GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2009

Status

Working

Abstract

Immigration is a hot button issue about which Americans have sent a clear message. They prefer not to admit more aliens until the government is able to credibly screen for entrants who will abide by the terms of admission and sanction those who do not. While immigration debates now focus almost entirely on undocumented workers, they have overshadowed another critical, yet poorly understood challenge: designing institutions to properly screen for aliens who are visa-compliant and sanction non-compliant aliens. Because failed guest worker programs unquestionably increase the size of the undocumented population, this article addresses the difficulty of institutional design by analyzing the highly controversial guest worker provisions of the Immigration and Nationality Act. This article presents original data from a study of visa-compliance decisions of Jamaicans who work in Canada under a program in which screening is precise, sanctioning is effective and compliance is high. On the basis of this study, this comparative immigration law project contends that the United States should partially outsource screening and sanctioning to source-labor countries. This article critiques the historical uni-national approach to immigration law. This approach fails to recognize that there are critical asymmetries between the United States and the countries from which aliens originate in their capacity to gather information about potential entrants and to sanction visa-violators. This recognition leads to the following insight: source-labor countries are often better placed to screen because can they access accurate information about potential entrants from their communities. Source-labor countries are also often well-placed to deter non-compliance because through collective sanctioning, they can influence communities of origin to persuade their members to abide by visa terms. The criminal law scholarship regularly recognizes the impact of norms on deterring crimes; this ethnographic study suggests that the same may be true with respect to immigration violations. This article contends that aliens are more likely to be compliant so long as the authorities design legal rules that augment compliance norms already present in source-labor communities and incentivize community members to reinforce them.

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