on the visas for family members.  Thus, the program could bring more than a million aliens to the country each year.

The guest workers would have to work and reside in the state sponsoring them, but the states would be allowed to enter into compacts with other states to share the workers.

The states would be required to notify the DHS Secretary when guest workers fail to comply with the terms of their status “when the State is made aware of such failure.”

Bonds. 

The states could require guest workers to post a bond to discourage status violations.  The amount would be set by each state.  And the bill would impose a mandatory bond of not less than $4,000 if more than 3 percent of a state’s guest workers violate their status in a single fiscal year.

But would a bond be an effective deterrent if a guest worker cannot find work in the sponsoring state or does not want to go home when his visa expires?

Waiver to permit aliens here unlawfully to become guest workers.

The bill leaves the determination of whether a waiver of removal grounds should be granted up to the states.  

The states would need information and other forms of cooperation from DHS to do background investigations on aliens being considered for a waiver, and it is unlikely that DHS would provide such assistance without expecting the states to reciprocate.

The bill provides that, “At the request of a State that participates in the State-based nonimmigrant program, the [DHS] Secretary shall waive” the following removal grounds:

  • Not lawfully admitted or paroled into the United States; failed to appear for removal proceedings; used fraud or willful misrepresentation in an attempt to obtain an immigration benefit; and violation of student visa status - Section 212(a)(6) of the Immigration and Nationality Act;
  • Does not have valid immigration documents or has been removed previously - Section 212(a);
  • Was inadmissible at time of entry; is in the United States in violation of law; has violated a previous nonimmigrant status; and had conditional permanent resident status which has been terminated - Section 237(a)(1); and
  • Failed to register or falsified a document - Section 237(a)(3).

It seems doubtful that any alien here unlawfully who is granted guest worker status would willingly go home when his visa expires, and the list of waivable removal grounds includes immigration offenses that make such cooperation particularly unlikely.

For instance, it waives removal for using fraud or a willful misrepresentation to gain an immigration benefit; for returning to the United States illegally after being deported; and for violating the terms of a previously granted nonimmigrant status.

The waiver is problematic for other reasons too.

Providing removable aliens with lawful status for three year periods which could be extended indefinitely would establish a legalization program, and this makes it extremely unlikely that the bill will be enacted.  Attempts to enact an immigration bill with a legalization program have been failing for more than 30 years.

Another Harvest of Shame?

The Bracero Program was the nation's largest agricultural guest worker program.  The 1960 CBS documentary Harvest of Shame convinced President John F. Kennedy that it was adversely affecting the wages, working conditions, and employment opportunities of our own agricultural workers.  When it became apparent that he could not stop this from happening, he ended the program.

Will the Visa Pilot Program have the same problems?

Conclusion.

The bill needs effective deterrents to discourage guest workers from violating the terms of their status and to discourage them from remaining unlawfully when their visas expire.'

It also should specify the extent to which states will have to cooperate with federal immigration enforcement measures if they want to participate in the program.  

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.


The views expressed by this author are their own and are not the views of The Hill.