Congressional update presents little forward movement in debate

Although immigration reform discussions have continued throughout Congress in the first half of 2008, no forward movement has been visible. Following a Senate vote in late October 2007 in which it received only 52 of the necessary 60 votes to move the act to consideration, the DREAM ACT remains on the sidelines in Congress. It has been stated by Democratic leadership that the act, which aimed to provide children of illegal immigrants an opportunity for U.S. citizenship by attending college or entering the military, is unlikely to receive further consideration until 2009. Some in the party, however, have tied this issue to H-1B visa reform discussions stating that they would be unwilling to consider any changes to the H-1B program until the DREAM Act is passed. By linking to the highly publicized H-1B issue, the possibility does exist that consideration will resume prior to the 2009 time frame previously cited.

In the aftermath of last year’s failed Comprehensive Immigration Reform bill, proponents of increased enforcement have introduced two acts, the Secure America through Verification and Enforcement Act, HR4088 (SAVE) and the New Employee Verification Act, HR 5515 (NEVA). Unfortunately, both of these proposals lack solutions for a guest worker program or path to legalization for current undocumented immigrants.

The SAVE Act outlines an enforcement agenda much like the immigration bill of 2007; however, many feel that these measures will have little impact on the number of undocumented workers employed in the U.S. The legislation includes mounting the Department of Homeland Security’s (DHS) E-Verify program into a mandatory program for all U.S. employers. In partnership with E-Verify, the Social Security Administration’s (SSA) “No-Match” program would also be implemented although the SSA has experienced numerous challenges with their database. The Act includes increased sanctions for employers and undocumented immigrants along with a greater role of law enforcement in immigration matters.

The controversy over the SAVE Act resulted in a discharge petition filed in March. The petition needs 218 signatures backing it to be acted on; supporters have secured 181 signatures so far. If the total number of signatures is reached the bill will immediately be pushed to the floor, forcing the issue into the spotlight.
 

The NEVA Act has been dubbed as an alternative to the SAVE Act, with a similar focus on enforcement but not a direct link to E-Verify. However, NEVA will depend on the same SSA database, meaning it will wrestle with the same flaws impacting the SAVE Act. In fact, the Act requires the SSA to administer the verification of new hires stretching their already thin resources even further. The NEVA act also does not fully protect individuals’ private information, major privacy and accuracy concerns have risen from the new electronic employment verification system (EEVS) the Act proposes. The NEVA Act was introduced on February 28. Though it has recently been the focus of discussions at hearings, there is no vote scheduled.

Neither of these two alternatives presents a pro-immigration solution and many leaders seem to be holding off on any significant discussions until the Presidential election has been completed hopefully creating a bi-partisan environment conducive to reform.

Likely presidential candidates both support reform

Now that the prospective Presidential nominees have been identified, Comprehensive Immigration Reform is likely to once again become a key topic of discussion in the months leading up to the election. Sen. John McCain and Sen. Barack Obama have each sponsored reform initiatives including the Dream Act and Sen. McCain was also a co-sponsor of the Comprehensive Immigration Reform Act of 2006. Citing the issue as critical focus area for the next President of the United States, both have prioritized border security as a first measure in reform and support a path to legalization for undocumented immigrants including learning English and paying applicable fines. Both candidates also support guest worker programs but have keyed on different aspects of the issue. Sen. McCain has cited the need for employers to further prove that a position cannot be filled by an American citizen where as Sen. Obama would like to see residency for immigrant workers less dependent on employers and more focused on family unity.

As the election season heats up, discussions are likely to lead the candidates into further details regarding their overall plan for the issue of reform. After leaving the topic out of discussion for months as he regained momentum that eventually brought him to the forefront of Republican candidates, Sen. McCain has recently begun to touch on immigration reform in a bit more detail. During a stop in the Silicon Valley in late May, Sen. McCain once again prioritized reform on his agenda and said that he would expand visa for immigrants at the same time he would propose legislation aimed to reduce illegal immigration. This is a move away from his stance cited in recent months that border security had to be addressed before any discussion regarding undocumented workers currently in the U.S. could be reviewed and opens the door for discussion of a more comprehensive reform solution.
 

Angry over lack of H-2B visas, some beginning to blame Congress

Seasonal businesses across the country are feeling the pain of the depleted foreign workforce. After months without a resolution, some are beginning to place the blame for the millions of lost dollars by small business owners on Congress for not acting to renew the returning-worker exemption for H-2B visas. Although a hearing was held on April 16, 2008 addressing the H-2B visa issue, immediate action was not taken leaving seasonal employers without a resolution to the labor shortages they continue to face.

The H-2B visa applies to temporary, non-agricultural workers and is issued for one year with two one-year extensions allowed. Sixty-six thousand visas are reserved for this category each year, with the stipulation that U.S. employers demonstrate that the need for the labor is temporary. It can be seasonal, tied to peak-load demands, or even a one-time occurrence. H-2B visas are a key staffing option for many industries including landscaping, seasonal hospitality, and seasonal construction, and are also critical at peak times in manufacturing, food packaging, and fisheries.

Congress introduced the “Save Our Small and Seasonal Business Act of 2005” as an amendment to the Emergency Supplemental Appropriations bill. President Bush signed the act in May 2005 exempting temporary seasonal workers who had participated in the H-2B visa program in one of the three previous years from counting against the cap. In essence, if a worker had been counted under the cap during any of the three preceding years, and had followed all applicable rules, they would be eligible for the exemption. These employees were not counted within the 66,000 allocated visas. This resulted in the availability of more H-2B visas so that employers could ensure they had the necessary staff to maintain operations during peak periods.

This legislation delivered significant benefits to both H-2B workers and the American employers dependent on seasonal foreign labor. Employers were ensured their foreign workforce would be able to return the following season, and did not have the stress of finding new ways to fill these positions and maintaining operations.

In September of 2007 Congress reached a standstill in the immigration reform discussion. Unable to make a decision, provision allowing the returning worker exemption for H-2B visas expired. The result is tight limitation on the total number of H-2Bs available with a strict cap at 66,000. This cap was met on January 3, 2008 for Fiscal Year 2008 limiting the ability of workers to return who had consistently filled in these seasonal positions.

As a result, many small businesses that incorporate foreign workers to augment their American workforce are struggling to maintain productivity levels and are facing an uncertain future. The H-2B visa provided a legal alternative for these employers to fill gaps in their workforce. With the removal of this option, many are struggling to maintain operations and previous productivity levels.

An April 16 Congressional hearing focused on the H-2B visa issue. The meeting included discussion about the proposed Save Our Small and Seasonal Business Act (H.R. 1843) which was introduced in April 2007 to reinstate the returning worker exemption and remedy the labor shortages many U.S. businesses are facing without sufficient H-2B visas. Although discussed, an immediate resolution was not implemented forcing small and seasonal businesses throughout the country to continue facing the significant labor shortages that, if continued, may force these companies to lay off U.S. workers or file for bankruptcy.

Critics question effectiveness of REAL ID

The federal law, known as REAL ID, requiring states to implement new standards for driver’s license and identity cards is coming under much scrutiny. Those in opposition of the law are pointing out flaws in the overall value of the program as well as the funding and the violation of individuals’ privacy.

REAL ID was introduced by the Bush administration as a crucial part of a plan to more easily verify that workers are in the U.S. legally. Congress approved the law in 2005 as an amendment to the Emergency Supplemental Appropriations for Defense, the Global War on Terror and Tsunami Relief Act. In accordance with REAL ID states are required to enhance the security of I.D. cards and driver’s licenses to meet federal standards. On January 11, standards for the new cards including information such as proof of citizenship and legal status of applicants as well as verifying source documents supplied by the applicants were announced as part of the heightened security.

On April 2, the deadline for state compliance with the new standards was extended through 2009; full implementation is scheduled for late 2017.

Many see the strictness of the law as intrusive, even a threat to civil liberties. However, the new cards are a necessity for utilizing E-Verify. A collaboration of the Department of Homeland Security (DHS) and the Social Security Administration (SSA), E-verify allows employers to electrically verify the employment eligibility of job candidates via the internet. Currently, about 65,000 employers use E-Verify.

Funding the REAL ID program has become of main focus of many critics claiming it may cost as much as $19 billion; Congress has appropriated $90 million. Many states are not moving to meet the new standards due to the lack of funding and no guarantee of being compensated for compliance.

There are two bills currently in Congress to annul REAL ID. Both propose the system return to the DHS working directly with states to create minimum security standards for driver’s license and I.D. cards. Hearings were held in April on one bill; however, no vote or further discussions have been scheduled for either.

USCIS announces enhancements to E-Verify program

The E-Verify program currently contains more that 64,000 employers with nearly 1,000 enrolling each week. On May 5, 2008 the USCIS announced the first two phases of a three part enhancement to decrease the mismatch rate for naturalized citizens.

E-Verify is a voluntary program for employers to verify job applicant’s employment eligibility with the U.S. through an online service.

Starting May 5, 2008 the E-Verify system will include naturalization data. This will help to confirm the citizenship status of naturalized U.S. citizens hired by E-verified employer instantaneously. The program will also now include real time arrival data from the Integrated Border Inspection System. This will help in reducing the number of immigration status related mismatches for newly arriving workers who have entered the country legally.

There are many naturalized citizens who have not yet updated their information with the Social Security Administration (SSA), and often experience an SSA mismatch in E-Verify. When this occurs the naturalized citizen can call the USCIS directly to resolve the issues or go to a SSA field office. The USCIS also plans on setting up a system between them and the SSA to share information to help prevent uncertain nonconformities from occurring. This will improve the efficiency of the E-Verify program by providing the SSA with most accurate and timely citizenship status information.

There are also future plans to check against the Department of State passport records to even further reduce mismatches. At the moment there are 1 percent of all-work authorized employees that receive uncertain nonconfirmation through the E-Verify program, and the USCIS has implemented this goal to help decrease the mismatch rate for naturalized citizens.

Lack of mandate for E-Verify makes employers target

The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have taken a different approach to penalize employers hiring workers who are in the country illegally. While the DHS pushes for Congress to make participation in the E-Verify program a requirement for U.S. companies, the DHS and ICE are pursuing criminal charges against those who knowingly employ illegal aliens.

Bringing criminal cases against employers is a longer process than lesser administrative violations. However, the lesser offensives typically result in minor fines, offering little consequence for the business owner. ICE has dropped its procedure of seeking administrative offenses against employers and are now seeking felony charges for the same crimes

The amount of employers violating such laws is too great for ICE to overcome even with enhanced security measures. So both the DHS and ICE are promoting incentives to encourage employers to abide by employment regulations. A large part of this is promoting E-Verify, which has grown to include 65,000 employers from less than 10,000 in the past three years.

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The Immigration Reform Digest is published quarterly by VISANOW. VISANOW streamlines the immigration process for corporations and their foreign employees. Our superior client support and innovative technology have changed the way immigration legal services are delivered with a process that consistently delivers faster responses, provides greater access to information and increases efficiency. Any legal analysis or comments contained herein have been provided by American Services Network, P.C. and do not constitute the provisions of legal services and, therefore, should not be relied upon as legal advice. If you believe that any of the information contained in this newsletter relates to your immigration status or to your company's immigration issues, you should consult your immigration legal services provider. © 2008 VISANOW.com, Inc. VISANOW, 350 North LaSalle Street, Suite 1400, Chicago, IL 60610 (888) 4-VISANW Please send comments and questions to info@visanow.com