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procedural safeguards to ensure that visa applicants receive a full and fair hearing on the merits of their case and that the final decision is free from an arbitrary exercise of discretionary authority by a consular officer. Except for the current, limited, managerial-type review, there is no other review for certain exercises of consular discretionary authority. Factual determinations by consular officers, no matter how arbitrary, are not reviewable by the Secretary of State or administrative designees of the Secretary or through the judicial process.

Even conscientious and dedicated consular officers can make mistakes of law or fact. Both the Department of State and the Consular Officers' Association have recognized and admitted that the performance of consular officers is, at times, uneven. Notwithstanding, aggrieved parties who have suffered from an abuse of consular discretionary authority often have no redress from that error. The

consequences that can arise from a visa denial mandate a more formalized review process that provides for greater due process. As the Board of Immigration Appeals stated in the Matter of S- and B-C-, 9 I & N 436, 446 (1960) (quoting the Report of the President's Commission on Immigration and Naturalization, January 1, 1953, p. 177):


denials wherein the action, findings, and/or conclusions of the consular officer with respect to a visa application are alleged to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The function of such a Board would be particularly important in immigrant visa cases that affect the reunification of United States citizens and legal residents with families abroad and the loss of technical and professional skills by American businesses. Any aggrieved party, including American citizens, legal residents, and businesses, should have standing to file an appeal from an adverse consular visa decision. The Board, through a majority vote, should have the power to affirm, to remand for further factfinding, or to reverse a consular visa refusal in any case. The Board should deliver its decision in writing and transmit copies to the Bureau of Consular Affairs of the Department of State and to the denied visa applicant or other aggrieved party(ies) who filed the appeal. In unusual circumstances, the Secretary of State for good and compelling reasons should have the authority to overrule a decision of the Board of Visa Appeals. Finding 4.3: The arbitrary exercise of discretionary authority by consular officers can be attributed, in part, to deficiencies in the Department of State training program for consular officers.

Inadequate training and supervision of consular officers is one cause of the lack of uniform decisionmaking in the consular visa process. The Department of State and the Consular Officers' Association have recognized the need for improvement in this area. To correct this problem, the Department has upgraded its consular officer training program. According to the Consular Officers' Association, however, deficiencies in language and area studies training still persist. Recommendation 4.3: The Department of State should continue to place emphasis on the improvement of training programs for consular officers. These improvements should include more thorough language training and more extensive area studies courses on the culture and politics of the particular country to which the consular officer has been assigned

[blocks in formation]

60 The creation of a Board of Visa Appeals was suggested as early as 1955 by the Administrative Law Section of the American Bar Association. That recommendation was adopted by the Administrative Law Section in the form of a resolution which stated:

Resolved, that the Section of Administrative Law recommends that the House of Delegates adopt the following resolution:

“Be it Resolved, that it is the opinion of the American Bar

Association that there be established a Board of Visa Appeals with
power to review the denial by a consul of a visa and that the Section of
Administrative Law be authorized and directed to advance appropri-

ate legislation to that end."
Administrative Law Bulletin (July 1955), vol. 7, p. 236.
The recommendation was later approved by the Board of Governors of the
American Bar Association. 81 Reports of the ABA 426 (1956).

Chapter 5*

Employer Sanctions Legislation


As a result of current economic and employment conditions within the United States, increasing national attention has been focused on the presence of undocumented workers in this country. Many studies have been undertaken in the public and private sectors to ascertain the number of undocumented workers residing in the United States and their effect upon the American labor market and economy. Although those studies indicate that accurate or precise statistics are not available, they generally agree that there is a significant undocumented worker population in the United States.3

There is less unanimity, however, on the labor market impact of undocumented workers. The studies do agree on several preliminary assumptions. None of the studies questions the assertion that nationals of foreign countries have entered this country without proper documents or that some foreign nationals have remained in this country beyond the expiration date and/or terms of their visas. Similarly, there is no question that a number of these undocumented aliens obtain employment. The unresolved question is what degree of economic impact undocumented workers have on American workers.


• Commissioners Stephen Horn and Frankie M. Freeman have dissented from some of the recommendations accompanying this chapter. For their comments, see "Additional Statement by Vice Chairman Stephen Horn" and "Separate Statement of Commissioner Frankie M. Freeman." · Although this is by no means an exhaustive list, some of the studies which have been conducted on the issue include: U.S., Departments of Justice, Labor, and State, Interagency Task Force on Immigration Policy, Staff Report Companion Papers (1979); Charles B. Keely (of the Population Council), U.S. Immigration: A Policy Analysis (1979); Paul R. Erhlich, Loy Bilderback, and Anne H. Erhlich, The Golden Door: International Migration, Mexico, and the United States (1979); Latin American Institute of the University of New Mexico, The Problem of the Undocumented Worker (1979); National Commission for Manpower Policy, Manpower and Immigration Policies in the United States (1978); Wayne A. Cornelius, Ilegal Migration to the United States: Recent Research Findings, Policy Implications, and Research Priorities (1977); U.S., General Accounting Office, Immigration-Need to Reassess U.S. Policy (1976); U.S., Domestic Council Committee on Illegal Aliens, Preliminary Report (1976); David S. North and Marion

F. Houstoun, The Characteristics and Role of Illegal Aliens in the U.S. Labor Market: An Exploratory Study (1976). ? See, for example: Erhlich, Bilderback, and Erhlich, The Golden Door, pp. 182-90; Domestic Council, Preliminary Report, pp. 124–31; Keely, U.S. Immigration, p. 47; Vernon M. Briggs, Jr., “The Impact of the Undocumented Worker on the Labor Market," in The Problem of the Undocumented Worker, p. 33. For an excellent review of previous studies regarding the count of the undocumented worker population and the problems which affect the accuracy of the estimates of that population made by researchers, see U.S., Department of Commerce, Bureau of the Census, Preliminary Review of Existing Studies of the Number of Illegal Residents in the United States (January 1980) (hereafter cited as Bureau of the Census, Preliminary Review). 3 See Bureau of the Census, Preliminary Review, for a good compilation of the various estimates made by researchers.

Those who have examined and researched the issue can be divided into two groups.* One group of researchers has reached the conclusion that, because some nationals of foreign countries enter the United States and secure employment, they contribute to the severe economic displacement of American workers (i.e., United States citizens and lawful resident aliens), particularly minority-group job

seekers, and to the reduction in wage levels for jobs that would otherwise be attractive to American workers.5 On the other hand, another group of researchers, while cognizant of the high national unemployment rate, suggest that undocumented workers do not have so significant an impact on the domestic labor force. 6

• Prof. Michael J. Greenwood of the University of Arizona, in a companion paper to the Staff Report of the Interagency Task Force on Immigration Policy, termed these two distinct views as “the replacement hypothesis" and "the segmentation hypothesis." In examining the studies of various writers on the issue of the impact of undocumented workers on the domestic labor force, he noted that, irrespective of the theory they supported, concrete evidence was lacking. As he stated in his paper:

(Almong observers of the (undocumented worker) problem widespread disagreement exists concerning the effects of th[e] job-seeking behavior (of undocumented workers) on domestic workers.

Vernon Briggs (in “Mexican Workers in the United States Labour Market: A Contemporary Dilemma,” International Labour Review, November 1975, and in "Illegal Aliens: The Need for a More Restrictive Boarder Policy," Social Science Quarterly, December 1975), for example, has articulated what might be termed "The Replacement Hypothesis." He asserts that (undocumented) aliens depress local wage levels and take jobs that would otherwise be held by domestic workers. William Hartley (in “United States Immigration Policy: The Case of the Western Hemisphere,” World Affairs, Summer 1972) supports this view in arguing that (undocumented) aliens work:

.as farm laborers and in factory “sweatshops.” They displace low income American workers, hampering unionizing efforts, encourage employers to disregard wage, hour, and working conditions statutes

and generally depress the labor market. Furthermore, Michael Piore [in “Comment on ‘Primary and Secondary Labor Markets, "" by M. L. Wachter, Brookings Papers on Economic Activity (1974)] has recently restated this position in somewhat stronger terms. He argues that (undocumented) aliens create opportunities for an underground labor market and that:

The economic incentives for such a labor market are large. In it an employer can escape minimum wage legislation, legal health and safety standards, social security taxes, unemployment insurance,

working men's compensation, and income tax withholdings. He then suggests that illegal immigration has several consequences for domestic workers in secondary labor markets. In particular:

.the concerns of dualists with eliminating the secondary (employment). . .sector are misplaced. The battle of the next decade will be defensive. . .to prevent the secondary sector from reverting to the conditions of the late nineteeth and early twentieth century.

Other writers have stated what might be called “The Segmentation Hypothesis.” J.A.R. Nafziger (in "Undocumented Aliens” (paper presented at the regional meeting of the International Association of Law, September 1975)], for example, has taken a position virtually opposite to that of Briggs by arguing that jobs occupied by the (undocumented) aliens are, by American standards, low-wage, periodic, and relatively undesirable, and are thus typically not the type that would be of interest to domestic workers. E. Abrams and F.S. Abrams (in “Immigration Policy-Who Gets In and Why?,” The Public Interest, Winter 1975) also support the segmentation hypothesis, as indicated in the following statement:

As to the assertion that (undocumented) aliens take jobs away from Americans, there is a. . lack of evidence. Certainly it is not "logical to conclude that if they are actually employed they are taking a job away from one of our American citizens"; the fact that a sizeable number of (undocumented workers) have or could get labor certifications belies that “logic" and indicates that many (undocumented) aliens are filling shortages that even the Labor Department

considers genuine. The argument presented by Nafziger and by Abrams and Abrams is that the domestic labor market is sufficiently segmented that American workers are insulated from the direct employment effects of the aliens.

Whether they support the replacement hypothesis or the segmentation hypothesis, none of these writers, or the many others involved in the debate, presents concrete evidence in support of his assertions.

Michael J. Greenwood, “The Economic Consequences of Immigration for
the United States: A Survey of the Findings" (December 1978), prepared
for U.S. Departments of Justice, Labor, and State, Interagency Task Force
on Immigration Policy, Staff Report Companion Papers (August 1979), pp.
* One immigration expert whose views are representative of this group is
Prof. Vernon Briggs, Jr. He has stated:

Actually, the precise number (of undocumented workers residing in
this country] “is irrelevant" if one concedes—as everyone familiar
with this issue does—that the number of people involved is substantial
and that the direction of change is toward annual increases.
All the research on the characteristics of (undocumented) aliens shows
that the major reason they come is to find jobs. [footnote omitted] The
evidence also indicates that they are largely successful in their
In the local labor markets where (undocumented) aliens are present, all
low-income workers are hurt. Anyone seriously concerned with the
working poor of the nation must include an end to illegal immigration

as part of any national program of improved economic opportunities. Briggs, The Impact of the Undocumented Worker on the Labor Market, pp. 33-34. According to a recent New York Times article, this point of view is reflected in a yet to be published study of the Department of Labor entitled “1979 National Longitudinal Survey of Youth Labor Market Experience," New York Times, Feb. 29, 1980, pp. A1, A 14. See also the discussion of “the replacement hypothesis" in note 4. • Some immigration researchers have concluded that undocumented workers generally take those jobs that Americans do not want because they are the least desirable and offer little opportunity for advancement. See, for example, Cornelius, Illegal Migration to the United States, pp. 8-9. The authors of a more recent immigration study stated:

While (former INS Commissioner) Chapman and others maintain that for every employed (undocumented alien) there is an unemployed American or legal immigrant, there are people who hold the opposite view. They argue that the availability of low-paying jobs causes the flow of (undocumented aliens). They claim, that, if the (undocumented workers) were not economically needed in the work force, they would not be here in the numbers they are, and they would not have been here for so long. . . .Some honest and very promising work is now being done on the question of "job displacement," that is, (undocumented workers) displacing legal residents from employment. That work, though, is limited, preliminary, and exploratory. Its results do not describe the "real world" any more than did the old INS estimates,

and those doing the work would not claim that it does. Erhlich, Bilderback, and Erhlich, The Golden Door, pp. 193-95. They further noted that "[t]here are three major arguments for the premise that exclusion of (undocumented) workers would not add appreciably to the number of jobs available to Americans.” Ibid., p. 195. One of these major arguments is that jobs occupied by undocumented workers would disappear due to automation or mechanization. Another major argument is that businesses may relocate in other countries or areas where labor costs would be substantially less. And third, it is argued that the ouster of undocumented workers would actually increase unemployment, for many marginal businesses or businesses in declining industries that employ undocumented workers may be forced to shut down and thus place management employees in the unemployment lines. Ibid. And finally, although not discounting that some degree of displacement occurs, Charles B. Keely of the Population Council stated in a recent research study: “Finally, we should not attribute to international migration an exaggerated effect on U.S. employment. The unemployment rates in the United States are not primarily the result of illegal migration." Keely, U.S.

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