Another Go At Immigration Reform?

Monday, August 1, 2011 - 01:00

The last several weeks have seen what amounts to a mini-flurry of immigration bills introduced in Congress as we head into the last half of 2011 and possibly the last chance for Congress to address immigration reform before the serious 2012 campaigning begins.In recent weeks, four major bills have been introduced, in the Senate by Robert Menendez (D-NJ) and Charles Grassley (R-IA) and in the House by Judiciary Committee Chairman Lamar Smith (R-TX) and Representative Zoe Lofgren (D-CA).Though it is unlikely that all will be enacted, they will form the basis for debate in weeks and months to come.

Worksite Verification

Among the most prominent issues in the current immigration debate are employment eligibility verification and employer participation in the federal E-Verify program or a similar electronic verification system.Requiring employers to take part in E-Verify and increasing penalties for employment of unauthorized workers are proposals that enjoy support on both sides of the aisle.

The most comprehensive E-Verify proposal is Chairman Smith's Legal Workforce Act, which would require all employers to enroll in an employment eligibility verification system derived from the current E-Verify scheme.The requirement would be phased in over a two-year period, with large employers required to enroll within six months of enactment.In a significant deviation from current practice, Chairman Smith's bill would allow an employer to prescreen job applicants and condition an employment offer on employment verification, a practice that is strictly prohibited under current law.The Smith bill would also require employers to verify the employment eligibility of some current employees, including those working at critical infrastructure sites and those assigned to state or federal contracts. Senator Menendez's Comprehensive Immigration Reform Act would also require employers to participate in a mandatory national employment verification system, but would implement the requirement over five years.Senator Grassley's Accountability Through Electronic Verification Act would make E-Verify mandatory upon enactment and, like Chairman's Smith's bill, would allow prescreening of a job applicant's employment eligibility.

Employment-Based Immigration And The U.S. Labor Market

Rep. Lofgren, former chair of the House Immigration Subcommittee, has introduced the Immigration Driving Entrepreneurship in America (IDEA) Act, which focuses almost entirely on employment-based immigration. The bill contains several provisions that would allow for a faster path to permanent residence for professionals with advanced degrees in science, technology, engineering and math (STEM) fields and inducements for investors creating jobs for U.S. workers, and would make additional green cards available by recapturing unused immigrant visas from prior years.But in exchange for these benefits, the bill would pose new limits and obligations on employers, including increased wage and recruitment obligations for employers of H-1B professionals, new wage requirements for L-1 intracompany transferees, and a fee for the permanent labor certification application.

Senator Menendez's bill would introduce similar benefits, including recapture of unused immigrant visas and an exemption from the green card quotas for foreign nationals of extraordinary ability in the arts, sciences, business, education, and athletics, as well as foreign nationals holding U.S. advanced degrees in STEM fields.While the Menendez bill would impose none of the restrictions of the Lofgren bill, it would create a commission to oversee employment-based immigration.The commission would monitor the U.S. labor market and would recommend annual limits on employment-based immigrant and nonimmigrant programs, unlike the current system's reliance on fixed numbers.

Preemption Of State Immigration Laws

An emergent issue in the latest immigration bills is the supremacy of federal over state law.While the federal government has long been regarded as the primary authority over immigration matters, the Supreme Court's recent decision in Chamber of Commerce v. Whiting holds that states do have the authority to enforce immigration law, through the regulation of state business licenses.The Court also determined that states can require employers to use the E-Verify system, even though that system is voluntary at the federal level.In the wake of the decision, state immigration laws have continued to proliferate, causing a great deal of confusion and uncertainty for employers, who must now learn to comply with a patchwork of enforcement provisions.

To stem this tide, the Menendez bill would broadly prohibit state and local governments from enacting any law that discriminates or imposes any sanction or liability based on immigration status. A separate provision would specifically prohibit states from enacting laws concerning employment eligibility verification and worksite enforcement.Chairman Smith's bill would take a lighter touch.The bill would preempt states from enacting their own eligibility verification and worksite compliance requirements. However, states would retain the prerogative, as affirmed by the Supreme Court, to strip employers of business licenses for "failure to use the verification system."

What Next?

Though truly comprehensive immigration reform may still be out of immediate reach, the latest bills in Congress form a baseline for the issues and proposals that Congress and the White House must ultimately confront and reconcile.Of the four new immigration bills, the worksite verification proposals stand the most chance of enactment.Chairman Smith's bill was widely anticipated by both the immigration and business communities, and it seeks to streamline and regulate the employment verification process, which could be particularly beneficial for employers.In addition, the bill proposes a biometric pilot program that would use fingerprints to prevent fraud in the verification process and could lead, over time, to a wholly legal workforce in the United States - a truly historic achievement.

It may be some time before we see significant movement on any of the new bills, but the message is clear:Congress has heard the complaints and has taken some initial steps towards immigration reform.Good intentions - but will they be realized?

*words added by MD

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Amanda Seybold , a Law Clerk, and Nancy Morowitz , Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.