Copland and Brenner

Table of Contents

1. Comprehensive Immigration Reform: In Stealth Mode?

1. Comprehensive Immigration Reform: In Stealth Mode?

   Over the past few weeks - minus a few short days devoted to the so-called “beer summit” at the White House - the media’s attention on Washington has largely focused upon the Administration’s push for health care reform. This might suggest that the battle for, and about, immigration reform has faded. Though the media has not been paying much attention, a number of stakeholders have recently put forth their priorities and positions on a range of issues. With certain exceptions, a consensus appears to be building that two sets of priorities must co-exist, and employment issues are at their center. First, many now agree that comprehensive reform requires that U.S. immigration laws be enforced and illegal immigration restricted, and that the primary means of doing this involves enforcement of laws against unauthorized employment. Second, many agree that opportunities for lawful employment-based immigration, based upon the needs of U.S. businesses, must be developed. The devil, as always, is in the details.

   On the enforcement side, the Department of Homeland Security (“DHS”) issued a press release on July 8 stating it will propose “a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect.” That same day, DHS Secretary Janet Napolitano voiced support for a regulation to award federal contracts only to employers who participate in the E-Verify program. As we previously reported, that rule will go into effect on September 8.

   As is typical in Washington, there are strong views on both sides regarding mandated participation in E-Verify. Critics point to problems with mismatches that wrongly indicate a worker is not authorized for employment, while others believe E-Verify should be expanded to cover all employers. For example, a July 7 entry on the Leadership Blog of the American Immigration Lawyers Association (“AILA”) criticized Senator Jeff Sessions (R-AL) for introducing an E-Verify amendment in the fiscal year 2010 DHS appropriations bill (HR 2892). The AILA blog refers to Senator Sessions as being “in ‘stealth’ mode,’” states that he “slyly introduced an E-Verify amendment” during the full Senate vote on the DHS appropriations bill, and terms his actions a “sneak attack.”

   According to AILA, the Sessions amendment, No. 1371, “calls for a permanent reauthorization of the Basic Pilot/E-Verify program, and mandates its use for all federal contractors and subcontractors - including the verification of all existing employees. This amounts to a massive expansion of a program that is still not ready for prime-time.” (emphasis in original) It “would impose exorbitant costs on businesses at a time when our economy is most vulnerable,” would not address “its well documented database inaccuracies,” and “would force workers and businesses to pay a high price” for those inaccuracies. The blog closes by stating “Don’t let Senator Session’s stealth tactics create a nationwide crisis for employers!”

   However, in expressing that opinion, the AILA blog cites an outdated (2007) evaluation regarding E-Verify’s inaccuracy rate. The blog also acknowledges that the nearly 13 per cent of Intel’s employees “initially flagged as unauthorized for employment” in 2008 were all actually cleared as being authorized to work – albeit after “significant investment of time and money” and “lost productivity” which is not quantified.

   In faulting E-Verify, the AILA blog also states that the Social Security Administration (“SSA”) “has estimated that if Basic Pilot/E-Verify were to become mandatory and the databases were not improved, SSA database errors alone could result in 3.6 million workers a year being misidentified as not authorized for employment. This would result in 6 out of every 100 workers having to visit an SSA office to correct their records or lose their job.” This is not an argument against E-Verify so much as an indication that the SSA database must be made to reflect accurate information upon which both employers and employees can rely.

   Oppose or agree, the Sessions amendment, along with four others, was added to HR 2892, which was easily passed on July 9 by a vote of 84 – 6. The Senate bill must next be reconciled with that of the House of Representatives, which was passed on June 24, and includes a two-year extension of E-Verify. The House commenced its August recess on August 3, and the Senate recess begins August 10. The 111th Congress will return to Washington on September 8, with appropriations bills enacted or stopgap funding required to continue government operations upon the commencement of FY2010 on October 1.

   E-Verify, like any other government program, is not without its problems. The most egregious involve unresolved erroneous mismatches, which have been greatly diminished (though admittedly not eliminated). Many erroneous results involved records that had not previously been updated to reflect that a former non-citizen had become a U.S. citizen. As explained in the July 8 DHS release, “[i]n May 2008, DHS added access to naturalization database records which increased the program’s ability to automatically verify naturalized citizens’ status, reducing citizenship-related mismatches by 39 percent. Additionally, in February 2009, the agency incorporated Department of State passport data in the E-Verify process to reduce mismatches among foreign-born citizens.” Thus, “Westat, an independent research firm, found that 96.9 percent of all queries run through E-Verify are automatically confirmed work-authorized within 24 hours.”

   Contrary to the position in the AILA blog, the fact that the current E-Verify system does not afford employers any opportunity to verify the employment authorization of current employees – but only new hires – may be viewed as a major shortcoming. In our experience, employers often become aware of possible problems with an employee’s work authorization only through a no-match letter from the SSA. Despite their willingness to comply with I-9 mandates, employers may face difficult choices in resolving such issues because of concerns that an authorized worker might pursue litigation alleging discrimination.

   On July 8, the Council on Foreign Relations released its Independent Task Force Report on U.S. Immigration Policy (“Report”). The Report calls employer enforcement “‘the single most effective and humane enforcement tool available to discourage illegal migration.’” In its news release, the Task Force stated that it “supports a mandatory system for verifying those who are authorized to work in the United States, including a workable and reliable biometric verification system with secure documents. Tougher penalties should be levied against those who refuse to comply.”

   As to developing opportunities for lawful employment-based immigration, the Report states that “[o]ne in four engineering and technology companies established in the United States between 1995 and 2005 had an immigrant founder.” Further, “continuing to attract highly skilled immigrants is critical to the competitiveness of the U.S. economy, and to America’s ability to remain the world’s leader in innovation. The United States must open its doors more widely to such people.” (emphasis in original)

   The Small Business Administration, Office of Advocacy, also released a report in July, (High-tech Immigrant Entrepreneurship in the United States). As stated in its executive summary, the SBA surveyed “a nationally representative sample of rapidly growing high-impact, high-tech companies” concerning the links between technology-based economic development and immigration. The SBA found that:

   - about 16% of the companies had at least one foreign-born person among their founding teams
   - “immigrants play a crucial role in this vital economic activity”
   - two-thirds of them earned college degrees in the U.S.A.
   - high-tech immigrant entrepreneurs “are strongly rooted” in the U.S.A.; more than three-quarters are U.S. citizens and have lived in the U.S.A. for over two decades
   - they “hail from 54 countries in all regions of the world,” with India the largest source country (16%), followed by the United Kingdom (10%)
   - “[i]mmigration policy, as it affects highly educated and highly experienced foreign-born individuals who might be drawn into high-tech entrepreneurship, is an important element of” sustaining “a healthy climate for starting and running high-impact, high-tech companies”

   Immigrant advocacy organizations, including AILA, must recognize that E-Verify is not the enemy. The program is perhaps the only means of addressing the inexorable truth that the opportunity for work is the major impetus behind illegal immigration. Workplace abuses – including employer failure to comply with I-9 employment verification requirements, H-1B obligations, and other mandates – drive down wages, lower tax revenues, sour public opinion, and ultimately provide fodder for talking heads and legislators to vilify the immigrant community.

   All told, with respect to enforcement of employer obligations to verify employee work authorization, it is time for a do-over. We have reported on several occasions about the difficulties U.S. employers face in maintaining even basic awareness of changes to the form and the documents workers may present. Similarly confounding are ameliorative provisions that have historically reduced employer culpability for I-9 violations. These include defenses of good faith and substantial compliance, as well as a non-enforcement policy by immigration authorities that was in place for some ten years due to the agency’s failure to update Form I-9 to comport with statutory and regulatory changes a decade earlier. The resulting patchwork of employer obligations and liabilities over time presents real problems in terms of penalties that should fairly follow enforcement efforts. Adding to these issues is employer concern regarding prospects for lawsuits involving claims of discrimination as noted above.

   Employer enforcement is not the only tool in the enforcement arsenal, but it is a primary one, as noted in the Report cited above. Incentives to illegally enter the U.S.A. for work purposes can be stopped only if all employers are obligated to verify the employment authorization of all employees, and are provided the tools to accomplish this – including a meaningful and timely means of addressing government “database inaccuracies” that protects the employer. Requiring mandatory E-Verify participation by all employers, for all employees, is perhaps the only way to establish a firm set of rules, using tools that were simply unavailable when the Immigration Reform and Control Act of 1986 (“IRCA”) was enacted.

   If employers are to be held accountable, the government should be accountable as well. DHS must clean up Form I-9, which could – and should – be much more user-friendly. Likewise, the Handbook for Employers must be overhauled. Government agencies – specifically, DHS and the SSA – must be accountable for maintaining accurate databases. In addition, if third parties are authorized to conduct the I-9 verification process (such as those currently permitted to do so under the E-Verify Program Designated Agent Process), third party participation requirements must be stringent, and liability must be joint and several between agent and employer so that neither can use the other as a foil.

   With ongoing enforcement efforts, the Obama Administration is disappointing some of its supporters. As reported in The New York Times on August 4, “[a] recent blitz of measures has antagonized immigrant groups and many of Mr. Obama’s Hispanic supporters, who have opened a national campaign against them.”

   Department of Homeland Security Secretary Janet Napolitano is quoted in the article as stating that “[w]e are expanding enforcement, but I think in the right way.” She and others in the Administration “argue that no-nonsense immigration enforcement is necessary to persuade American voters to accept legislation that would give legal status to millions of illegal immigrants, a measure they say Mr. Obama still hopes to advance late this year or early next.”