Eleanor Marie Brown (Harvard Law School) has posted Taking the Guess Work Out of Guest Work: The Promise of Cross-National Cooperation and Ex Ante Screening in Improving Immigration Compliance on SSRN. Here is the abstract:
Primary impediments to the passage of comprehensive immigration reform are perceived difficulties in screening and deterrence of the low-skilled aliens who are typically guest workers. If the primary goal of immigration law is informational, namely obtaining reliable information about potential entrants to the United States, ex-ante screening of guest workers has historically been unreliable because it is difficult to obtain fine-grained information about low-skilled persons. Moreover, sanctioning has historically been difficult because low-skilled persons exist on the margins of society with only tenuous connections to the state. Utilizing a detailed case-study of the visa-compliance decisions of Jamaican guest workers in Canada, this article's proposed solution, the partial-outsourcing normative deterrence model seeks to address both these challenges. It offers two overarching arguments, a theoretical claim and an empirical claim. The theoretical claim concerns the possible use of outsourcing to source-labor countries and group accountability within source-labor countries to enhance both screening and sanctioning and the possible use of norms to improve deterrence. The empirical claim is that a particular legal approach, which utilizes outsourcing and group accountability to augment communal incentives to aid in selection and sanctioning, has helped foster both improved screening and deterrence.
Recognizing that guest-workers necessarily live transnational lives, the article critiques the historical uni-national approach to immigration law. Rather, the article posits that the United States should enter into bilateral legal agreements as a mechanism of mitigating the asymmetrical access to information about potential guest workers that inevitably exists between source-labor and labor-importing countries. Under such an approach, the source-labor country could then leverage its proximity to its nationals to aid in the process of screening. Simultaneously to improve the deterrence function, the United States could enlist the support of the source-labor country in imposing sanctions. Finally utilizing group accountability principles, the communities from which guest workers originate, who have access to inside information about guest workers, can be incentivized to aid in both the screening and the sanctioning process. In a competitive globalized context in which developing countries prize the access that their nationals have to the American labor market, the repeated game nature of their interactions with the United States increases the likelihood that they will meet their screening and sanctioning commitments and will incentivize communities to encourage their members to meet their visa commitments.
Finally, this article contends that the central role of the community in improving compliance is not coincidental. This study suggests that communal norms may exercise more influence on visa-compliance decisions than the formal legal framework. If visa-compliance decisions are norms-based, guest workers are more likely to be compliant if the authorities design legal rules which augment compliance norms that are already present in source-labor communities and incentivize community members to reinforce them.
