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April 21, 2014

Inside Immigration Reform: How Do You Fix a Broken Immigration System so Everyone Plays By the Rules?

It was Tuesday, January 29, 2013, I find myself rushing to the airport to catch my flight back to DC, and I’m thinking about how the last immigration bill had died on the Senate floor in 2007. The feeling of defeat rushes back; we worked so hard to educate the Congressional staffers, work out the technical details, and reach a consensus. Things will be different this time. Desperately, I check my iPhone and log in to my laptop at the same time, trying to find exactly what President Obama announced in Las Vegas hours earlier. While reading the President’s plan on the tiny screen, I find myself simultaneously listening to the video of the announcement, tweeting, posting the White House blog, and skimming through the Fact Sheets.

No – I’m not driving, but rather smiling in the back of a taxi reading President’s Obama’s speech:

“We need Congress to act on a comprehensive approach that finally deals with the 11 million undocumented immigrants who are in this country right now…. The good news is that – for the first time in many years – Republicans and Democrats seem ready to tackle this problem together. Members of both parties, in both chambers, are actively working on a solution.”

By the time I reach the office, the next morning, I have already spoken to government contacts who wonder about “the right people” to bring into the agencies to assist with the enormous tasks ahead. Certain that immigration reform will happen, they are already discussing implementation. Everyone has a plan or needs one it seems; DOJ, ICE, USCIS. Thrilling! In between catching up on an I-9 ICE investigation (Yes-the Form I-9 Inspection will continue during the reform process), I digest Obama’s plan and its four main tenants::

How Do You Fix a Broken Immigration System so Everyone Plays By the Rules?

  • Continuing to Strengthen Border Security
  • Cracking Down on Employers Hiring Undocumented Workers
  • Earning Citizenship
  • Streamlining Legal Immigration

I read the sections on enforcement, including the requirement of all employers to use a mandatory, phased in electronic employment verification, and note the small business exemptions. The voice of my favorite client, who works in a certain heavily unskilled labor industry, echoes in my head asking how his national company will compete with those small guys with a truck who are not being forced to use E-Verify. I formulate a careful response to him, noting that I need to come up with something better before he actually calls, and I dig into the Proposal further. The President recognizes it’s not always simple for employers to ensure their workforces are legal and notes that the Proposal relies on the use of the electronic system.

Refreshing! However, I am curious to know why E-Verify is not mentioned by name and I wonder if something new is in the works. Not surprisingly, a fraud‐resistant, tamper‐resistant Social Security card is contemplated requiring workers to use fraud‐ and tamper‐resistant documents to prove authorization to work in the United States. The proposal seeks to establish a voluntary pilot program to evaluate new methods to authenticate identity and combat identity theft. I’m excited as I see that the SecureID concept was making headway.

Not surprisingly, the President notes that egregious employers will be hit with increased penalties for hiring undocumented workers, and new penalties are being created for committing fraud and identity theft. Clearly the Administration realizes that the cost of doing business needs to be very high if you wish to deter a company that otherwise may risk skirting the law if it determines the penalties will not outweigh financial gain.

I welcome the new resources identified to combat fraud. The White House Fact Sheet notes that the “President’s proposal authorizes funding to enable DHS, the Department of State, and other relevant federal agencies to establish fraud prevention programs that will provide training for adjudicators, allow regular audits of applications to identify patterns of fraud and abuse, and incorporate other proven fraud prevention measures.”

Other exciting parts of the Proposal include creating a “startup visa” for job-creating entrepreneurs who attract financing from U.S. investors or revenue from U.S. customers to start and grow their businesses in the United States. They will be allowed to remain permanently if their companies grow further, create jobs for American workers, and strengthen our economy. Now that’s innovation. I think this solution to “brain drain” is brilliant: “Staple” a green card to the passports of those foreign students that are awarded advanced STEM diplomas. By encouraging foreign graduate students educated in the United States to stay here and contribute to our economy and, simultaneously, ensure employers pay a fee that will support education and training to grow the next generation of American workers in STEM careers, the idea tries to address anticipated concerns. By the way, whoever thought of the “stapling” idea from the Administration deserves a shout out.

Since I can’t cover everything here, I’ll point those of you interested in the EB-5 program to IIUSA’s Legislative Update: Prospects for Immigration, and EB-5 Program, Reform. For more on the specifics go to Fixing our Broken Immigration System so Everyone Plays by the Rules.

I would be remiss if I didn’t mention that President Obama’s plan comes on the heels of the announcement by a bipartisan group of senators for comprehensive immigration reform.

Offering the framework for the Senate’s plan is the Gang of Eight. According to the newspapers, the most controversial portion of the proposal is the route to citizenship for those now residing in the United States without documentation. Under the Senate’s proposal, undocumented immigrants with clean criminal records would have the ability under the proposal to achieve “probationary” legal residency after paying a fine and back taxes. The proposal provides that undocumented individuals achieving probationary status could pursue full U.S. citizenship after measures are in place to prevent a future influx of illegal immigrants, including increased border security, developing a “tough, fair, effective and mandatory employment verification system” for employers to verify the legal status of their workforce, and more rigorous checks to prevent immigrants from overstaying visas while in the U.S. The proposal envisions creating a commission of governors, law enforcement officials, and community leaders from border states that would assess when border security measures have been implemented.

What caught my eye in this section (and was noticed by Senior Policy Advisor - Office for Civil Rights & Civil Liberties, DHS, Bruce Friedman in a Linkedin group discussion on immigration compliance) was the language used in the proposal:

“We believe requiring prospective workers to demonstrate both legal status and identity, through non-forgeable electronic means prior to obtaining employment, is essential to an employee verification system.”

Prospective? Prior to employment? Are we talking about changing one of the core components of the anti-discrimination provisions of IRCA, no prescreening? National identity cards? I digress; we will dissect the overhaul of the U.S. immigration system and the technical practicalities verses the realities of implementation as the parties move this down the field.

Back to the Senate’s plan, while largely similar, the two proposals enjoy differences - President Obama’s plan provides for a path to citizenship for undocumented aliens that is based solely on immigrants meeting specific requirements while the Senate’s plan makes the path to legal status attainable only after measures are in place to prevent a future influx of illegal immigrants. The President’s plan also does not offer a temporary guest worker program. In a statement, Senator McCain said America “cannot continue as a nation with 11 million people residing in the shadows, and we have to address the issue and it has to be done in a bipartisan manner.” President Obama stated that he would not propose his own immigration reform bill unless Congress is unable to come up with a bill by the summer, noting that the process should be a bipartisan one. He did warn he would move forward should Congress not act in a timely manner.

This is the time for everyone to take part in the conversation. The responsibility to “get it right” is a shared one. Employers, and the American public as a whole, must work together with Congress and the President to find reasonable ground on which to meet According to a USA Today article, a White House statement noted that the President is moving forward quickly with his agenda and will meet tomorrow at the White House “with labor leaders and progressive leaders, as well as a number of CEOs from across industries, to discuss his commitment to getting a bipartisan bill passed in 2013, and how immigration reform fits within his broader agenda for economic growth and competitiveness.

Copyright © 2014, Sheppard Mullin Richter & Hampton LLP.

About the Author

The Immigration and Compliance practice combines the legal talents of a respected team and the international resources of a top tier AM Law100 law firm.  With an international footprint that includes offices in key cities as well as global alliances, we provide companies and entrepreneurs with solution driven, innovative and cost-effective strategies.  Working with multinational corporations, national, regional and local employers, start-up ventures, educational institutions and private individuals, we understand that each circumstance is unique and that each circumstance...

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