Wolfsdorf Rosenthal LLP

Immigration Reform Bill Dies in Senate


On a procedural vote on June 28, 2007, the Senate killed (46-53) the bipartisan bill on comprehensive immigration reform that has been the subject of much debate and controversy and that had the support of President Bush. Comprehensive immigration reform legislation is not likely to be taken up again before the 2008 election. Democratic majority leader Harry Reid, however, held out hope that pieces of the legislation could be passed separately, such as a program for agricultural workers. According to sources, Sen. Dianne Feinstein (D-Cal.) plans to attach that program, dubbed AgJobs, to other legislation in upcoming months.

Among other things, the new bill would have established a guestworker program, and would have introduced a “points system” instead of many of the current family- and employment-based visa categories. Those with education and experience, particularly in science, technology, engineering, and math (STEM) fields, and those with English skills would have been be favored under the legislation. The bill, which contains additional enforcement provisions, also would have declared English the U.S.’s official language. The H-1B cap would have been increased from 65,000 to 115,000 annually.

Jack Shandley, vice president of meatpacker Swift & Company, seemed to sum up the sentiments of many who feel that business owners are between a rock and a hard place under the current system: “Immigration policy is divorced from enforcement, and the American employer, for one, is caught in the middle,” he said. Over one thousand undocumented Swift workers were arrested in raids of six of its plants late last year, costing Swift $45 million in lost production and worker replacements. Swift was a participant in the Basic Pilot verification program for years before the raids. Swift released a statement at the time asserting that the raids “violate the agreements associated with the company’s participation over the past ten years in the federal government’s Basic Pilot worker authorization program and raise serious questions as to the government’s possible violation of individual workers’ civil rights.” Previously, Swift had been punished for document-based discrimination against those who looked or sounded “foreign.” Swift settled that case for $200,000, noting that “Swift & Company fully supports comprehensive immigration reform to address the significant policy tension that exists between the need for employers to accurately determine workers’ eligibility versus the need to address privacy and non-discrimination concerns. The company remains committed to preventing the employment of unauthorized workers in its workforce.”

The American Council on International Personnel (ACIP) recently released a statement on several amendments that were part of the Senate legislation:

(1) ACIP supports the Cantwell-Kyl Amendment, which would have established an “employer-petition” stream within the merit pool allowing employers to petition for the workers they want under the new point system. This amendment would have established a 20,000 set-aside from the merit pool visas for EB-1 professionals, and would have phased out a separate employer-petition stream after five years. It also would have provided 40,000 visas for advanced degree graduates of U.S. universities and 20,000 visas for foreign advanced STEM (science, technology, engineering, and mathematics) degrees. It would have set a cap of 50,000 on higher education and research H-1Bs. Additionally, the amendment would have restored critical H-1B program elements like degree equivalency and dual intent.

(2) ACIP opposes the·Sanders-Grassley Amendment, which would have provided that companies cannot receive any visas if there has been a mass layoff in the previous year or if a layoff will happen within six months. The amendment would have revoked visas if a layoff did occur.

(3) ACIP supports the·Baucus-Grassley-Obama Amendment insofar as it would have removed the mandate to reverify all existing employees in the U.S. workforce, but ACIP said it will continue to support efforts to create a system that provides greater certainty for employers during the legislative process. The amendment would have struck entirely Title III of the bill. The amendment would have created greater avenues for aggrieved employees to seek redress against the government in case of error. It also would have removed any documentary requirements that mandate compliance with the Real ID Act of 2005. The amendment slightly lessened the document retention requirements from seven years after the date of hire or two years after termination of employment to five years and one year, respectively. The amendment would not have changed Title III’s implementations schedule for verifying employment eligibility of newly hired workers electronically (18 months from enactment). The amendment, however, would have narrowed the scope of existing workers subject to reverification to those suspected of being ineligible through Social Security records. Title III of the Senate bill would have required all employers to reverify nearly 150 million persons currently in the workforce within three years after enactment. Finally, the amendment would have removed a section in Title III that would establish a voluntary system designed to verify status through fingerprints.

The Immigration Policy Center released a policy brief on June 7, 2007, on temporary worker proposals. “Out of Sync: New Temporary Worker Proposals Unlikely to Meet U.S. Labor Needs” argues that the temporary worker program considered by the Senate would have had the effect of cycling less-skilled immigrant workers in and out of the lowest rungs of the U.S. labor force without creating any longer-term investment in the workers or the industries in which they are employed. An alternative program that allows workers to apply for permanent status would better address industry’s need for a larger and more settled, less-skilled workforce and more likely would discourage undocumented immigration in the future, the policy brief says. The entire brief is available.

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