Immigration Law, Revisited
Every day, about 3,000 immigrants make a run for the border looking for work and a chance at the American Dream. About a third of them make it across the 2,000-mile U.S-Mexico border, but most don’t make it, and many die during the long, hot journey. This constant stream of immigrants continues even though the number of border patrol agents has more than tripled in the last decade.
For building service contractors, immigrants are a valuable source of labor, but it can be difficult to verify who’s legal and who isn’t. Or worse, BSCs are tempted to hire known illegal immigrants so they can pay lower wages, skirt taxes and insurance, and as a result, be able to afford to underbid the competition for accounts.
How to fix the problem of illegal immigration is the source of great debate. While some want to completely open the border, others would rather put up a wall. A group of citizen volunteers called The Minutemen recently made news for taking border patrol in Arizona into their own hands. Whatever happens, the one thing on which everyone seems to agree is that the current system is broken and urgently needs to be fixed.
“No one thinks the system is functioning well under the status quo,” says Marshall Fitz, director of advocacy for the American Immigration Lawyers Association, a national association of 8,000 attorneys and law professors who practice and teach immigration law. “The problems are not easy. Some people think we should just enforce the current law, but that won’t solve the problem. We’ve tried ramped up enforcement efforts, tripled security and border control, and we are in a worse position than we ever were. I would hope reasonable minds could coalesce around a practical solution.”
Politicians are responding to demands for change. There are currently several immigration reform bills before Congress, including the “Secure America and Orderly Immigration Act of 2005” (S. 1033/H.R. 2330), introduced on May 12 by Sens. Edward Kennedy (D-Mass.) and John McCain (R-Ariz.).
The complicated, 150-page bill proposes many changes to current immigration law, including increased border control. Of greatest interest to BSCs, however, are the many provisions dealing with immigrant workers. The bill would create a guest-worker program that would allow immigrants to cross the border legally to fill jobs Americans don’t want.
“The main reason people come here is to find work and send money home,” says Margaret Singer, a community outreach worker with Su Casa Hispanic Ministry Center, part of the Catholic Social Services of the Archdiocese of Cincinnati. “Because of immigration law being backwards now, people can’t get a job because they can’t get a driver’s license or social security number. If we had a law that would help the immigrant by opening up the door to get a permit to work, wouldn’t that be wonderful?”
Creating work visas
The McCain-Kennedy bill would create two new types of temporary, guest-worker visas. The first would be for nonimmigrant workers (those who have no intention of permanently abandoning their foreign residence). These workers would have to demonstrate a job offer in the U.S., pay a $500 application fee, and pass a criminal background and security check. The visa would be good for up to six years.
The second would be for undocumented immigrants who were already working in the United States before the introduction of the McCain-Kennedy bill. These workers would have to prove a work history, pass a background check, and pay an application fee and a $1,000 fine. To qualify for legal permanent resident status, these workers would have to continue their employment, pay income taxes, pay an additional application fee and $1,000 fine, and pass English and civics exams. These workers could eventually become U.S. citizens.
The bill would double the number of work visas awarded (the exact number would be adjusted annually depending on demand), creating a pool of several thousand new eligible workers.
“The fact is that new immigrants are very hard workers because they come from a country where there isn’t work or where there is work but no money,” Singer says. “Here they have work and they have money. They work hard and employers really want that.”
The bill would require employers to first search for a U.S. worker before hiring an immigrant worker. Every three years, employers would also be required to re-advertise jobs held by temporary workers. Employers would also be prohibited from hiring foreigners to replace striking or recently fired workers.
Employers would also be required to verify that a foreign worker is in the country legally and authorized to work. To make this difficult task easier, the government would create an electronic employer verification system. Plus, temporary workers would be issued biometric, machine-readable, tamper-resistant visas.
Currently, establishing a worker’s eligibility is complicated and is made even more difficult by the wide availability of social security on the black market.
“We have a responsibility to hire only folks that are authorized to work in this country, which is fine,” says Bob Croft, CBSE, president of CBN Building Maintenance in Phoenix, Ariz. “We cannot discriminate against recent immigrants, but with ID so easy to falsify, how do we do one without the other?”
Croft would welcome a new, streamlined system that would make it easier to spot falsified documents. He also appreciates the proposed program’s extensive background checks for immigrant workers.
“I want to have a handle on who I’m handing our keys out to,” Croft says.
The Kennedy-McCain bill also addresses worker’s rights, giving all temporary workers and legal permanent residents protection under the law. Most notably, these workers would be considered employees and could not be treated as independent contractors.
“It frees them from being slaves to an employer,” says Don Zerivitz, president of Pro Clean Building Maintenance in Orlando, Fla. “It frees them to get a job with any organization that would hire them instead of employers who are not paying them appropriate wages or benefits. I know my friends in the industry would gladly open their arms to someone who is documented.”
The bill calls for penalties against employers who knowingly violate the law. This provision could help end or reduce the practice of illegal subcontracting; however, specifics on what the penalties would be or how they would be enforced are murky.
“If you operate out of the back of your van or your garage, have no audit trail, and pay people in cash, how is this bill going to affect you?” asks Art Rose, president of Mr. Clean Maintenance Systems in Bloomington, Calif., and president of the Pacific Association of Building Service Contractors. “If this bill only means that the contractors who are trying to operate within the constraints of the law are the only ones to actually comply and the others are let off the hook, then what’s the difference?”
Supporters of the bill believe so many immigrant workers would apply for the new visas that it would be difficult to find undocumented workers willing to work as illegal subcontractors for below-standard wages. Critics worry, however, that the new system relies too heavily on self-identification and that immigrants won’t come forward out of a fear of being deported. Ron Goerne, co-founder 1.2.3 Training Systems, Bloomington, Ill., disagrees.
“I sit and talk to Hispanics every month and just listen to them,” Goerne says. “You should have seen their eyes the first time I shared the bill with them. I saw hope. Now they would have an opportunity in the United States to compete in a fair way. They can’t now because they are illegal. They are all taking English lessons because of that bill. They are excited about being able to become a citizen.”
A second immigration reform bill before Congress is the “Comprehensive Enforcement and Immigration Reform Act of 2005” proposed by Sens. John Cornyn (R- Texas) and Jon Kyl (R-Ariz.). Viewed as being tougher on immigration than the McCain-Kennedy bill, the Cornyn-Kyl bill concentrates on increasing resources to patrol the U.S.-Mexico border, enforcing current immigration laws and cutting down on human trafficking. It also includes a guest-worker program in which visa holders may participate up to three times for a total of six years, but it provides no pathway to legal residency.
Most likely, any final law would be a blend of these and other bills. Fitz expects that Sen. Arlen Specter (R-Penn.) will introduce a bill that cobbles together the disparate proposals. Debate on the issue could begin early next year and legislation could be passed as early as spring.
“There’s a ton of uncertainty between now and then,” Fitz says. “Whether Congress can get beyond all the political intricacies to get this thing done is the $64,000 question. But the will to do something is certainly there.”
If Congress moves too slowly, however, the issue could be placed on the backburner. Immigration is a hot-button issue and politicians may not want to debate it during an election year.
“Until it becomes law, any part of it can be changed and probably will be changed,” Rose says. “I’ve been involved in different lobbying efforts for different bills. What they end up coming out like, if they become law, is much different than how they were originally written.”
Whether change happens next spring or after the mid-term elections, Zerivitz just hopes something is finally done to address the abuse of immigrants that occurs all too frequently, particularly in the contract cleaning industry.
“They are here trying to strive to make their lives better,” Zerivitz says. “They come here with nothing and strike out just as our great grandparents did, looking for an opportunity to better their lives. Unfortunately many of them end up in a situation with a wage that might be better than their home country, but certainly not what it should be.”
Becky Mollenkamp is a business writer in Des Moines, Iowa, and a frequent contributor to Contracting Profits.
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