The United States has been in a fractious public and political debate for many years over how to address its more than 11 million unauthorized residents. At issue has been whether to extend legal status to a large share of U.S. unauthorized immigrants or to narrower, more defined groups, or whether to continue to pursue enforcement initiatives without a legalization program or other reforms.
The topic of legalization (or "regularization" in Europe) is a polarizing one on both sides of the Atlantic. Opponents view proposed legalization measures, whether broad or narrow in scope, as amnesty for lawbreakers and an enticement to further illegal migration. Supporters, meanwhile, argue that there are significant economic and integration benefits of legalizing certain unauthorized immigrants, particularly long-term residents with established families and strong ties in their country of destination.
Although this issue has garnered significant attention in the United States, the use of large-scale or focused legalization policies is not new, nor uniquely American. Such policies have been adopted repeatedly in the past in the United States and by various European governments. In recent decades, European Union (EU) Member States have turned to regularization programs again and again as a way to address the rising numbers of unauthorized immigrants within their borders. In the United States, the broad legalization program resulting from the Immigration Reform and Control Act of 1986 (IRCA) is widely known, but there has been less recognition of the fact that Congress has repeatedly legalized more discrete groups of residents since the 1920s.
Legalization programs typically seek to balance the goal of bringing unauthorized immigrants into the mainstream of society for economic and humanitarian reasons, with the public and political pressures to stem illegal immigration over the long term. EU Member States often oppose these programs on the grounds that one country's program will negatively impact other countries.
The use of this sometimes divisive policy tool differs significantly between Europe and the United States, as well as within Europe itself. This is seen in the pronounced divide in regularization trends between northern and southern European countries. Programs implemented in the north tend to be narrower, covering discrete populations, whereas southern EU Member States have been more likely to implement broader programs. In the United States, far more individuals have been legalized through population-specific programs than generalized programs. This article explores these differences in greater detail.
This article defines regularization as the procedures by which eligible unauthorized residents may be granted either temporary or permanent legal status in Europe, and defines legalization as the process by which unauthorized or temporary residents become lawful permanent residents (LPRs) and, potentially, citizens in the United States.
In Europe, a distinction exists between regularization programs and mechanisms. Programs generally refer to one-time measures aimed to counter particular circumstances or restrictive policy changes that have created a group of immigrants without legal status. Mechanisms, meanwhile, are often part of a broader migration policy framework, and can be either permanent or open-ended.
Under this rough definition of regularization procedures, mechanisms that change the rules governing who can be admitted as immigrants (i.e., LPRs) are not considered legalization programs in the United States. For example, in 1965, Congress eliminated discriminatory national origin quotas and prioritized family-based immigration. This legislative overhaul of the U.S. legal immigration system would not count as a legalization program under this definition. In an attempt to fashion an accurate comparison between Europe and the United States, only regularization programs are addressed in this article.
Regularization in Europe
In Europe, there has been a regional shift in support for regularization programs over the last few decades. What started as a policy tool to accommodate needed laborers in northern Europe has become politically unviable in that region. Now the majority of economically focused regularization programs are found in the south, particularly in Italy, Spain, Greece, and Portugal.
Despite this shift, the number of persons regularized in Europe has risen significantly in recent years. This is because regularizations increased from southern Europe during the late 1990s and early 2000s in the face of growing migration from North and sub-Saharan Africa. These policies were treated as a means of controlling the illegal employment of large numbers of immigrant workers, and of curbing the informal market and, thus, helping to boost the tax base and strengthen the economy. Between 1997 and 2007, regularization measures implemented in Italy, Spain, and Greece accounted for 84 percent of known applications to EU regularization programs. In total, more than 5 million unauthorized migrants have been regularized in the European Union since 1996.
Today, most northern European countries do not view regularization as a sound policy tool. Many vocally oppose this strategy, particularly large-scale, one-off regularizations, despite having relied on such strategies in the past. Similarly, there are few regularization programs in Eastern Europe, and those that do exist are limited in scope and primarily humanitarian in nature.
However, policies of formal "toleration" have remained popular in countries that no longer favor regularization. Tolerated individuals are usually not granted residence permits and are frequently unable to work legally, however states do not actively seek to remove them. In addition, toleration has occasionally led to regularization, as in Austria and Germany in the 1990s.
The governance structure and politics of the European Union create a complex arena in which to discuss regularization measures, since the policy decisions of one Member State inevitably have implications for others. Due to the Schengen agreement, European borders have become much more open, and free movement between EU Member States is now a political, economic, and social reality. Thus, unauthorized migrants who are regularized in one EU Member State are automatically afforded the opportunity to travel and even reside elsewhere within the European Union. This has led to political pressure against Member States who have employed regularization measures in recent years. For instance, Spain announced in 2006 that it would no longer implement major one-off regularization programs, distancing it from the much-criticized large-scale "amnesties" for which southern Europe has become known.
This announcement preceded the European Pact on Immigration and Asylum (2008), which originally included the stipulation that EU Member States would only use regularizations on a case-by-case basis for humanitarian and economic reasons, rather than implementing generalized regularization programs. Though this provision was abandoned during discussions, the European Union remains antagonistic to generalized regularization programs.
Legalization in the United States
U.S. legalization programs can be grouped into three categories: registry, population-specific, and general. Registry programs cover people who have resided continuously in the United States as of a set date and who meet other eligibility criteria. Population-specific programs cover discrete populations of humanitarian, equitable, or economic interest. General programs attempt to cover a large percentage of unauthorized immigrants who are present in the United States at a particular period of time.
Since 1986, more than 3.7 million unauthorized immigrants have been legalized in the United States through general and population-specific programs. Between 1929 and 1986, legalization programs provided status to more than 1.5 million people.
The first U.S. legalization program came in response to anomalies created by the first quota restrictions in the 1920s. In 1929, Congress passed legislation that allowed unauthorized immigrants to register with the government if they had arrived prior to June 3, 1921, had resided continuously in the United States since that time, had exhibited good moral character, and were not subject to deportation or ineligible for citizenship. Congress has updated the qualifying date for registration four times since 1929: in 1940, 1958, 1965, and 1986. However, it has never passed legislation that would automatically advance the registry at regular intervals.
Congress has also frequently legalized groups for labor market, humanitarian, and equitable reasons, much like in Europe. By one count, since 1952 alone Congress has acted 16 times to extend LPR status to persons in temporary legal status. Examples of such population-specific legalizations include grants of legal status to 175,168 Indochinese following the fall of Saigon and the Immigration Nursing Relief Act of 1989, which allowed immigrants working as registered nurses under temporary work (H-1) visas as of September 1, 1989 to adjust to LPR status. These programs are comparable (respectively) to Denmark's regularization of Kosovar refugees in 2000 and Portugal's 2003 Lula Agreement to regularize unauthorized Brazilian workers.
In 1986, IRCA's general regularization program provided legal status to immigrants who had been unauthorized from before January 1, 1982 and who had been for the most part continuously present from the date of the legislation's enactment. IRCA also moved up the effective entry date for registry and included two population-specific legalization programs, one for agricultural workers and the other for "Cuban-Haitian entrants." Together, these programs allowed nearly 2.7 million people to obtain legal status in the United States.
IRCA supporters predicted that the legislation, which also increased border enforcement and created a new regime of sanctions against employers that knowingly hired ineligible workers, would stem illegal immigration and permanently reduce the unauthorized population. However, this population rose dramatically through the 1990s and the first half of the 2000s.
Opponents of legalization programs in the United States often characterize them as "amnesties" and cite evidence of IRCA's failures to prevent illegal immigration and the re-emergence of a large unauthorized population. They argue that stepped-up immigration enforcement programs will, in time, significantly reduce the unauthorized population through removals, attrition, and deterrence. Legalization proponents, for their part, have taken pains to distinguish the kind of "earned" legalization they support from IRCA's broad amnesty program. Earned legalization programs are mostly prospective, allowing unauthorized persons to obtain legal status over many years through work, English language proficiency, payment of back taxes, and other measures.
One of the more prominent population-specific earned legalization proposals advanced in recent years is the Development, Relief, and Education for Alien Minors (DREAM) Act, which targets unauthorized residents who arrived in the United States as children. Under the measure, which Congress has considered at several points since 2001 but never passed, select youth would be eligible to earn legal status on a conditional basis if they met certain criteria, and could gain LPR status after completing college or military service.
Unlike in Europe, toleration has never been explicit in the United States, although U.S. immigration officials have regularly prioritized the removal of certain unauthorized immigrants but not others. In addition, in a kind of de facto toleration policy, prior to IRCA employers could hire unauthorized immigrants. As stated, IRCA established an employer sanctions regime, but did not make it a federal crime to work. However, in recent years, the trend has been to address the need for immigration reform through greater enforcement alone, rather than through legalization and changes to the underlying legal immigration system.
The debate over legalization shows no sign of abating on either side of the Atlantic. In both Europe and the United States, opponents of legalization claim that such programs reward illegal immigration and have not been successful in meeting their other aims. Such concerns are reflected in the European Union's shift from large-scale to targeted regularization programs.
However, despite general EU support for limiting the use of regularization, the 2009 implementation in Italy and Belgium of large-scale regularization measures demonstrates that EU rhetoric may not reflect the reality on the ground. It seems that at the national level, governments will continue to act in their own best interests. Questions persist as to how regularization measures can be best used to maximize benefits to individual countries, while minimizing costs for the European Union as a whole.
In the United States, policymakers continue to debate whether legalization programs should be included as part of broader reform initiatives, including stepped-up enforcement measures. IRCA's legacy and the realities of a large unauthorized population continue to bedevil the immigration debate. In addition, the recent economic crisis that has cost millions of U.S. jobs and the prolonged labor market recovery makes it more difficult to convince the public of the merits of a legalization program.
At the same time, ever since the United States adopted its first categorical restrictions on admission, Congress has regularly found it necessary to legalize discrete groups that have strong equitable and humanitarian claims to remain in the United States. Many argue that the current unauthorized population includes many residents who have similar claims, and that Congress may find it necessary to pursue the legalization option once again.
For more information, see two previously published Migration Policy Institute papers: More than IRCA: U.S. Legalization Programs and the Current Policy Debate by Donald M. Kerwin and Regularizations in the European Union: The Contentious Policy Tool by Kate Brick.
Baldwin-Edwards, Martin and Albert Kraler. 2009. Regularisations in Europe: Study on Practices in the Area of Regularisation of Illegally Staying Third-Country Nationals in the Member States of the EU. REGINE. Vienna: ICMPD.
Batalova, Jeanne and Margie McHugh. 2010. DREAM vs. Reality: An Analysis of Potential DREAM Act Beneficiaries. Washington, DC: Migration Policy Institute. Available Online.
Boswell, Richard A. 2010. Crafting an Amnesty with Traditional Tools: Registration and Cancellation. Harvard Journal on Legislation 47: 175-208.
Carroll, Susan. 2010. Feds moving to dismiss some deportation cases: Critics assail the plan as a bid to create a kind of backdoor 'amnesty.' Houston Chronicle, August 24, 2010. Available Online.
Council of the European Union. 2006. Council Decision 2006/688/EC of 5 October 2006, article (2)(1)(OJ L 283/40 of 14.10.2006. Available Online.
Council of the European Union. 2008. European Pact on Immigration and Asylum. Available Online.
European Commission. 2005. Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in Member States for Returning Illegally Staying Third Country Nationals. COM 391 final. Brussels.
International Center for Migration Policy Development (ICMPD). 2009. Regularisations in Europe: Study on Practices in the Area of Regularisation of Illegally Staying Third-Country Nationals in the Member States of the European Union. ICMPD Policy Brief. Vienna.
Fix, Michael and Jeffrey S. Passel. 1994. Immigration and Immigrants: Setting the Record Straight. Washington, DC: Urban Institute. Available Online.
González Baker, Susan. 1990. The Cautious Welcome: The Legalization Program of the Immigration Reform and Control Act. Santa Monica, CA and Washington, DC: The Rand Corporation and the Urban Institute.
Ho, James C. 2006. Defining 'American': Birthright Citizenship and the Original Understanding of the 14th Amendment. The Green Bag 9 (4): 366-378.
Kraler, Albert. 2009. Regularisation: A Misguided Option or Part and Parcel of a Comprehensive Policy Response to Irregular Migration? IMISCOE Working Paper no. 24. International Centre for Migration Policy Development. Available Online.
Kerwin, Donald M., Doris Meissner, and Margie McHugh. 2011. Executive Action on Immigration: Six Ways to Make the System Work Better. Washington, DC: Migration Policy Institute. Available Online.
Levinson, Amanda. 2005. The Regularisation of Unauthorized Migrants: Literature Survey and Country Case Studies. Centre on Migration, Policy and Society. University of Oxford. Available Online.
Levinson, Amanda. 2005. Why Countries Continue to Consider Regularization. Migration Information Source, Migration Policy Institute. Washington, DC.
Meissner, Doris and Donald Kerwin. 2009. DHS and Immigration: Taking Stock and Correcting Course. Washington, DC: Migration Policy Institute. Available Online.
Organization for Economic Cooperation and Development (OECD). 2010. International Migration Outlook. Paris.
Passel, Jeffrey S., and D'Vera Cohn. 2010. U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade. Washington, DC: Pew Hispanic Center. Available Online.
Preston, Julia. 2010. Illegal Workers Swept from Jobs in 'Silent Raids'. New York Times, July 9, 2010. Available Online.
Rijpma, Jorrit Jelle and Ferruccio Pastore. 2009. Review of Current International Approaches with Regard to Regularization and Disincentives for the Employment of Irregular Migrant Workers in Regularization and Employer Sanctions as Means towards the Effective Governance of Labour Migration: Russian Federation and International Experience. International Labor Organization. Moscow. Available Online.
Rosenblum, Marc R. 2010. Immigrant Legalization in the United States and European Union: Policy Goals and Program Design. Washington, DC: Migration Policy Institute. Available Online.
Rytina, Nancy. 2002. IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001. Paper presented at Mary Woodward Lasker Center, National Institute for Health, October 25, 2002. Available Online.
Simpson, Cameron, and Miriam Jordan. 2009. More Employers Face Immigration Audits. Wall Street Journal, November 20, 2009. Available Online.
Transactional Records Access Clearinghouse (TRAC). 2006. National Trends in Apprehensions and Staffing. Syracuse, NY: TRAC. Available Online.
______. 2010. Immigration Enforcement Under Obama Returns to Highs of Bush Era. Syracuse, NY: TRAC. Available Online.
U.S. Commission on Immigration Reform. 1997. Refugee and Humanitarian Admissions: Appendices. Washington, DC: U.S. Commission on Immigration Reform.
U.S. Department of Homeland Security (DHS). 2010. Yearbook of Immigration Statistics: 2009. Washington, DC: DHS.
______. 2010. Immigration Enforcement Actions: 2009. Washington, DC: DHS. Available Online.
U.S. Department of Justice (DOJ). 2002. 2000 Statistical Yearbook of the Immigration and Naturalization Services. Washington, DC: DOJ.
U.S. Immigration and Customs Enforcement (ICE). 2010. Secure Communities: Activated Jurisdictions. Washington, DC: DHS.
Von Spakofsky, Hans. 2010. Pampering Illegals, Endangering Americans: The Obama Administration's Immigration Policy. Heritage Foundation blog. August 9, 2010. Available Online.
Wasem, Ruth Ellen. 2010. Alien Legalization and Adjustment of Status: A Primer. Washington, DC: Congressional Research Service. Available Online.
Weil, Patrick. 2010. All or Nothing? What the United States Can Learn from Europe as it Contemplates Circular Migration and Legalization for Undocumented Immigrants. Immigration Paper Series 2010, The German Marshall Fund of the United States. Washington, DC.