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Immigration Policy Debate Simmers

October 1, 1996
Related Topics: Global Employment Law, Immigration, Featured Article
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Not since 1965 and the abolition of the national origins quota system has there been as comprehensive and serious a debate of U.S. immigration policy as the one in which Congress currently is embroiled.

The debate began in 1995, when Sen. Alan K. Simpson (R-Wyo.), Chairman of the Senate Immigration Subcommittee, proposed sweeping changes to immigration policy. The changes included imposing an employment eligibility verification system based on secure documents—like enhanced tamper-proof Social Security cards—and a provision to curtail the availability of benefits to illegal aliens and legal immigrants.

Almost simultaneously, Rep. Lamar Smith (R-Texas), Chairman of the House Immigration Sub-committee, also undertook immigration reform. He not only proposed employer sanctions and limitation of benefits, but also supported a dramatic curtailment of the procedural due process rights of illegal and legal aliens with criminal convictions.

Employment-related revisions proposed.
Of significance to the business community was Smith’s proposal to revise the legal immigration system. He proposed limiting family-based immigration, reducing numbers for employment-based immigration and generally making the system more restrictive. In addition, Smith introduced an H-1B (skilled professional nonimmigrant)worker protection provision.

Simpson then introduced a legal immigration bill that would have a more serious adverse impact on the business community. This bill included many of the same changes called for in the House bill and also established foreign experience requirements for immigrants and H-1B non-immigrants; limited the duration of stay of H and L nonimmigrant workers (intracompany transferees); imposed a fee on the gross earnings of H-1B workers and labor certification applicants to fund retraining of American workers; and required a gradual reduction in reliance on H-1B workers.

The business community mobilized, forming American Business for Legal Immigration (ABLI), a Washington, D.C.-based lobbying group that represents a number of associations and employers, and commissions academic studies to support its position. In an effort to stymie the progress of these radical provisions, the business community concentrated on educating the press and members of Congress about the threat posed by such provisions.

Focusing first on the House bill, the goal was to have the most egregious business-related provisions deleted; and by the time the full House voted on it, most of them were. For the Senate bill, the strategy was to convince the Senate to consider legal and illegal immigration separately, splitting the existing bill into two. The theory was the two issues are unrelated, and the enforcement concerns would color objective consideration of legal immigration reform.

Spearheaded by Sen. Spencer Abraham (R-Mich.) and supported by Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), an array of disparate groups—including businesses, the American Immigration Lawyers Association, ethnic/religious groups and the Christian Coalition—successfully worked together to split the bill.

The same coalition convinced a group of conservative Republicans and liberal Democrats to pass an amendment striking changes to family- and employment-based immigration policies. Soon after, the Senate passed its illegal immigration bill and, with the help of then Majority Leader Bob Dole (R-Kan.), prevented the reintroduction of legal immigration amendments. The Senate’s legal immigration bill has yet to be debated, and it’s widely believed there will be no legal immigration reform, at least in this Congress.

What will remain are the enforcement provisions and four areas of the pending legislation that will seriously affect the business community. These include:

  1. The revision of employer sanctions which calls for the establishment of an electronic verification system.
  2. The imposition of extensive penalties for violating immigration status which will catch unwitting corporate employees and families in its web.
  3. The revision of the H-1B and labor condition application process: Employers would be required to attest that no U.S. workers with similar qualifications and experience in a specific occupation have been laid off in the six months prior to the filing of the application and won’t be laid off in the ninety days following, or they’re required to pay the H-1B workers 110% of the laid-off workers’ wages.
  4. An increase in enforcement personnel for employer sanctions, labor condition applications and permanent labor certifications.

The House and Senate disagree.
The House and Senate immigration bills are now awaiting reconciliation by a joint conference committee. The most controversial issue appears to be the amendment sponsored by Rep. Elton Gallegly (R-Calif.) which would permit states to bar public education benefits to undocumented aliens, including children. This amendment—which is included in the House bill but not in the Senate bill—is a major sticking point be-tween the House and the Senate, as well as amongst Republicans. House Majority Leader Dick Armey (R-Texas) has indicated that the House conferees will insist that the final bill include the Gallegly amendment, or something similar to it, although 47 Senators, including five Republicans, recently sent a letter to the Senate conferees opposing the provision, warning that it could very well jeopardize passage of the entire bill.

The H-1B and labor condition provisions, also in the House bill, are supported by the House Re-publican conferees but opposed by the Senate conferees. Democratic conferees favor dropping the provisions since they aren’t regarded as strict enough. The Democratic members would rather seek more stringent amendments of the H-1B program in the next Congress.

President Bill Clinton already has threatened to veto any bill that includes the Gallegly amendment, a threat the Republicans are certainly taking into consideration. As the attention to this issue at the Republican convention would indicate, the Republican Party’s position is to make this provision a major national campaign issue. In this presidential election year, a veto by Clinton of a much-wanted illegal immigration bill could prove very harmful—particularly in California, a state which is crucial to Clinton’s reelection. It should be noted that California’s Gov. Pete Wilson announced anti-illegal immigration measures immediately after the enactment of the welfare reform legislation. Therefore, the current prevailing wisdom is that there will be an illegal immigration bill that probably won’t include H-1B reform.

The corporate employer should prepare for stepped-up enforcement soon after the October 1, 1996 effective date.

Global Workforce, October 1996, Vol. 1, No. 1, pp. 10-12.

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