Immigration: A Broken System That Can Be Fixed

Friday, December 1, 2006 - 00:00

Editor: What are the major immigration issues affecting business and will
the shift in control of the House and Senate make a satisfactory resolution more
achievable?

Graham: There are three equally important issues: the question of what
to do with the estimated 12 million undocumented workers, the chronic shortage
of employment-based visas and the treatment of I-9 violations as criminal
matters.

One of the problems with creating sound business immigration policy is that
the word "immigration" means different things to people. To some it means
restricting the influx of illegal aliens, and to others it means bringing in
foreign students and workers to address the pressing needs of our economy for
skilled workers. The shift in power in Congress definitely paves the way for
real progress on all three of these issues.

Editor: Tell us why it is important that each of these issues be resolved.
Take the problem of undocumented aliens?

Graham: The issue that dominates public discussion so much lately is
what to do with the millions of undocumented workers in this country. Although
there's no consensus on whether we should deport or legalize them, the fact
remains that most of the undocumented workers are here working in jobs for which
there aren't enough willing and able U.S. workers. And yet we don't have an
effective way to have immigrants fill those positions. For years the government
simply pretended the problem didn't exist. President Bush was the first to
squarely face the issue and call for a guest worker program. For industries
where these chronic worker shortages exist, the question of how we address
undocumented persons in this country has immense importance. That's particularly
true when viewed against the backdrop of more aggressive I-9 enforcement.

Editor: Why is the renewed attention to I-9 enforcement creating problems?

Graham: All employers are required by law to complete the I-9 form to
show their employees are authorized to work in the United States. The problem
isn't the I-9 itself, but rather the sudden change in enforcement strategy that
criminalizes many violations. Since the I-9's origination in November 1986, most
violations have led to civil money penalties. Around April 2006, just as
immigration reform was on the front burner, the government began seeking
criminal charges for many violations that would have been considered civil only
a year ago. These cases don't always involve unethical employers who knowingly
go out and hire illegal workers to gain a competitive advantage, but rather,
employers who have a pattern of sloppy I-9 compliance and may have no idea
they're in violation of law. The situation is compounded by the fact that if a
legalization program is implemented, what's to stop the government from
deporting the employees just as they're trying to legalize? It's one example of
how immigration policy is taken piecemeal and not as a comprehensive whole.

Violations of I-9 requirements can now result in criminal money laundering,
harboring, and fraud charges. They can also trigger a pass-through of liability
in the event of an acquisition or merger and they can be viewed as a breakdown
in the internal control system for the purposes of Sarbanes-Oxley.

Editor: Why is it important that progress be made toward eliminating the
current shortage of employment-based visas?

Graham: This chronic shortage of employment-based visas, particularly
in the H-1B category, affects professional occupations such as engineers,
scientists, and teachers. At one time the annual quota for H-1Bs was 195,000.
Since Congress backed it down to 65,000, we have run out of H-1Bs so quickly
that we are out before the fiscal year even begins. This means fewer qualified
workers are available.

The unavailability of H-1Bs also means that an employer going on campus to
recruit the best and brightest graduates cannot hire them if they are foreign.
In such fields as math, engineering and science, foreign students are often at
the top of the class. So we are training them in our universities, yet our
businesses are unable to hire them. These lost recruits go to other countries
with more reasonable business immigration policies. So we end up training our
own competition.

Editor: How is the present immigration system harming our economy?

Graham: Our current immigration policies eat away at the economic base
in two main ways. First by undermining our ability to hire the best skilled
workers, particularly in science, engineering and mathematics. Second, by
failing to tackle the guest worker issue, which makes it impossible to fill
unskilled labor positions. Add to that the costs associated with compliance,
enforcement, workforce replenishment, and so on. A more comprehensive and
reasonable approach would tackle our security concerns without jeopardizing our
economic base.

Editor: Given the election results, what are the prospects for remedial
legislation when the new Congress convenes?

Graham: From an immigration reform standpoint, it's a very positive
development. There was already a decent immigration reform bill passed by the
Senate last session. The Senate already "gets" business immigration. But the
Republican-controlled House took the position that we should not tackle business
immigration or guest worker proposals until we finish building a fence along the
entire southern border - a feat which could easily take five or 10 years.

With the incoming House, we can expect to see a dramatic reversal of attitude
toward business immigration. The incoming House effort will be led by Rep.
Sheila Jackson Lee of Houston, who is on the record as saying immigration is the
civil rights issue of our time. She also "gets" business immigration and
supports a comprehensive solution which includes a legalization program.

Editor: What kind of immigration reform is needed?

Graham: In my opinion, an ideal solution would provide one single
comprehensive and integrated system which flows throughout the entire
immigration process - for example, a system that starts with the student who
comes over here to study, then can apply for temporary employment
post-graduation, and then perhaps get a green card and eventually citizenship.
In the current system, those four phases clash and contradict one another - they
aren't seen as steps in a process.

We also need a solution for border security and the 12 million undocumented
workers which takes economic realities into consideration. There should be some
sort of legalization program, whether it's a guest worker program or something
else seems less critical - but it should happen soon, not after we finish
building a border fence. Obviously security should also be taken into account,
but not at the expense of the economy. The Homeland Security Act actually
requires the government to balance those objectives.

From the standpoint of I-9 enforcement, we should take the burden of document
verification off of employers. It doesn't work. We have the technology to create
a more reliable, simpler employment verification system.

An immigration reform bill should be comprehensive and comprehensible. We
shouldn't stick with a statutory scheme so complicated no one really understands
it all. We can simplify. We can create an immigration system that reflects
today's needs - not those of 1950 when the current Act was created. We need to
balance security and economics, not play them off one against the other.

Editor: What role can corporate counsel play in promoting reform?

Graham: Corporate counsel can enlist their law firms to help the new
Congress draft effective immigration reform legislation, and provide input on
existing legislation. There is a great opportunity for corporate counsel to
speak out on behalf of reform in each of the three major issues that we've
talked about. When the new Congress convenes, corporate counsel should get to
know those who will be drafting the new legislation.

An effort is also needed to reverse the demoralization that set in among
members of the business community about the possibility of immigration reform.
In the old Congress, so many roadblocks had been put in their way that a kind of
weariness had set in. It was difficult to talk about business immigration
without seeming anti-security. Counsel should understand that we are now
entering a completely new legislative environment that should be much more
positive and balanced regarding business immigration.

Editor: How can your office assist clients until corrective legislation is
passed and what are you doing to help with immigration reform?

Graham: We work with members of Congress to make them aware of the
problems that our clients face and to come up with legislative solutions. We
help clients address problems under the existing law and also assist clients in
conducting internal audits of their I-9 and recruiting procedures.

My own experience focuses on advising clients on day-to-day issues as well as
longer term government relations issues. I started out in 1994 as a legal intern
at the Immigration and Naturalization Service (INS) General Counsel's office in
Washington, where I saw firsthand how businesses and universities could work
with INS leadership to seek practical long term solutions. Later, I was
Assistant District Counsel for the INS in Houston, where I advised the agency on
I-9 enforcement and other issues. I left the public sector in 1996. My clients
range from Fortune 100 companies to locally based mom-and-pop operations.

Please email the interviewee at href="mailto:bgraham@winstead.com"
target=_new>bgraham@winstead.com with questions
about this interview.