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Whichever aspects of President Bush’s proposed temporary-worker program might ultimately be adopted, immigration experts agree that the devil will be in the details. When Bush announced his proposal in early January, he cited as a top concern a need to fill low-paying jobs that Americans won’t apply for. “New immigration laws should serve the economic needs of our country,” Bush said at a Jan. 7 news conference. “If an American employer is offering a job that American citizens are not willing to take, we ought to welcome into our country a person who will fill that job.” Immigration experts’ reservations include that the proposal could unfairly benefit big business, that it might not do enough to improve immigrant workers’ rights, and that it has the potential to further encumber an already overworked U.S. immigration service. Whatever the outcome, the experts said, lawyers could be looking at a new area for client development. If no immigrant workers were available, said Jan Ting, professor of law at Temple University’s James E. Beasley School of Law, employers would either have to pay fair wages or go out of business. “What the proposal would do is force American workers to compete in the world labor market,” Ting said. Ting and others now wonder what vetting process the government will set up in asking employers to prove that immigrant labor is their only recourse. Arthur N. Read, general counsel at Friends of Farmworkers, which specializes in providing legal aid to indigent and migrant farmworkers, said that under current guest worker initiatives, employers trying to obtain green cards for immigrant workers publish ads in newspapers or journals approved by the U.S. Department of Labor. If U.S. citizens inquiring about such a job won’t work for the prevailing wage — also approved by the Labor Department — the employer’s labor certification application will most likely be approved. Ron Klasko, an immigration attorney at Klasko Rulon Stock & Seltzer, said that the Labor Department monitors labor certification processes, making sure that, for example, the media outlets in which the job ads are placed are not so obscure as to automatically result in a dearth of inquiries. Klasko said that he expects any labor certification process in the Bush plan to be similar to those currently in place. “You can’t use this as a vehicle to hire cheap foreign labor,” Klasko said. But Read said that his organization had seen patterns of abuse of the certification process. For example, Read said, an employer will place an ad seeking American workers for a job that will not begin until many months later, or a job order filed with the Labor Department will indicate that a job pays overtime , but the employer will ultimately pay that off the books to forgo time-and-a-half. Ting also questioned whether a loophole-free labor certification process could ever be instituted. “What makes people think that the government is even capable of ensuring that the minimum wage laws are complied with?” Ting asked. Klasko said that many guest workers in the Philadelphia region are involved in landscaping or mushroom farming. Read said that Pennsylvania, New Jersey and Maryland have some of the highest landscaping worker populations in the country. Another big question is whether any temporary worker plan could truly curb the flow of illegal immigration. “The Bush proposal would really end up with much of the undocumented population remaining undocumented,” Read said. Klasko called attention to the fact that many workers who have entered the country illegally might be less than likely to identify themselves to authorities. “Would [the plan] give them an incentive to say, Here I am, I’m illegal?” Klasko asked. Ting said that any appearance of amnesty could lead to more informal migration from nearby countries, rather than less. “It would really act as a magnet,” Ting said. “How is an unskilled worker in Guatemala supposed to hook up with an employer?” Klasko, whose practice frequently involves helping corporations hire foreign nationals or transfer employees between countries, said that he expects a Bush proposal to place illegal workers in a quota category separate from existing categories. That would keep temporary-worker increases from causing reductions in quotas for professionals seeking to immigrate to the United States. But Ting said that the plan could have an impact on the professional workforce. “The proposal, as far as I’ve seen, doesn’t appear to be limited to unskilled workers,” Ting said. “Any employer who can’t find American workers at a wage Americans [will accept] can sponsor a guest worker. . . . [That could] conceivably bring competition to relatively high-wage, skilled American workers, as well.” So whom would the Bush proposal benefit? Not the workers, according to Read. “Part of the problem with the guest worker programs in place now is that from the perspective of the workers, they’re not protective enough,” Read said. And granting power over a worker’s visa to the employer — as is the case under current programs for workers in the agricultural and landscaping industries, among others — would further abrogate a temporary worker’s rights. “If the employer controls your visa,” Read said, “do you dare to complain?” The proposed program could boost the economy, Ting said, but at the expense of the most disadvantaged members of the U.S. labor pool. “I think that while the proposal may have many benefits for business,” Ting said, “and may actually have incremental benefits for many Americans — making things a few cents cheaper — it could disproportionately affect unskilled, low-income American workers. That doesn’t strike me as a good deal.” And whenever there are legal issues to be dealt with, the experts said, lawyers will be needed. “Some immigration lawyers may specialize in this,” Klasko said. “Some new lawyers might seek to take advantage of the program.” “I think it’ll generate a lot of business for immigration lawyers,” Ting said. He added later, “There’s no question that immigration is a growth area of the law.” Since Bush’s announcement, the experts said, little in the immigration world has been affected, for the time being. Read did note, however, that there had been a recent increase in the already prevalent practice of defrauding local immigrant workers. Fake lawyers have been making the rounds of places like Chester County, where there are many mushroom fields, saying they can help local workers get their papers and soliciting money from them under the pretense that Bush’s plan has already been enacted. In mid-February, a coalition of immigrant workers’ advocacy groups held a news conference to alert potential victims to the scams. Klasko said that the need to fund additional programs could easily tax an already overburdened U.S. immigration service. He pointed to what members of his field call the “post-March 11, 2002, era” - that being the date on which the student visa applications of two of the alleged Sept. 11 hijackers were approved. Since then, he said, the amped-up background checks process has led to lengthy delays. “Our approval rates on applications are no different,” Klasko said, “but in many cases, more work is needed to achieve the same result.” Klasko said that if Bush’s proposed program, like others enacted in years past, is not accompanied by additional funding or personnel, it could spell trouble. “If this is another unfunded mandate,” Klasko said, “either the program will fail or everything else having to do with immigration will fail.” Ting’s objections to Bush’s proposal are more ethical than economic. “This amnesty is really not fair to all the people trying to play by the rules,” Ting said. “Millions of people in foreign countries are waiting to immigrate here. Some, in the Philippines, for example, have been waiting as long as 20 years because of immigration quotas. We’ve always regarded immigrants as future Americans. This program [indicates] just the opposite: It’s a Saudi Arabian-style immigration program. That strikes me as un-American. Those immigrants that we accept should be viewed as future Americans and have all the same rights.” Since its unveiling, there has been no publicized legislative movement on Bush’s proposal. Ting, Klasko and Read all mentioned an alternative proposal outlined by Senate Minority Leader Tom Daschle, D-S.D., and Sen. Chuck Hagel, R-Neb., that, unlike the Bush plan, would offer the guest workers a chance for permanent residency at the end of their stays. A spokesman for Hagel said that Hagel and Daschle’s plan, the Immigration Reform Act of 2004, had been introduced in the Senate but had not yet been considered by any committee.

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