Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way. This article is copyrighted by ILW.COM and is reprinted with permission. You can read other articles by Mr. Endelman, and subscribe to future articles at www.ilw.com.

When a law is routinely violated, a natural question to ask is whether the activity criminalized should have been illegal in the first place. The immigration laws of the United States do not make economic sense and that is the reason why illegal immigration is pervasive and persistent. America can solve this problem by repealing employer sanctions, legalizing the undocumented, eliminating most family-based immigration options and giving employment-based immigration the primacy it richly deserves but has rarely enjoyed. As Vermont Senator George Aitken famously advised at the height of the Vietnam War, we could then declare victory and go home.

Any honest observer must conclude that all efforts by the United States Government since November 1986 to end, or even deter, illegal immigration have been a spectacular failure. Let's briefly recount recent history to put things in perspective. First, the 1986 Immigration Reform and Control Act (IRCA) required all US employers to verify the identity and employment authorization of potential hires, something that had never been done before. Spending on the Border Patrol soared; 2.8 million illegals living here since January 1982 received amnesty; tougher penalties were imposed on the undocumented already in this country and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) took away what few legal protections they had previously enjoyed. So, after this unprecedented assault, what results? Daniel Griswold of the Cato Institute gave the bad news to the House Judiciary Subcommittee on Immigration, Claims and Adjustments on October 30,2003: " By any real measure of results, the effort since 1986 to constrict illegal immigration has failed. The number of undocumented immigrants in the United States today has doubled since then from an estimated 4 million to 8 million with the undocumented population growing by more than 300,000."

Truth be told, the harder it became for illegals to enter this country, the more they were likely to remain once they made it here. The harder we sought to close the door, the more those already inside resolved they had to stay. Before IRCA, most Mexicans who came illegally to the US did not seek permanent status. Secure in the knowledge that they could always return, the pattern of their migration is aptly described by Daniel Griswold as "circular rather than settled." From the end of the Bracero program in 1964 to the enactment of IRCA in 1986, the median stay of undocumented Mexican migrants in the United States was 2.6 years. By the mid-1990's, it had risen to 6.6 years. "A U.S. border policy aimed at reducing illegal immigration to the United States, " Daniel Griswold explained to Congress," has perversely encouraged illegal immigrants to stay." Getting tough on illegal immigration has hardened the resolve of most migrants not to repeat this trial by fire. At the same time, precisely because they had lived in the shadows, most illegals before IRCA had little, if any, incentive to upgrade their job skills, knowing always that deportation lurked around the next corner. A 1995 study by the US Department of Labor found that 43% of Mexican men legalized in the IRCA amnesty of the 1980's tried to invest in their own futures through upgrading their skills and getting more education. For the first time, IRCA gave them a measure of freedom to better their lot and look for a living wage. Let us now go the rest of the way by eliminating not only the underground economy, largely immune to taxation, but also the entire industry of smugglers and false documents that endangers the lives of those who come and seeks to make a profit off of their marginality.

Rather than harming low-skilled Americans who lack the skills and education to thrive in the information economy, legalization would restore the undocumented to more equal footing, give them a voice to speak out, and level the playing field for all against unscrupulous employers. "If a wide enough channel were opened so that the supply of workers from Mexico could be legally matched with the demand for their labor in the United States," Daniel Griswold concludes, "the rationale for the current illegal flow of Mexican migrants would vanish." When the legacy INS doubled the number of Bracero visas in the late 1950's, illegal immigration from Mexico dried up. There is no reason to think that the same thing would not happen again. This would also have the added benefit of liberating thousands of government agents and some $3 billion a year annually now wasted in a vain effort to seal off the Mexican border. Does anyone think the war against Al Quaida could use any help? At the same time, we would be fooling ourselves if we looked at illegal migration solely in economic terms. While it is certainly primarily that, it is much more, being heavily influenced by a variety of cultural, political and societal forces. That is why high levels of both legal and illegal immigration to the United States have continued in the last few years despite the recession and resulting drop in demand for labor. When times are hard here, they are invariably much worse everywhere else.

Legalization should not be adopted to benefit the undocumented or reward their violations of the law. It should be done because it makes sense for the American economy by providing a ready source of labor for those hard, dirty, but necessary jobs that are still very much needed in our 21st century economic matrix. Legalization affords ample manpower without the risk of reigniting inflation. The benefits of legalization should be strictly temporary without any guarantee of permanent resident status. The goal should be to facilitate a return to the circular migration of pre-IRCA days and not to provide an alternative basis to the legal immigration system as a way to stay permanently in the United States. Those who benefit from such amnesty should be required to qualify for the "green card" in precisely the same way as everyone else. They should gain no special or added advantage. The temporary visa should be owned by the alien and not tied to any particular employer. The ability to pack up and look for a better job without worrying if Uncle Sam will throw you and your family out is the best protection that the undocumented could ever have or hope for.

This opens up a third way between competing Democratic, Republican and Bush Administration proposals to allow the undocumented a chance to get the green card without doing violence to the existing legal immigration system or making those who have patiently waited for its slow justice feel like chumps. The Republicans offer temporary guest worker status now followed by a return home before any green card comes through. The Democrats stoutly insist on full legal rights without delay while the Administration seeks a middle ground, essentially proposing guest worker visas now but an opportunity to remain here and prove entitlement to getting something more over time. In each case, a new immigration option is created solely for the undocumented that no one else can take advantage of. Once again, an already overburdened immigration system becomes even more complicated, thus adding to the overwhelming sense of mission overload that has already reduced immigration processing times to a slow crawl. The last thing the immigration folks need is yet another visa to interpret and administer. What impact will that have on everything else they do, particularly in the absence of any additional funding or staff? Let's place the undocumented on the same level as everyone else for a while but, if they want more, let them do it the old fashioned way - let them earn it in the same way and under the same constraints as everyone else. There is no need to choose between helping the undocumented and honoring the rule of law. Both are worth doing and a genuine respect for both is not only possible but necessary.

At the same time, those who favor more immigration must acknowledge and accept the need to end chain migration. Save for uniting the families of permanent residents and US citizens, both of whom should not be subject to any limitations, family immigration is the primary threat to the wages and working conditions of minorities and low-skilled Americans. Coming here without any labor market control, such family migration undermines all other attempts to protect the most vulnerable in our domestic workforce from low wage foreign-born competition. It simply makes no sense to make employment-based immigration more difficult when so many more workers come here to compete for jobs free of any restriction through family ties. Legalization now should be accompanied by a renewed emphasis on employment-based immigration and a transfer to this side of the ledger of visas now awarded to diversity lottery winners, adult children of permanent residents and American citizens, and siblings of American citizens. Unless we fundamentally change the legal immigration system, no amnesty can succeed or long endure. So long as employment-based immigration is grudgingly accepted as an afterthought, so long as we have an alien-centered immigration system that looks first to succor the alien and not enrich the nation, any restoration of sanity now will only set the stage for the need to take more drastic remedial action in the future.

IRCA failed because it separated the issue of illegal migration from the American economy as a whole. Such failure ironically gives us a chance to finish the job in the way it should have been done in the first place. If we seize this opportunity, and trust not in sentiment but enlightened national self-interest as the organizing principle of future priorities, those who believe that America is and must always remain a nation of immigrants have a shot at achieving something good for the immigrants and the special nation whose cause they seek to make their own.