Immigration Will Continue to be in a State of Flux in 2008

Because it is unlikely that Congress will enact comprehensive immigration reform legislation before the end of the year, 2008 will be a year of continuing turmoil in the immigration arena. Employers will face the prospect of increasing enforcement efforts that may culminate in higher civil money penalties and/or criminal sanctions. In the Spring, the Social Security Administration will begin sending out mis-match letters based upon 2007 W-2 returns, which will cause widespread confusion and unrest in the labor market. At the same time, however, it is likely that little will be done to remove the millions of illegal aliens already present in this country, so they will continue to be a burden upon public resources and systems. Unless there is relief for the legal immigration system, there will be growing backlogs of visa applicants and even greater processing delays for temporary and permanent residence.

On October 10th, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking implementation of the Department of Homeland Security ("DHS") rule that would use Social Security mis-match records as a tool for immigration enforcement starting this year. The practical effect of the preliminary injunction is twofold in that DHS is prevented from sending the 2007 SSA mis-match letters it intended to send out starting September 4th and that it also prohibits further implementation of the mis-match rule until the court issues a decision on whether or not the rule was properly promulgated.

While this is very good news for the estimated 140,000 employers who were about to receive the mis-match letter, all employers should continue to monitor this situation. Even if the government loses the case on the merits, it is more than likely that DHS will seek to republish its final rule following the instructions it will receive from the Court in its ruling on the merits.

Regardless of whether the final mis-match rule will come into effect as is or in a republished format after the U.S. District Court for the Northern District of California rules on the merits of the case before it, employers, especially those in a high-risk industry (agriculture, construction, hospitality, textiles, manufacturing, food processing, or critical infrastructure), should anticipate a very tight labor market soon after the final rule becomes effective. Thus, those employers that expect to receive mis-match letters in 2008 should consider ramping up recruitment and hiring efforts to replace workers who will need to be terminated if they cannot cure a mismatch problem. Similarly, employers with a seasonal need for more workers in the Spring and Summer should begin thinking about steps they will need to take to recruit and hire legal workers. Employers may want to consider alternative staffing arrangements through staffing companies and temp agencies. Employers that anticipate receiving a mismatch letter in 2008 may wish to begin ramping up recruitment efforts now to replace those workers who quit when notified of a mismatch error.

For decades, illegal immigration has been dismissed as a federal problem, and the standard response has been a call for increased border enforcement. Compounding the border problem is that there historically has been almost no attention paid to enforcement at worksites within the United States. Congress's inability to pass the Comprehensive Immigration Reform Act of 2007 has been well publicized and as a response to the lack of comprehensive legislation, we have most recently witnessed Immigration and Customs Enforcement’s ("ICE") and DHS’ increased enforcement actions. However, these increased enforcement actions to remove illegal workers, without the backing of an encompassing immigration reform bill, have not demonstrably improved national security.

The Center for Immigration Studies estimated that the cost of the illegal immigration presence in the U.S. to the federal government was roughly $10 billion in 2002, even after accounting for taxes paid by illegal aliens. These costs are primarily for Medicaid, healthcare for the uninsured, food assistance, the prison and court systems, and education funding. However, the federal government has gained very little traction in dealing with the problem.

In the recent months we have witnessed numerous initiatives by states and local authorities across the nation to step in where the federal government left off to deal with the illegal immigration problem. It is interesting to note though that states and localities began enacting immigration legislation even before this most recent failure. In some places, punitive laws based on misconceptions about immigrants have been enacted, while other localities are taking constructive approaches to integrate immigrants into their communities. Without federal reform, both punitive and constructive measures are likely to grow, creating a maze of local legislation.

A comprehensive approach that creates legal avenues for immigrants to live and work in the United States combined with tough but humane border security and law enforcement-including employer sanctions for bad actors who continue to skirt the law or abuse workers-is the most viable solution for security and economic growth. It is also a solution that honors the oft-stated, if not always fulfilled, vision of America as a melting pot that welcomes and protects immigrants.

A comprehensive reform does not necessarily equate general amnesty. What comprehensive reform may accomplish however, is that several of the serious problems as identified by the Citizenship and Immigration Services Ombudsman, which includes the complexity of the immigration process, backlogs, processing times, customer service, untimely processing and systematic problems with employment-based green card applications, name checks and other security checks, lack of standardization*, and so on, and so forth, can be addressed so as to streamline the process and so as to make the process more transparent.

As of now, with the enforcement-only approach immigrant workers and their employers, in particular in industries that heavily rely on undocumented workers, such as agriculture, hospitality, and construction, are faced with a colossal road block. On the one hand, undocumented foreign national workers are unable to apply for legal status because no paths to legal status are available to them under the current system; while on the other hand, employers, who rely in significant part on undocumented or illegal immigrant labor, cannot find legal workers because no employment visas exist for such workers. Should an enforcement-only approach prevail, then it is likely that a national labor shortage may occur. The labor shortages in the affected industries would result in increased costs, strains and delays on local businesses as well as the community overall.

The fact that the country is already facing a shortage in skilled workers was evidenced earlier this year by the fact that the H-1B cap for the fiscal year of 2008 was reached this year on the second day of filing, on April 2, 2007. This entails that companies now must wait until April 1, 2008, to seek federal permission to bring in new foreign professionals, and must then wait another six (6) months, until October 2008 to do so.

At the same time, as the European Union cracked open its doors for skilled workers this past week, the U.S. Senate voted to approve a $3,500 fee increase for U.S. companies bringing them to America. The Senate approved the measure last week, the same day the European Union announced a new "Blue Card" plan to issue temporary work visas to well educated foreign professionals.
Given the existing shortage of skilled workers in the U.S., add to this the fact that the European plan seeks to reverse a trend in which skilled migrants from developing countries are choosing the United States over Europe and draw an additional 20 million workers from Asia, Africa and Latin America in the next two decades, and finally consider that several industries in our nation do heavily rely on undocumented workers, an enforcement-only legislation is not the answer. Congress needs to resume negotiations of comprehensive reforms that will secure our nations future by creating clear paths to lawful residence, providing new worker programs, eliminating backlogs in family and employment-based immigration, assuring due process and protection of civil liberties while safeguarding our national security interests.

If we act now we can shape immigration reform and develop our economic growth rather than having to react to what other entities have set in motion.

__________________________________________________________________________________

* Citizenship and Immigration Services Ombudsman Annual Report 2007 June 11, 2007

Ian R. MacDonald is a partner in Fisher & Phillips LLP, an Atlanta-based law firm representing employers across the nation. Ian focuses on business immigration matters for the Firm’s clients. Feel free to contact him at imacdonald@laborlawyers.com or at 404.240.4299 for more information.

Editor: Marianne M. Lawhead (mlawhead@sheastokes.com) (This publication is the property of the Atlanta Association of Legal Administrators. Reproduction or reprint without prior permission is strictly prohibited. Click here to request reprint permission.)

Designed/Distributed By