New Concepts in Regularization: "Earned" Legalization

This analysis, extracted from MPI President Demetrios Papademetriou’s “The ‘Regularization’ Option in Managing Illegal Migration More Effectively: A Comparative Perspective” (Policy Brief No. 4, September 2005), points to the following “things to watch for” in thinking about and setting up regularization programs. First, such programs must capture the behavior and needs of both migrants and their employers accurately if they are to succeed in their administrative goals. Second, they must learn from the lessons of past programs. The fact that there has been remarkably little evaluation of, and even less systematic experimentation with, regularization programs is a big obstacle in this regard. Third, regularizations must be deployed jointly with the other tools that one finds in the full migration management toolbox.

For instance, the requirement that an illegally resident person should demonstrate formal sector employment in order to receive or maintain legal status has not been shown to be an effective measure in drawing migrants out of vibrant informal labor markets. An alternative, and as yet formally untested, approach might be to grant regularized migrants unconditional work permits and then target the sectors and companies in which they worked for greater enforcement of labor and immigration laws.

Another example of an area where too little reflection and even less experimentation has taken place is the duration of residence permits. Underlying decisions in this regard is the political anxiety about granting the very important privilege of permanent residence too readily to people who have entered or stayed illegally. Yet, this understandable anxiety perverts a program’s logic and undermines its effectiveness.

Most regularizations also fall victim to a false dichotomy by assuming either that all unauthorized migrants would decide to return home within a few years or that all migrants somehow desire and “deserve” to live permanently in the host country. As with all binary arguments about complex social and economic behavior, both assumptions are partially false. In fact, many regularized immigrants drop out of legal status yet stay on, while others, a smaller number, return to their homes, especially if their visas allow back-and-forth movement. Both Italy and Greece have had this latter experience with Albanians after granting them work visas that allowed reentries. Of course, geographic proximity, and especially contiguity, play a large role in this regard.

The concept of “earned” regularization shown in the chart, “Notional Earned Regularization Program: The Credit System,” takes the policy discussion beyond the political dead-end of whether or not to offer illegally resident migrants “amnesty” by addressing many of these and related problems in a practical and clear-headed way. Earned regularization has received the most attention in the United States, but has also entered the policy lexicon in the United Kingdom. In such a program, unauthorized migrants enter a three-tiered process. Of course, the criteria for qualifying for each tier and the exact privileges, rights, and responsibilities awarded can vary without altering the basic concept.

In the first tier, applicants would qualify virtually automatically for a probationary status that grants them temporary residence and work permission by registering with the government and submitting to full background checks. The all-important security concern would thus be met first.

After a reasonable length of time, say, three to five years, migrants would be able to move to the second tier by applying for permanent residence and work permission on the basis of meeting a number of criteria. Among them would be having a record of stable formal-sector employment, paying taxes, passing a basic language skills test, engaging in the life of the community of which they are part, being willing to work in economic sectors and parts of the country where the population is declining and workers are needed, and so on.

Applicants would be awarded “credits” or “points” for meeting those and other reasonable requirements, and would earn permanent status if they gain enough points within the pre-agreed time frame. A “bonus” year might be offered to those who are within a point of the pass mark at the end of the pre-agreed time frame in return for agreeing to a higher pass mark. Both scenarios would stretch out the period during which tier-two applications would be filed. Doing so would make the administrative end of things more orderly, manageable, and less subject to the fraud associated with massive programs having to be delivered in very compressed periods of time. The fact that many applicants will meet the pass mark before the deadline and would be able to apply whenever they do so will contribute further toward the goal of programmatic orderliness and manageability.

The third tier would be for those who fail to meet this test and “graduate” into legal permanent status. These individuals would receive a two-year extension to their residence and work permit and be required to return to their homes.

Earned regularization thus offers the following advantages.
• First, by setting the bar for gaining temporary legal (first tier) status relatively low, it can pull the largest possible number of unauthorized migrants out of the pool of the unknown population and, hopefully, with time, out of the informal economy.
• Second, from a security perspective, the vetting of applicants allows the government to dramatically reduce the “haystack” of unknown foreigners into a more manageable-sized one. The resulting smaller haystack makes it more likely that the application of reasonable, but always limited, investigative resources would stand a better chance of identifying the few proverbial “needles” that are of legitimate security concern.
• Third, by being very generous in allowing applicants to achieve the first-tier probationary status (that of legal temporary status with full work privileges and all applicable labor and social protections and obligations), the host society removes the biggest social problems associated with illegal residence and work. These include gross violations of labor laws, disregard for social and related protections, and unfair competition by those employers who systematically trawl the waters of illegal work.
• Fourth, earned regularization takes into account, without prejudging whether unauthorized migrants are primarily interested in temporary or permanent status, that many migrants may want to stay and work toward earning permanent residence status — and that they could be an asset to the host nation if they were allowed to do so. In fact, a well-designed earned regularization program would grant permanent residence rights only to those migrants who demonstrate the desire and ability to succeed economically and integrate socially into the society in which they have been living.
 • Fifth, a transparent system of earning “credits” toward legal status, the barring of felons from the program, the full reimbursement of all administrative and investigative costs the government incurs through the collection of fees, and the fairness and reasonableness of the criteria one chooses make the entire process clear, both to the American public and the program’s users alike. Such clarity leads to realistic expectations and predictable outcomes for the latter while reassuring the public that a “tough-but-fair” system is in place to address the issue of the illegally resident population.
• Sixth, a policy-savvy earned regularization program would place most of the burden of evidence on criteria that are a matter of public record, and thus less prone to fraud (e.g., tax receipts), and are otherwise easily proven (e.g., not having a criminal record or having the necessary language skills).
• Seventh, an earned regularization system offers the government the best means to remove failed applicants effectively and at relatively modest cost, in a manner that the US public considers fair and to which most civil society groups can acquiesce.
• Eighth, by focusing on evaluating how individuals behave after they have been granted probationary legal status, an earned regularization program creates incentives for ongoing positive behaviors. Not incidentally, such a program becomes, in effect, a transition belt or a bridge to “selecting” permanent immigrants according to requirements that can predict long-term success both for the immigrant and the receiving society.
• Finally, by requiring applicants to pay a very substantial additional fee to offset near-term social expenditures by states and localities, two critical goals are met. The first one is getting state and local governments actively on board the regularization bandwagon, a political priority of the first order if such a program is to be enacted. The second is the very real one of creating a pool of money for use by services provided to immigrants in the fields of health, education, and, more generally, immigrant integration. These are areas where money will be the most effective — on the ground in our cities, where the need is most pronounced and funds most scarce. Better integrated immigrants, in turn, contribute to stronger communities that benefit all of their members.

Notional Earned Regularization Program: The Credit System
By Demetrios G. Papademetriou, President, Migration Policy Institute

The complete pdf of this Policy Brief, “The ‘Regularization’ Option in Managing Illegal Migration More Effectively: A Comparative Perspective,” is available online at: http://www.migrationpolicy.org/pubs/PolicyBrief_No4_Sept05.pdf.