By Stanley Mailman and Stephen Yale-Loehr**

President Bush wants to make immigration reform a top legislative priority this fall. See Peter Wallsten and Nicole Gaouette, Immigration Rising on Bush’s To-Do List, Los Angeles Times, July 24, 2005. A new coalition of business interests called Americans for Border and Economic Security, led by former House Majority Leader Dick Armey (R-Tex.) and former Rep. Cal Dooley (D-Calif.), have announced White House support for its drive to create a new national guest worker program. Id. And Congress already has the vehicles waiting.

The two main immigration reform bills pending in the Senate are the Secure America and Orderly Immigration Act (S. 1033), introduced in May by Senators John McCain (R-Ariz.) and Edward Kennedy (D-Mass.), and the Comprehensive Enforcement and Immigration Reform Act of 2005 (S. 1438), introduced in late July by Senators John Cornyn (R-Tex.) and Jon Kyl (R-Ariz.). Similar measures are pending in the House of Representatives.

The bills respond to President Bush’s vision for immigration reform sketched out in his speech of January 7, 2004. See Stanley Mailman and Stephen Yale-Loehr, Sanity for the Southwest Border, N.Y.L.J., Feb. 23, 2004, at 3, reprinted in 9 Bender’s Immigr. Bull. 152 (Mar. 1, 2004). The President envisions a temporary guest worker program – one that would give a temporary legal status to a foreign national willing to take a job that Americans don’t want. His proposal however, stopped short of granting those workers permanent resident status (green cards). Nor did it fill in the details. Moreover, it failed to address issues of enforcement, so important to immigration critics.

This article analyzes provisions in the two Senate bills that both extend immigration opportunities to temporary workers and tighten enforcement at the workplace.

New Temporary Worker Programs

The McCain-Kennedy and the Cornyn-Kyl bills both design new temporary worker programs. An easy shorthand for explaining the differences between the two is that the McCain-Kennedy bill would make it possible for the diligent worker to stay permanently in the United States, whereas the Cornyn-Kyl bill would follow the “earn and return” principle outlined by the President.

McCain-Kennedy would establish a new H-5A temporary visa category that would allow up to 400,000 “essential workers” from abroad to fill unskilled nonagricultural jobs in the United States. H-5A visas would be valid for three years initially, renewable once for an additional three years. H-5A applicants would have to pass criminal and security background checks, pay a $500 application fee, and undergo a medical examination. Federal, state, and local labor and employment laws would apply. 

McCain-Kennedy would also provide an H-5B temporary visa for undocumented workers already in the United States. H-5B applicants would have to pay a filing fee, a $1,000 fine, submit fingerprints, and pass criminal and security background checks. H-5B visas would be authorized for six years, after which they could apply for permanent resident status. To obtain a green card an applicant would have to meet certain work requirements, pay an additional $1,000 fine, show proof of payment of taxes, demonstrate knowledge of English and civics, and register for military service.

Cornyn-Kyl would establish a new temporary visa category with the designation “W.” Foreign nationals here in violation of the law would apply for a new “mandatory departure” status, requiring them to leave the United States and then re-enter under the new W program. To reenter, they would need an employer to sponsor them for a W visa. The employer would have to test the labor market and attest that there are no U.S. workers for the job, that they will pay the prevailing wage, and that hiring the foreign national will not adversely affect the working conditions of similarly employed U.S. workers.

Under the W visa program, foreign nationals would be admitted to work for up to two years and would then have to return to their home country for one year. Families could visit the W worker in the United States for up to 30 days each year. W workers would be capped at a total of six years.

Unlike McCain-Kennedy, Cornyn-Kyl wouldn’t give W workers the option of becoming legal permanent residents, unless they qualify independently, only a remote possibility to most undocumented workers. Some observers have criticized that feature of the Cornyn-Kyl bill. An estimated 10-12 million undocumented immigrants are already working in the United States. Pro-immigrant advocates charge that undocumented workers are unlikely to emerge from the shadows to work legally if they would be forced to leave after six years, with no hope of an eventual green card.

A recent survey of Mexican workers in the United States sends mixed messages on this issue. The Pew Hispanic Center surveyed almost 5,000 Mexican adults in seven U.S. cities. The survey didn’t ask participants about their U.S. immigration status, but more than half said they didn’t have any form of photo identification issued by a U.S. government agency. Seventy-two percent supported permanent legalization for migrants who have lived in the United States for five years, held steady jobs, and avoided entanglements with the law. But an almost identical percentage--71 percent--said they would participate in a program that would allow them to work in the United States but would require them to return to Mexico eventually. See Pew Hispanic Center, Survey of Mexican Migrants: Part One (Mar. 2, 2005), available at http://pewhispanic.org/reports/report.php?ReportID=41.

Workplace Enforcement

A common criticism of the President’s proposal, and indeed any program that smacks of an amnesty, is that it will simply invite further violations of our border. To try to prevent future undocumented immigration, both Senate bills would tighten the documentary rules on work eligibility. Everyone agrees that the current I-9 system for verifying workers’ identity and work eligibility is broken. Counterfeit documents are easily available. Moreover, worksite enforcement has been a low priority for many years. According to a recent report by the Government Accountability Office (GAO), in fiscal year 1999 the former Immigration and Naturalization Service devoted only about nine percent of its total investigative efforts to worksite enforcement. See GAO, No. GAO-05-822T, Immigration Enforcement: Preliminary Observations on Employment Verification and Worksite Enforcement Efforts, at 3 (June 21, 2005), available at http://www.gao.gov/new.items/d05822t.pdf. By fiscal year 2003 that number dropped to about four percent. Id. The number of notices of intent to fine issued to employers for knowingly hiring unauthorized workers or improperly completing I-9 forms, never a high number, decreased from 417 in fiscal year 1999 to just three in fiscal year 2004. Id. at 4. See generally Stanley Mailman and Stephen Yale-Loehr, The Complexity of Verifying Work Authorization, N.Y.L.J., Oct. 27, 1997, at 3, reprinted in 2 Bender’s Immigr. Bull. 943 (Nov. 15, 1997).

Cain-Kennedy would create a new electronic work authorization system to replace the paper-based I-9 system. That bill would require the Social Security Administration (SSA) to create a machine-readable card to show work eligibility. The new card would apply to all workers, including U.S. citizens. Employers would swipe the card into an electronic registry to verify the person’s authorization to work. Anyone whose records weren’t in the system would go to a secondary verification system, which is supposed to respond within ten days. The new drill would phase in gradually, with the exact schedule to be worked out between the SSA and the Department of Homeland Security (DHS).

Cornyn-Kyl would require the SSA to issue machine-readable, tamper-resistant social security cards within one year of enactment. The bill would create a new electronic employment authorization verification system called the Employment Eligibility Verification Program (EEVP). Employers would have to use the EEVP within one year after enactment. The bill also authorizes the hiring of 10,000 new DHS personnel dedicated to worksite enforcement over the next five years.

The idea of using social security cards as a universal work authorization document is hardly new. Members of Congress sparred over this issue almost 15 years ago. See, e.g., Social Security Numbers as National Identifiers Discussed at House Hearing, 68 Interpreter Releases 279, 280 (Mar. 11, 1991). Gwendolyn King, then-SSA Commissioner, testified at a 1991 congressional hearing that issuing social security numbers as national work identifiers would be “very burdensome.” Id. She estimated that it would cost the government between $1.5 and $2.5 billion to establish a national ID program. Id. That cost would certainly be much higher now.

There are other problems with using the social security card as the main work authorization document. Most importantly, the social security card is not an effective personal identifier. Without a photo and personal identification information on the card, it is difficult to ensure that the person presenting the card is its owner.

Second, the insecurity of so-called “breeder documents,” on which social security card issuance is based, makes it difficult to prevent the fraudulent use of social security cards. The only way to make social security cards more resistant to counterfeiting is to tighten the security of breeder documents, especially birth certificates. Both Senate bills attempt to do that.

Finally, privacy experts worry that implementing a social security-based verification system is the first step toward a national identity card, making all of us potential victims of Big Brother.

Both Senate bills would increase penalties on employers who hire undocumented workers. Absent appropriations for more investigators and increased emphasis on worksite verification by the immigration agency and the Department of Labor, however, higher fines are unlikely to deter employers.

Conclusion

As Senator Sam Brownback (R-Kan.) recently testified, “We can all agree on two things: first, the current system is broken; and second, a national solution is desperately needed.” Hearing on Comprehensive Immigration Reform Before the Sen. Comm. on the Judiciary (July 26, 2005) (statement of Sen. Sam Brownback), available at http://www.judiciary.senate.gov/member_statement.cfm?id=1588&wit_id=242. Both Senate bills attempt to balance the need to provide a legal way to attract the workers we need to keep our economy growing, while at the same time restoring the integrity of our laws and enhancing our security by providing realistic workplace enforcement. It remains to be seen whether Congress can really achieve those twin goals.

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* This article originally appeared in the August 22, 2005 issue of the New York Law Journal. Copyright © 2005 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.