Immigration Reform: The Heavy Lift Ahead

An Expert's View about Political Conditions in the United States

Posted on: 14 Apr 2010

 

Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) have announced a draft framework for forging a bipartisan consensus on Comprehensive Immigration Reform (CIR). While Senator Graham at first expressed concern that the way that the Democrats handled health care might "poison the well" in regard to his efforts to get additional Republican support for a bill, he suggested more recently in a joint appearance with Senator Schumer on Meet the Press that he would move forward but that it may be a "heavy lift" to actually get immigration done this year. Both parties are facing cross pressures from key constituencies and other issues, notably financial reform and jobs, may be given priority over immigration. Still, the Schumer-Graham statement of principles, along with the earlier-introduced CIR ASAP Act of 2009, may be a starting point for discussions, and could give us a snapshot of what final legislation might have in store for employers.

 

Schumer-Graham

The Schumer-Graham approach is largely made up of four pillars: (1) biometric Social Security cards to ensure that workers have legal documentation to work; (2) a strengthened commitment to border security and interior enforcement; (3) a process for admitting temporary workers; and (4) a path to legalization that contains both benefits and penalties. Senators Schumer and Graham also support a quick path to lawful permanent residence for advanced degree graduates of United States colleges and universities in the fields of science, technology, engineering and math ("STEM fields").

Biometric Social Security Cards and the Workplace.

Employers would be responsible for swiping the cards through a machine to confirm both immigration status and identity. Employers who do not swipe cards or otherwise knowingly hire unauthorized individuals would face stiff fines and potentially criminal penalties for repeat offenses. In the House of Representatives, Reps. Sam Johnson (R-RX) and Gabrielle Giffords (D-AZ) introduced an alternative measure, the New Employee Verification Act (NEVA), which would incorporate biometric technology into employment eligibility verification but without the use of a card.

 

Experience during the past six years demonstrates that there will be no CIR without significant enhancements in worksite enforcement and sanctions against non-compliant employers. Earlier legislative proposals would have expanded E-Verify, the current electronic verification system, or, as in the case of the CIR ASAP Act and NEVA, would utilize newer technologies with phased-in implementation. The alternative of a biometric social security card comes in light of recent studies that suggest E-Verify’s shortcomings, particularly in regard to errors in government data bases and the use of counterfeit documents.

 

The Schumer-Graham proposal and some of the other biometric-based technologies that have been put forward might prove to be more effective than E-Verify and arguably simpler for employers to use than the current mix of traditional I-9 verification and E-Verify. But implementation could be a lengthy and difficult process, and the possibility that every American worker could be required to carry a biometric social security card will undoubtedly trigger objections from civil libertarians. Employers who have spent years adjusting to I-9 requirements and particularly those who have ventured into the world of E-Verify would need to re-tailor their systems to brand new processes, albeit ones that could be ostensibly simpler to use in the long run. Ultimately, Congress may be influenced by how widely E-Verify is utilized over time, and whether some of the current concerns about its effectiveness are more fully addressed.

Border and Interior Enforcement.

 

 

Border enforcement has tended to be the least controversial of all of the issues in recent times and should have minimal impact on employers. During the past six years, Congress has approved several measures to increase resources or enhance technology at the border. The idea of building a fence along the southern border raises more skepticism, but in fact there has been very little resistance when Congress has been asked to vote on related proposals in the past. In terms of interior enforcement, it would seem that stepped up actions against employer violators, as described above, as well as the criminalization of illegal presence, could be in the offing.

 

 

Temporary Workers and Future Flow.

There has been quite a bit of debate about exactly how the future flow of skilled immigrants should be addressed. Some advocate a commission that would set skilled immigration levels each year, while others suggest that the focus should be on the permanent rather than temporary side, similar to the "staple" provisions.

As the details of Schumer-Graham become available, we will have a better idea of how new legislation might affect employers who hire skilled professionals on a temporary and permanent basis.

Legalization.

 

 

Senators Schumer and Graham would provide a framework under which foreign nationals in the United States without authorization would need to admit that they had broken the law, pay fines and back taxes, and learn English.

 

 

Political Outlook

 

Senator Graham is probably right that enactment of immigration legislation will be a "heavy lift" this year. However, given the strong support of the Hispanic community and organized labor, it may not be an impossible lift. These groups, as well as the business community, played integral roles in the Washington March for Immigration two weeks ago. Still, whether the shape and form of the legislation is favorable to companies hiring skilled professionals remains to be seen.

In 2007, the last time that Congress seriously considered CIR, members of the pro-immigration coalition were willing to make many sacrifices to get a bill through. As a part of a "Grand Bargain," a group made up of Senators from both parties agreed to move a bill that included a heavy enforcement program, a legalization program, and temporary worker program. In terms of skilled employment, the proposal would have largely replaced the current labor certification process with a "Point System." The Point System generated criticism from both business and family advocates, and. eventually, the proposal contained so many unpopular provisions that it lost support and imploded on the Senate floor. The Grand Bargain has recently been the subject of an HBO documentary.

Given that many regard the climate for positive immigration change even more difficult this year than it was in 2007, principally because of a weaker economy, it will be a particularly big lift to ensure that skilled immigration is considered favorably. Most advocates, particularly organized labor and Hispanic groups, support the legalization component of CIR. However, there are wide splits in how temporary worker programs should take shape, and how we should calculate permanent legal immigration numbers in general. Last year, the creation of an Immigration Commission seemed to replace the Point System as the idea du jour for handling legal immigration, but it has already generated criticism and concern.

 

 

What the Business Immigration Community Can Do Now?

 

Given that Senators Schumer and Graham have indicated that they will continue to press ahead, members of the business community will have the opportunity play a critical role. Particularly as the economy starts to improve, we need to ensure that we have an immigration policy that spurs rather than stifles growth. The White House and Congressional leaders remain committed to the effort, and the continued presence of members of the business community offering sound policy recommendations will help shape legislation in a positive way, regardless of when the bill is ultimately signed into law.

 

 

© 2009 - 2010 Fragomen, Del Rey, Bernsen and Loewy

For more information, please contact Noah E. Klug, Attorney at Law, at nklug@fragomen.com.

 


Posted: 14 April 2010

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