Rethinking Employment-Based Immigration: Stop the GOP’s Slide toward Socialism
Editor’s Note: today’s blog is courtesy of Angelo Paparelli of Seyfarth Shaw LLP.
The title of this blog is preposterous, you say. The “Grand Old Party” and “Socialism” — the words are simply inaptly juxtaposed in the same sentence. Strange as it seems, however, when it comes to immigration policy, a reading of the political tea leaves foreshadows a new trend line for the Republicans, one indeed headed down a slippery slope toward socialism’s hallmark, the “bureaucratization of economic life.”
Rep. Lamar Smith (R. Tex.), incoming Chairman of the House Judiciary Committee, recently told Politico that his first two hearings will focus on (1) immigration-related worksite enforcement by the Obama administration, and (2) the expansion ofE-Verify, Homeland Security’s still-error-prone system of electronically verifying employment eligibility for all workers in the U.S., citizens included.
For now, E-Verify is arguably voluntary except for certain federal contractors and — depending on how the Supreme Court decides an already argued Arizona case — for businesses in states and municipalities that require it. Smith appears poised to make E-Verify mandatory for all U.S. employers. He also seems eager to become a tougher sheriff than the President, aparticularly aggressive immigration law enforcer who (by means of “silent raids“) has assiduously targeted businesses suspected of violating the immigration laws.
According to Rep. Smith:
[Worksite enforcement and E-Verify] are what I call 70 percent issues — 70 percent or more of the American people support those efforts . . . I think they are popular across the board, and I think they will be appreciated by all American workers regardless of their ethnicity or background or anything else.
How will Republicans expand E-Verify and surpass Pres. Obama’s precedent-setting enforcement record yet maintain any hope of keeping one of their key promises in the GOP’s Pledge to America? The Pledge promises that the Republicans “will rein in the red tape factory in Washington, DC by requiring congressional approval of any new federal regulation that may add to our deficit and make it harder to create jobs.”
Ironically, elsewhere in the Pledge, the GOP lays bare the very problems with increased worksite enforcement and E-Verify:
An unchecked executive, a compliant legislature, and an overreaching judiciary have combined to thwart the will of the people and overturn their votes and their values, striking down long-standing laws and institutions and scorning the deepest beliefs of the American people. . . .
We will end the attack on free enterprise by repealing job-killing policies and taking steps to assure current businesses and future entrepreneurs that the government will not stifle their ability to compete in the global marketplace.
A “compliant legislature” of Republicans and Democrats, with the help of an “unchecked executive,” Barack Obama, resurrected and extended E-Verify for three years even though the program was set to expire in 2009. Indeed, Sen. Jeff Sessions (R. AL) argued at the time that three years was not enough.
E-Verify and its paper-based, complementary mandate, the Form I-9 (Employment Eligibility Verification) – a one-sided form requiring four pages of instructions and a 56-page manual to explain — indirectly imposes costly, time-consuming and distracting burdens on employers. These duties are an indirect imposition that the federal government, in an efficient system, ought to bear on its own, namely, the identification of foreign citizens who have no right to work in this country.
A truly Republican approach to the verification of employment eligibility would lift the burden to verify the right to work from the shoulders of employers. Instead, the federal government would itself determine eligibility and confirm each worker’s employment authorization by issuing a tamper-proof work permit that the worker could swipe at the worksite on the date of hire. Employers would thus no longer be required to maintain any I-9 paperwork. Thus, Republicans would keep their Pledge. They would “rein in the red tape factory in Washington” and refrain from “stifl[ing] the ability of U.S. employers to compete in the global marketplace.”
There are other things Republicans can do to reverse their slide into socialism, especially if they want to create jobs for unemployed citizens. The GOP can start by recognizing that carefully crafted laws promoting legal immigration will materially increase the economic security and prosperity of all Americans. The Republicans should also take these baker’s-dozen EBI-promoting steps:
- Enact NEVA (which would allow employers to outsource the burden of employment verification to licensed third parties) as an interim measure leading to the abolition of the E-Verify and I-9 programs.
- Create a Cabinet-level immigration position with sufficient authority, staff and budget whose sole mission would be to promote “Employment-Based Immigration” (EBI).
- Expand or eliminate EBI Quotas. These quotas have not been adjusted since 1990 and have not grown apace with the size of the economy. Republicans should look at recent usage levels and recognize that the market is the best indicator of need for foreign workers and either create an elastic cap or eliminate the quota entirely.
- Enact the AgJobs and DREAM Acts. Food security and national defense — twin totems revered by Republicans – go hand in hand with the enactment of these two measures.
- Enact the E-2 Nonimmigrant Investor Adjustment, Start-Up Visa and Founder’s Visa bills into law. What is it about the word “entrepreneur” that Republicans don’t understand?
- End the hoax that is the Labor Department’s PERM program and instead require the agency to identify jobs for which there are labor shortages. This would “eliminate government waste and red tape,” a time-honored Republican chant.
- Enact a documented worker nonimmigrant visa category (with a dependents category reserved to spouses and children) for the eight million undocumented migrant workers in this country. Require the worker to pay a steep user fee in return for permission to work in the job they already hold, and allow them to travel abroad and reenter the U.S., thereby spurring job-creation for the airlines and travel industry. Just as Republicans refused to raise taxes in the middle of a recession, they likewise should not exalt the need to punish violation of a misdemeanor (entry without inspection) over costly and ultimately unattainable enforcement objectives that would substantially add to the deficit. If they must (although I don’t agree), the GOP could include a spoonful of sugar, an express bar to permanent EBI benefits or a path to citizenship through this program (but no bar to permanent residence and citizenship if they qualify in other legally recognized ways).
- Enact an EBI Truth and Reconciliation Commission. Everyone knows that the broken immigration system, especially in industries that have historically employed large numbers of low skilled workers, has led to the creation of a “look-the-other-way” and “these-documents-seem-fine-to-me” mode of business in which employers may claim “plausible deniability” or (wittingly or unwittingly) turn lower-level employees into lawbreakers, naïfs or stooges. The GOP should give employers and their managerial staff willing to come forward the chance to admit their knowledge or suspicions of having employed unauthorized workers, pay a hefty fine, and receive “immunity” because the “tribe has spoken.” Sounds extreme? Compare it to the recent IRS announcement that the taxing authorities are considering therenewal of criminal immunity for tax law violators.
- Enact an EBI waiver of unlawful presence. Rep. Smith’s baby, born in 1996, the unlawful presence three- and ten-year bar has trapped many an EBI beneficiary or dependent. The waiver should be granted by USCIS upon a showing of either a non-wilful violation or of hardship to the worker or the employer if the waiver were to be refused.
- Enact a law that requires video-recording of all EBI visa applicants at consular interviews. Video-recording will provide a record that enhances homeland security while making sure that consular officers are disinclined to browbeat or treat visa applicants unfairly.
- Expand the Premium Processing Program for all EBI-related cases. Premium Processing fees for expedited decisions should be expanded to B-1 business-visitor change of status requests and all EBI nonimmigrant and immigrant visa petitions as well as to appeals to the AAO of all types of business, investor and other EBI cases.
- Expand Judicial Review of EBI cases. Allow the courts to determine whether the immigration agency in question acted improperly or exercised discretion unreasonably in denying EBI cases. Also, repeal the jurisdiction-stripping provisions of immigration statutes that preclude fair process and meaningful review in EBI cases.
- Give the States limited authority over immigration. Republicans should let individual states more directly determine their own economic policies by permitting enactment of EBI laws that allow creation of state-specific immigration benefits, as Ezra Klein of the Washington Post argues persuasively. This type of enactment would play well with the GOP’s 10th Amendment and devolution supporters, while expressly preempting as an exclusively federal domain all other state and local immigration laws.
My principal disagreement with Rep. Smith and his Republican colleagues is in their choice of low-hanging fruit. They can readily resolve their immigration quandary by opting for the easy-to-grasp objectives of the EBI-powered, job-creation strategies outlined above. These strategies, as shown, are founded on often-espoused but inconsistently-applied GOP principles.
Or, they can perpetuate the GOP trend du jour which (1) positions them as espousers of anti-business (read: “socialist-on-immigration”) opponents of civil rights for Hispanic and Asian people, and (2) tries to be as draconian as possible on immigration and employment, like many of their Republican colleagues at the state level are now doing. Simply stated, the members of the Grand Old Party must ask themselves: When it comes to immigration reform, are we Republicans or Socialists?