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On Jan. 7, 2004, for the first time since Sept. 11, 2001, President Bush made a public announcement welcoming immigration reform. In his speech, Bush paid tribute to the immigrants who have historically helped make this country’s economy strong, and expressed his belief in immigrants’ patriotism and ties to their adopted homeland. He also expressed concern that in the absence of a well-developed immigration system, both undocumented immigrant workers and U.S. employers are placed in a precarious position. The president called for making the U.S. immigration system fairer, more rational and more humane. He suggested that reform with these goals in mind be based on certain principles: America’s control of its borders; immigration laws serving this country’s economic needs; no unfair rewards to illegal immigrants; and creation of incentives for temporary foreign workers to return to their home countries when their work in the United States is complete. The president’s proposal will likely amount to a new temporary worker program that would match willing foreign workers with U.S. employers interested in employing them, and provide a mechanism for working legally in the United States, even for undocumented immigrant workers. As with all major undertakings aimed at systemic changes, Bush’s immigration reform is being criticized from different directions as either being “too much” or “not enough.” There are several areas that reform is sure to cover, but in reality, it is too early to make conclusive statements or pass judgment about the specifics of the proposal, as it is currently in its early development stages and has not yet even been “born” legislatively. There are many reasons for the lack of legislative development in this important area, quite possibly due to the complexity of the task. As Bush mentioned, any “guest worker” program should be clear and simple. It should comply with basic requirements, such as the existence of a job offer to a foreign worker only after a U.S. employer has been unable to find an American worker to do the job. Foreign workers must also be in compliance with U.S. laws and regulations at large, and employers must engage in responsible hiring practices. A new and interesting twist mentioned in the proposal is to provide incentives to foreign workers to return to their home countries after their employment in the United States ends in order to cut down on workers overstaying their visas in America. Any reform in this area is expected to be tied with both tax-preferred savings accounts in the United States and inclusion of foreign workers in their own country’s retirement system. A guest-worker program is expected to significantly increase the legal work force in this country and decrease the number of immigrants, such as illegal immigrants using false identification and work-authorization documents, who are invisible to law enforcement. Working below radar It is well known that many of the workers who perform low-skilled jobs-especially in the manufacturing, hospitality and construction industries-are undocumented foreign workers, usually hailing from Mexico and other South and Central American countries. Their jobs are long-term, permanent positions, yet the current work-visa programs do not extend to these types of workers and jobs. Consequently, in order to enter the U.S. job market, these illegal workers may use fake Social Security cards and driver’s licenses to comply with their employer’s employment-authorization requirements. Many undocumented workers toil for wages well below the minimum, as unscrupulous employers use the threat of deportation as leverage. The workers have little recourse, even though they are afforded some protections under the U.S. labor laws. As a practical matter, they realize that if they complain about their conditions they could be thrown out of the country. This is a well-grounded fear, as current law bars anyone who lived for a year or more illegally in the United States from re-entering the country for 10 years. Therefore, as Congress weighs immigration reform, it will need to consider how to give illegal workers an incentive to make themselves visible to the authorities. One way to do this is by creating a reliable system for protecting these workers from possible abuses by employers. Under the president’s proposal, illegal workers would have to come forward, pay a registration fee and receive a work-authorization document that would be valid for an initial three-year period, with the prospect of renewal. At the same time, the Department of Homeland Security would increase enforcement of current immigration and labor laws against undocumented workers who do not participate in the guest-worker program and against their U.S. employers. Laid off, other quandaries One question of immediate concern to foreign workers under this proposal is what happens if the employee is laid off. Under the proposal, upon loss of employment, the worker becomes ineligible for continued participation in the program and has to leave the country. Since a worker who registers under the program would then be visible to authorities, that worker-who is now unemployed and can no longer take advantage of the guest-worker program-could be easily located and deported. Consequently, a detail to iron out is determining what kind of incentives a worker would need in order to put himself on the front line. Another issue that has to be teased out of the general proposal is what to do when the initial three-year period a worker registers for expires. By this time, a worker with a family firmly resettled in the United States might be able to renew his guest-worker visa. However, at this time, the only permanent immigration route (i.e., the “green card”) being contemplated under the proposal is via family- and employment-based sponsorship. The much discussed, but not officially proposed, “earned legalization” aspect of the guest-worker program, may eliminate the prospect of the foreign workers’ immigration status being dependent on the good graces of their sponsoring employers. Chasing the American dream As Bush mentioned in his announcement, jobs in this country “represent a tremendous opportunity for workers from around the world.” At the same time, there is an understanding by the president as well as proponents and opponents of immigration reform that jobs offered to guest workers are typically lower-level, manual, unskilled jobs that are rejected by American workers. This raises questions about a guest worker’s future. What opportunities, if any, should be afforded to these workers for their education and professional growth while residing here at the sufferance of the United States? How would the workers’ efforts to rise above their low-income status, such as obtaining credentials and moving into more advanced positions that may be attractive to U.S. workers, reflect upon the program as a whole or the workers’ immigration status in particular? One suggestion is that the guest- worker program could include “change of status” provisions. These would stipulate to the circumstances under which a foreign worker would be permitted to advance from the initial guest position to a position with more stability and/or benefits. Similar questions arise with regard to the worker’s efforts to switch to a new U.S. employer, or obtain a promotion. Another aspect of reform is creating incentives for workers to return to their home country when their employment in the United States ends. This will require an international effort, as the United States would have to negotiate deals with foreign countries over issues such as home-country retirement credit for the U.S. guest-worker program participants. Agreements with foreign governments would require significant international legislative cooperation. In some situations, it will be difficult to gain a foreign country’s blessing for the depletion of its own work force in favor of their employment in the United States, when there is no immediate, visible benefits for their own economies. However, some countries may be enticed into participating by the thought of bolstering the country’s middle class when workers trained in the United States return to their country with improved job skills and better earning prospects. Employers, too, have concerns about the guest-worker program over their possible history of intentional or unintentional hiring of illegal workers. They may be concerned about disclosure of their illegal hiring practices. Or they might worry about the cost of advertising for, and recruiting, American workers to first fill a job before offering it to foreign workers. So, too, may employers be concerned about liability for any back taxes they may owe, or possible past violations of labor laws. The proposed guest-worker program is intended to be attractive to U.S. employers to mitigate two concerns: their ability to find legal manpower, and their compliance with employment-eligibility verification rules. At the same time, the program imposes certain responsibilities on employers, including duties to make “every reasonable effort to find an American worker for the job,” and to report incoming and outgoing program participants. These are significant responsibilities and may be viewed as burdensome by some employers, particularly by smaller employers with budgetary constraints. Nonetheless, as these employers are the likely consumers of an illegal work force at this time, and the target audience for a “guest worker” proposal, they are likely to consider a reasonable and well-developed program and its possible benefits. Once finalized, the proposal will need to address the specific efforts that would demonstrate that an employer has taken “every reasonable effort” to identify willing U.S. workers before turning to foreign workers. Additionally, many potential employer-users of the program may want to know consequences of disclosure of their current improper employment practices. Furthermore, without guarantees of immunity from prosecution for past violations, employers may be hesitant to put their businesses on the line and risk hefty penalties for current and prior hiring and documentary requirements violations. While more than 10 months have passed since the president’s Jan. 7 announcement, no comprehensive “guest worker” bill is currently contemplated by Congress, even though there has been significant political commentary. Neither Congress nor the president can do it alone. It is most reasonable, and most expeditious to the reform process, to attract input and participation from a wide variety of communities, including U.S. employers, immigration attorneys, legal and economic scholars, international labor analysts and law enforcement professionals. The development of a specific, point-by-point pilot program is the first step in the major immigration overhaul. Much of the success of the guest-worker program will depend on the specificity of contingency planning, and the ability to assure U.S. employers, legal and illegal foreign workers, and the general public that immigration changes are in this country’s best interest. Irina B. Plumlee heads the immigration practice at Dallas-based Gardere Wynne Sewell.

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