While the federal government has control over our national immigration policy, the states are legitimate and important stakeholders because the effects of immigration policy are felt primarily at the state and local levels. States have the ability to push back when federal action (or inaction) causes problems in their states. Further, state governments have authorities that can be used to help deter illegal settlement.
On August 26, Florida Gov. Ron DeSantis sent a letter to DHS Secretary Alejandro Mayorkas demanding answers to important questions about the scale of the influx of illegal migrants. He followed up with an executive order prohibiting state agencies from participating in the resettlement of illegal aliens, directing state agencies to identify and collect information on recent illegal arrivals and services provided to them, cracking down on human smuggling and trafficking, and stepping up enforcement of the state E-Verify law.
Because the Biden administration shows no sign of changing policies to reduce illegal entries, other states should also act to buffer their citizens from the effects of these policies. The following is a list of actions that can be taken by state lawmakers. They range from information gathering and dissemination to increase public awareness of the effects of immigration to executive and legislative actions that respond to federal inaction. This document may be updated periodically.
Every state should be seeking basic information from the federal government on the population of illegal border-crossers that are being placed or allowed to resettle in their state, entirely without meaningful consultation or coordination with state and local officials. Here is a list of information requested, paraphrased from the DeSantis letter:
- The number of illegal aliens, including unaccompanied minors, apprehended at the border whom DHS knows have resettled in the state since January 2021;
- The names and destination addresses (or cities), and of the sponsors (if applicable), and the dates and locations of their removal proceedings;
- The number of resettled aliens who were tested and not tested for Covid-19, the number who tested positive for Covid, the number vaccinated, and the number who refused to be vaccinated;
- The number of resettled aliens who have a criminal record, information on their criminal history, and the number who have previously entered the country illegally;
- Information on future arriving aliens apprehended at the border, with anticipated dates and locations of arrival and destinations;
- Information on chartered aircraft or buses used to transport illegal aliens into the state, including anticipated arrival date, time, location, and identity of the charter company; and
- Information on all federal contractors, including NGOs, that assist DHS with the resettlement of arriving aliens.
If the federal agencies refuse to disclose information on the scale of illegal settlement and federally enabled resettlement in a state, this information can be gleaned or estimated from open-source data or other data available to state and local governments. For example, the HHS Office of Refugee Resettlement publishes figures on the number of unaccompanied minors in each state and in counties that have received more than 50 minors. Historical models prepared decades ago in Florida (see "The Unfair Burden: Immigration's Impact on Florida, March 1994, and "Florida Newcomers: Inventory of Services and Program Costs Incurred by Governmental and Non-Governmental Agencies, Final Report", September 1994) are still useful examples for how to identify and calculate the costs of illegal and legal immigration.
Criminal Aliens. Data on the number of criminal aliens arrested in a state or locality can be obtained directly from ICE’s Law Enforcement Support Center (LESC), which is mandated by law to respond to all inquiries about immigration status that are sent by state and local law enforcement agencies. Any agency can submit batch or individual queries to the LESC about the status of inmates or others in custody, ideally including biometrics and criminal identification numbers, to facilitate the automated query response. Sixteen states don’t need to send queries but already can access this information in the automated responses generated by the Secure Communities program, as Texas does.
Quantifying Access to Welfare Services. A key concern of many state lawmakers is how the arriving migrants will support themselves, and the kinds of services they will need. Any initial services they may receive from the government or charities are typically meant to be short-term, with the unspoken expectation that the migrants will find jobs, even though illegal migrants typically do not have work authorization, or that state and local social services agencies will eventually step in to provide the needed services.
State lawmakers should gather information from state agencies on the types of services that they might be on the hook for. These agencies should be directed to produce reports or estimates on the number and locations of ineligible illegal migrants accessing certain services, and the cost. For example, in 2011, a Massachusetts legislator obtained figures from the state health agency showing categories of people who received emergency services paid by state Medicaid funds, broken down for citizens, qualified legal immigrants, and “Immigrants who have not provided documentation of qualified status”. The one-page report showed that the state paid $93 million for emergency health services to 54,732 “undocumented unqualified immigrants” that year. Every state should be able to produce similar information.
Other information that should be obtained/estimated and made public:
- Number of illegal alien households receiving public housing funds and other forms of welfare assistance;
- Number of illegal aliens obtaining prenatal, maternity, and post-natal services;
- Services provided to students in public schools, such as language, health, nutrition, mental health, and gang prevention programs, for which a significant share of the students are recent arrivals; and
- From hospitals, the amount and cost of healthcare services provided to uninsured non-citizen patients, including both long-term services for chronic illnesses, like dialysis, and short-term services such as births to non-resident non-citizens. According to one of my ICE sources, approximately 30 percent of the illegal aliens caught and released in the recent years of the border crisis have had a U.S.-born child within several years after arrival.
Schools. All children are entitled to be educated in the public schools, regardless of immigration status, and this is one of the most significant costs of illegal immigration and federal inaction — particularly in recent years, when the vast majority of recent illegal border-crossers who were allowed to enter the country have brought children, or are unaccompanied minors. It is difficult for school administrators to provide exact numbers of students who are illegal aliens, but estimates can be made based on Census data, and information collected during enrollment and participation in certain school support programs (such as English-language instruction). See this example from Louisiana.
NGOs Involved in Resettlement. Illegal migrants are assisted all along their journey to the United States and especially after arrival by networks of non-governmental organizations (NGOs) that provide shelter, meals, information on transportation, and other services. The federal government pays some organizations to provide the services, and they operate more like government contractors than charities. These organizations often have reliable data on new arrivals and they may be subject to state oversight, especially if they are involved in placing unaccompanied child arrivals with sponsors in the state. Identification of these organizations may be possible through open sources or from the government agencies with whom they coordinate. State and local governments, and the public, are entitled to certain information on the activities of these organizations and the source of their funding, especially if the groups are subsidized with public funding or if they operate as tax-exempt organizations. Lawmakers should determine which agencies are involved in relocating migrants and request briefings and reports on their activities, on the population of arriving migrants, and on their sources of funding.
Transportation into the State. Sometimes the federal government organizes the transportation of illegal migrants from the border area to their destination, and in other cases the migrants use public transportation or chartered services. Illegal aliens who were not detected by the Border Patrol may be transported in vans driven by smuggling associates or on public transportation. State lawmakers should attempt to find out the number of migrants arriving on public transportation and charter buses and vans, and in the case of the latter, that the charter companies are fully licensed and operating safe vehicles.
State and Local Action
Once state lawmakers have information on the scale of the settlement of illegal border-crossers and the groups and government agencies that are involved, they can determine how to use state authorities to try to prevent illegal settlement, encourage federal agencies to enforce federal law, avoid undue fiscal burdens on taxpayers, discourage and penalize illegal employment, and prevent the displacement of U.S. workers.
Numerous states have successfully reduced the illegally resident population and partially mitigated the fiscal and public safety costs of illegal immigration by implementing these policies. For example, Arizona reduced the number of illegal workers in the state by 17 percent, or 92,000 people, in one year after enacting a law mandating use of E-Verify by all employers. Oklahoma has recouped millions of dollars a year by taxing remittances that illegal workers send to their home countries. Places like Collier County, Fla., have reduced demands on the criminal justice system/scaled back the county jail capacity and reduced repeat victimizations by enrolling in ICE’s 287(g) program.
The following are actions that states can take:
- Issue an executive order to undertake a review of all relevant state agency policies and practices to ensure that all federal and state eligibility requirements for public assistance and other relevant public services are being followed to the letter. Appoint an executive official to coordinate this effort and institute accountability for these agencies, to include audits, hearings, or other measures. Change policies where needed, and work with the legislature to change laws where needed to prevent ineligible illegal residents from receiving publicly funded services.
- Require all agencies and organizations that participate in the resettlement of unaccompanied minors to follow all state laws with respect to foster care or child welfare-related placements with sponsors. Alternatively, if the state foster care system is already under strain, the executive may have the authority to prohibit such placements, as four states have done. Insist that the federal government and these organizations report to the state the number, timing, and location of these placements and that they conduct appropriate home studies and background checks, disclose the identity and other critical information on the sponsors, provide information on the anticipated services needed by the migrants and the source of that assistance, ensure that the federal government and the participating organizations take responsibility for monitoring the well-being of children as long as the children are residing in the state, and that the federal government and the organizations take responsibility for monitoring the children and the sponsors’ compliance with immigration proceedings, including departure upon non-compliance or upon failing to secure permanent legal residence in the United States. Insist that the federal government and its contractors provide information upon request on the status of proceedings for all minors so placed in the state. Cooperation and consultation with the state according to the state’s directives shall be a condition for an organization licensed or operating in the state to participate in the resettlement of minors.
- Refugee resettlement should take place with a similar level of coordination and meaningful consultation. In the case of refugees, the state should create a process that calls for the resettlement contractors to present their reception and placement proposals to state and local authorities, including state appropriations lawmakers, for approval before an agreement can be made with the federal government to place refugees in the state. The NGO contractors should be required to provide a breakdown of all sources of federal, state, and private funding for the resettlement. The legislature should designate a state refugee coordinator and/or independent board that will be responsible for monitoring the resettlement contractors and that will be accountable to the legislature. The state should consider launching a longitudinal study of how refugees fare after resettlement, as part of the accountability plan.
- Law enforcement agencies should be prohibited (or discouraged through withholding of funding) from having sanctuary or non-cooperation policies that hinder immigration enforcement and result in the inappropriate release of criminal aliens back into the community after arrest for local crimes. In addition, law enforcement agencies should be directed to report criminal alien arrest and incarceration data regularly to the state, or a state agency should be directed to compile this information from state criminal justice information systems. The state should encourage local agencies to press ICE to remove criminal aliens who are identified after arrest for a state or local crime, after prosecution and sentencing or the disposition of all state charges. The state should obtain and publish information from ICE on criminal aliens who are released from ICE custody in the state, request regular reports from ICE on the disposition of immigration proceedings involving criminal aliens, and press ICE to provide victim services to those affected by crimes committed by illegal aliens.
- State and local law enforcement agencies should use information from state motor vehicle agencies and criminal justice data systems to identify cases of driver’s licenses and welfare benefits issued to imposters. Importantly, states should modify state eligibility criteria for driver’s licenses and welfare benefits to exclude those allowed to enter or remain under the executive’s parole authority, which includes many illegal aliens protected by Biden administration policies.
- State law enforcement agencies should create programs to investigate human smuggling, human trafficking, money laundering, identity fraud, and certain forms of immigration-related fraud that are also covered under state laws. In addition, state agencies should be alert to illegal birth tourism schemes.
- States should create a system to flag state tax returns where there is an identity discrepancy, such as when a return is filed with an individual tax identification number (ITIN) and earnings statements issued under a Social Security number. These should be investigated for potential identity theft and illegal employment.
- State and local lawmakers should deter illegal employment by expanding use of E-Verify and the SSNVS (Social Security Number Verification System). This can be accomplished through executive action by requiring state and local agencies, contractors, and grantees to enroll in E-Verify, and by legislation or ordinance requiring some or all employers to enroll in E-Verify as a condition for doing business in the state or locality. Enforcement mechanisms should include the development of an auditing system, and consequences for non-compliance may include potential loss of a business license, debarment from state contracts, and mandatory training or reporting requirements. The auditing also can be helpful to the state in detecting tax evasion by businesses and organized identity theft that victimizes U.S. citizens.
- Require all businesses and independent contractors to be licensed, and require proof of lawful immigration status to obtain a business or independent contractor license. Professional licenses should not be issued to those who lack lawful status.
- States should enforce wage and hour and other labor laws that typically are ignored by employers of illegal workers and labor traffickers. In particular, cases of wage theft and exploitation of illegal workers should be prioritized for investigation and sanctioning of unscrupulous employers.
- Impose a tax on remittances on illegal earnings by collecting fees on overseas wire transfers made by individuals who do not file tax returns. The model for such a program is Oklahoma, which collects approximately $10 million a year in this manner.
- Analyze voter and jury rolls to determine if non-citizens are on these lists, whether as a result of faulty voter registration systems or inappropriate voter registration.
- Commission a longitudinal study of immigrants in the state to analyze the socio-economic progress of immigrants. In addition, conduct a fiscal analysis of tax contributions and access to public assistance programs using state tax records.
- Prohibit the awarding of state contracts to companies that employ disproportionate or inordinate numbers of temporary visa workers, including by looking at recruiting practices and wage rates. Direct the state workforce agencies to improve ways for these employers to prioritize hiring workers locally.
- Public safety officials in the executive branch should examine the process used by law enforcement agencies to certify U visas, and create a set of guidelines for consistent policies statewide. These should include requirements that law enforcement agencies certify U visas only for victims of serious crimes that occurred in the state and that are enumerated in federal law and guidelines, which will be actively investigated and prosecuted, that the victims will assist in the identification and prosecution of the offender, and that the certifications will be revoked or withheld if the victim does not continue to meet the requirements. In the absence of state action, these policies should be implemented locally.
- Prohibit the registration of motor vehicles by those who do not have a driver’s license.