Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Senate Expected to Consider Major Immigration Legislation Before Memorial Day But Passage Remains Uncertain
Despite President's Bush assertion that he will be able to broker a deal on immigration reform and Senate Majority Leader Bill Frist's and Senate Minority Leader Harry Reid's support of comprehensive immigration legislation, enactment of such legislation is far from a done deal. The dynamics of the debate seem to change each week, with Senate and House Democrats posturing for the best position in this election year, and House Republicans steadfastly embracing an enforcement-only solution to what has been perceived as unchecked immigration caused in part by lax borders. Meanwhile, the issue of immigration dominates the front pages of our newspapers and television news as immigrants swell our streets in protest and solidarity, and employers increasingly speak about the importance of immigrants to our nation's economy. Moreover, public opinion polls reveal that the majority of Americans support some kind of program that will regularize the status of those who are here and that will provide strong enforcement of our laws. So, what can those concerned with immigration reform expect? In short, more uncertainty, at least for the time being.
For the moment, the Senate is focused on healthcare and energy-related issues but has vowed to return to immigration-related legislation before the Memorial Day recess. That could happen as early as May 15th. (In fact, Senator Arlen Specter, Republican Chair of the Senate Judiciary Committee, had suggested convening a pre-conference conference committee to help break what has been described as a partisan impasse blocking the legislation.) At the moment, there are a myriad of amendments - more than twenty addressing substantive issues - under negotiation by Senators in the comprehensive immigration reform fight. The most widely discussed is the "Hagel-Martinez Compromise (S.2611)," which already has morphed into a new Compromise Immigration Reform Bill (same bill number though) and will be the starting point for renewed deliberations. S.2611 retains positive reforms, including a program for guest workers, a legalization program for undocumented immigrants, increased family- and employment-based immigrant visas, and a pathway to legal status for undocumented high school students (the DREAM Act), but it also contains a number of due process-related concerns as well as many new burdens for business. Those due process provisions include
- the expansion of the definition of aggravated felony;
- indefinite detention of certain immigrants;
- severe criminal and immigration penalties for document-related offenses;
- mandatory detention and expedited removal of nearly all undocumented immigrants caught at or between ports of entry;
- severe limits on judicial review;
- new penalties for failure to file a change of address; and
- other mandatory waiver of rights for certain undocumented immigrants.
Plus, employers would be required to participate in a new electronic employment verification program and would face very substantial fines if they employ foreign workers who lack proper employment authorization. In addition, the Department of Homeland Security would have access to the Social Security Administration database, which raises a host of other concerns.
Very significantly, the Senate also is considering the Securing Knowledge Innovation and Leadership (SKIL) bill, a stand alone bill that would
- increase the H-1B cap from 65,000 to 115,000;
- raise the employment-based immigrant visa cap from 140,000 to 290,000 visas a year;
- positively reform the student visa provisions; and
- streamline and rationalize other visa provisions including those that affect L-1s, EB-1, EB-2 and EB-3 petitions, and the labor certification backlog and delays.
While the White House reportedly does not believe that a stand alone bill will be successful, the business community intends to pursue passage if the compromise bill fails even if that means attaching the SKIL bill to must pass, end of the year appropriations bills.
On the House side, the Republican leadership continues to provide a sharp contrast to its counterpart in the Senate. House Judiciary Committee Chair James Sensenbrenner, the driving force and architect behind the House-passed bill that would criminalize illegal status in the United States as well as significantly increase enforcement and border security without providing avenues for legal employment or citizenship (see January 2006, Immigration News & Analysis), has expressed displeasure with a so-called "amnesty" for those who "broke the law" by coming to the United States. Rank and file conservatives, so say House Republican aides, want stricter enforcement of current laws and more secure borders. And, with the President's approval rates and popularity sinking, House GOP leaders are putting their Members' interests first.
It's clear that the House and Senate, Democrats and Republicans, have a lot to do before comprehensive immigration reform can become a reality. First, the Senate as a whole must pass legislation, next a conference committee must reconcile what is likely to emerge as two very different bills, then each chamber must vote on the new compromise, and finally the President must sign that compromise into law. This is a very tall order at any time, and more so now with Congressional elections this fall.
It is important for our readers to keep abreast of the various immigration bills and provisions as well as the mood of our lawmakers and public opinion. Comprehensive immigration legislation will remain on the horizon for quite some time, and ultimately new law will be enacted. In the meantime, keep in mind that as Congress debates toughening our immigration laws and immigrants march and rally for their "right," the same arguments of the past century percolate to the surface once again, arguments that before focused on Asian, Italian, Irish, and Jewish immigrants from Eastern Europe and Russia, arguments that now focus on Hispanics: do immigrants overcrowd and overwhelm our society or do we owe our economic resilience to the waves of immigrants who replenish our workforce and society?
Two months ago, The New York Times, most eloquently stated what's underlying the immigration debate. Describing differences within the GOP but perhaps within our country as a whole, it said: "It is almost as if they are looking at two different Americas. The Senate [Judiciary Committee] Republicans who voted on Monday to legalize the nation's illegal immigrants look at the waves of immigration reshaping this country and see a powerful work force, millions of potential votes and future Americans. The House Republicans who backed tough border security legislation in December look at the same group of people and see a flood of invaders and lawbreakers who threaten national security and American jobs and culture." This same debate has been heard for 100 years.
DHS' Stepped Up Workplace Enforcement Renews Challenge for Employers
In late April, Department of Homeland Security Secretary Michael Chertoff announced an intensified law enforcement campaign targeted at "organizations that promote the harboring and the hiring of illegal, undocumented workers." This announcement came in the wake of the largest-ever worksite enforcement raid, where almost 1,200 people were charged with immigration-related offenses (harboring and unauthorized employment). This get-tough enforcement message brings to the fore the challenges confronted by employers for years now and their vulnerability to enforcement actions. Since 1986 when the Immigration Reform and Control Act was enacted, employers have been required to review documents of those hired that prove that each worker is authorized to work. In doing so, the employer must complete and sign an I-9 employment verification form. From day one, employers have been confused about which documents satisfy the I-9 requirements since there are over 20 different combinations that will do the job. Moreover, employers who are too aggressive can be charged with discrimination and bias suits. In other instances, the sheer volume of 1-9s and supporting documents makes the compliance task onerous. Another dilemma is keeping track of documents with expiration dates to ensure that those who were authorized to work when initially hired remain so. Nevertheless, employers again are on notice there will be more enforcement and stiffer penalties, and that they are once more in a precarious situation.
How can employers protect themselves? Here are a few steps worth integrating into routine business practices:
- Periodically review the I-9 form and re-read the instructions;
- Put into place an organized, uniform system for I-9 compliance and enforcement;
- Audit your I-9 documents annually;
- Track or otherwise document visa expiration dates and follow up where necessary.
Time will tell whether Secretary Chertoff's get-tough message actually will materialize into sustained enforcement activity or is merely a response to criticism about lax enforcement especially in light of the immigration reform debate taking place before Congress. In the meantime, employers should take the time now to do some house cleaning.
Update on H-1B Numbers
The U.S. Citizenship and Immigration Services (CIS) updated its web site and reports that it has received, as of April 24, 2006, 12,713 H-1B petitions. Another 2,358 petitions were received in the master's or "advanced degree exception." At this rate, H-B numbers should continue to be available through at least June. The H-1B cap was reached last year on August 10th .
News at Maggio & Kattar
We are proud to announce that Senior Attorney and team leader Andres Benach just received notice that he was selected for inclusion in the 2007 edition of the prestigious The Best Lawyers in America in the specialty of immigration law. He joins Maggio & Kattar's Michael Maggio and Alison Brown who are also included in this nationally renowned publication. Inclusion in Best Lawyers is regarded by both the legal profession and the public as one of the highest form of professional accolade, in part because the selection process is conducted through an exhaustive and rigorous peer-review process.