Will Business or Labor Blink First? Immigration Reform and "Future Flows"

Here's a term--one you may be unfamiliar with--to add to your political lexicon: "future flows." In the weeks and months to come, we're going to be hearing it more as Congress very gradually turns its attention to reforming U.S. immigration laws.

As legislators shape immigration legislation, business and union leaders are battling over the contentious issue of how best to control "future flows" of migrant workers. Even in a lousy economy, businesses want the ability to bring in foreign workers, skilled and unskilled, on both temporary and permanent work visas. A chief criticism by business of the last major overhaul of immigration law in 1986 was that the legislation, signed by President Ronald Reagan, contained provisions that gave workers amnesty (a good thing in their view) but failed to include any allowances for future flows (bad). On the other hand, unions historically have generally opposed temporary worker programs and denounced illegal immigration, fearing that migrant workers would undercut legal residents. However, labor's position has softened over the last decade in recognition of the glaring reality that as union membership has waned, the number and percentage of migrant workers in the economy has grown. For many union leaders, embracing, rather than shunning migrants seemed like a no-brainer.

And so it was that when 93 members of the House of Representatives late last year introduced legislation bearing the convoluted title of the Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP, for short), the bill contained a provision to a create a brand new federal agency to be called the Commission on Immigration and Labor Markets. The legislation is championed by the Congressional Hispanic Caucus, as well as progressive and labor groups. The commission idea, based on a proposal endorsed by organized labor, seemed designed to throw a bone to business by establishing a mechanism for future flows and to appease unions by trying to regulate it. The bill calls for a 15 member commission (seven members appointed by the President and confirmed by the Senate, the other eight federal agency heads) to analyze "the current and anticipated needs of employers for skilled and unskilled labor; the current and anticipated supply of skilled and unskilled labor; [and] the impact of employment-based immigration on the economic growth and competitiveness and labor standards, conditions, and wages." The Commission would then "determine the need" for foreign workers, and recommend to Congress "numeric levels of visas." This pseudo-scientific approach to immigration was immediately endorsed by labor leaders, but denounced by business representatives.

Labor believes that by establishing a mechanism to carefully regulate migration, government will be in better position to protect the rights, wages, and working conditions of both the existing workforce and of migrant workers. Business on the other hand worry that a government commission would not only politicize the process, but take away the prerogative of business (i.e. "the market") to control future flows. As a statement from the Essential Worker Immigration Coalition, an arm of the U.S. Chamber of Commerce, put it: "this goal...to supply the U.S. economy with the workers it needs...can best be met by a provisional visa program that gives employers, not the government, the primary say in which workers they need to man their businesses and gives the U.S. labor market, not Congress or a commission, the primary say in how many workers enter the country annually in a legal program. As the experience of recent years shows, the market works in a timely, efficient way to regulate the flow of foreign workers seeking to enter the country."

The recently-introduced immigration bill (CIR ASAP) containing the commission proposal has been has been described by business leaders as a "wish list." Provisions in the legislation for legalization of illegal migrants, immigrants' rights, and weakened enforcement virtually assure that as written, CIR ASAP will have little possibility of passage. If immigration reform has any chance at all this year, it will come from the Senate in a bi-partisan bill currently being written by staff members of senators Charles E. Schumer (D-NY) and Lindsey Graham(R-SC) with input from White House and Department of Homeland Security personnel. Those working on the Schumer-Graham legislation, I'm told, put off the more contentious aspects of the bill, including the touchy issue future flows, to the end of the process. In recent weeks, staffers from Schumer's and Graham's offices have been joined for regular meetings by representatives of business and labor organizations. Their goal, despite adamant statements on the subject by both sides, is to try to find common ground and hammer out compromise language that would address "future flows."

Of course, coming up with the right legislative text is the least of the hurdles. Even if business and labor leaders reach agreement on future flows, the politicians shepherding immigration reform will face strong opposition from those who want any future flows of foreign workers reduced to zero. Not only that; future flows of migrant workers will continue, regulated or not. Where there's a will--migrants in need and jobs for the taking--there'll be a way.

Jeffrey Kaye is a veteran journalist and author. His forthcoming book, Moving Millions: How Coyote Capitalism Fuels Global Immigration (Wiley & Sons) will be available in April 2010.