Five Approaches to Illegal Immigration

It's an exciting time for migrant policy, with several related proposals circulating in DC right now. To help Hill staffers and other stakeholders make sense of the choices, we thought to categorize the various approaches.

Deport and Enforce

The favorite of conservatives, Deport and Enforce calls for the government to enforce the laws on the books: identify, gather and deport illegal immigrants, and seal the unsecured border to unauthorized crossing. Variants include building a Wall, hiring more border patrol agents and immigration judges, expediting immigration hearings, and taking various steps to dissuade migrants, among others.

Enforcement against economic migrants falls into the category of supply suppression for black markets. Supply suppression rarely works. Indeed, for the traditional vices of alcohol, marijuana, hard drugs, prostitution and gambling, it has never worked. Having said that, crossing the border illegally undetected appears to have become more difficult in the last decade, with apprehension rates rising from an estimated 40% to the 55-70% range under the Trump administration.

The problem, of course, is that migrants adapt, transitioning from single Mexican men traveling alone to Central Americans traveling in caravans and families claiming asylum. Supply suppression inevitably devolves into a game of whack-a-mole, with each new enforcement initiative countered by some change in black market tactics. As long as there is work to be had and US wages are multiples of those in Central America, enforcement will always be a challenge and victory will be fleeting. Indeed, the migrants are winning handily in 2019. We estimate the illegal Hispanic population will have increased by more than 8% in FY 2019 if asylum seekers are included.

Be Nice

The Democrats' rhetoric, if not strategy, comes down to 'Be Nice'. The left calls for easy, if not unlimited, access by migrants to the US interior, with full access to the social safety net, including welfare, healthcare and schooling for minors. The intent is to eliminate all accountability and ignore the nearly 80% of American who believe the country needs secure borders. This is manifest for example in Democratic presidential candidate Julián Castro's call for making illegal crossing of the border a civil, not criminal, offense. With a 60% apprehension rate -- which is very good -- nearly 80% of crossers would successfully enter into the US interior within three tries. If the only downside is getting the equivalent of a jaywalking ticket, crossers have every incentive to keep trying the border until they get through. With only a fraction of the public supporting open borders, such liberalism will gain no more traction than will the conservatives calling for mass deportations and building a wall.

Volume-based Approaches

Historically, work visa volumes are determined by legislation. For example, last year's Goodlatte bill anticipated increasing H-2 visa counts by 450,000. Fixed volume legislation has the benefit of limiting the risk for conservatives as the number represents an upper limit. It is also easier to negotiate, because negotiations can focus heavily on this one number. On the downside, because H-2 visas are structurally under-priced, they are a subsidy to employers and migrants, with taxpayers picking up the associated costs. For this reason, the number of visas agreed is inevitably fewer than the underlying market demand. Consequently, although such initiatives may reduce illegal immigration for a while, they do not fix the problem in any meaningful sense; indeed, they are not directly intended to close the southwest border to illegal immigration. Further, they do nothing for the undocumented immigrant market. In terms of simplicity and ease of passage in Congress, volume-based initiatives have historically tended to dominate the discussion, but they are inevitably stop-gaps rather than durable, structural reform. They have failed to materially alter the dynamics of illegal immigration in the last half century.

Price-based Approaches

The proposals of CATO, Ideal Immigration, the Rational Middle, and arguably Americans for Progress fall into this category. These organizations take the view that businesses need workers to fill certain jobs that Americans are reluctant to do. In their view, migrant workers and businesses coming together are legitimate and more of a benefit than cost to society. Thus, like market-based visas, price-based approaches represent an implicit legalize-and-tax view of immigration. However, because the price is fixed, it is inevitably set too low, such that these programs would see a dramatic increase in migrant numbers without a cap. A true market price cannot be imposed by Congress, because it fails the political optics test (leaving aside the consideration that we do not know the right price in practice). This in turn would prompt conservatives to demand a cap on visa numbers, thereby converting the matter back into a volume-based approach, with all the problems attendant.

I would add that price-based approaches tend to want good workers to be afforded permanent residency over time. That is, they tend to combine worker visas with permanent visas, which makes the politics even more challenging.

Market-based Approaches

Market-based visas (MBVs) essentially fuse conservative and liberal objectives. Like price-based approaches, MBVs acknowledge the legitimacy of migrant workers and businesses coming together. On the other hand, the approach uses a price mechanism to adjust visa volumes to maintain migrant numbers at levels not much different than those achieved under current conditions. This allows the system to operate under either a soft or fixed cap in visa numbers, a key consideration for those hoping for conservative support.

We also acknowledge conservative objectives, specifically and in order: 1. safety, 2. permission, 3. identity, 4. standards, 5. self-sufficiency, 6. culture, and 7. demographics. Of these, MBVs deliver the first five, but not the last two. Indeed, MBVs represent the most liberal entry form of any of approach listed here. Background-checked migrants from select countries can enter, exit and work in the US at will for a duration of their choosing, whether or not they have contracted with an employer at the time--for an estimated $20 / day.

This is the best option conservatives will see, by far. While MBVs do not end migrant labor as such, the approach achieves ten critical goals for conservatives that they would not attain otherwise. Notably, MBVs

  1. close the unsecured southwest border (the upside of allowing on-demand entry)

  2. end the black market in undocumented immigrant labor

  3. keep migrant numbers near levels they would otherwise be (and MBVs would have prevented the asylum surge entirely)

  4. retain control over visa issuance numbers -- even below any cap

  5. meet five basic conservative objectives, from safety to proper documentation, better conformance with laws and social standards, and self-sufficiency

  6. provide market-level compensation for allowing labor market access

  7. encourage migrants to leave their families in their home countries and return there when not working in the US

  8. provide no path to permanent residency (as a structural matter)

  9. insure wide-spread compliance by both employers and migrants

  10. permit the program to be unwound in a year at a profit if the approach proves unworkable

For conservatives, no other option comes close in practical terms.

Just as for conservatives, MBVs provide Hispanics and Democrats the best offer they will see in the next ten years -- by far. MBVs will provide status for up to 7 million undocumented Hispanics, allow free movement of background-checked migrants across the border, eliminate the vast scale of pathology -- including death, rape, kidnapping, extortion and incarceration, among others -- associated with crossing the border and working illegally, and will represent the biggest gain in Hispanic pride and prestige in a century.

For business, it means protection from arbitrary ICE raids and access to unlimited quantities of migrant labor on demand at the market price for any duration they choose, with confidence that these workers are properly documented, have health care coverage, and have committed no serious crimes.


The traditional left-right divide highlights the limitations of current policy. Because the government has no carrot -- no legal way for economic migrants to enter the country in a timely and predictable fashion of their own choosing -- deterrence is left to employing sticks. But keep in mind that these sticks are deployed against migrants whose principal crime is wanting a better life in America and a willingness to take a 'dirty' job that Americans do not want. These are not bank robbers or murders, but largely unemployed or poor peasants trying to feed their families. Deterrence therefore degenerates into a farcical and self-defeating cruelty, for example imprisoning, at the cost of $40,000 / year, otherwise harmless illegal border crossers who could be providing needed services and creating $50,000 of GDP on average in the US.

But what is the alternative? The Sabraw ruling of July 2018 and Section 224(a) of the February omnibus effectively gutted border enforcement for families traveling together from Central America. The result was the surge we have seen for the last year. A permissive system will bring migrants by the hundreds of thousands in short order, because the economics are compelling.

Thus, in an enforcement-based system, the choice is impotence or cruelty. It is not that one of these choices is better, but rather that the entire framework of analysis is wrong. The whole approach is bankrupt.

The alternatives include issuing more visas, which will never be sufficient because the visas will be under-priced, providing insufficient motivation for conservatives to grant an adequate number.

A broader liberalization with a fixed price would work, but would allow in migrants in such numbers that the initiative will fail to get traction.

This leaves a hybrid MBV approach using a floating price to maintain migrant numbers in a range broadly acceptable to conservatives while providing a safe, transparent and on-demand means for migrants to access the US labor market. That should work, bearing in mind that MBVs are not a concession, a subsidy, an entitlement or a gift. They are a trade.

Everyone wants better terms: cheaper labor, free entry, entitlements and amnesty. But for every winner in such a world, there are as many losers, and no deal will come together. On the other hand, if the parties can agree to trade at market value, then we can solve illegal immigration in short order.