Immigration reform: Teeth and tweaking are all the laws need

December 30, 2014
Jacob T. Muklewicz
San Jose Mercury News

As a business immigration attorney representing companies lawfully employing foreign workers in the U.S., I am frustrated with our dysfunctional immigration system. The president's recently issued executive order only makes the system more dysfunctional. 

I regularly encounter law-abiding individuals who would make great additions to the U.S. workforce, but are stymied by a system that often lets those not following the rules in ahead of those who are. Yet I do not think our immigration system is broken and in need of a complete  overhaul. Rather, enforcing the existing law and making long-term fixes could solve many of our problems.

The executive branch has not enforced existing law. Between President Reagan giving amnesty to approximately 3 million individuals in 1986 and President Obama's Deferred Action for Childhood Arrivals in 2012, the undocumented population in the U.S. has increased to between 12 and 20 million. History clearly shows that amnesties and executive orders rewarding those breaking the law encourages more illegal immigration. 

Congress has also passed laws that encourage illegal immigration. Congress has set quotas on work visas. For those that overstay visas, Congress has set onerous readmission bars encouraging many to remain in the U.S. illegally and hope for an amnesty or, more recently, executive orders, rather than leave and wait out a 3 to 10-year readmission ban. 

Because Congress has passed such laws, many chose to work without visas in the U.S. knowing that the executive branch does not enforce the law.

These problems do not mean we need to throw out the current immigration system and start over. We should, however, stop relying on amnesties and executive orders to fix the situation, as doing so not only encourages more illegal immigration but also discourages those playing by the rules.

It is blatantly unfair when people breaking the law are better off than those playing by the rules. One example of such unfairness is that some beneficiaries of the President's executive orders receive Employment Authorization Documents allowing them to work in the U.S., whereas many who have never violated our immigration laws cannot obtain work visas because of quotas.  

How can our immigration system be fixed? Congress must eliminate work visa quotas and the bars to readmission for unlawful presence. Those who accrue unlawful presence should pay fines on a scale commensurate with the amount of time they have been out of status. Furthermore, after obtaining visas, all must follow the same path to green cards and citizenship behind those already following the legal process. Rewarding those breaking the law with green cards or citizenship without having to pay penalties and obtain proper visas is unfair to those  playing by the rules.

These long-term fixes will allow more people to obtain work visas and discourage illegal immigration. Surely they would be more palatable to politicians on both sides of the aisle than lengthy, drawn-out debates on comprehensive immigration reform.

The problem of undocumented workers will not go away while the president issues executive orders with no long-term validity and Congress conducts endless debates. What is needed is a reality check that sees the system as flawed but not irreparably damaged — and the will by Congress to make the necessary long-term fixes allowing and encouraging people to live and work legally in the U.S.

Jacob T. Muklewicz is an immigration attorney based in Salt Lake City who represents a range of technology companies and medical service providers based or operating in Silicon Valley. He wrote this for this newspaper.