A Broken Immigration System In Need Of Reform

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. There are those who support the action of the Arizona legislature in enacting the law as necessary in view of the absence of federal action. Do you expect that this law will be found to be constitutional?

Ruthizer: The Arizona law is just a very troubling piece of legislation in an attempt by a state to deal with what is really a federal problem and in a very clumsy and, I believe, unconstitutional way. Immigration enforcement is largely the federal government's responsibility. Determining whether an individual is in a lawful status is not a black and white test. There are gray areas within the immigration law. Even very experienced immigration lawyers have difficulty at times in deciphering whether someone has proper status or not. For example, when a permanent residence application is pending for someone who is married to a U.S. citizen, that person is legally authorized to be in the United States but may not have a document to prove it. How is an Arizona deputy sheriff in a small Arizona town supposed to divine that knowledge? He might be holding people who are U.S. citizens, permanent residents, applicants for asylum, etc. The Arizona law is just a recipe for unfair and discriminatory law enforcement.

It is going to be challenged in the federal courts, first in Arizona, then I expect that it will work its way to the Ninth Circuit Court of Appeals in California and possibly the U.S. Supreme Court. I would be very surprised if even the modified statute requiring the police to have a legitimate reason to apprehend rather than a suspicion of an immigration violation will pass muster. It is interesting that the legislature felt the need to modify their original enactment.

Editor: There is currently a new proposal by Senators Schumer and Graham being floated that recommends the use of biometric chips on each person's Social Security card.

Ruthizer: I am actually supportive of that proposal. While Americans are accustomed to giving information, the fear is that we are going to have a national domestic passport with big brother watching our every move. The one addition that needs to be made is a means to control the flow of undocumented immigrants in the future. This really starts with the workplace. If we have a better handle on who is authorized to work and who is not, employers won't be caught in a difficult vise - fearing that they will be charged on the one hand with a discrimination suit for being too punctilious if they don't hire someone, and on the other hand with being too relaxed regarding the application of the employer sanctions laws. I think that a biometric identifier would be a massive project that would cost probably billions of dollars to implement over a period of years, requiring everyone who is authorized to work in the United States to obtain a new Social Security card, but the senators are correct in requiring this safeguard.

Editor: Will the chip make life more difficult for businesses?

Ruthizer: Actually, I think that it will make it much easier. Right now we advise a lot of employers on a regular basis as to their compliance under the 1986 IRCA employer sanctions laws and the regulations that implement them. The laws are very difficult to understand because there are so many different documents. Employers face certain questions on a day-in and day-out basis: have the documents expired but are they still valid? did they need to have photo ID's? is every Social Security card presented by an employee genuine? I think that ultimately it will be to every employer's advantage to be able to say: just show me your biometric Social Security card. It is important that the government be punctual in issuing the card and does so in a fair and efficient way.

Editor: What complementary enforcement mechanisms would be needed?

Ruthizer: The law is going to require increased penalties for the rogue employers who violate the employer's sanctions laws. In past years most employers have tried to follow in good faith the employer's sanctions laws. But some employers have tried to skirt those laws, often making a calculated business decision as to what the costs would be in terms of insubstantial fines, as compared with the benefit. By increasing the penalties employers are going to sit up and pay attention. It will be a much more orderly, airtight process than it is now where people are able to exploit the system and work without authorization - either with the employer's implicit knowledge or because the employer is prohibited from asking for certain documents to confirm that an individual is authorized to work.

Editor: Would the biometric card replace the current E-verify system?

Ruthizer: The E-verify system is a strange animal. It has been around as a pilot project for a number of years now, but only a handful of U.S. employers have signed on, mainly because they are operating in a handful of states that actually make it mandatory. The problem with the E-verify system is really twofold. One is that it has what I would consider to be an unacceptably high error rate. You have many cases of U.S. citizens being told that they are not work authorized, and, in fact, they are U.S. citizens, but there is no quick remedy to fix the problem. The other issue is that it is easy to game the E-verify system because there is no photographic identifier. If an individual obtains somebody else's Social Security number, an employer really would have no way of knowing that the person he thinks is John Smith is really not John Smith. The new system that Senators Schumer and Graham are proposing would effectively replace the E-verify system with a different system that requires the biometric Social Security card allowing for electronic verification so that employers can tell really instantaneously whether an individual worker is authorized to work or not.

Editor: It appears that such a proposal might get bipartisan support.

Ruthizer: There are groups that are opposed, such as the civil liberties groups or some individuals who are fearful of increased encroachment on individual liberty. By and large there is widespread support for this provision. It is fair to say that there is much less bipartisan support for those more generous provisions that would grant legalized status to the many undocumented immigrants who are currently in the U.S. Without all of these pieces being considered together, Congress is unlikely to approve a biometric identification system alone.

Editor: One of the reasons given for passage of the Arizona legislation was that the border is so poorly protected. What role do you see that playing in this debate?

Ruthizer: Some pundits are saying that this is going to increase the pressure on the federal government to step up enforcement along the border. While we have effectively militarized the border over the last five or six years, it really hasn't done very much to change the results. Others respond that the effect of the Arizona law is to crystallize the need for comprehensive reform at the federal level, including partly increasing border enforcement. But all the other components contained in the Schumer-Graham bills require more than just protecting the border - we need to deal with the large undocumented population, the future flow of immigrants and the thorny problem of temporary workers, which has long divided the business and labor communities in the U.S.

Editor: Do you mean by temporary workers, agricultural workers?

Ruthizer: Workers across the board. The hospitality industry is very much dependent on unskilled labor, much of which comes from outside the United States because Americans don't want to do those jobs. Even in a down economy we still have a number of fields, such as meat packing, where the domestic workforce has proved inadequate. There is a feeling within the business community that there is a need for more legal immigration both on the low end as well as on the high end of the employment spectrum.

Editor: The Schumer-Graham bill would also provide that all those receiving advanced degrees in the sciences would be automatically admitted as permanent residents.

Ruthizer: That is one of the interesting and very forward-thinking proposals. Individuals with graduate science, technical, engineering and mathematics degrees would be granted an automatic permanent residence status (green card). I would like to see some corresponding liberalization for other fields that are equally important. In recent news, the Harvard Business School announced that its new dean is an Indian national and a graduate of the Indian Institute of Technology who came to America as a graduate student to study for a doctorate in management from M.I.T. Under the Schumer-Graham proposal, such a person would not be a beneficiary of that generous provision, which is limited only to the technical fields. While I applaud that proposal, I would like to see recognition of the very high value of skilled and professional foreign nationals in a whole variety of fields, not just in the technical ones.

Editor: I assume this proposed legislation would obviate some of the difficulty with the strict limits imposed for the permanent resident and H-1B visas. What is the current quota?

Ruthizer: There are two kinds of quotas. One quota is for those seeking permanent residence (green cards) for which 140,000 are granted each year. This number includes all family members, so when you separate out the children and spouses, you are really talking about approximately 60 to 65 thousand principal applicants who qualify each year. The number is so inadequate to the task that you have nationals from high-supply countries such as India and China waiting seven to ten years or even longer under the current visa quotas. Then you also have a very significant quota limitation of 65,000 on the temporary professional visa status, the H-1B visa, which applies not only to technical, computer or scientific people but also to economists, teachers, accountants, lawyers and financial analysts, etc. That quota has not yet been filled for the next fiscal year because we are in a down economy. I concur with many who have argued for many years that there should not be a quota at all because the marketplace determines what the demand for those visas is. When the economy is booming, the demand increases exponentially, and when the economy slows down, there are fewer job openings and less H-1B demand. There are real problems not only with the permanent visas being inadequate but with the H-1B quotas being artificially low, particularly when we are not in a recession.

Editor: The Schumer-Graham bill has a tortuous procedure which the 12 million illegal immigrants have to undergo on the road to citizenship such as requiring registration, paying penalties and back taxes. Do you think this is a sensible requirement?

Ruthizer: There will be a number of religious and non-profit groups that will be assisting immigrants if such legislation passes in order to help them get through this process. The private bar, as it did in 1986, can help accommodate that need and not at an enormous legal cost. One of the problems that we found with the 1986 amnesty, the last one we have had, is that a lot of operations sprung up calling themselves "qualified designated entities" or QDE's under the law. Many were dishonest, charging enormous fees and providing substandard representations. We need to be careful that people are not taken advantage of by unscrupulous operators and that the system is not too difficult for people to navigate.

One other concern regarding amnesty over the years has been a fear, with some real justification, that those undocumented people who have been here without status are going to leap-frog over people who have been in the process of seeking citizenship for a number of years. One of the stipulations that Senators Schumer and Graham have laid out is that these people are going to have to go to the end of the queue. Secondly, we have to ensure that the immigration machinery is adequate so that the whole system doesn't shut down because we would then be servicing a population of enormous numbers, 11 or 12 million, instead of handling a million applications a year (the approximate number of people who come to the United States permanently each year).

Editor: Maybe you could explain the temporary worker situation.

Ruthizer: There are several schools of thought with regard to temporary workers. It includes not only agricultural workers, although they are certainly a very large component, but also lesser-skilled or, as some would say, "essential-skilled" workers such as hospital orderlies, home attendants, meat packers and roofers - people doing physically demanding work. There is a need for those workers. The issue has been: How do we treat those people? Can they come with family members? Do they have to come for a brief period and then return home. Or can there be a way in which they can eventually convert to a permanent resident status? What are the numbers that we are talking about? Who gets to make those determinations as to numbers?

There has been a very bitter debate between business groups and organized labor with organized labor in general not liking having temporary workers and business groups recognizing that there is a need to fill immediate voids in the workplace.

Under President George W. Bush's plan, temporary workers would have been permitted to come for two years without family members and then leave for a year before returning. My own view is that that program would have been terribly unfair. Temporary workers ought to have a mechanism whereby with proper controls they could apply ultimately to convert that status to a permanent status. They ought to be able to bring family members. Clearly this has to be very carefully thought out as a legislative scheme that doesn't flood the country with too many people taking jobs away from native-born Americans, depressing wages and possibly subjecting people to unscrupulous employers who pay substandard wages, while at the same time making sure that the labor needs of the country are met.

Editor: What is wrong with the current system?

Ruthizer: The current system is badly designed and should be overhauled, not having been changed since 1952. The numbers are inadequate for what the demand is. The main flaw is that there are virtually no visas created for lesser-skilled positions - there are five thousand visas a year to give out to those lesser-skilled categories. And there is a serious deficiency in the number of visas granted for highly skilled and educated workers. Some persons wait 20 or more years. Eighty-five percent of the visas are given to family members and only 15 percent to those who are employable.

Editor: Perhaps the time has come for a comprehensive study of this entire immigration picture.

Ruthizer: One of the hot button issues now is a commission, either to conduct a study or to act. The unions have come up with a badly flawed concept of a bipartisan commission, which may be unconstitutional, that would decide on who can enter and what categories are allowed. A commission studying the overall employment needs could be helpful, but I would be loathe to give that commission any authority, which I think more properly rests with Congress.

The union position traditionally has been that unless you can prove to me that there is a shortage of minimally qualified U.S. workers for a particular position, a foreign national should not be allowed to enter the United States. The business position has been to attract the best-qualified persons without having to establish shortages on a case-by-case basis.

Editor: Great Britain and Canada admit immigrants based on a point system whereas the U.S. relies heavily on a family-based system. How do you feel about the point system?

Ruthizer: The point system has run into severe political problems over the years. It has generally been dismissed as being very elitist in just accepting the crème de la crème of society. My view is that a point system if properly designed and fairly implemented would be a very good complement to the current system. Persons like the sushi chef should still be allowed into the U.S., but at the same time people with outstanding skills should be able to qualify on the basis of their credentials. Right now we have a category for people who are preeminent in their fields who are exempt from the labor certification test of showing uniqueness. But that is a very high standard. There should be a standard for many people between the Einsteins and the office building janitors that measures quality, but differently from the way the Labor Department now does, i.e., admitting someone for whom there is no minimally qualified U.S. worker for a job. I would like to see a point system tried as a pilot program, complemented by another employment-based system still to be developed.

Editor: Another area of needed reform relates to how employers may be sanctioned for failure to determine immigration status.

Ruthizer: Right now it is a real burden on employers because there is such a multiplicity of documents, and it is very hard for an employer to know what documents they should request or accept, and there is a danger if they ask for too many documents. If an employer receives a letter from the Social Security Administration that says you have 20 employees who have given you numbers that are not in their system, an employer is really on the spot. He must make inquiry and take steps to ask those persons to correct their records or he must terminate those individuals. An employer can well be sued if he decides to terminate the individual because there is other case law indicating the Social Security Administration's letter may not be accurate. The current system is a failure. We need to have a document that is going to be easy for employers to understand and to utilize.

Editor: We have discussed many of the elements of comprehensive immigration reform. Please summarize what constitutes such reform.

Ruthizer: There are several components in any good comprehensive immigration bill including a way to legalize the status of the 11 or 12 million unauthorized immigrants in the United States. It is just completely unhealthy to have split families where you have U.S. citizen children or spouses that may be permanent residents or citizens while one of the parents is unauthorized. Not only is it demoralizing to the individual, but it tends to drive down wages and lower working conditions. Even if we wanted to deport 11 or 12 million people, we don't have the resources or the heart to do that. We need a system that takes these people out of the shadows and gives them a lawful status. But this offer of amnesty should not have to be repeated in another few years, so we have to have a different enforcement mechanism that takes advantage of 21st century technology and that will regulate immigration at the worksite. That enforcement is much more effective than building a fence at the Mexican border. We must also recognize that the current law is inadequate because it doesn't provide enough visas. The categories are outmoded. We need to rethink the methodology as to how individuals should be able to qualify for resident status in the U.S. Those would be the main components of any immigration system that has a reasonable chance of success. I think that if it were presented to the American people with that common sense approach, they would respond favorably.

We should be finding ways to do what America has always done, and that is to attract the best and the brightest immigrants from around the world who want to be in the United States over any other country. We should use their skills and knowledge to advance our own economic and technological interests.

Editor: Do you look to accomplish a comprehensive immigration reform system by way of an act of Congress this term?

Ruthizer: The bill in order to pass and meet the standards we have discussed has to be passed as a package. I am guardedly hopeful, but I think it is going to be a very difficult challenge, particularly before the election. Depending on how the November election comes out, we have a much better chance either in a lame duck session or starting with the new Congress in 2011. The Republicans have yet to commit to it.

Please email the interviewee at truthizer@kramerlevin.com with questions about this interview.