Bloggings On Dysfunctional Government
Immigration Magnetized, Privatized and Depersonalized
The recent CNN GOP debate on foreign policy surprised many for what it included and excluded. Amazingly, nothing was said of the European debt crisis that threatens to create severe financial blowback in America. The surprise by inclusion came from Republican flavor of the month, Newt Gingrich, who responded to a domestic policy question on immigration, specifically, what America should do with the large population of unauthorized immigrants among us:
"If you've come here recently, you have no ties to this country, you ought to go home, period. If you've been here 25 years and you got three kids and two grandkids, you've been paying taxes and obeying the law, you belong to a local church, I don't think we're going to separate you from your family, uproot you forcefully and kick you out."
This prompted an attractive or repellant response (depending on one's views) concerning magnets. Candidates Bachmann and Romney chided Gingrich on the magnet of amnesty and the magnet of taxpayer-subsidized college tuition for DREAMers -- although post-debate reporting and opposition research revealed that both Willard Mitt and Michele Marie have espoused positions on legalization similar to Newton Leroy McPherson (Newt's name at birth).
However much they differ or align on legalization, there is one consensus magnet on which all 2012 candidates (including President Obama) agree -- the magnet of jobs. It's not so much our freedoms of press, religion and assembly, our right to bear arms, our purple mountain majesties, or people like Steve Jobs, but rather, jobs -- the candidates opine -- are what impels foreigners to America. Take away the attraction of unscrupulous employers looking the other way, identity thieves vending new impersonations, and accommodating document forgers doing a bustling trade. Demagnetize them in the slammer, and then otherwise desperate non-natives willing to cross burning deserts and fortified borders will instead pursue opportunities elsewhere or stay put abroad. Or so the theory goes.
In reality, however, the problem of dysfunctional immigration policies is not one of a jobs magnet, or an amnesty magnet, but rather the very program inaugurated in 1986 with President Reagan's signing of the Immigration Reform and Control Act (IRCA) to punish employers who violate the law. Our immigration system remains broken today because it was fundamentally flawed in concept from the outset. Congress has consistently declined since 1986 to mandate that everyone -- American citizens and foreigners alike -- carry a national identity document and present this ID when applying for work.
Instead, lawmakers copped out, or rather, outsourced the function of immigration cop to the private sector. By privatizing immigration enforcement as a date-of-hire requirement foisted on employers, but not making identity verification essentially foolproof through the creation and distribution of a national ID card, Congress doomed IRCA to fail. In effect, federal lawmakers forced the nation's employers and their human resource representatives to choose one of three options: Lawbreaker, Naïf or Stooge. None of these choices attract, magnetically or otherwise. An extended stay at Club Fed is not desirable. Neither is naive ill-preparedness or the prospect of serving as Congressional whack-a-mole at the IRCA carnival.
As the Obama Administration mounts its ever-increasing silent raids on American businesses, demanding to see Forms I-9 (Employment Eligibility Verifications), payroll records and other required documentation, employers have had little choice but to prepare for the enforcement juggernaut. Increasingly, as explained here and in the video below, employers must ready themselves for the likely, if not quite inevitable, visit by U.S. Immigration and Customs Enforcement, or another federal immigration law enforcer:
Some may think that the problem of job magnets will be solved once E-Verify, the federal employment verification database, becomes mandatory, as House Judiciary Committee Chairman, Lamar Smith (R. TX) has proposed. It will not -- because E-Verify suffers from the law of GIGO. The database is debased because it depends on the doubtful accuracy of Social Security Administration and Homeland Security Department records. Moreover, although E-Verify has recently (and rather quietly) gained access to Department of State records on American citizens who've received a U.S. passport or passport card (I for one don't remember giving permission), and Mississippi DMV records, the e-system remains incomplete. It still cannot catch identity theft and citizen impersonators. It will not be foolproof until every American, not just every foreigner, is in the database.
That's not likely to happen anytime soon. Witness the strange bedfellows of immigration who have opposed the REAL ID Act and encouraged states to drag their feet or demand waivers of the requirement that states satisfy federal standards for issuing new drivers licenses. Opposition is also growing over a similar identification requirement, the Voter ID laws cropping up across the country.
Politicians skirmishing for debating points will not solve our immigration dysfunctions. The solution can only begin when the citizenry participates in a dialogue about the loss of privacy and creeping totalitarianism that a national work ID card might spawn. We take our shoes off and allow ourselves to be irradiated or groped just to catch a plane. Are we ready to be biometrically identified in a digital dossier to get a job?
Angelo A. Paparelli is a partner of Seyfarth Shaw LLP. Mr. Paparelli, with a bicoastal practice in Southern California and New York City, is known for providing creative solutions to complex and straightforward immigration law problems, especially involving mergers and acquisitions, labor certifications and the H-1B visa category. His practice areas include legislative advocacy; employer compliance audits and investigations; U.S. and foreign work visas and permanent residence for executives, managers, scientists, scholars, investors, professionals, students and visitors; immigration messaging and speech-writing; corporate policy formulation; and immigration litigation before administrative agencies and the federal courts. He is frequently quoted in leading national publications on immigration law. He is also President of the Alliance of Business Immigration Lawyers, a 30-firm global consortium of leading immigration practitioners. Paparelliís blog and a comprehensive list of his many immigration law articles can be found at www.entertheusa.com. He is an alumnus of the University of Michigan where he earned his B.A., and of Wayne State University Law School where he earned his J.D. Paparelli is admitted to the state bars of California, Michigan and New York.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.