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What the Devil won't tell you

Never mind border wall, legal immigration system is the big fix

Just 2 percent of demand is met through visa program giving us a massive black market

The Great Wall of China was actually called the 10,000 Li Wall, which means the 12,000-Mile Wall. It actually was a series of walls built between the 3rd century BC and the 17th century AD and worked not at all. The Mongols and Manchus still broke through it and swept through China.

Genghis Khan was pretty determined and so was his army.

However, reading back over historians' theorizing about the Great Wall of China, they do agree it was a success in one way. It stood as a “great symbol” of demarcation between the civilized world and the barbarians.

Or as one documentary put it in a British accent (so it has to be right): “They had never been a symbol of strength. They were about political compromise. The Chinese could not dominate the people of their steppes with their armies and refused to trade with them as equals. So these colossal monuments were stopgap solutions to a problem that couldn't be solved.”

Donald Trump has a wall for Arizona meant to serve as much as a line in the sand against the developing world to the south as a method of border security.

If a wall can't hold something back as simple as an invading Mongol horde, how in the name of Ghengis do we expect one to stop a force incalculably more powerful: attraction of supply to demand. It's like keeping boy away from girl. Good freaking luck.

In the age of Ebola, Instagram and a bunch of hipster 20-somethings smugly tossing around words like “disruption” as a euphemism for “your world is going to end,” the idea of a wall feels good.

The name of the column is "What the Devil won't tell you" and I try to stick to local issues but I'm often amazed at how the media – in its myopia over daily destruction – misses the bigger issue. The most under-reported story in the world today is the over-arching narrative of urban versus provincial; expectations that we all join the modern while traditional culture recoils from the global village. It's playing out in the Ukraine, Iran, Turkey, the U.K., Belgium, Germany and even right here in the good old U.S. of A, where pissed off rural Americans hauled the nation's politics backwards in a big way.

Here, the cultural bogeyman is, as ever, immigration.

And the global media has gotten this issue wrong as well because the issue at hand isn't illegal immigration. Illegal immigration is simply the inevitable result of an ignorant legal immigration system. It's not about walls or paths to citizenship. It's about demand, supply and the government's ignorance of both.

I'm going to give you two numbers: 8 million over 150,000. That breaks down roughly to 53:1. The U.S. economy employs 8 million migrant workers here illegally but provides a legal supply of 150,000 migrant workers per year.

This is straight up economics. Any time you have a legal supply of something that meets just two percent of the actual demand for something, you will create a black market. The U.S. black market must be fixed before we talk about border security (in terms of immigration), employee certifications, interior enforcement or the path to legal status for those here now. Without wholesale change to our legal immigration system, we're just talking about which way our noses are facing with our head in the sand.


The U.S. has a visa system for legal migration. They hand out H2 visas. There's the H2A for temporary agricultural workers and the H2B for non-agricultural workers. The H2B is capped at 66,000 per year. The H2A has no legal cap but a de facto cap seems to exist based on what the bureaucracy can spill out. Also important to understand is that both of these visas are temporary. They are issued a year at a time and can be extended but only to a point.

Let's take a look at what it takes to get an H2A. First, the employer must file a petition with the U.S. Department of Labor, which reviews and adjudicates the application to be certain that the workers the employers want to hire are doing jobs that can't be done by American workers, won't adversely affect the U.S. labor market and will meet certain conditions. Then the application goes to the Department of Homeland Security, to “review and adjudicate” workers' threat level prior to entry into the United States. Finally, the workers themselves must apply for the H2A through the Department of State, which “reviews and adjudicates” the visa itself.

When the workers arrive, the employer must provide round-trip transportation, acceptable housing, three square meals a day and pay a salary that is competitive based on the highest of four metrics the government lists.

Now, look at this screen with a straight face and say “the business owner would rather go through three different layers of government bureaucracy for the right to pay a premium for labor than hire Bill and Hank down the street.” Laughing? You should be.

Employers who get H2B visas are only on the hook for salary and outbound travel if they bring a worker who does not finish the contact term of employment. For any reason. So, if they fire the worker for cause, the employer is on the hook for transporting the worker back to the country of origin. If the employer keeps a problem worker, the worker must pay their way back.

Might it be worthwhile for the government to pay their way back?

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The H2A visa program technically isn't capped but every year seems to fall behind schedule in approving the legal visa application process. H2B visas for non-farm workers are capped at 66,000 per year.

Permanent immigrants are allowed in numbers 140,000 strong per year. It would take nearly 60 years to spool up to the 8 million needed. The “EB Preference System” is established for high-skilled, highly educated professionals or anyone willing to sink a million bucks into U.S. property. Those folks don't scurry across the border in the heat looking for safe passage to a job somewhere.

Focus on abuse

I think we can all agree that the legal migration system should be popular and work well for all parties. The incentive should be steering folks toward legal entry.

The prospective employees must first find a job to get an H2A or H2B, either from the employee hiring directly or through a private contractors whom often serve as a local intermediary. The workers also must travel to an actual consulate or embassy. In southern Mexico, a hot bed of agricultural migrants, this can be a problem because there is just one consulate office in the 700 miles between Oaxaca and Cancun. That's roughly the distance between Tucson and Reno, Nevada.

The U.S. Government Accountability Office, the federal government's in-house auditors, laid out the problems with the H2 system in a March 2015 report.

The GAO conducted focus groups with migrants, who reported abuses. One group explained how they had to take out loans to pay $1,250 recruitment fees deducted from their paycheck. They were promised $10 per hour, plus overtime at $15 per hour.

Here's what the GAO report says happened:

“Upon arrival in the United States, the workers learned they would be paid based on the amount of work completed, not the hours worked. They claimed their paychecks reflected deductions for equipment and safety vests they were required to use. After 2 weeks of working 10-11 hours per day, the workers said they earned $133 and owed $100 in rent.”

Another focus group reported just having to pay $350 in recruitment fees in Mexico but ..

“Workers reported experiencing or witnessing a number of abuses, including employers confiscating their passports and visas, being required to work outside during thunderstorms, underpayment of wages, and physical abuse. However, workers told us they were generally too afraid to report these abuses because they feared being fired or that something might happen to their families at home in Mexico.”

From 2009 to 2013, the U.S. Wage and Hour Division investigated 1,053 employers for violations of labor law. The results are a bit staggering. Of the 953 H2A visa program investigations, 73 percent resulted in back payments owed workers and 87 percent of the 60 H2B visa investigations found similar violations.

If illegal immigrants don't respect our laws, then what do we tell legal migrants whose U.S. employers seem eager to illegally screw them?

Respecting our laws isn't the issue. Illegal migrants respect our offer. That offer goes something like this:

“We need your labor but we're not happy about it. You evade Border Patrol for about 100 miles, then you agree to play a cat-and-mouse game. You conjure the entrepreneurial spirit and shop yourself to a boss who will pay you a decent wage, we'll gladly live off your labor. We'll eat the food you pick off the dishes you wash, sleep in the beds you make, live in the houses you build and pay for stuff off the taxes you pay. However, you are on the lamb. When one of our bubbles bursts or terrorists with your complexion blow something up, 40 percent of America will go on a jihad against you. Deal?”

Most Americans are wise to this – yes even “racist” Trump voters – and understand that immigrants are here to work in jobs Americans aren't lining up to fill. Maybe that's why even 60 percent of the president-elect's supporters think illegal immigrants should be allowed to stay, according a poll by the Pew Research Center, which does some damned fine polling. And 57 percent called illegal immigrants as honest and hard working as U.S. citizens.

However, 79 percent want a wall built along the border.

Idiots, lunatics and you

It's a wall we've been metaphorically building now for almost 100 years.

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From 1789 until 1882, the U.S. had no immigration laws. In 1882, Congress passed two laws restricting immigration. One barred from entry anyone deemed “a convict, lunatic, idiot or a person unable to take care of himself or herself without becoming a public charge.” See, that's my immigration law. Let's stick to that.

No, the U.S. that year passed a second immigration law, the Chinese Exclusion Act, which would be more like the road we would start down when it comes to our immigration laws.

The Chinese Exclusion Acts – all four of them – were rooted in bigotry and that's when the immigration system came off the rails because they reflected our phobias rather than reality.

Stop nodding, lefties: organized labor also has a long history in preventing immigration to meet economic demand, thinking that an artificial shortage is still a shortage of workers. Shortages of labor make for higher wages. So the xenophobes and the unions sought to restrict migration and found the path to least resistance lead to fear of “the other.”

The 1921 Emergency Quota Act and the 1924 National Origins Act established limits meant to reflect America's ethnic make up 30 years prior, as counted in the 1890 census. That census happened to be tabulated before a wave of eastern ad southern European immigrants filed through Ellis Island. Yes, you –ski's, – anians, –ovs, –inis and –viches, you were no better than idiots and lunatics.

Then in 1965, the Immigration and Naturalization Act removed the quotas. Not really. The new system would be based on family relations, which were de facto established by the quota system.

In the text of every bit of U.S. immigration law is a figurative wall erected to reflect the complexion of America.

I'm going to go out on a limb here and without scholarship or research suggest that Americans didn't trip over xenophobia in the 1880s or the 1920s. I wager it was around in the 1870s and before. However, the country understood it needed immigrants to keep the economy moving. Then the wave broke a bit too high and we settled on fear of the other to inspire our immigration laws.

So, a century later, we have built up one hell of a black market for labor.

What we need is a legal migration policy that is easy to use, hard to abuse and up to the job of turning that black market into a genuine labor market. We can build a wall and grant amnesty but we are just setting ourselves up for a future black market without a plan to move forward rooted in reality.

China built a wall once and it only worked as an imposing symbol. A wall can't stop that kind of inspiration and neither can a law, for that matter."

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