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January 2012 Volume 19 Number 1
Congress, States, Republicans
Congress. The House Judiciary Committee in September 2011 approved the Legal Workforce Act (HR 2885) to require all US employers to use E-Verify to check new hires within four years. The bill did not come to the floor, however, reportedly because the Republican House leadership wanted to avoid the spectacle of Republicans attacking each other during the debate preceding a vote in the full House.<< back
Most major business groups support the LWA so that employers would confront one federal law rather than multiple state laws regulating the hiring process. Farmers, on the other hand, oppose the LWA unless they can be assured that Congress will approve an accompanying employer-friendly guest worker program.
Most major business groups support the LWA so that employers have one federal law rather than multiple state laws regulating the hiring process. However, farmers oppose the LWA unless Congress approves an accompanying employer-friendly guest worker program. About four percent of the 144 million reports of wages paid by employers to the Social Security Administration in a typical year generate mismatches, about six million, including a million who may be agricultural workers.
Employers enrolled in E-Verify submit data on newly hired workers via the internet to USCIS, which confirms 98 percent of the 1.5 million inquiries received each month as work-authorized. Employers notify workers if E-Verify generates a "tentative nonconfirmation" and give them eight days to contact the government and correct their records. About a sixth of workers who generate tentative nonconfirmations contact the government, correct their records and are found to be work-authorized; the other five-sixth quit their jobs.
About 300,000 of the 2.2 million US employers with five or more employees were enrolled in E-Verify in Fall 2011.
The House approved a bill in November 2011 to eliminate per-country limits on employment-related immigration visas. There are 140,000 immigration visas a year available for foreigners (and their families) requested by US employers, with a maximum seven percent available to any one country. Many US employers who sponsor Chinese and Indian H-1B workers in the US for immigration visas complained of long waits because of the seven percent limit. The bill eliminating country caps for employment-related immigration visas also raises country caps for family unification visas from seven percent to 15 percent per country; if approved, this should reduce waits for Mexicans.
Representative Elton Gallegly (R-CA), chair of the House Immigration Subcommittee, announced that he would retire from Congress in 2012. Gallegly noted that he was considered one of the top 10 illegal-immigration hawks in Congress by Human Events magazine, and is in the Border Control's Hall of Fame.
States. In 2011, 18 states enacted 27 employment-related immigration laws; in 2010, 20 states enacted 27 employment-related immigration laws. Five states, Alabama, Georgia, Indiana, South Carolina and Utah, enacted omnibus laws aimed at reducing illegal immigration in 2011, following Arizona in 2010, while 11 states enacted laws dealing with the federal government's E-Verify database to check the legal status of new hires.
The US Department of Justice in 2011 sued four states that enacted immigration laws, Alabama (HB 56), Arizona (SB 1070), South Carolina (SB 20) and Utah (HB 497). DOJ argued that these state laws place "mandates on law enforcement could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending."
Federal judges blocked implementation of most sections of the immigration control laws of Arizona, Georgia and South Carolina, but not those of Alabama. In December 2011, the US Supreme Court agreed to hear Arizona's appeal of federal court injunctions barring enforcement of some of SB 1070's provisions, including one that required police officers to determine the immigration status of persons stopped or arrested who may be unauthorized.
Also in December 2011, the civil rights division of the US Department of Justice accused Maricopa County Sheriff Joe Arpaio of targeting Latinos for detention and arrest and retaliating against persons who complain. DHS suspended Maricopa County's participation in Secure Communities, the program under which state and local police send the fingerprints of persons they arrest to DHS. Arpaio's deputies regularly arrest unauthorized workers for identity theft.
Alabama enacted the toughest state law to bring about attrition through enforcement, that is, to make life so uncomfortable for unauthorized foreigners that they leave the state. HB 56 requires state and local police to verify a person's immigration status during routine traffic stops or arrests if the officer has "a reasonable suspicion" that the person encountered is unauthorized. HB 56 also makes it a misdemeanor to drive without a valid license, a provision that ensnared several foreign executives visiting auto plants in the state in November 2011.
HB 56 forbids transactions between unauthorized foreigners and the state, making it a state crime for an unauthorized foreigner to renew a driver's or business license. HB 56 prohibits employers from hiring unauthorized foreigners and allows Alabama residents to file discrimination suits against employers who fire legal workers while still employing unauthorized workers.
Under HB 56, when children are enrolled for the first time, public schools are to determine their immigration status and that of their parents (but not to turn away unauthorized students). School districts are to pass enrollment data on to the State Board of Education, which is required to prepare an annual report on the cost of educating unauthorized children. A US Supreme Court decision in 1982, Plyler v. Doe, requires states to educate children regardless of their immigration status. One reason for this decision was that Texas provided no data on the cost of educating unauthorized children.
HB 56's education provisions, as well as those making it a misdemeanor for an unauthorized alien to apply for, solicit or perform work and provisions that bar employers from claiming as business tax deductions any wages paid to unauthorized aliens, have been prevented from going into effect by court injunctions.
Before HB 56 was enacted, Alabama had an estimated 185,000 unauthorized foreigners, including 35,000 who were of school age. Media reports suggested that HB 56 encouraged some unauthorized foreigners to leave the state.
A November 2011 hearing on Georgia's Illegal Immigration Reform and Enforcement Act of 2011 (HB 87) featured witnesses who asserted widespread labor shortages. HB 87 requires employers with 10 or more employees to use E-Verify; those having 500 or more workers must enroll by January 1, 2012. The Georgia Restaurant Association reported that 75 percent of the state's 16,000 restaurants responding to a poll said they had trouble finding qualified workers in late 2011. The Georgia Fruit and Vegetable Growers Association said its surveys found 11,000 unfilled farm jobs in summer 2011.
The speaker of Georgia's House, David Ralston, downplayed suggestions that HB 87 would be amended in 2012. He said: "This law has only been in effect six months, some parts haven't even gone into effect and it's under a court challenge. We need to give it some time before we start tinkering with it."
The federal government sued to block implementation of Utah's HB 497 in November 2011. HB 497 requires Utah police to verify the legal status of persons arrested for committing serious crimes. Another Utah law, scheduled to go into effect in 2013, allows unauthorized foreigners with jobs to register and live in the state. The federal government argued that this law is unconstitutional, but has not yet sued to block it.
A federal judge in South Carolina issued an injunction in December 2011 to block enforcement of South Carolina's immigration control law (SB 20), which requires state and local police check the immigration status of persons encountered that police believe are illegally in the US.
California. California has moved to make it easier for unauthorized foreigners to live in the state. California's DREAM Act (AB 131) allows unauthorized immigrant graduates of California high schools to pay in-state tuition at California public colleges and universities and to receive state-taxpayer provided aid. California's AB 1236, signed into law in October 2011, prohibits cities and counties from passing ordinances that require employers to participate in E-Verify.
Polls in Fall 2011 found that 55 percent of residents oppose the California DREAM Act; 80 percent of Latinos support DREAM, compared to 30 percent of whites. Volunteers failed to gather the 505,000 signatures needed to put an initiative before California voters in November 2012 that would repeal the state's DREAM Act.
Another planned initiative, the California Opportunity and Prosperity Act, would allow unauthorized foreigners who have been in the state at least four years to live and work lawfully. If COPA is approved by voters, California would seek "safe harbor" status for the estimated one million qualifying unauthorized foreigners and their employers from federal immigration enforcement.
The city of Los Angeles in January 2012 stopped impounding the cars of unlicensed drivers stopped by police, including unauthorized foreigners who cannot obtain licenses legally. California law allows police to impound a car for 30 days if it is driven by an unlicensed driver, but Los Angeles police in 2011 allowed unlicensed drivers at sobriety checkpoints to avoid having their cars towed if a licensed driver was available to drive it from the checkpoint.
The Massachusetts Supreme Judicial Court in January 2012 ruled that the state cannot drop legal immigrants in the US less than five years from Commonwealth Care, the subsidized health care program created in 2006. Federal law generally bars legal immigrants from means-tested benefits for their first 10 years in the US, although most can naturalize after five years. The state in 2009 excluded 29,000 legal immigrants in the US less than five years to save $130 million a year.
Republicans. Most Republican presidential candidates oppose "amnesty." Candidates Rick Perry and Mitt Romney clashed on unauthorized migration. Perry in 2001 signed into law a bill that allows unauthorized foreigners who graduate from Texas high schools to pay in-state tuition at state universities, which Romney charged acted as a "magnet" for unauthorized foreigners.
Representative Michele Bachmann (R-MN) pledged to build double fencing on the entire 2,000-mile long Mexico-US border, while former Godfather's Pizza CEO Herman Cain called for a fence 20-feet high and topped with barbed wire. The US has fenced about 650 miles of the Mexico-US border, including 300 miles of vehicle barriers. The Border Patrol says that this amount of fencing is sufficient to provide "operational control" of the border.
Former House Speaker Newt Gingrich, who rose to the top of polls in November-December 2011, called for allowing unauthorized foreigners in the US "25 years" or "a long time" to become legal residents but not US citizens. Gingrich supported IRCA in 1986 and endorsed a proposal introduced by the Denver-based Krieble Foundation to issue "red cards" to foreigners screened by local citizen review boards that Gingrich likened to Selective Service boards (redcardsolution.com).
Krieble's red card plan calls for private employment agencies to be licensed by the US (and presumably the countries in which they operate) to recruit guest workers to fill vacant US jobs. Instead of posting job vacancies with the local Employment Service, employers would post jobs with the private employment agencies. Krieble assumes that US employers will prefer to hire US workers who learn about vacant jobs from private recruiters because they will be cheaper than foreign guest workers, since recruiters will charge employers fees for the guest workers. However, Krieble does not clarify whether or how private recruiters would help US workers to find local jobs.
Under Krieble's plan, foreign workers would receive biometric red cards that would be swiped to enter the US and again by the US employer. The US-born children of red-card workers would not become automatic US citizens which, Krieble says, would end the break up of families when parents leave the US because the children's parents could not legally leave their US-born children behind when they left.
Gingrich joined ex-President George W. Bush and many Democrats who say that the US cannot deport 11 million unauthorized foreigners who have almost five million US-born children. However, other Republican presidential candidates argue that any form of legalization will act as a magnet and attract more unauthorized foreigners. Senator John McCain (R-AZ), who supported "earned legalization" in 2006, changed his position in 2008 to call for enforcement-before-legalization.
The author of Arizona's SB 1070 and other migration-related bills, Senator Russell Pearce, lost a recall election 45-53 percent in November 2011. Some attributed his defeat to his brusque style, while others pointed to bills Pearce introduced in 2011 that would have required health care workers to check the immigration status of patients and K-12 school officials to check the legal status of pupils.
Obama. President Obama and his advisors conceded that they do not have the support to enact comprehensive immigration reform that includes legalization before the November 2012 elections. Instead, Obama has supported efforts to modify interior enforcement priorities by reviewing cases of foreigners slated for deportation and releasing those who pose no threats to the US and those who may be legalized with immigration reform.
Obama, who won 67 percent of the Hispanic vote in 2008, is expected to win a similar share in 2012, according to opinion polls. Although Hispanics disapprove of DHS policies that lead to the removal of almost 400,000 foreigners a year, almost all Hispanic; they also say that jobs, education and health care are higher priorities, and that Obama is best situated to deal with these issues.
Obama may try to win Arizona's 11 electoral votes in 2012 by mobilizing Hispanics who oppose SB 1070. About 20 percent of Arizona's voting-age residents, almost 850,000, are Hispanic. However, the housing downturn is more severe in Arizona than elsewhere, which may blunt Obama's appeal. Half of Arizona homeowners with mortgages owe more than their homes are worth.
Jacques Billeaud, "Feds rebuke immigration tactics of Arizona sheriff, Associated Press, December 16, 2011. Larry Gordon, "Survey finds ethnic divide among voters on DREAM Act," Los Angeles Times, November 19, 2011.