In the dysfunctional world that has become the nation’s capital, something as rare as a unicorn racing across the National Mall has appeared—lawmakers on both sides of the aisle calling for agreement on comprehensive immigration reform.
On Jan. 28, 2013, a bipartisan group of eight senators announced the framework of their legislative direction with four pillars:
“Create a tough but fair path to citizenship for unauthorized immigrants living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required.
“Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families.
“Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers.
“Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.”
President Barack Obama urged Congress to act quickly, traveling to Las Vegas to reiterate his support of comprehensive reform on Jan. 29, 2013, at Del Sol High School.
“Most Americans agree that it’s time to fix a system that’s been broken for way too long. I’m here because business leaders, faith leaders, labor leaders, law enforcement and leaders from both parties are coming together to say now is the time to find a better way to welcome the striving, hopeful immigrants who still see America as the land of opportunity,” Obama remarked.
“Now is the time to do this so we can strengthen our economy and strengthen our country’s future.”
Obama outlined four of his priorities in immigration reform.
“First, I believe we need to stay focused on enforcement,” he noted. “To be fair, most businesses want to do the right thing, but a lot of them have a hard time figuring out who’s here legally, who’s not. So we need to implement a national system that allows businesses to quickly and accurately verify someone’s employment status. And if they still knowingly hire undocumented workers, then we need to ramp up the penalties.
“Second, we have to deal with the 11 million individuals who are here illegally. We all agree that these men and women should have to earn their way to citizenship. But for comprehensive immigration reform to work, it must be clear from the outset that there is a pathway to citizenship.”
The third principle, he explained, “is we’ve got to bring our legal immigration system into the 21st century because it no longer reflects the realities of our time. For example, if you are a citizen, you shouldn’t have to wait years before your family is able to join you in America.”
And he added, “If you’re a foreign student who wants to pursue a career in science or technology, or a foreign entrepreneur who wants to start a business with the backing of American investors, we should help you do that here.”
No Pain, No Gain
So, what does all the new energy mean for employers and HR?
So far, there aren’t that many specifics, according to Ian Macdonald, an attorney with Littler Mendelson in Atlanta.
Expect more H-1B and other visas, but at higher fees, Jorge Lopez, a Littler attorney in its Miami office, told SHRM Online.
If a large group of people are legalized to work, that will go hand in hand with increased enforcement, Macdonald said. Visa fees won’t be the only thing hiked, he predicted. Penalties for noncompliance likely will be raised as well.
Out from the Middle Ages
But business groups were encouraged by the calls for reform.
Lynn Shotwell, executive director of the American Council on International Personnel (ACIP), an affiliate of the Society for Human Resource Management, called the employment-based immigration system “outdated” and said that it “must be reformed” for employers to keep up with global competition. “From work authorization to visa processing, U.S. employers need reliability, and they need an immigration system that works,” continued Shotwell. “We are happy to see the bipartisan principles released this week, and we look forward to working with all stakeholders on enacting meaningful reforms this year.”
“America’s employers need a fail-safe system for verifying the workers they hire are indeed work authorized,” said Michael Aitken, SHRM vice president of government affairs. “We are pleased policymakers intend to create a more secure system that prevents against identity fraud.”
Perhaps most outdated of all is the laborious I-9 system. Lopez said unions oppose making E-Verify mandatory for employers and will push back against proposals for electronic verification because “the undocumented workforce is a gravy train” for recruiting members.
And employers are unlikely to want to go through the time and expense of using E-Verify for existing employees, a proposal Macdonald said is unlikely to pass. More likely, if immigration reform passes, E-Verify will be required for new employees without mandatory verification of existing workers already vetted with I-9s, he said.
If made mandatory for new employees, Lopez said E-Verify and I-9s initially might both be required (as they now are for employers who volunteer to participate in the E-Verify program), with I-9s gradually phased out.
Immigration attorneys also applauded the call for meaningful reform. The American Immigration Lawyers Association (AILA) highlighted several employment-related proposals, including:
Eliminating long wait times for employers and prospective employees by reducing backlogs and adding visas.
Granting green cards to graduates in science, technology, engineering and math fields, creating a “startup visa” for job-creating entrepreneurs, and expanding opportunities for investors contributing to U.S. economic development.
Expediting an opportunity for DREAMers to earn their citizenship.
“I was moved by the passion in the president’s speech today. He reminded us that most of ‘us’ were once ‘them,’” remarked Laura Lichter, president of AILA.
And They’re Off!
The clock is already running on legislative efforts, Macdonald said. He predicted the Senate will be able to pass bipartisan legislation, but comprehensive reforms risk falling apart or unraveling into piecemeal legislation in the House.
If comprehensive immigration reform isn’t achieved by this time next year, he predicted, midterm congressional elections will start to loom and the opportunity for real change may be lost.
Allen Smith, J.D., is manager, workplace law content, for SHRM. Follow him on Twitter @SHRMlegaleditor.