May 2006 - Immigration Reform For The Construction Industry
By Jon Eric Garde, Esq.

Immigration reform has become a political tightrope upon which Congress must continue to wrestle after a two-week Easter recess. Through uncertain footing, a compromise immigration bill was brokered by Senators Chuck Hagel (R–Neb.) and Mel Martinez (R–Fla.), which was derailed by Democrats led by Minority leader Harry Reid (D–Nev.), who refused to vote on this compromise bill asserting these changes would unnecessarily limit the number of illegal immigrants who could secure legal status. A Senate bill, assuming one is passed, must walk the line through conference committee with the House of Representatives against the promise of Congressman Tom Tancredo (R-Colo.) that “No amnesty bill will pass the House so long as Republican leadership holds to its promise to block legislation that doesn’t command the support of the GOP majority.” 

Prior to this compromise bill, President Bush set forth policy objectives early in 2005: Secure the borders, strengthen the enforcement of immigration laws, and create a temporary guest worker program that does not provide amnesty. The President was adamant against granting unlawfully present temporary workers a procedural pathway towards legal residence, stating that this would draw additional illegal border crossings and reward those who have already violated immigration law.

Subsequently, many versions of immigration reform were created, introduced, amended, but never passed. All provided pathways for undocumented workers to obtain legal status

About four months ago, James Sensenbrenner (R-Wis.) introduced H.R. 4437, considered the most severely punitive immigration legislation in 80 years.

The bill, softened by the Senate Judiciary Committee would, in part:

• Create a process for undocumented immigrants to report themselves to the government, and earn temporary permission to stay in the U.S. if they satisfy certain criteria, including fines, work history, tax compliance, and English language acquisition. Eventually, immigrants could apply for permanent residence (a green card) that could be granted only once all those who have applied under current law have completed processing.
• Allow up to 400,000 work visas to be granted in order to fill jobs American employers cannot fill with the domestic labor market. The cap on this program would be adjusted annually based on labor market needs.
• Increase resources and personnel at the border, expands mandatory detention, and requires state and local law enforcement of immigration laws and expedited removal.
• Create an employer verification system with expanded penalties for non-complying employers.   

In turn, the Senate briefly overcame partisan divisions and reached a compromise agreement until a last minute arrest. What remains to be resuscitated of the Martinez-Hagel compromise bill are earned legalization for about 11 million undocumented immigrants and a guest worker program. Individuals present in the U.S. for more than five years prior to April 5, 2001 would be eligible to apply for permanent residence and eventually citizenship after about 12 years. This path would entail at least 6 years of continuous prospective employment, a clean background check, proficiency in English and payment of substantial fines and all back taxes.

Those in the U.S. for less than five years but before January 7, 2004 would have to depart the country within the first three years and return to a port of entry to apply for readmission as immigrants based on legally valid family-based relationships, or as temporary workers with “H-2C” status. This group could apply for green cards after about eight to 10 years and for citizenship after about 13–15 years.

A third category comprised of those that entered after January 7, 2004 would have to depart the U.S. This group would remain eligible to apply under the H-2C guest worker program from their home countries with a valid employment offer from an employer who demonstrated to the Department of Labor payment of prevailing wages and that suitable U.S. workers were unavailable.

A bill that provides undocumented workers a path to permanent status tackles business concerns about sustaining a stable labor force. This is particularly true for industries that are characterized by seasonal workload and that rely heavily on low-skilled foreign workers such as construction labor, landscaping, agriculture, restaurant, hospitality, nursing homes, meatpacking and processing.

While detractors are predisposed to label the proposed legislation a veiled amnesty, they also fail to address the stark reality that people will not voluntarily return home and will, in all probability, go underground again once temporary status is expired. Prospective beneficiaries would hesitate to avail themselves of temporary status accompanied by heightened worksite enforcement against employers and expedited removal provisions, as the beneficiaries of such legal status would be easily identified and targeted for removal once their temporary status has lapsed.

For this reason, business leaders object to an amendment to the bill by Senate Finance Committee Chairman Charles Grassley (R-Iowa) requiring all U.S. employers to use an electronic verification system to confirm the eligibility of newly hired workers. The internet-based process is seen to provide either a confirmation or non-confirmation notice within 3 days after an employer submits a name. In case of non-confirmation, the worker is given two weeks to resolve the problem or be terminated. 5,000 companies are now included in a voluntary version of this system in operation since 1996. The program reportedly ran 662,000 in the past 6 months, with about 21,000 necessitating a second manual check. The test would expand the pilot to roughly 7 million employers nationwide, with ominous repercussions to business in anticipation of 100s of thousands of non-confirmations.

The overwhelming majority of falsely documented persons are hardworking family breadwinners and taxpayers (many with US citizen family members), comprising millions who live peaceably among us, yet who provide a sea of anonymity for a proportionately few number of sharks to hide until ready to strike. A huge number of falsely documented workers conceal a proportionately few terrorists, who are a monumental security threat. We must drain the sea to catch the sharks!  Failure to do so compares to a ticking time bomb.

The only way to drain the sea of falsely documented workers is to permit unlawfully present taxpayers and their families to remain in the communities they call home. The economy should continue to benefit from their contributions of hard work and tax revenues, viable families must remain in tact, U.S. citizen spouse and children must not be driven to welfare, and more importantly, falsely documented workers must become legally documented by offering the goal of permanent residence so as to enable our government to locate and corner those now hiding among us, meaning to do harm. Sizeable application fees could be charged and would be gratefully paid by intending U.S. citizens who know the value of the American dream, raising funds for additional border fortification. However, mass removal of undocumented workers would diminish a sizeable payroll tax base presently available for security expenditures.

Ironically, national security can only be realized by offering immigration benefits to those living unlawfully among us. Continued delay in building consensus between immigration and security advocates can only serve to compromise the constitutional rights of many Americans under the misguided banner of national security in a manner that only Osama Bin Laden could have intended.

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Jon Eric Garde, Esq., a member of the Nevada and New York State Bar Associations and of American Immigration Lawyers Association, has been practicing immigration law since 1992, and has worked with immigrant’s rights organizations as a volunteer since 1981. For inquiries, contact (702) 898-9540, by email, 4justice@jeglaw.com, or visit website at www.immigrationjeglaw.com for a consultation.