Articles
Immigration Reform Update: What Employers Need to Know About the Current Debate
October 2, 2007
Immigration reform is an emotional issue that evokes strong opinions. Most people agree that some level of reform is necessary, but disagree over the goals of that reform. On the one hand, U.S. businesses facing continuing labor shortages seek relief through an influx of foreign employees. On the other hand, the American public's increased hostility towards undocumented immigrants fuels the call for increased border security and employer sanctions. These competing interests have driven the recent comprehensive immigration reform debate in the Senate. After a failed attempt to find a solution during the previous session, the Senate recently took up debate on what some labeled a "grand compromise" between those endorsing strict enforcement-only and those in favor of some form of legalization of the estimated millions of existing undocumented immigrants. This "compromise" ultimately failed.
The struggles under the current immigration structure can be categorized loosely as either a problem for businesses, or a problem for individuals. From the business side, companies currently seeking to employ foreign workers must often complete a labor certification process. The purpose of this process is to prove that no American qualifies or is available for the advertised position. While perhaps good in theory, the highly limited number of such employment-based visas does not come close to matching the extraordinarily high demand. Ironically, some theorize that while the certification system is designed to secure American jobs for its citizens and nationals, it is actually responsible for the loss of those jobs. Such immigration challenges can force businesses to outsource more and more operations to other countries, thereby eliminating American jobs.
The current system also requires all employers to determine each employee's identity and authority to work in the United States. Proponents of increased enforcement argue that American businesses are to blame for the tide of illegal immigration, since without jobs there would be no incentive to come here.
For individuals, the frustrations are numerous. Take, for example, a new high school graduate who was brought to the United States illegally as a child. Many such young people speak fluent English and desire to enter college and the workforce. Yet, without proper assistance, these individuals can find themselves lacking legal status, thus being forced to return to a country they hardly remember.
A similar situation arises when an undocumented immigrant marries a United States citizen and has citizen children. The current system often forces the foreign-born spouse/parent of the American citizen to accept long-term (if not permanent) separation, or live together in constant fear of discovery.
The Senate compromise sought to balance these interests by increasing border security while providing incentive for current undocumented foreigners to "come out of the shadows." The proposals would have allowed a probationary status if the individuals paid a fine and met certain language and employment requirements. These would-be "Z visa" holders would not qualify for permanent residence status until the current backlog of applicants was cleared. Proponents hoped that by requiring fines and forcing these individuals to the "back of the line," this measure would be distinguished from a much-maligned "amnesty" approach.
On the enforcement side, the bill would have required additional border agents and fencing, along with increased tools for an employment eligibility verification system. The bill would also have created a temporary worker program to alleviate the perceived labor force pressures of American businesses.
Immigration advocates severely criticized the bill regarding its establishment of a proposed point system for future immigrants (permanent visa holders). The point system would have eviscerated the current family-based permanent residence system by eliminating eligibility based upon four of the family relationships currently eligible. Additionally, it would have limited the ability of employers to hire foreign workers of extraordinary ability as permitted under current standards.
Ultimately, very few Americans seemed happy with the bill, and Senate leaders were unable to bring it to a vote. Proponents pronounced the reform bill to be dead.
Today, in the aftermath of failed comprehensive reform efforts, governing entities and lawmakers are trying to piece together other reforms, albeit on a much smaller scale. Several states, for example, have enacted measures either permitting or refusing driver's licenses to undocumented immigrants. Other states have considered or passed measures prohibiting government entities from using contractors that hire undocumented workers.
Employers beware! There can be no doubt that employers in this country are viewed as the primary shield against illegal immigration. Many people have called for the government to cease all efforts at changing the law, and "simply" enforce the laws as written. In answer to that call, Homeland Security head Michael Chertoff announced that the Executive Branch would utilize its regulatory power to crack down on undocumented immigrant workers by taking sweeping enforcement measures. Some claim that the crackdown is the current administration's way of telling the American public, "be careful what you ask for," by allowing the country to feel the economic impact of living without migrant labor. One impact is certain: employers unclear of the regulatory changes can now find themselves subject to stiff penalties, and should take the appropriate measures to avoid problems.
