June 2007 Franchising World
With primaries set to begin as early as January 2008, the window for congressional agreement on a comprehensive immigration reform bill is getting smaller.
By Jessica Bonanno
Attempts to reform the United States’ immigration laws evoke a wide breadth of responses from participants and observers. Immigration policy touches our sense of fairness, national identity and safety. Because of its sensitivity, immigration reform, which according to all the stakeholders is sorely needed, has become a political hot potato.
National security, economic stability and fair labor practices are moving pieces of an increasingly complex puzzle called comprehensive immigration reform. Isolating some of the diverse and interdependent components of the immigration system to reform them independently of each other seems like a manageable approach to a complicated problem. Piecemeal legislative attempts to address a broken immigration system may be politically viable, but as a matter of policy, such approaches are unworkable. Like an intricate balancing act, if one area is not reformed, the others fall out of alignment. The laws that comprise the nation’s immigration system must be considered wholly to ensure that a gap on U.S. borders is not left open while elsewhere a line forms in front of a narrow door to enter the country. The needs of the economy cannot be disregarded, nor can the needs of employers who are operating within the law. It is only through comprehensive reform that immigration to this country will be made fair and functional.
Franchising’s Priorities
Federal policymakers are working now to comprehensively reform America’s web of immigration programs and laws. The International Franchise Association has engaged in the immigration reform debate because many of the proposed changes would affect its members. IFA has joined with other trade associations and businesses concerned about maintaining balance and fairness for employers and employees in legislative attempts to reform U.S. immigration laws. The group is called the Essential Worker Immigration Coalition, of which IFA is a leading member.
IFA has distilled its stance on the top priorities of comprehensive immigration reform to four key components:
• Secure the borders,
• Address the millions of undocumented workers already in our economy,
• Arm employers with the tools necessary to fairly and efficiently determine worker eligibility, and
• Provide legal access to future foreign workers when U.S. workers cannot be found.
Of particular importance to the franchise business model and small businesses generally are the latter two. A fair and reliable program through which employers of all sizes can verify the eligibility of a worker, free from fear of penalty due to errors or delays, is of critical importance to business owners in all of IFA’s 100 plus industry community. In addition, access to a competent workforce has become increasingly difficult for employers from various industries of the IFA membership. Hotels, restaurants and the construction industry, among others, are currently experiencing labor shortages throughout the country. Without a new worker visa program and increased caps on several existing visa-types, this trend will only increase as America’s workforce continues to age and retire.
Legislative and Administration Approaches
Legislation was introduced in the U.S. House of Representatives this spring. The House bill, H.R. 1645, the Security Through Regularized Immigration and a Vibrant Economy Act of 2007, was introduced by Reps. Luis Gutierrez (D-Ill.) and Jeff Flake (R-Ariz.). While noting that the bill contains the necessary pieces of comprehensive reform, EWIC members have compiled a list of elements of the act that may be overly onerous for businesses. For example, under current law, an employer or subcontractor can be liable for hiring or employing an unauthorized worker if they have knowledge that the worker is not authorized. Through the STRIVE Act, however, the standard would be made more strict and changed to “knowing or with reckless disregard.” The employer community is concerned that a well-intentioned, law-abiding employer could be found liable for unknowingly employing an unauthorized worker based on the undefined, vague phrase “reckless disregard.”
Senate deliberations are being led by Sens. Ted Kennedy (D-Mass.) and Jon Kyl (R-Ariz.). At the time of this writing, Senate legislation was being debated with final action expeted in early June. With a closer balance of power in the Senate, and the two principals representing divergent views, the Senate will most likely produce the legislation upon which both the House and Senate can agree.
The White House has also constructed a list of principles to help guide lawmakers’ creation of a comprehensive proposal. The White House principles are the boiled down points of consensus being heard among Republican policymakers: “Secure the borders; Give employers tools necessary to verify immigration status of who they hire, and hold them accountable to do so; Provide a lawful channel for needed temporary workers; Bring illegal workers out of the shadows…without amnesty; Require English proficiency, civics training, oath of allegiance; All policies must be workable…” The White House can help serve as a broker in negotiating a compromise between the Democratic leaders and the more conservative Republican members.
All eyes are on the Senate, where Kennedy and Kyl disagree on several major components of comprehensive reform. Of particular importance to the business community is the structure of a new temporary worker program, which a comprehensive bill would create. With the Kyl school of thought preferring that new foreign workers stay in the United States only temporarily, the Kennedy side believes that without a path to permanent residency, temporary employees could be subject to exploitation by employers. Additionally, the business community believes that room must be made for temporary workers to be in the United States for as long as their employment is needed. Legislation during the past Congress by Kyl and John Cornyn (R-Texas) included a “forced circularity” provision that required new temporary workers in the United States for two years to return to their home country for one year, return for two years, leave for one year, return a third time for two years, and then go home permanently.
The concept of “forced circularity” to one’s home country is controversial and likely to be impractical. The assumption among “forced circularity” proponents is that immigrants generally come to the United States temporarily for work, but ultimately return home. Proponents assume immigrants will be able to travel home easily, but there are likely to be huge costs. With an estimated 25 percent of legal immigrants coming from Mexico, the effectiveness of such a proposal is questionable (i.e. Will non-Mexican immigrants be able to fulfill the requirements?). Of even greater concern to IFA and the business community, however, is the affect on businesses of such treatment of workers. The majority of industries seeking foreign workers due to domestic labor shortages invest in their employees in some way, for purposes of safety and efficiency. Whether employers require completion of lengthy certification programs, or more basic training, the costs associated with adequately training an employee is almost always borne by the employer, and is often more than a minimal expense. To force the loss of such employees every few years hardly seems like a long-term solution to a growing problem. Instead, IFA advocates for allowing, not requiring, circular employees.
IFA contends that a method for legally admitting and employing future workers is a critical element of an immigration reform bill. A “new worker” program must account for temporary workers being admitted to the United States and given the option to attain permanent residency without being forced to turn around and go home for any period of time. Such a sabbatical from an employer who is already struggling to fill its labor needs is impractical.
With the current partisan composition of the Senate, it seems that some version of “forced circularity” will remain in the final legislative product. IFA is working to ensure that such a requirement is the least burdensome on employees and employers as possible and to ensure that the Senate product includes a realistic “new worker” visa program, not merely improved “temporary” visa programs.
“New Worker” Program
As mentioned above, a reliable “new worker” program is as important to the employer community as a functional, dependable employment verification system. At the root of the approach is an Electronic Employment Verification System, which would replace the Basic Pilot Program presently available to employers and used on a voluntary basis. The current system is maintained by the Department of Homeland Security and the Social Security Administration. Employers provide the social security number and name of prospective workers and the system verifies their eligibility to work in the United States. The program, however, is known to have a 20 percent error rate. That includes both false positives and negatives. Last year, the House of Representatives produced a bill that would mandate the expansion of the Basic Pilot Program to all new and all current employees. That is an expansion from usage by 3,000 employers to more than 8 million employers to cover America’s more than 140 million workers. In the STRIVE Act, the pilot program would also be expanded to new hires, but only to “critical” existing employees. In addition, employers would be granted a mandatory waiver from utilizing the program if the program has not been certified each year by the Comptroller General of the United States.
Another element of a functional employee verification system is biometric identification or tamper-resistant ID cards. While biometric identification could give employers the assurance of an employee’s eligibility to work, the technology required to read such cards could be very costly. IFA is working with the Senate principals on their legislative language to ensure that employment verification requirements are reasonable, including taking small employers into consideration should a biometrics mandate be part of a comprehensive plan.
As more states move their 2008 presidential primary elections earlier and earlier, this nation is easily witnessing the longest ever presidential campaign season. With primaries set to begin as early as January 2008, the window for congressional agreement on a comprehensive immigration reform bill is getting smaller. Keeping the issue “alive” by not achieving consensus between the parties is not a political killer for either party. It would ensure that immigration reform is a campaign issue. It would also ensure that neither party would have a major hard-won victory to tout during the campaigns. Most stakeholders believe that if both houses of Congress do not pass something before the August recess, then the opportunity will not be available until there is a new president.
Jessica Bonanno is director of government relations of the International Franchise Association. She can be reached at 202-662-0775 or jbonanno@franchise.org.