The State Of Immigration: What Can Be Done?

Wednesday, June 2, 2010 - 01:00

Editor: There is much publicity today about Arizona's enactment of a state law regarding what many consider an illegal interference in questioning random persons within its borders. Do you expect that this law will be found constitutional?

Stock: There is a strong belief, with a valid basis, that the federal government has not done its job in policing the borders and enforcing the immigration laws. The Arizona law seeks to address this problem. But a state is inherently incapable of enforcing federal laws that preempt the field and implicate national policy and international policy concerns and issues. This is in addition to the civil liberties and possible discrimination issues that the law raises.

Among other things, the Arizona law permits a state police officer to make a determination of immigration status if suspicion exists that the person is not lawfully in the U.S.; it makes it a crime not to carry immigration documents; and it makes it a crime for an undocumented worker to solicit work in any public place.

The law will face both constitutional as well as preemption challenges. Already, at least two lawsuits have been filed and more are contemplated. There is a strong argument that the Arizona law violates the Supremacy Clause because it conflicts with the federal power to regulate immigration into and expulsion from the U.S., which is a power that is normally a sovereign power of a national government. Immigration policy also implicates foreign affairs and foreign policy which is also a province of the federal government. The argument is that Arizona has, in effect, set its own foreign and immigration policy that is in conflict with federal policy.

There are also likely to be challenges on First, Fourth and Fourteenth Amendment grounds. For instance, some will argue that the prohibition on soliciting work violates the First Amendment and that the law will likely lead to unreasonable stops in violation of the Fourth Amendment.

There is also a strong argument that federal immigration law preempts the field of immigration enforcement. Because the Arizona law permits state enforcement of aspects of the immigration law that federal immigration law explicitly does not delegate to state authorities, there appears to be a conflict between federal and state law, which may result in the invalidation of the law on pre-emption grounds.

Editor: There is currently a new proposal by Senator Schumer recommending the use of biometric chips. How do you regard the recommendation that all Americans be required to carry a Social Security card with a biometric chip?

Stock: The Schumer proposal to issue a Social Security card containing a biometric chip essentially to everyone lawfully entitled to work in the U.S. is extremely ambitious. This program will likely be fraught with many logistical and technological problems for years to come. The burden of these problems will fall on employers and potential employees and will likely lead to unfairness and loss of income to individuals seeking employment and employers seeking to hire workers.

It would make sense to rationalize the current employment authorization verification system, with its smorgasbord of possible documents that can be presented, and move toward a single document that establishes identity and work authorization. However, given the enormous costs involved in making and issuing such cards, the current errors in the Social Security Administration database, the technological issues and the burdensomeness to small businesses, which will not have easy access to scanners, the implementation of such a proposal could do more harm than good.

The bill also proposes complementary enforcement mechanisms such as a 300 percent civil penalty increase to employers who knowingly employ unauthorized workers and the establishment of a national birth and death registration system, among others. Funding for implementations of this new system is intended to come from fines and fees, including fees charged to individuals for replacement of Social Security Cards.

Editor: There have been arguments that the current E-Verify system should be implemented, which is still voluntary. What are your thoughts about this system?

Stock: Given the fairly high level of errors in the current database of the E-Verify system, it would create havoc if the E-Verify system were mandatory throughout the United States. It is my understanding that E-Verify currently has an accuracy rate of approximately 96 percent. This means that 4 percent of potential employees who are U.S. citizens or otherwise authorized to work in the U.S. are unable to obtain confirmation of such work authorization and are prevented from being employed or are delayed in commencing their employment through no fault of their own. Extrapolating this error rate to the entire U.S. workforce, millions could be stuck in this frustrating situation, resulting in dire financial consequences for many.

Editor: Senator Schumer would legislate that all those receiving advanced degrees in the sciences be automatically admitted to permanent residency. Do you agree?

Stock: One of the provisions of Senator Schumer's bill proposes that those who receive advanced degrees from U.S. universities in science, technology, engineering or mathematics and who possess an offer of employment from a U.S. employer in their field of employment will be able to obtain immediate U.S. permanent residence. This proposal is meant to fix the current long waiting periods for obtaining U.S. permanent residence resulting from the restrictions on the number of green cards that can be issued annually. These numerical visa issuance restrictions prevent the highly skilled from emigrating to the U.S.The U.S. is therefore in the anomalous position of losing these highly skilled individuals to other countries right after they have attended U.S. institutions and have been educated here. To the extent that this proposal ameliorates the huge backlog in applications for permanent residence by highly skilled individuals, which it should, the bill would assist the U.S. in maintaining its competitive edge in the fields of science and technology and thus create more U.S. jobs in these industries.

Editor: This proposed measure would obviate some of the difficulty of adhering to the strict limits of the H-1B categorization for professionals. Is this enough?

Stock: In short, no. While permanent residence proposal for science graduates described above may relieve some pressure on the annual H-1B visa cap, the other proposed amendments to the H-1B process would make obtaining H-1B visas for professional workers far more difficult than it is now, and would undercut the advantages created by the permanent residence proposal for the science graduates.

At present, the H-1B visa application system permits employers to sponsor the most highly qualified job applicants for an H-1B visa. Under the proposed amendments to the H-1B application system, an employer would have to undertake the type of recruitment process that is similar to that required for permanent residence. This is a time-consuming, lengthy, and burdensome process to undergo for a temporary worker. Also, the process is not designed to test the U.S. labor market and select for the best qualified candidate for a position, but for the minimally qualified worker. This system measures and selects based on quantity of education and experience, rather than quality of education and experience. Under this system, an employer would not be able to employ a person who graduated with high honors from an institution distinguished in the required academic field and who worked with organizations well-known for their expertise in that field because a person who barely graduated from a program at an undistinguished institution and who received mediocre recommendations for his work in the field for an organization not particularly known for such expertise is available for the position.

Thus, in tandem, these proposals give with one hand to the scientific industries, but take away far more from all U.S. industries that require highly skilled professional workers. While the one proposal permits employers to employ more easily recent U.S. graduates, it prevents these same employers from employing those who have more experience or who have studied abroad. These further restrictions on the ability of highly skilled workers to obtain temporary employment in the U.S. makes the U.S. immigration law less, rather than more, responsive to the economic needs of the U.S.

Editor: The Schumer bill has a recipe for dealing with the 12 million illegal immigrants currently residing in the U.S. - requiring them to register, admit their legal violation and pay penalties and back taxes. What measures would you recommend for taking care of the alleged 12 million illegal immigrants currently in this country?

Stock: The Schumer "recipe" is as good a solution as I have seen to the regularization and legalization of so many illegal aliens.

Editor: Would you go along with the recommendation that a Commission be established to monitor labor markets to determine the need for temporary workers?

Stock: This proposal to establish a commission to monitor labor markets and determine the need for temporary workers concerns me. It is very likely that such a commission would be very politicized and influenced by the labor union movement. Given the track record of such interests in the H-1B context - which has been to put up hurdles to obtaining visas even in the face of market needs - it would be a mistake to put such a powerful tool as the making of immigration policy into the hands of such a commission.

Editor: There is a point-based system that in many countries determines the inflow of immigrants. What are your thoughts regarding such a system?

Stock: A point-based system to determine the inflow of immigrants would be a good idea. Such a system would provide the U.S. with the ability to prioritize immigrant inflow based on economic needs and other factors in a more direct and consistent manner than the current system allows. Right now, we have a dual family-based and employment-based immigration system, with no mechanism to steer or select for certain types of immigration based on national needs. The family-based system permits the immigration of close relatives of recent immigrants. The employment-based system requires employer sponsorship of persons in specific positions. Neither of these systems gives the U.S. government a system to select based on the needs and desires of the country as a whole or provides flexibility to change criteria should the economic or labor situation change.

Editor: What are the risks for and the penalties that have been inflicted on employers who have not determined the work authorization status of employees?

Stock: Employers must comply with the I-9 employment authorization verification requirements. If they follow that process diligently, they should be protected from liability should the workers whom they hire later turn out to be illegal aliens. Employers violate the law if they knowingly hire unauthorized aliens. If they do not complete I-9s and review the work authorization documents of their employees and these employees are later found to be unauthorized, such employers will be deemed to have knowingly hired illegal aliens because they didn't complete I-9s. Completing the proper I-9 documentation and taking action when documents are not provided or documents that do not appear to be genuine provides defenses to employers and should protect them from an inference of a knowing violation of the law.

Employers who have not complied with this law have faced significant fines and penalties. Some, who have been found to have engaged in a pattern or practice of hiring unauthorized aliens, have been hit with criminal penalties.

Editor: What guidance do you give employers on hiring so that they can avoid such pitfalls?

Stock: Employers should take the I-9 process seriously and provide adequate training in compliance to the employees who are responsible for administering it. Too often employers delegate this task to very low-level employees who have no training and do not understand the documents that they are reviewing. I have seen employers accept documents that clearly show that the person is not authorized to work in the U.S. because the person who was tasked with reviewing them and completing the I-9s was not trained.

Editor: What should the goal of comprehensive immigration reform be?

Stock: The goal of comprehensive immigration reform should be to provide a fair and rational system for the inflow of nonimmigrants and immigrants into the U.S. based on principles of family unification, humanitarian values, and the economic needs and goals of the U.S. labor market. A comprehensive immigration reform law will need to address the situation of illegal aliens currently in the U.S. - to legalize them in an orderly way - and to stem the future flow of illegal immigrants into the U.S. to prevent a similar situation from recurring 15 to 20 years in the future.

Editor: Do you look for a comprehensive immigration reform bill to emerge from the present Congress?

Stock: I am not optimistic about a comprehensive immigration reform bill being enacted by the present Congress. Immigration reform has always been a very "hot potato" issue - very few politicians want to touch it. Politicians are too fearful of being considered not tough enough on stemming immigration if they try to create a law to legalize illegal immigrants. To avoid this type of accusation, they frequently insert draconian rules into the immigration laws, which often exacerbates the problems, in order to compensate for the "leniency" provided elsewhere.

Please email the interviewee at astock@lowenstein.com with questions about this interview.