INTERNATIONAL LAW
The Immigration Debate

By Gabrielle M. Buckley

There are approximately 12 million undocumented foreign nationals in the United States. Undocumented workers constitute approximately 5 percent of our overall labor force, but they comprise between 22 percent and 36 percent of the country’s construction workers, miscellaneous agricultural workers, meat-processing workers, dishwashers, and maids.

For the majority of these individuals, there is currently no lawful process by which they can attain legal status. Additionally, employers have been unable to hire the employees they select for professional positions owing to overall visa unavailability for temporary and permanent positions. As evidence of this, the U.S. government announced that, as of May 26, 2006, it had exhausted the supply of H-1B visas for professionals for fiscal year 2007, which began October 1, 2006. These issues have brought to a boil the immigration debate.

The immigration laws now being enforced have been on the books for the past ten to 20 years.

What are the facts? Although in 2006 Congress introduced and passed some legislation affecting immigration, no major comprehensive immigration laws have been signed into law to date. For example, the U.S. government has proposed regulations to change the I-9 Form (Verification of Employment Eligibility) and required documents, but these regulations have not yet been finalized. The immigration laws now being enforced have been on the books for the past ten to 20 years.

Despite a strong movement toward comprehensive immigration reform, there has been a massive increase in federal immigration enforcement initiatives. In addition to the president’s assigning 6,000 members of the National Guard to protect the borders, there has been increased enforcement of the existing immigration laws involving employers. In November 2005 the head of the U.S. Department of Homeland Security (DHS) unveiled the Secure Border Initiative (SBI), which focuses on combating border document fraud, “interior enforcement,” and increasing job-site monitoring. On April 20, 2006, DHS and U.S. Immigration and Customs Enforcement (ICE) announced the second phase of the SBI, which includes “Goal 2: Build strong worksite enforcement and compliance programs to deter illegal employment.” The ICE has announced that it will attain Goal 2 by punishing “knowing and reckless” employers of illegal aliens.

The ICE has already initiated a strategic shift in the way it approaches enforcement of the immigration laws. Rather than relying on the traditional use of administrative fines for I-9 violations, the ICE is bringing criminal charges against employers and seizing their “illegally derived” assets. Last fiscal year, this new approach resulted in 127 criminal convictions, 716 individuals arrested on criminal charges, and 3,336 administrative workplace arrests. More employers also are being charged with money laundering and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), which can result in prison sentences of up to 20 years.

We have seen the results of the Secure Border Initiative displayed in the news media. On May 9, 2006, the ICE announced the arrest of four construction supervisors and 76 foreign national workers at construction sites in Kentucky. The employer, Fischer Homes, is a leading builder of homes in Indiana, Kentucky, and Ohio. Each of the four construction supervisors has been charged in a criminal complaint with aiding and abetting and harboring illegal aliens for commercial advantage or private financial gain. The maximum punishment for these crimes is ten years’ imprisonment, a fine of $250,000, or both.

On May 2, 2006, the owner of an Indiana business that performs stucco-related services at construction sites in seven midwestern states was charged with money laundering, harboring illegal aliens, transporting illegal aliens, and making false statements in connection with an illegal employment scheme. The defendant faces as many as 40 years in prison, and the ICE is seeking forfeiture of $1.4 million. Apparently, this firm was able to undercut bids of other contractors by taking advantage of cheaper labor costs resulting from the use of undocumented workers.

On April 19, 2006, ICE agents arrested seven IFCO Systems managers, charging them with harboring illegal aliens for financial gain. ICE agents arrested 1,187 foreign-national IFCO employees during warrant and consent searches executed at more than 40 IFCO locations nationwide. The IFCO arrests were prompted by an analysis of the company’s mismatched Social Security names/numbers.

In light of these recent activities, it is important to remember the three requirements of the Immigration Reform and Control Act of 1986 (IRCA): (1) U.S. employers must not knowingly hire or continue to employ any person not authorized to work in the United States; (2) U.S. employers must verify the employment eligibility of every new employee, whether the employee is a U.S. citizen or an alien; and (3) U.S. employers must not engage in discrimination against qualified workers.

Employers must work within the parameters of verifying employees’ work authorizations while refraining from engaging in potentially discriminating activities. As an example of this difficult balancing act, on May 11, 2006, a federal court judge found that a car wash in Glenview, Illinois, tried to intimidate its mostly Hispanic workforce by requiring verification of immigration status after three workers complained about alleged sexual harassment. The car wash owners claimed that they were simply trying to comply with I-9 requirements.

Status of pending legislation. State legislatures and administrators have entered into the immigration law debate by introducing more than 400 immigration-related bills in 43 states. In December 2005 the U.S. House of Representatives passed the highly publicized House Resolution 4437, the Border Protection, Antiterrorism and Illegal Immigration Control Act, by a vote of 239 to 182. The proposal would place primary emphasis on “enforcement only” provisions. Although currently violations of U.S. immigration laws are civil law violations, H.R. 4437 would criminalize violations including visa overstays and violations of student visas. One of the most controversial provisions of H.R. 4437 would expand the definition of “alien smuggling” to include U.S. citizens assisting persons who are known to be unlawfully present in the United States.

In April 2006 the Senate debated several pieces of legislation regarding immigration. However, bitter political divisions prevented the bill from going to the floor for a vote. Legislation was reintroduced in the Senate on May 15, 2006, intensely debated, and ultimately passed by the Senate (S. 2611). A conference committee failed to harmonize the extremely different House and Senate bills. For example, the House bill had no provisions for guest workers or “earned legalization,” while the Senate bill contained provisions for guest workers and a “path to citizenship” for certain undocumented workers. In July 2006 the House and Senate began holding hearings across the United States, largely to publicize the issue.

What can employers do to help solve this problem? On May 10, 2006, the Essential Worker Immigration Coalition forwarded a letter to Senators Bill Frist and Harry Reid calling for comprehensive immigration reform. Additionally, nearly 400 businesses from across the United States have signed a letter urging Congress to increase access to H-1B visas and permanent visas. Without congressional action, U.S. employers in need of highly educated foreign professionals with critical skills will have to wait months and even years to obtain this needed expertise.

Employers may wish to contact their elected representatives to express their support of comprehensive immigration reform, including a reasonable guest worker program that will help businesses and provide a path to citizenship for workers already employed in the United States.

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This article is an abridged and edited version of one that originally appeared on page 11 of International Law News, Fall 2006 (35:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to www.ababooks.org.

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Periodicals: The International Lawyer, quarterly journal; International Law News, quarterly newsletter.

Books and Other Recent Publications: China Law Deskbook, 2d ed.; The Foreign Corrupt Practices Act and the New International Norms; Careers in International Law, 2d ed.; Negotiating and Structuring International Commercial Transactions, 2d ed.; ABA Guide to International Business Negotiations, 2d ed.; Joint Ventures in the International Arena; ABA Guide to Foreign Law Firms, 4th ed.; International Lawyer’s Deskbook, 2d ed.; International Trademarks and Copyrights: Enforcement and Management, International Practitioner’s Deskbook Series.

Gabrielle M. Buckley is a partner and heads the Business Immigration Practice Group at Vedder, Price, Kaufman & Kammholz, P.C., in Chicago, Illinois. She can be reached at .

Copyright 2007

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