08/15/2011 12:53 pm ET Updated Oct 15, 2011

Repealing the Guest Worker Program

I recently interviewed Harry DeMell, an immigration lawyer and member of the American Immigration Lawyers Association, who recommends that we consider a "third way" to solve America's immigration problem.

Andy Schupak: Tell me about your ideas for a work visa program for Mexicans.

Harry DeMell: Mexican workers make up about sixty percent of the undocumented aliens in the United States and they are here primarily for work. If we are to have any hope of getting control of our immigration problems we have to make the documentation and control of this part of the problem a priority.

Andy Schupak: Are you proposing some kind of an amnesty for Mexicans?

Harry DeMell: No. We need to allow many of them to work, and document and tax their work. We did this before and it worked for many years. Then we cancelled that program and our illegal alien problem grew and grew.

Andy Schupak: When did we have this Mexican work program and when did it end?

Harry DeMell: From World War 2 until 1964 we had a program called the Bracero Program. This allowed Mexican workers to register, work pay taxes and return home to Mexico where their families resided. This program worked well and we should consider reviving it as part of a larger immigration reform package.

Andy Schupak: If it was so good, why is it gone?

Harry DeMell: In 1964 we repealed the Bracero program. It was eliminated as a program that was not working. It worked all too well and was eliminated because of the fear of Mexicans living here by labor unions and xenophobes. The argument for ending the program was that there was abuse and exploitation of these workers. There was no attempt to fix these perceived abuses.

Andy Schupak: Has anything been done to fix this since?

Harry DeMell: Most of what congress has attempted to do during these past 47 years is to correct that mistake. Let's first put this in context.

Modern immigration history begins with the McCarran-Walter Act of 1952. That act established deportable and excludable offenses and established family and employment-based preferences. It kept a national origin quota system. In one form or another that system exists today.

There has been no fundamental change of this system since. We have only complicated it, watered it down, and created an overblown bureaucracy. Each change has made the system more complicated and less tailored to the needs of America.

Andy Schupak: Weren't Mexican workers exploited during this program?

Harry DeMell: The Mexican workers in the program were afforded protections with respect to housing, transportation, food, medical needs and wage rates. They came to the U.S. willingly to bring money to their families. That's not exploitation. Since the program was working well there was no attempt to change it during the 1952 overhaul.

That program operated at a time when there were very few undocumented aliens in large part because of the program. We were able to monitor and tax those workers and control our borders.

Andy Schupak: Wouldn't they want to stay here and remain illegally?

Harry DeMell: These workers for the most part want to make money and support their families. The Bracero program did not lead to legal permanent residence, but only such employment as the economy really needed without the intervention of the Department of Labor. It allowed workers to come and go freely. They could return home for Christmas without the need to pay a coyote.

Andy Schupak: Wasn't anything done to fix this problem during these many years?

Harry DeMell: The elimination of the Bracero Program in many ways has led to most of the ills we define as a broken immigration system. It would result in it being significantly easier for 'other than Mexicans' to remain here as undocumented since they would blend in more among the many illegals.

Changes during the 1960s and 1970s essentially complicated the law and led to a piece by piece breakdown of the system and encouraged more and more people to come here with the hope of playing an increasingly complicated system for loopholes and benefits. Each time, Congress gave them more and more opportunity in it's need to show the public 'how much it is doing' by adding layers of bureaucracy: or more bureau crazy complications. The benefits went to government workers and lawyers.

We went from a situation in 1964 where there were very few illegal aliens to a situation where by 1986 there were some 2 millions illegal or undocumented aliens in the United States.

During those years we passed the 1965 act, which equalized word-wide and per country quotas and added employment certifications and new refugee rules. In 1976 we again played with the quotas and in 1980 passed the Refugee Act of 1980.

These bills were thought to be necessary because for the first time we had a significant illegal immigrant problem. By the mid-1980s the problem got worse and worse. Congress looked back at a 1981 report written by Senator Kennedy and Simpson, as dogma when in fact that report was written by people who were clueless that immigration and the economy are closely tied together and that only by blending the law to the real needs on the street will we ever be able to regain control of our boarders.

Andy Schupak: Didn't congress pass an immigration amnesty in the 1980s?

Harry DeMell: Yes. Congress passed The Immigration Control Act of 1986 and allowed some 2 million illegal aliens to obtain residence and the path to citizenship while baring legal aliens from qualifying. The message was now crystal clear: complying with the law is for fools. To top it off there was a farm worker program pushed through by then Congressman Schumer to garner congressional votes in farm states where foreign workers were needed: the same workers who all along would have qualified under the Bracero program.

Andy Schupak: Didn't this amnesty program work well?

Harry DeMell: No. There was significant fraud in the amnesty program and it encouraged hundreds of thousands of new undocumented aliens to enter the United States in order to qualify for some new program that might come along. Lawyers immediately started to litigate (who would have anticipated that?) and hundreds of thousands of those illegals were able to get permission to remain here and obtain permission to work while the litigation continued.

Worse yet most people who had anything to do with the farm worker program believe that more than ninety per cent of all applicants had fraudulent papers. That program did absolutely nothing to address the needs of our farming community. Today most of them are American citizens and have brought their families to the United States.

Andy Schupak: Didn't the 1986 act also establish employer sanctions to prevent employers from hiring undocumented workers?

Harry DeMell: Yes. The 1986 act also created sanctions and fines for employers who hire undocumented workers. It is not clear if anyone other than the delusional really believed that this would be enforced. Each senator and congressperson would discourage enforcement in his or her district in order to protect jobs in their districts, their employers, and their campaign contributors. Employer sanctions have had little impact on the issue of undocumented hiring.

Andy Schupak: What has happened since 1986 in this area?

Harry DeMell: In later years there were bills tweaking the system but not substantially improving it. There was a mini amnesty sighed into law in 1980. There were efforts making it more difficult to obtain legal residence through marriage, playing with drug exclusions, nurses, Chinese students and Soviet scientists, but in the end it was an effort to treat the symptoms while leaving the underlying disease alone.

Andy Schupak: What is that disease?

Harry DeMell: The underlying problem is that we have a system that does not recognize the economic realities on the ground and how to deal with them. Those realities have to do with employment in the United States and it's draw to our shores.

Congress again is talking about another amnesty to fix the problems that congress 'fixed' during the 2 million fix of 1986. Call it 'Comprehensive Immigration Reform' or something else, but now we have a twelve million-person problem. Were will this next amnesty take us? Will we have a thirty million-person problem to deal with in ten years? More disease.

Andy Schupak: Don't we already have a temporary worker visa program?

Harry DeMell: We have a weak program with a limited number of visas and government restrictions that make it unusable for most employers. Employers and aliens therefore ignore it for the most part.

We need a new western hemisphere guest worker program. Our current H-2 temporary worker program is not satisfying the needs of American business and encourages workers and their employers to disobey the law.

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