Continue reading »]]> In response to ImmigrationImpact.com’s critique of the definition of “anchor baby” included in the latest edition of the American Heritage Dictionary of the English Language, the executive editor of the dictionary has agreed to revise the definition of to reflect the derogatory nature of the term. In conversations with Mary Giovagnoli, Director of the Immigration Policy Center, Executive Editor Steven Kleinedler promised a swift and careful revision of the term. Mr. Kleinedler noted that the editors are already undergoing further review on how the term is commonly used and said “we will be adding a label to the term, either derogatory or offensive, which I acknowledge should have been done in the first place, and we will determine how to revise the definition. Then on Monday we begin making the actual change—first on the website, and then we begin propagating the change out to the electronic products and in the next printing.”

ImmigrationImpact.com will continue to monitor the changes and urges the editors to adopt a definition that reflects the truly insidious nature of this term.

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Last month, Rep. Lamar Smith introduced the “Legal Workforce Act of 2011” (H.R. 2164), a bill which would make the E-Verify system mandatory for all employers within three years. While the Smith bill version of mandatory E-Verify has been criticized for snagging U.S. citizens and legal workers, burdening employers with additional costs and not actually catching unauthorized workers, Sen. Robert Menendez’s recent bill, “The Comprehensive Immigration Reform Act of 2011,” also includes mandatory E-Verify. So why would folks support the Menendez bill when they keep hearing that E-Verify is so bad?

Like all comprehensive immigration reform (CIR) bills since 2005, the Menendez bill allows for a mandatory E-Verify system only in context to other elements of comprehensive immigration reform, like a generous legalization program, reforms to family- and employment-based systems, border and interior enforcement and integration programs. Under Menendez’s bill, current unauthorized workers would have a chance to legalize their status, and future workers could come through newly created legal channels.  In other words, rather than try to catch unauthorized workers as part of an enforcement-only strategy, the Menendez bill would create a legal workforce, and then E-Verify would allow employers to ensure they are in compliance with the new laws.

Although some groups will continue to oppose mandatory E-Verify even as part of CIR, others have realized that if E-Verify isn’t going anyway, it had better work well and provide strong protections for workers. And the Menendez bill’s E-Verify is very different than the one in Smith’s bill.

The Menendez bill:

• creates penalties for employers who misuse the system (e.g. they fail to tell an employee about a tentative nonconfirmation (TNC), retaliate or take adverse employment actions against a worker with a TNC, fire a worker with a TNC, etc.);
• creates strong privacy protections;
• creates an administrative review process for workers who want to appeal the result;
• provides compensation for workers who were fired due to an erroneous result;
• creates a judicial review process to appeal administrative decisions;
• creates a private right of action against employers who misuse the system;
• requires annual studies and audits of the system to monitor accuracy rates, employer verification, discrimination, privacy, fraud, impact on employers, etc.

These provisions are not included in the Smith bill.  In other words, the Menendez bill provides for an improved version of E-Verify within the context of legalization and immigration reform, while Smith’s bill offers a version of E-Verify bill that is likely to make the problem worse. The truth is that E-Verify alone is not a solution. There are 7-8 million unauthorized workers in the U.S. and no good legal channels for those workers to enter the system.  Slapping mandatory E-Verify on top of the already broken system will do more harm than good.  Workers will go further underground, employers will hire workers off the books, identity theft will increase, employers simply won’t run workers they know are undocumented through the system.

Photo by JF Sebastian.

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By Mary Giovagnoli and Melissa Crow

Today’s Supreme Court decision upholding Arizona’s law requiring employers to use E-verify or risk losing their business licenses will, like all Supreme Court decisions, take some time to digest. What’s surprising, however, is how quickly some are already jumping to the conclusion that today’s decision signals how the Supreme Court might rule on SB 1070 when, and if, it finally makes its way to the Supreme Court.

Even though challenges to both laws involve the idea of preemption—whether the federal government has the sole authority to make and enforce laws on a particular issue—the underlying laws in question are significantly different.

The Legal Arizona Workers Act was an effort to regulate the employment of undocumented immigrants by permitting the suspension or revocation of business licenses in the event that employers knowingly hired undocumented immigrants. A majority of the Supreme Court rejected the argument that Arizona had overreached, relying on a specific exception in the Immigration and Nationality Act that said that state governments retained the authority to regulate employment verification through licensing. That fairly narrow exception decided the case, despite strong arguments about the federal scheme for regulating immigration and the costs that a mandatory employment verification system imposes. This is unfortunate, but it doesn’t mean that supporters of SB 1070 should start celebrating. Today’s decision was more about employment than immigration. While states have historically possessed the power to regulate employers within their borders, they have no authority to regulate immigration itself. This is the exclusive domain of the federal government—and the issue at stake in the SB 1070 litigation.

SB 1070, after all, has as its express purpose to make “attrition through enforcement” the policy of the state. In other words, the state of Arizona decided in SB 1070 to make it so onerous for immigrants to live there that they would just leave. And while it was written to root out undocumented immigrants, the practical effect was to make anyone who appeared vaguely foreign or different the possible target of questioning and racial profiling. Moreover, it created criminal penalties for being in the state illegally, essentially layering another level of punishment on people regardless of federal law.

This is important, because Arizona’s SB 1070 essentially sought to replace federal immigration law with an even tougher standard. The only employment-related provision of SB 1070 sought to criminalize work by undocumented immigrants. The Ninth Circuit found this provision unconstitutional, in part because Congress decided to penalize employers, not employees, for the hiring of undocumented workers.

Today’s decision affirmed a prior ruling by the Ninth Circuit Court of Appeals that Arizona’s law was not preempted. By contrast, the District Court has already found SB 1070 to be preempted by federal law and the Court of Appeals found the arguments of plaintiffs so compelling that it issued an injunction, preventing the vast majority of the law from going into effect until the Court issues its opinion. Thus, two courts have already given support to the idea that there are broad issues of preemption here that weren’t under the microscope in the Whiting decision. Both the breadth and the substantive questions at issue in the two laws are radically different.

Nonetheless, today’s decision is an unfortunate one, as it will ultimately either drive more people underground, lead to more discrimination, or create more problems for Arizona businesses. Nor will mandatory E-verify solve the problems Arizona sought to address—attempting to regulate undocumented employment without providing a means for legalization is a no-win proposition. Until Congress passes comprehensive immigration reform that balances benefits and enforcement, E-verify alone will never win the day.

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Speeches, even those delivered by the President of the United States, can be forgotten fairly quickly. Following the El Paso immigration speech from two weeks ago, the White House is attempting to sustain a buzz by sending other members of the President’s cabinet and White House officials out to give speeches and hold roundtables across the country to discuss immigration. The most lasting piece of this effort, however, is likely to be the immigration blueprint which was released along with the speech. The title, “Building a 21st Century Immigration System” recognizes that the system we have now does not work—and a new one must be built from scratch to meet the needs of our country today. Without comprehensive reform, pieces of the immigration system will remain unfixed, resulting in a system which still does not function

The blueprint outlines the progress made so far by the Obama Administration on the issue of border security and discusses key principles of future reform.

DHS is:

• Keeping the border secure by having more border patrol staff than at any time in U.S. history, deploying more ICE personnel in the Southwest border region, and working with Mexico to disrupt the trafficking of drugs, weapons, and bulk cash.
• Demanding accountability from employers who deliberately hire and exploit undocumented workers. The administration has already audited more than 4,600 employers and levied $61 million in financial sanctions—more than was levied during the entire previous administration.

We must:

• Create a legal immigration system that responds to our needs and promotes legal immigration.
• Legalize persons living here undocumented who register, undergo background checks, pay their back taxes, and learn English before getting in line for citizenship.

The blueprint sticks to what President Obama’s been saying since before he was elected, that “we need comprehensive reform that demands responsibility and accountability from the government, businesses, and immigrants themselves. We cannot solve this problem through enforcement alone.” In the blueprint, Obama focuses on high-skilled immigration, and recommends trying to reduce barriers to high-skilled immigration and foreign-born entrepreneurship. The White House also points out that immigrants are contributing to our economic recovery by creating jobs and paying taxes.

The blueprint also contains many nuanced points that will be critical in upcoming legislative battles. Although the blueprint supports mandatory E-verify, it couples it with legalization for the current unauthorized population. The President’s blueprint supports existing legislation like the DREAM Act and AgJobs. It calls for reforms of the H-1B visa program and the establishment of a new temporary worker program for lower skilled, non-seasonal, non-agricultural workers. All of these positions may be tested in the coming months as legislation is introduced and fought over. For the blueprint to be truly meaningful, the positions outlined by the White House will need to be reinforced by the White House’s active support for positive legislation and opposition to legislation—such as a stand alone mandatory E-verify bill—that undermines immigration reform.

On paper, the new immigration system that the President would like to build is one that could prepare America for the 21st century by squarely addressing the existing problems, but the outline is better at fleshing out some points than others. For instance, the integration of immigrants, a key to our future—only gets 4 lines that support the general idea of integration without really committing to it. Ironically, this is one of the areas where the administration has made progress, so failing to promote that work is a missed opportunity. Similarly, the importance of family reunification, while mentioned, is hidden on the 26th page of the document, hardly inspiring to those who want improvement in our legal immigration system in order to bring families together more quickly and efficiently. Both of these issues actually support the other goals of the blueprint—as integration and family are two key elements in helping immigrants achieve their goals and therefore contribute all they can to America.

The blueprint is not a final product but rather a jumping off point for more analysis and discussion. It can be the start of many real conversations that need to take place around America and in the halls of Congress.

Photo by Matthew Burpee