Fragomen on Immigration: Could Reform of U.S. Guest Worker Programs Help Ease the Border Crisis?

The growing humanitarian crisis at our southern border, where thousands of children from Central America are showing up alone after making a treacherous, 2,000-mile journey, is just the latest manifestation of a long-standing pattern of migration from Latin America to the United States. The causes are numerous, including poverty, unemployment, corruption, ineffective government institutions, and gang violence fueled by the drug trade, among other reasons. Such a complex problem with multiple causes must necessarily be addressed through a multi-pronged approach. From our perspective as practitioners of employment-based immigration law, we would like to suggest that, in addition to other initiatives aimed specifically at the current crisis, creating an effective guest worker program for lower-skilled workers could play an important role in curbing further unauthorized migration to the United States, including the migration of unaccompanied minors. 

An estimated 57,000 unaccompanied migrant children (also known as Unaccompanied Alien Children or UACs) have been apprehended at the border between the United States and Mexico since October 1, 2013. This is more than double the number of such children who were apprehended last fiscal year. Most of these children are from Mexico, Guatemala, El Salvador and Honduras. A significant percentage of these children already have parents or other family members in the United States. A recent report by the United Nations High Commissioner for Refugees (UNHCR), for example, found that 21 percent of a sample group of UACs they interviewed mentioned joining a family member as one of the multiple reasons for leaving their countries. U.S. government officials, meanwhile, have reportedly estimated that more than 50 percent have parents or relatives in the United States, while the Office of Refugee Resettlement reports that approximately 85 percent of UACs referred to ORR for care are ultimately released to parents or other family members in the United States. It is also worth noting that the number of Central American children arriving with at least one parent has also increased significantly compared to last year. The Mexican government’s own porous southern border also contributes to the problem.  

As with all unauthorized migration to the United States, there are various “push” factors and “pull” factors behind the current influx—including, on the one hand, increased violence in the so-called Northern Triangle of Central America (Guatemala, El Salvador and Honduras) and, on the other, a widespread misperception that current U.S. law welcomes unaccompanied minors and makes them eligible for lawful immigration status. Similarly, the government has at its disposal numerous potential short-term responses, although the two that have received the most attention—President Obama’s request for $3.7 billion in emergency funds from Congress to pay for “a sustained border security surge,"  and amending the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”) to make it easier to turn these children away quickly—are not only heartless and beside the point, but are also doomed to failure. A much better solution would be to devlare these children refugees under Section 207(b) of the Immigration and Nationality Act. 

As two scholars wrote recently in The Hill, effective long-term efforts to discourage unlawful immigration from Central America would have to “aim to strengthen local government and fight corruption; increase community resilience to crime and violence through education and community programs; step up investment in gang intervention programs; build quality education and market driven programs for workforce development; and, strengthen the rule of law and accountability for corruption and abuse by authorities.” To the extent that some of these children have parents who are already in the United States (many if not most without lawful immigration status), a program to permit greater numbers of lower-skilled workers to work temporarily in the United States could also play an important role in stemming the tide—improving the U.S. economy while helping to grow the legitimate economies of Central America in the process. 

As we have written on this blog before, efforts at securing the southern border in recent years have broken what used to be a circular migration pattern by making return migration more difficult. A paradoxically negative consequence of sealing borders, while simultaneously failing to provide a lawful avenue for the temporary migration of lower-skilled workers, is the extent to which it inhibits rather than facilitates circular migration (defined as the temporary or permanent return of migrants to their countries of origin). This strands unauthorized immigrant workers in the United States by discouraging them from leaving—fracturing families whose breadwinners migrate north in an effort to earn a living while often leaving vulnerable children behind with grandparents or other relatives. 

Erecting barriers to circular migration also has a negative impact on immigrants’ countries of origin, which cannot benefit from the skills and resources of returning migrants. International bodies such as the United Nations, the European Commission and others have recognized the extent to which circular migration serves as a development tool for lesser developed countries, and how “strict policies to lock people out can have the reverse effect of locking them in...[which in turn] lessens the development potential of the migrant[s] and their assets." Countries like those of Central America’s Northern Triangle, left without a viable economy, easily fall prey to powerful drug cartels, and the violence and chaos that follow. 

Kids in Need of Defense (KIND), which coordinates pro bono representation of immigrant children, estimates that 40 to 60 percent of these children may qualify for lawful immigration status under U.S. law. Possibilities include refugee status or asylum; protection under the Convention Against Torture; Special Immigrant Juvenile status; T visas for trafficking victims; U visas for certain victims of crime; or a government declaration to make these children eligible for Temporary Protected Status. The UNHCR report mentioned above similarly estimates that approximately 60 percent of these children could potentially raise claims for protection under international law. 

However, let’s not lose sight of the fact that a better immigrant worker program would also help stem the flow of unaccompanied minors to the United States. As Alfonso Aguilar, former chief of the U.S. Office of Citizenship in the George W. Bush administration, put it recently in the New York Times, “If parents could work and go home, then their children would not have to make the dangerous journey to reunite with them." An effective guest worker program—one that would allow U.S. employers to hire not only the “best and the brightest” to fill shortages in high-skilled occupations, but also lower-skilled workers to meet other unfilled needs in the U.S. labor market—would mean that foreign migrants could come to the United States when our labor needs demand it and return to their home countries without fear of being locked out of coming back to the United States legally in the future. Returning home with new skills and savings, in turn, would help to support the economies and civil societies of their home countries.