Global Pressure Points in Migration for 2014

2014 looks to be a difficult year in immigration around the world.  There seems to be little forward movement on any of the major challenging issues and significant back sliding in other areas.  The following is brief roundup of some of the hurdles facing different areas of the globe with respect to human migration.

Middle East - Syria

The most challenging and heartrending humanitarian crisis continues to grind on in Syria.  The conflict appears set to extend well beyond 2014.  While diplomats are currently convened in an idyllic Swiss town, the killing continues and neither side seems to be winning or exhausted.  Peace under these conditions has little chance.  Meanwhile, over 6.5 million people are internally displaced, constituting almost 30% of the total population.  The international aspect of this refugee crisis has been deeply impacting neighboring countries and is now demanding the attention of countries further afield.  The UNHCR has register nearly 2.4 million Syrian refugees, with nearly 900,000 currently in neighboring Lebanon, a country with a total population of around 5 million.  (This would be the proportional equivalent of 100 million refugees arriving in the US).  The Prime Minister of Lebanon, Najib Mikat, recently wrote an open letter insisting that financial aid, while vital, is not enough, and calling for the international community to secure safe zones within Syria itself.  The international community, viz the US and NATO, have little appetite for this type of massive military intervention and without the support of China and Russia nothing like the intervention seen in Yugoslavia seems remotely feasible. 

Europe and the US are also failing to help those refugees who manage to escape the region.  According to the Washington Post, the United States has granted asylum to only 90 Syrians and of the 60,000 refugees admitted to the US in 2012 only 31 were Syrian.  There has been little political pressure for the US to do more, especially given the weak posture of the US with regard to intervention.  Additionally, refugees from Syria often do not fit into ridged and exclusionary categories for legal asylum in the US and underlying fears that such people may be a security threat. 

The EU has pledged to accept a mere 12,000 or so refugees, garnering the contempt of Amnesty International.  Germany has pledged to accept 10,000, however France has pledged only 500, Spain just 30 and Italy and the UK have pledged to accept none.  Since 2012, some 50,000 Syrian refugees have made their way to Europe with Sweden accepting approximately 14,000 at last count.  Through a chance of geography many Syrians enter the EU via Greece which has such a dismal record of refugee treatment that the Dublin II protocol has an exception for Greece.  Normally refugees must seek asylum in the first country they arrive at in the EU and will be returned there if apprehended in another country. But Greece’s grave violation of human rights protections have lead countries such as Sweden and Germany to abridge the rule, thus allowing some Syrian refugees to seek asylum in their respective countries, despite having arrived via Greece.   The Secretary General of Amnesty International, Salil Shetty, recently said, “the platitudes of Europe’s leaders ring hollow in the face of the evidence. The EU must open its borders, provide safe passage, and halt these deplorable human rights violations.” Thus the Syrian refugee crisis is set to expand and worsen.

Europe

In Europe, the great experiment of free movement embodied in the Schengen agreement stumbles forward with the lifting of work restrictions on citizens of Bulgarians and Romanians on January 1, 2014.  Both countries became parties to the agreement in 2007, but Western European members exercised their right to extend work restrictions for seven years.  Those seven years are now up.  In the meantime, travel restrictions remain in place and Bulgarians and Romanians will still require travel documents to move around the Schengen zone.  Romania announced its intentions to fully partake in the free-movement scheme by the end of the year, while Bulgaria has resigned itself to enjoying free-movement in 2018.

Notwithstanding Europe’s hard line with respect to refugees, there are signs of loosening at least with respect to tourist travel.  In April, the European Council will vote to approve visa-free travel for Peruvians.  A similar agreement looks likely for citizens of Colombia.  It appears that fears of visa overstays have been outweighed by the economic imperative to attract tourist dollars. 

United States

The scene in the United States offers little more cause for hope.  Much needed comprehensive immigration reform has most likely stalled in 2014.  Pundits and Washington insiders consider the topic too divisive and dangerous for Congress to touch in an election year.  Despite this pessimism, President Obama has predicted immigration reform for this year.   This sentiment has been echoed by Speaker John Boehner who will present principles for comprehensive reform to his caucus later this week.  It seems unlikely that the House and the Senate will agree given the acrimonious nature of the debate and the fragmentation of the Republican Party. 

In the meantime, the immigration system in the US is facing a potential collapse as nearly half of immigration judges will become eligible for retirement in 2014.  The immigration court system, a fiefdom cloistered away from the main judicial system, faces a backlog of over 350,000 cases.  Immigration courts received very little of the additional funding funneled at the immigration administration and immigration judges are notoriously overworked and understaffed.  Luckily because the immigration courts are part of the executive branch, the nomination of replacement judges would not depend on gridlocked Congress.

A Bit of SciFi

In answering a hypothetical posed to me, I found myself defending the Miranda decision (“you have the right to remain silent...”) against Congressional overhaul.  I argued that Miranda should be kept as a field tested, though imperfect, solution to the problem of police coercion, instead of a technocratic solution hashed out in the halls of government.  Based on several anecdotes I am familiar with[1] I asserted that technocrats inevitably fail to accommodate for the complexity of the systems they are struggling to manage.  This is true across the board, from economic regulation to environmental systems to human migration.  The fundamental flaw with top-down solutions is the lack of information and the inability to manage it.  Imperfect information has been the bane of economists since the dismal science was begun.  Humanity´s information about the natural world is painfully inadequate (the closer we come to hard and fast rules the more complexity we uncover – think string theory and genomes).  The chalice of all social scientists, of whom technocrats are a particular and comparatively well-paid subspecies, is the ability to collect and systematize oceans of data.  Sample size, everything.  The following blog post is a diversion into science fiction, but a compelling notion that merits brief mention. 

The nexus of the original declaration grew out of an unrelated conversation about Michel Foucault’s conception of biopower and biopolitics and new ways of configuring sovereignty away from territoriality.  One of the central ideas was shifting the idea and focus of state control entirely onto the individual.  This idea would mean a world without borders, but it would also likely mean extreme intrusion into the physical bodies of the subjects.  In some respects this corpus-centric state already exists.  Consider the US tax regime, which is one of the few[2] tax systems that follows it citizens wherever they roam.  While most countries only demand taxes from people physically within the territory of the state, the US attaches its tax reporting obligations to the body and family of its citizens.  For many, this type of body-attaching state is repelling and even insidious and the specter of George Orwell’s 1984 super-state looms in the shadows.  Ignoring for the moment these overwhelming concerns, I posit the following supposition:

Imagine the implications on the social sciences of knowing where every person on the planet was and being able to track and manage the information.[3]

                This is clearly science fiction, but it is not too wild of an extrapolation given the day’s news.  The National Security Agency has been striving for the technocrat’s prize by collecting vast swaths of information about people’s electronic communications.  It is unclear to what degree the NSA is able to manipulate and understand all of that data, but the Utah Data Center is clearly a best effort.  Now, what if 100% accurate GPS data on every single human being could be gathered and tracked.  This would either involve some sort of massive dystopian compulsory chip implantation scheme similar to what we in developing countries are inflicting on our cats and dogs or the development of extremely sensitive biometers capable of registering tell-tale signs of each individual human body from space.  That´s the science fiction bit. 

                Beyond a good set up for a short story, this possibility reveals just how important the location of human bodies is.  It would be possible to infer massive amounts of information just by knowing exactly where a certain person was at any given time and then tracing their patterns of movement.  This information would have revolutionary impacts on all of the social sciences from economics, urban development and sociology to psychology, political science, criminology and media studies among others.  Consider subject K: We know K is most likely a male because we can track him regularly going into the men’s bathroom and standing at a urinal.  We can also tell that K is an adult by his movements to an office and bars.  We know that K has children because we can track him at a local elementary school at regular intervals each morning and his frequenting of certain stores every December.  He is also most likely overweight because he spends little time in the vegetable aisle at the grocery store and zips around town so fast that we know he isn´t walking or riding a bike.  It also appears that K is having problems with his prostate, given his frequent trips to a medical facility as well as those trips to the bathroom.  We would know his religion and his drug habits, just by tracking the location of his body.  The possibilities for this type of speculation are endless.  Could we determine K’s political affiliations by compiling and analyzing a lifetime of movements?  What about his ethnicity?  Could we predict his favorite music or sports team?  The implications of this information for social scientists, not to mention marketing agencies and tyrants, are staggering. 

It is extremely unlikely that this potential future will ever come to pass.  However, I will close this reverie with this context.  It is important to remember just how important the movement of the human body is, on all levels, micro to macro.  To come full circle to Miranda, consider the second-worse punishment society can conceive of after the infliction of physical pain or death; confinement.  Constricting a person’s movement is a devastating blow to their personhood.  I think all of this bears keeping in mind when we consider human migration.  How we move is who we are.  Foucault was very aware of the state’s interest in controlling our bodies.  Clearly states are interested in controlling the movement of our bodies across their international borders.  It bears questioning why and considering what the costs and benefits are.

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[1] One of the most compelling has been the Transantiago public transport system overhaul undertaken by then-President Michelle Bachelet in 2007.  The system was designed by her government to replace a hodge-podge system that evolved driven by small bus companies operating independent lines.  The integrated system launched to overwhelming criticism and now six years later Transantiago is still plagued by problems and overcrowding.  One of the lessons learned from this experience has been that the technocratic designers failed to fully consider and anticipate the needs and flows of people using public transport in the city of 7 million.  Other examples of this type of top-down design failure are forthcoming, but not really the point of this blog post.

[2] One of the only?  I am not an international tax expert...

[3] The thought experiment also requires knowing minute detail of the environment as well, but given the advances of google, I wouldn't be surprised if one could locate not only your backyard pool, but also your bathroom in the near future. 

Imagine a World without Labor Certification

Imagine a world without labor certification.  For 99.99% of the world who are enviously ignorant of what labor certification is, the thought experiment is not difficult.  However, for those of us who know about or work in labor certification it is difficult to imagine the modern practice of immigration law in the United States without this onerous bureaucratic gauntlet.  For those of you in the lucky 99.99%, labor certification is a process that requires potential immigrants wishing to enter the US for work to get advanced approval of their work visa by the Department of Labor. 

The Department of Labor (DoL) is much maligned, but in the field of labor certification, much of that grousing is warranted.  In essence, a labor certification requires a potential immigrant to prove to the DoL that their employment in the United States will not “take a job” from a native US worker and will not negatively impact the local wage scale.  Labor certification is a stillborn migration policy that not only fails in praxis, but makes no sense in theory. 

The theory of labor certification is for the US government to protect domestic workers from foreign competition.  Given our modern understanding of foreign competition, labor certification is a laughable attempt to achieve this goal.  In 1965, when the labor certification process became law, the pressures of globalization and world-wide competition were quite distinct.  Many developing countries were just barely edging into modernization, telecommunications were mediaeval compared to modern standards and the world was sliced into ideological blocs that restricted the movement of everything, from goods and services to ideas and people.  Perhaps, only perhaps, at that time did labor certification make sense.  Today it is as relevant as typewriter ribbon. 

Competition from foreign workers is everywhere.  It fills your local big box store; it is the basis for your Black Friday sales.  For those of you who remember the “Buy American” campaign, consider filling your stockings this year with only American-made products.  Little Jimmy gets a ratchet set and Molly gets a handcrafted wooden toy truck that she wants about as much as a splinter.  Check out this site and compare to what you actually buy and want.  The impact of globalization is obvious.  “US jobs” have been “shipped overseas” for decades now.  Detroit, once the epicenter of US manufacturing and exports, has been downgraded from a city to town or burg or some sort.   

The idea that we can protect US jobs by limiting immigration is ironically contra factual.  Stemming the tide of more driven people, willing to work more for less, has possibly kept wages high in this country.  High wages, in turn, drive companies out of the US, taking their tax and infrastructure benefits with them.    In fact, as global production and service chains expand and technology efficiencies continue to pincer labor, wage competition among local labor may be one of the only mechanisms that would allow for adjustments to help the US adapt to the modern globalized economy.   Labor certifications make sure that this market adjustment will never happen. 

Finally, with respect to theory, labor certification is based on insidious nationalist, racist and selfish attitudes towards production and consumption.  The dialogue is about “our jobs” being “taken.”  This fallacy of entitlement is deeply rooted in human in-group out-group thinking that has accompanied us out of the jungles and savannahs of our pre-history.  Today the fallacy rings hollow.  Consider “US companies” such as Apple who shift sales and operations around the globe to enjoy tax benefits in Ireland, for example.  Modern global companies are not national partisans, why then should labor?  Jobs today go to the most competitive, in price, skill or quality.  It is no longer possible to protect a dull and complacent work force.  Labor certification is therefore futile. 

With regard to the praxis, labor certification is an exercise in waste.  Because labor certification is required before a visa can be issued, the whole process must be undertaken before the immigrant arrives in the US.  This means waiting for and dealing with an unwieldy and opaque government bureaucracy from outside the US.  The intricacy and layers of requirements to establish a successful labor certification compel would-be immigrants to use attorneys, at great expense. Once the labor certificate has been submitted, a government employee, at public expense, then endeavors to predict if that particular employment would adversely affect US workers and wages.   Given humanity’s utter inability to predict just about anything, this process borders on the absurd.  What is specifically required here is the ability to extrapolate from the micro (the individual worker) to the macro (the economy).  Social science and economic theory are notoriously incompetent with regard to this task.  Ultimately, labor certification requires the staffing of a large government organization tasked with the impossible all in the name of some goal that lost its relevance some time during the Carter administration.  Simply put, labor certification is costly and pointless.  Beyond generating employment for bureaucrats and attorneys, the system serves little purpose and policy makers should consider more dynamic and real-world solutions to the regulation and management of human migration.

Outsourcing Migration Policy

Specialists and academics in the field of immigration often complain that human migration is a global or regional phenomenon that is usually dealt with on a national level.  The regulations and enforcement mechanisms of national immigration laws are generally considered clumsy tools for managing international migration flows.  No academic conference on modern migration passes without a discussion of the state as an appropriate or inappropriate level of analysis.  Beyond academic debate, it is becoming clear that states are increasingly sharing the responsibility for their migration policies with other actors, both state and non-state.  This reality is at odds with the popular nationalist discourses used in most countries to justify and promote immigration laws. 

One telling example has been the European Union (EU) effort to secure bilateral agreements with neighboring non-EU countries, conscripting them into enforcing EU immigration policy.  This outsourcing of immigration enforcement to North Africa has ostensibly had a negative impact on human rights and the treatment of migrants moving from Africa to the EU.  These treaties often induce under-resourced countries to implement rudimentary immigrant control schemes.  These systems foster abuse in the form of inadequate detention conditions, access to legal recourse, social benefits and healthcare among others.  For example, UN Special Rapporteur on the human rights of migrants, Prof. François Crépeau, found that bilateral cooperation between Italy and Libya was heavily geared toward curbing migration to Italy.  He found that training and funds superficially dedicated to high seas rescue were also being used to increase interdiction of EU-bound migrants.  He found that given the poor record of human rights abuses against migrants in Libya, no intercepted migrants should be returned to that country against their will.  In his visit to Turkey, Prof. Crépeau, found that the focus on securitizing the border and reducing irregular immigration came at the expense of human rights concerns.

However, this type of “migration diplomacy” conducted by European states extends well beyond bordering states.  Since 2006 for example, the Spanish government has signed agreements Mauritania, Gambia, Guinea, Senegal, Mail, Cape Verde and Niger among others.  These agreements link development and migration and tend to focus heavily combating irregular migration through readmission agreements and strengthening emigration controls in the countries of origin.  On both the EU level as well as the individual state level, Europe is externalizing its borders and outsourcing the enforcement of its migration policy.

Another formal arrangement demonstrating the outsourcing or off-shoring of international border enforcement is the Australia-Papa New Guinea “Regional Resettlement Arrangement.”  This agreement, discussed in more detail in an earlier post, essentially designates PNG as the off-shore detention facility for individuals seeking asylum in Australia.   The UNHCR has said that the agreement “raises serious, and so far unanswered, protection questions”.   The Australian government lauds the agreement as a meaningful step to reduce the flow of migrants taking to the sea to seek asylum in Australia.  A similar trend is underway in the United States with regard to the southern border, however, marked by far less coordination or formal negotiation.  Mexico has been reforming its immigration laws, revising its visa categories and attempting to control irregular transmigration to the United States as well as bolstering human rights protections for migrants.  However, the Mexican government has been carrying out raids, paralleling those in the US and EU, to apprehend irregular migrants from Central America.  Such raids, carried out along well-known routes of north-bound migration, suggest an externalization of the US-Mexico border.  At a time when net migration from Mexico to the US has reached zero, Central Americans now represent the fastest growing segment of the Latin American immigrant population in the US.  As the Mexican government seeks to pivot away from the narco-migrant dialectic of its diplomatic relationship with the US, recasting Mexico’s role as border enforcement collaborator may be a beneficial alternative.

In all of the examples given above, the principal actors have been states.  However, the outsourcing of migration policies also involves non-state actors.  One of the most important has been the airlines.  One of the principal methods of entry for irregular immigrants in developed countries is to enter legally on a visa and then overstay.  Thus, controls at ports of entry, particularly airports, are a key aspect of border enforcement for these countries.  Migration laws in migrant destination countries are converging and imposing fines on airlines who allow passengers to board who do not have proper entry documents.  For example, in the US, the Customs and Border Protection agency requires airlines to transmit passenger information for all passengers on a given flight.  Failure to comply can result in fines of $5,000 for each infraction.  Examples of non-state actors taking on roles in immigration enforcement will likely multiply as states retrench under budgetary pressures.  As long as security and fear govern migration policy in the global popular consciousness, new actors and new revenue streams will spring up.  In the meantime, states will continue to seek methods of externalizing and “outsourcing” their immigration policies.

The Australia Asylum Debacle

Though it has recently fallen from international headlines, Australian refugee policy continues to stand as an icon of the broken and unworkable international asylum regime.  Recently, the Australian government resurrected its policy under the moniker, the “Pacific Solution,” in which people seeking asylum who arrive by boat to Australian waters are detained in third party countries.  The program was closed down in 2008 after 1,637 asylum seekers were diverted by Australian authorities to Nauru, or Manus Island in Papua New Guinea, to have their refugee claims processed.  According to the UNHCR “[t]he policy was introduced in 2001 to deny asylum seekers access to Australian territory to lodge their claims. The then government led by Prime Minister John Howard adopted the Pacific Solution after Australia refused to allow a Norwegian freighter, the MV Tampa, to enter Australian waters to disembark 433 mainly Afghan boat people rescued at sea.”  Policy makers hoped that this policy would deter future “unauthorized” asylum seekers from attempting to reach Australia by boat without a visa.  Australian migration policy allows individuals whom the UNHCR has determined are refugees to apply for a visa abroad and then come to Australia.

The policy was harshly criticized for wrongly lumping individuals with legitimate asylum claims in with economic migrants that the Australian government sought to exclude. However, between 2001 and 2008, 1,153 of the 1,637 individuals diverted into asylum camps were ultimately granted refugee status or humanitarian protection.  The UNHCR confirmed that “[o]f those, 705 (approximately 61 percent) were resettled to Australia; 401 went to New Zealand; 21 to Sweden; 16 to Canada, six to Denmark and four to Norway.”  The UNHCR criticized the policy stating that “[m]any bona fide refugees caught by the policy spent long periods of isolation, mental hardship and uncertainty – and prolonged separation from their families.” With the termination of the “Pacific Solution” the Australian government began processing asylum seekers on Christmas Island where authorities promised to adhere to the letter and spirit of the 1951 Refugee Convention.  However, the core of the policy, mandatory detention of asylum seekers, remained and remains in place.  Given that asylum claims take an average of 2 years to process, mandatory detention, whether on or off Australian territory, approaches the penal.  The 1951 Refugee Convention holds that refugees should be granted government protection while their status is being determined.

In September 2012, the labor government, which was responsible for closing the “Pacific Solution,” reopened off-shore processing in Nauru.  From September to April, 2013 the Australian government spent approximately US $104 million on the program.  It appears that the Australian government has learned few lessons from the first round of the “Pacific Solution.”  A three-day inspection by Amnesty International concluded in a scathing report.  “The situation on Nauru is unacceptable. The unlawful and arbitrary detention of these men in such destitute conditions is cruel, inhuman and degrading,” said Amnesty’s Dr. Graham Thom.  Dr. Thom continued, “[t]he news that five years could be the wait time for these men under the government’s ‘no advantage’ policy added insult to injury, with one man attempting to take his life on Wednesday night.” When the Australian government voted to reinstate the program “the House rejected an amendment that would have set a one-year limit on the time asylum seekers could be held at the offshore sites.”

Even more damning is the fact that this hardline policy appears to be failing at its principal goal: deterrence. According to the BBC, “[s]ince the government announced its return to the Pacific Solution, 21,730 passengers have arrived in Australian waters in 340 boats.”  The government is responding to conservative concerns with stemming the tide of non-white, low-skilled immigrants that would disturb the traditional ethnic makeup of migration to the country.  There is a political sense that the country is being overrun by the so-called “boat people” and the newly elected government has vowed to stop the boats.  However, the Migration Policy Institute points out that overall asylum numbers in Australia are relatively small:

“While the Australian Bureau of Statistics reports that the population of resident refugees and asylees has grown for several decades, the numbers are relatively small. According to the United Nations High Commissioner for Refugees (UNHCR), Australia had 23,434 designated refugees living in the country in 2011. (By comparison, Canada had 164,883 refugees and Germany, which hosted the fourth-largest number of refugees worldwide, had 571,685. Pakistan hosts the greatest number of refugees, 1,702,700.)”

In addition, Australia’s foreign born population reflects a heavier presence of Europeans than either Canada or the US (47.1% compared with 36.8% and 12.1% respectively).

Ultimately, Australian asylum policy hinges on the legal fiction of an “authorized” asylee or refugee.  By requiring that refugees be pre-approved by the UNHCR before seeking asylum in Australia foists the cost and responsibility of adjudicating asylum claims on an underfunded and overstretched international organization.  While the UNHCR struggles to provide basic needs in humanitarian crisis areas such as the countries neighboring Syria, it is unconscionable for Australian migration officials to ask so much.  More likely is that the UNHCR stamp of approval is a politically convenient mechanism for restricting the flow of migrants and refugees into the country. 

However, blame does not fall on Australia alone.  Most developing countries have taken similar measures to restrict access by people seeking refuge.  In Europe, the policy of “push-back” is being widely applied as Frontex diverts boats with migrants and potential asylum seekers back to third party countries.  Recently, Switzerland amended its immigration policy and closed down the ability of potential refugees to file for asylum at Swiss embassies, effectively making arriving on European soil the only means for application.  Switzerland was the only European country to offer extraterritorial asylum application.  In the United States, tightening of immigration and border enforcement has made it more difficult for potential refugees to reach US soil and make their claim.   What is occurring in Australia is only one particularly glaring example of how the international refugee system is broken. 

Race to the Top – Education and Immigration Policy

As 2,000 anti-immigrant protesters marched in Washington DC to oppose the Senate-proposed immigration reform bill, they wore red T-shirts proclaiming “Protect American Jobs, No Amnesty!”  Former Congressman Allan West spoke at the event saying, “Take care of Americans first.  Get Americans back to work. Get our children back in colleges and universities.”  Modern anti-immigrant activists commonly paint immigrants as a threat to the local working population.  Republican Congressman Mo Brooks recently repeated the mantra, asserting “These are American jobs for American citizens.”  This type of jobs-based xenophobia is not unique to the United States.

Recently, the conservative candidate contesting the presidential election in November in Chile, Pablo Longuiera, went on national television asserting that illegal immigrants in Chile take jobs away from Chileans.  More extreme groups such as the Northern League in Italy and UKIP in the United Kingdom have also made similar assertions when attacking immigration.  The fact that empirical research ^{(1, 2, 3, 4, 5)} overwhelmingly contravenes this assertion has had little impact on the public debate.  In fact, research now indicates that job displacement resulting from immigration actually increases the upward mobility of native workers.  By filling jobs at the “low” end of the occupational structure, immigrants create opportunities and incentives for native workers in higher occupational tiers.  In a perceptive analysis, Hiroshi Motomura, notes that any job displacement caused by immigration among native workers is a reflection more on the failure of educational policy than a failure of immigration policy.  This insight bears repeating.

What Professor Motomura points out is that potential labor displacement of native workers is the result of a lack of upward mobility opportunities.  In the United States, the effect of fully grasping this reality would be drastic.  Instead of clamoring to shut the borders and expel immigrants, threatened communities would be demanding the opportunity to advance in their own society.  When speaking at the anti-immigrant rally former Congressman Allen West inadvertently hit the nail on the head; “Get our children back in colleges and universities.”  If immigrants are displacing US workers, the fault lies in our own failure to educate and prepare our children and workforce in general to compete.  For example, if a laborer from El Salvador is really taking a job from a person born in Arizona; that implies the educational system in Arizona is no better than that in El Salvador. 

The global mobility of capital, off-shoring and outsourcing, all show no signs of abating.  This means that US workers will have to compete globally regardless of the government’s ability to drive out internal competition from immigrants.  Due to high costs of living and expected living standards in developed countries, competitive advantage in countries like the US lies in having a highly skilled workforce.  This is achieved through education. 

Therefore, instead of spending an additional $6.5 billion on border enforcement, as the Senate reform bill proposes, that money should be funneled into education.  Some organizations assert that the failure of the US educational system has reached crisis levels.  US students are less prepared for higher education.  US employers are finding it more difficult to find US employees with the skills needed.  School drop outs are a tax burden and at higher risk of being involved in crime.  Even the Armed Services are suffering, as one-third of high school graduates who are eligible to apply score too low on Armed Services Vocational Aptitude Battery to apply.  The result is a stark irony.  While politicians rail against immigrants as a burden on public finance, a source of crime and a general detriment to US society, the reality is just the opposite.    

Reforming the US educational system could spark a race to the top in US society.  By better educating the young people born in the US, they would not be forced to compete with immigrants from less fortunate countries where the educational system is weak.  A strong educational system would not only allow the native workforce to be more dynamic and upwardly mobile, but could serve to integrate future generations of immigrant children.  Instead of racing to the bottom by cutting costs and squeezing budgets or building bureaucratic barriers and physical fences to ward off global competition, the United States should do everything is its power to prepare its society by providing the best education available.  

Chile to Become Only Latin American Country on the US Visa Waiver Program

In 2014, Chile will likely become the only Latin American country to be part of the United States (US) Visa Waiver Program (VWP).  The VWP is one of the few exceptions to the Immigration and Nationality Act that requires all visitors to the US to have a visa.  This will mean that citizens of Chile who wish to visit the US for 90 days or less for tourism or business will not need to apply for a visa from a US consulate before their travel.   In 2011, over 18.3 million people visited the US as part of this program, representing over 40% of all overseas visitors.  Chile is not the first Latin American country to be included in the program.  Both Argentina and Uruguay were once listed, however, they were dropped from the program in 2002 and 2003 respectively because of US concerns over the fallout of the 2001 financial crisis in Argentina and the prospect of a surge in economic immigration to the US by visa overstays.  For Chileans, inclusion in the program will facilitate travel and tourism and help to strengthen bilateral relations.

Under the normal visa procedure, most tourists and short-term business visitors are required to apply for a B visa with the US consulate in Santiago.  This typically requires filling out an online visa application, paying a $160 processing fee and completing an interview at the consulate.  Part of the application requires applicants to demonstrate financial and family links to Chile, such as owning a house or car, having a job or family members living in Chile.  The interview process requires physically appearing at the US consulate and generally waiting in line.  The new procedure will be both shorter and cheaper.  Instead of filing for a visa, now travelers from Chile will file with the online Electronic System for Travel Authorization (ESTA).   There will no longer be a background check or a high degree of financial and personal details required of travelers as under the traditional B visa program.  As of 2010, a filing fee of $14 dollars attaches to the application, thus significantly reducing the fee for Chileans to seek authorization to travel to the US.  (An interesting side note will be how this affects the reciprocal visa fee that Chile imposes on US citizens, that is set to equal the fee levied on Chileans by the US government.)

While the ESTA system is less burdensome for individuals, it does entail greater obligations for the Chilean government and is not without restrictions.  ESTA does not allow an individual to adjust status while in the US (similar to the B visa it effectively replaces) and cannot be extended beyond 90 days without the showing of an emergency, and even then it can only be extended for 30 days.  ESTA status can be revoked at any time and at most is valid for two years before it must be updated and re-filed.  Like all other visas to the US, ESTA status does not guarantee admission into the country because the final determination of admissibility is made by Customs and Border Protection (CBP) officers at the port of entry.

Procuring inclusion in in the VWP is generally seen as a sign of close bilateral relations and mutual trust between countries.  A quick review of the current list of countries reflects the closest allies of the US (a full list is included below).  However, this list diverges from the largest US trading partners, notably excluding China and Mexico as well as Brazil.  Despite these important omissions, the VWP is seen as both a tool for public diplomacy and enhanced border security.  A 2007 study found that 74% of people who had visited the US were more likely to have a favorable view of the US, and 61% were more likely to support the US and its policies.  In 2009, the US government passed the Travel Promotion Act (as part of a police funding measure) which launched the BrandUSA program designed to stimulate tourist travel to the US.  Thanks in part to this tourism campaign and relaxed visa requirements, the US attracted 10% more tourists in 2012 than in the 2011.  According to the UN World Tourism Organization, world tourist arrivals reached 1.035 billion in 2012 and brought in total exports of US$ 1.3 trillion worldwide.  In the US, the VWP facilitated travel for 17 million visitors in 2010, who, according to the US Travel Association, spent over US$ 61 billion while in the US, accounting for US$9 billion in tax revenue and some 450,000 jobs. 

Beyond the economic incentives to promote access to the US, the VWP is also part of enhancing border security.  One of the primary functions of the VWP, and the ESTA program in particular, is the promotion of information sharing and the creation of common global security standards.  In order to qualify for the VWP program, countries must agree to share information about nationals traveling to the US who may be a threat to the security or welfare of the US.  Countries are required to issue tamper-proof machine-readable passports with biometric identifiers.  They must also agree to share information about lost or stolen passports with INTERPOL.  In effect, VWP promotes a common standard of documentation and control in exchange for easier access to the US.  The Department of State (DoS) favors the VWP because it streamlines the visa process for high-volume, low-risk countries allowing DoS to cut costs and focus limited resources on areas deemed to be high-risk.  However, the savings in time and work-hours at the consulate where visas were once issued has been shifted to the CBP and officers working at US ports of entry.  Additionally, there is a fear that due to the transnational nature of terrorism, classifying visa applicants by their country of origin is not an effective means of screening visitors to the US. 

The VWP is an important diplomatic tool which can both strengthen and undermine bilateral US relations.  Currently, 23 of the 27 European Union (EU) countries participate in the program, but this unequal treatment violates the solidarity clause of the EU charter which requires that all members be treated equally.  Additionally, these four excluded countries require a visa for their citizens to travel to the US, whereas US citizens traveling to their country, by virtue of being part of the EU, do not require a visa.  This imbalance violates the visa reciprocity clause of the EU charter and could be grounds for a formal complaint.  Political pressure within the EU has tamped down any such inclinations with Greece noticeably never filing a complaint despite the fact that it was only just added to the VWP in 2010 after 18 years as a member of the Schengen agreement for free mobility in the EU.  However, newer members of the EU have been more outspoken about their exclusion from the program.  In March 2013, two former secretaries of Homeland Security (Tom Ridge and Michael Chertoff) wrote to Congress urging them to expand the VWP and highlighted the negative impact the exclusion of Poland has had on this vital NATO ally.

To be included in the VPW, Chile must meet the statutory prerequisites set down in 8 U.S.C. § 1187, including a visa refusal rate under 3% of total visas for the past two fiscal years. The current DoS figures show that in fiscal year 2010 the refusal rate was 5%, in 2011 the rate was 3.4% and in 2012 the rate was 2.8%.  Therefore, if 2013’s figures keep in line with this trend, Chile will be eligible to participate in the waiver program.  After the DoS submits a formal nomination of Chile to the program, the Department of Homeland Security (DHS) will conduct a comprehensive review including an in-country inspection.  The DHS report will then be submitted to Congress for approval.  The timeline for these steps is not mandated, but Chile’s expected acceptance was mentioned in a recent meeting between President Piñera and President Obama.  Once accepted, Chile’s continued participation may be terminated at the discretion of the Secretary of DHS based on the occurrence of an “emergency” in the country.  An emergency is defined by the Immigration and Nationality Act section 217(c)(5)(B) as: (1) the overthrow of a democratically elected government; (2) war; (3) a severe breakdown in law and order in the country; (4) a severe economic collapse; and (5) any other extraordinary event in the program country where that country’s participation could threaten the law enforcement or security interests of the United States.

Additionally, countries are required to maintain a low visa rejection rate and may be placed in a probationary period if the data reflects an increase in visa rejections.  These figures reflect only visa applications submitted at U.S. embassies and consulates.  People travelling under the VWP are not taken into account.  Thus, VWP country refusal rates tend to be higher than they would without the VWP.  This is clearly reflected in the high number of adjusted visa refusals of such countries as Great Britain (20.6%), France (13.4%), Germany (16.4%) and Italy (13.3%).  Despite these high rejection rates, these countries continue to participate in the VWP. 

Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L.110-53)18 allows the Secretary of DHS to waive the refusal rate requirement based on other factors including: the totality of the security risk from the country, country’s cooperation with the US in counter-terrorism activities, passport and airport security and the overstay of its nationals once they are admitted into the US.  Given Chile’s close cooperation and trade agreements with the US, it stands to reason that once Chile enters the program it will not be terminated barring any extraordinary occurrences.  This means that Chilean nationals will enjoy much easier access to the United States.  This will further promote trade and travel between the two countries and marks yet another step for Chile in its social and economic growth.

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Current VWP Countries

Andorra, Austria, Australia, Belgium, Brunei, Czech Denmark, Estonia, Finland, France, Germany, Greece, Republic Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, United Kingdom