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The U.S. immigration system is in disarray. The federal government has tried reorganizing immigration agencies under different titles and duties, passing piecemeal legislation, and creating amnesty with no thought to future immigration. These efforts haven’t worked. Worse, they have crippled immigration enforcement efforts, jeopardized the safety of citizens, and threatened our economic security. The stumbling point for these efforts has been how to deal realistically with the hundreds of thousands of foreign nationals who continue to come here every year, often by illegal means, to meet demands for lesser-skilled yet essential jobs. Faced with the reality of these unsuccessful efforts, President George W. Bush announced immigration principles in January 2004 that recognize the system is broken and outline his vision for reform. Bush would give temporary legal status to foreign nationals who are already in the United States illegally and who are employed in low-skilled jobs primarily in the agriculture, food, and hospitality service industries. As the policy debate continues in Congress over the Bush proposal and others for fixing the system, we must recognize that increased law enforcement by itself will not suffice. The government simply is not in a position to remove or otherwise control the estimated 11 million to 15 million foreign nationals currently in the United States illegally. Congress must recognize that a simplistic enforcement-only policy that essentially forces officials to “shoot first” and ask questions later misses the real target. What is truly required is comprehensive legislation, coupled with enforcement, to create legal options for the undocumented immigrant workers who do jobs that Americans won’t. THE EMPLOYER’S BURDEN Congress has gone down the greater-enforcement road before, without success. Most notably, legislators sought to deter the illegal flow of immigrants to the United States with the Immigration Reform and Control Act of 1986. In passing the IRCA, Congress reasoned that the primary cause of illegal immigration was the lure of American jobs. So the new law established an interior checkpoint against illegal immigration by making all U.S. employers liable for knowingly hiring unauthorized workers. It also requires employers to make sure that all employees present identity documents that show they are eligible to work in the United States. Employers are required to complete an Employment Eligibility Verification form (Form I-9) for every employee. To prove eligibility, the new worker must submit a document or combination of documents of his or her choice (from List A or Lists B and C on the reverse side of Form I-9). Employers have to accept these documents if they appear reasonable on their face. Employers who violate IRCA provisions are subject to monetary and criminal penalties. Initially, the IRCA appeared to deter unauthorized immigration. Apprehensions dropped sharply, from 1.6 million in 1987 to 954,000 in 1989. But by 1992 apprehensions had risen 70,000 to 1.25 million. In 2000 the number of apprehensions reached an all-time peak of 1.8 million. But then apprehensions decreased — by 42 percent by 2003. The decrease seems to be due not to a drop in illegal immigration but to a lack of enforcement, which can be attributed to an overburdened, multitasked immigration system. As a result, worksite enforcement has become ineffective. SHOW US YOUR PAPERS A largely unforeseen effect of the IRCA has been the proliferation of fraudulent documents to establish identity and work eligibility. The number of acceptable identity documents and the lack of safety features have spurred the production of counterfeit documents. These counterfeits are now easily available for purchase. Yet when identity documents are presented, employers must accept them if they appear reasonable on their face. Employers are merely required to look at the documents, not to explicitly verify work eligibility. In fact, employers who question the authenticity of documents that appear reasonable on their face risk being held in violation of the anti-discrimination provisions of the IRCA. These provisions prohibit discrimination in hiring and discharge based on national origin and citizenship status. The purpose is to prevent employers from attempting to comply with the work-authorization requirements by not hiring foreign-looking or foreign-sounding job applicants. Thus, conscientious employers are trapped between conflicting IRCA mandates. On the one hand, they face liability for hiring illegal immigrants. On the other hand, if they carefully scrutinize identity documents to catch forgeries and to prevent hiring illegal immigrants, they risk liability for discrimination. Between 1994 and 1998 only 1,660 warnings and fines were issued. The number of notices of intent to fine issued to employers for knowingly hiring an unauthorized worker decreased from 417 in 1999 to just three in 2004. Indeed, the Department of Homeland Security admits that it gives no priority to apprehending undocumented workers who don’t fit into one of several priority categories, such as violent criminals. JOBS NEEDING WORKERS In short, the IRCA has failed to deter illegal immigration. Currently, the estimate of the net number of undocumented workers entering the United States annually has risen from about 300,000 to about 500,000. The wave of illegal immigration continues because immigrant laborers fill jobs that most Americans do not want and there are not enough slots for those who would immigrate legally. And that is not likely to change anytime soon. The Labor Department has concluded that the United States will experience significantly higher demands for labor in low-skilled jobs by 2008. Lower birth rates and higher educational levels among American-born workers exacerbate the problem. As the number of low-skilled jobs continues to grow, it will be increasingly difficult for employers to find U.S. workers with the educational levels that best correspond to those jobs. On average, a larger proportion of immigrants have relatively little formal education. The food-service and hospitality industries are continuing to create jobs that outpace their ability to fill them. It is estimated that seven out of 10 jobs today require only on-the-job training and that six of the top 10 occupations with the largest job growth over the next 10 years will fall in the same category. Today and tomorrow, undocumented workers will fill a significant portion of these low-skilled jobs. Thus, immigrants contribute to the economic growth in many industries and to the U.S. economy as a whole. NEW PROPOSALS In light of the importance of immigrants to the economy, and because we can’t keep stumbling along under ineffective legislation, Congress must act soon. Immigration reform legislation is currently being debated in both the House and the Senate. Several bills have been introduced; some focus on enforcement alone, and others offer comprehensive reform. Two comprehensive immigration bills are particularly significant and are being seriously analyzed by all relevant parties. One is the Secure America and Orderly Immigration Act, S. 1033 and H.R. 2330, whose main sponsors are Sens. John McCain (R-Ariz.) and Edward Kennedy (D-Mass.) and Reps. Jim Kolbe (R-Ariz.) and Jeff Flake (R-Ariz.). The other is the Comprehensive Enforcement and Immigration Reform Act, S. 1438, whose main sponsors are Sens. John Cornyn (R-Texas) and Jon Kyl (R-Ariz.). The Secure America Act addresses both immigrants who are now in the United States and those who may come in the future. It proposes a new H-5A temporary visa category that would initially allow up to 400,000 workers from abroad to fill unskilled nonagricultural jobs in the United States. The temporary visa would be valid for three years initially and could be renewed once for an additional three years. It would have certain requirements, including criminal and security background checks. The Secure America Act also proposes an H-5B temporary visa that would allow undocumented foreign nationals who have previously worked in the United States to stay here without returning to their home country. Many of the 11 million-plus undocumented workers in the United States could be eligible for the H-5B program and potentially earn their permanent residency after six years. Although this bill is not perfect, it does have the broadest support from organizations including business, religious, union, and advocacy groups. The Comprehensive Enforcement and Immigration Reform Act also attempts to be comprehensive, but it establishes a program for undocumented workers currently in the United States that will not attract participants. This bill calls for those currently in the United States to report for a mandatory-departure program and then risk leaving the United States in order to attempt to apply for a new, more limited temporary-worker program. This is just unrealistic. Many foreign nationals have deep roots in this country, including families and employers. They would rather continue to live in an undocumented status than face deportation. In tandem with the mandatory-return program, this bill would drastically increase worksite enforcement personnel. Ten thousand new enforcement agents would be authorized to police employers. Undoubtedly, enforcement of immigration laws is important, but without workable legal immigration, the bill misses the mark. The combination of a flawed program to deal with the undocumented workers in the United States and an overly aggressive expansion of worksite enforcement will surely cause chaos at worksites and potentially damage our economic security even more than enforcing existing laws. WHAT’S NECESSARY What’s needed instead is a temporary-work program, like that proposed in the Secure America Act. That would allow much-needed foreign laborers to enter and exit the United States legally, and it would also allow the United States to control its borders and satisfy related national security concerns. This temporary-worker program needs to be accompanied by realistic laws that give the United States a workable interior enforcement strategy. Such a strategy should create a “failsafe” mechanism that ensures that employers hire only authorized workers. Enforcement standing alone, unaccompanied by realistic immigration laws, will bring no change to a broken system. U.S. immigration policy has been quite ineffective in stopping illegal immigrants at the border or in the workplace. Yet some in Congress are calling for enforcement first. Of course we need sound enforcement mechanisms. But a sensible immigration policy is about more than raids and deportations. Enforcement must go hand in hand with a realistic system for meeting the U.S. economy’s need for low-skilled workers.
Laura Foote Reiff, a shareholder in the McLean, Va., office of Greenberg Traurig, is co-chair of the Essential Worker Immigration Coalition, which supports policies to facilitate the employment of lesser-skilled workers by U.S. business. Patricia Gannon, a former deputy district counsel at the Immigration and Naturalization Service, is of counsel in Greenberg Traurig’s New York office.

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