A group of bipartisan senators is planning to beat President Obama's scheduled appearance in Las Vegas this morning by laying out their own vision for immigration reform first. Their intention, at least, is to make our current immigration system less of a living hell for American employers and foreign workers. The only stumbling block is restrictionist Republicans—who have killed every recent reform effort. But before they get their knickers in a knot, they should consider that the status quo they are defending is a creation of Big Labor and completely antithetical to their bedrock commitment to a free market.
In a free market, employer needs, not federal bureaucrats, would determine which and how many immigrants enter the country. Uncle Sam's role would be restricted to conducting security and health checks.
That is not how our system works now. The travails of high-tech workers begin when employers sponsor them for a temporary work visa called the H1-B. Its annual cap is only a quarter of demand and gets filled within the first few days, forcing those who don't get one to wait another year before they can play the visa lottery again. The lucky few who do get one must wait as much as a decade while their green cards are processed. Indian and Chinese techies must wait even longer, thanks to limits on green cards for those countries. During this time, they can't switch jobs and their spouses can't work. Many move to America's competitors—such as Singapore and Australia—in frustration.
And they have it good compared with their unskilled counterparts. H2-B temporary work visas for nonagricultural unskilled workers—the bulk of the illegal population—are even harder to get. The cap is just as tight, but the demand is far greater. Worse, these workers must prove they have property and jobs at home to return to before they can get the visa. Of course, if they had these things, they wouldn't be so eager to come here. The kicker, however, is that these workers are not allowed to apply for green cards.
How did this Land of Immigrants put in place such an arrogantly inhospitable system? Two words: Big Labor.
Don't take my word for it. Here is what Vernon Briggs, a pro-union Cornell University labor professor, has written: "At every juncture, and with no exception, prior to the 1980s, the union movement either directly instigated or strongly supported every legislative initiative enacted by Congress to restrict immigration and to enforce its provisions."
Indeed, unions were responsible for the 1882 Chinese Exclusion Act, America's first serious piece of restrictionism. They also authored the national-origins quotas—the precursor to the country-specific quotas on green cards—which imposed strict limits on immigrants from all but Western European countries. The high-skilled/low-skilled distinction was their way of tightening the labor supply in union-dominated sectors and artificially boosting their wages. And although now Big Labor supports immigration reform, it hasn't dropped its long-standing opposition to a guest worker program for unskilled workers, no doubt because it means competition but no prospect for recruitment.
In fact, the entire undocumented "problem" was created in 1965, when, thanks to union opposition, America scrapped the bracero program, a guest worker program with Mexico, leaving Mexican workers few options but to come and live here illegally.
But both President Obama and the Senate reform plans will proceed apace with creating Fortess America. The Senate plan in particular puts border enforcement ahead of liberalization of our immigration laws. It would increase the number of unmanned aerial vehicles and agents at the border, put in place new rules tracking people entering the country on temporary visas and create a commission of southwestern political and community leaders to ensure the new enforcement mechanisms take effect—all completely redundant measures in a world with rational immigration laws. It will also make the E-verify program mandatory, requiring companies to spend $150 to verify the immigration status of every potential recruit—foreign and American, mind you—against a federal database. This is effectively an employment tax.
It will presumably raise the H1-B cap but not scrap it. It will also try to cut back green card backlogs, but there is no talk of country-specific quotas being eliminated.
As for low-skilled immigrants, both Obama and the senators are talking about a guest worker program but not about eliminating the high-skilled/low-skilled distinction altogether. Never mind that these are economically meaningless categories that will always give short shrift to sectors reliant on low-skilled labor.
Yes, both Obama and the Senate would give illegal immigrants a path to legalization after making them jump through a gazillion hoops such as paying fines, waiting for years in the back of a queue, and demonstrating proficiency in English. Why can't employers decide what language skills they want or require of their workforce?
Restrictionism was Big Labor's way of applying the closed-shop idea to immigration. Republicans should not be protecting it—they should be trying to remove it root and branch.
An earlier version of this column appeared in the Washington Examiner.