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Where Do We Go From Here? Life After Comprehensive Immigration Reform

by Gary Endelman

The Grand Bargain came undone. The center could not hold. Yet, the challenge of creating an immigration system for the challenges of the 21st century remains. It has not gone away. The death knell of immigration reform makes the job of restoring the rule of law, securing the border, ushering the undocumented in from the shadows, and reinforcing the foundation of our economic competitiveness through delivery of an adequate supply of highly skilled employees no less compelling nor deserving of our most earnest commitment and sustained dedication. CIR opponents achieved great success in having their voice heard by the media, Congress and the American public. Sadly, proponents of legalization could not equal them. Thankfully, the news of this past week has a silver lining. Stand alone immigration benefits of any kind were stalled for the past two years pending the disposition of the CIR initiative. Now that CIR is gone, stand alone benefits are back on the table. Now that the shouting has died down, and the embers of political passion have cooled, we must ask ourselves one disturbing question whose simple insistence demands an answer: Where do we go from here?

Most observers expect Congress to move aggressively against employers through adoption of electronic employment verification and more aggressive I-9 enforcement. Any such strategy is bound to elicit the full-throated opposition of employers in the hospitality, food service, agricultural, meat processing, construction and health care industries that will fight any attempt to crack down not accompanied by the opportunity to legalize their work force. Beyond that, serious enforcement must inevitably hurt the undocumented and their advocates will also block major changes absent an amnesty component. No, neither the undocumented nor employer sanctions will be where the ax falls. That will come elsewhere.

The 900 pound gorilla in the room is legalization, not legal immigration. Large scale increases in legal immigration are not going to be possible without legalization. All we can do is to tinker around the edges, such as more Schedule A numbers, a sunset increase in temporary immigration, perhaps giving H-4 spouses the right to work. While these are important and very much worth getting, and we should try for them with all our might, they are not the kind of root and branch overhaul of the legal immigration system that is so urgently required. In a Democratically- controlled Congress, we cannot expect a future expansion of legal immigration, whether family or employment-based, without looking at major past increases, which is precisely what IRCA was.

The failure of amnesty in 1986 led directly to the collapse of CIR some twenty years later. Ten years after IRCA, there was a brief moment when Congress might have made the necessary course correction to both legalization and legal immigration so that the platform for more legal migration might have been constructed. Yet, when business and the immigration bar successfully pressured Congress to split the bill, so that the most vulnerable among us felt the full force of the congressional lash, while legal immigration emerged unscathed, or so we thought, the moment passed. There were those among us who saw it all coming, who urged upon our leadership the road not taken. Now is the time to make IRCA right! Now is the time to defuse the ticking time bomb of illegal immigration while creating a system of legal choices that can chart our course into the next century.! Now is the time for our legal immigration choices to give the unskilled a way to legalize and not be compelled to break the law , often against their will. Do not forget that legal and illegal migration are inextricably linked. This is a time of high cotton, we said. There will never be a better day to act! Don't spilt the bill! Legal reform cannot live by itself if the shadows grow longer! Calm down were told. You are politically naive we were told. We are the true professionals, we were told. Listen to us. We did and live today with the consequences. Split the bill made the collapse of Comprehensive Immigration Reform almost inevitable.

From that time to now, what have we asked Congress? Give us more H numbers, give us faster adjudications, allow for greater extensions of status, modernize labor certification, expand the green card choices. Even as adjudications became more mean spirited, despite the ritual denunciations of the so-called "Culture of No" at our fraternal conclaves, the advocates of legal immigration got the lion's share of what they wanted; all the major items on our wish list came true. When Congress asked how things were going, we were quick to provide expert reassurance that all was well, that America's immigration problem was well on the way to a quick and lasting solution. It was not true and, at long last, to our deep sorrow, Congress now knows it. The charade is up. That is why Capitol Hill no longer believes us. That is why CIR lost. That is why Hs and Ls are now going to take it in the neck. THAT is where enforcement will come- swift, soon and with a vengeance that will take our breath away. Having bought legal immigration 10 years of borrowed time in 1996, at the price of pretending that IRCA's structural imbalance need not be addressed, we should not be surprised when the future arrives, knowing as we must that the God of Israel neither slumbers nor sleeps.

We can expect that all H1B employers will have to prove the unavailability of qualified Americans. We can expect that all H-1B employers will have to prove they did not displace US workers. We can expect random audits without the need for specific complaints by DOL that simply does not believe what our labor condition applications say. We can expect that H-1Bs will become mini- labor certifications, that L employers will have to prove they pay a prevailing wage. For the first time since its creation in 1970, the L no longer flies under the radar. Even the blanket L is not safe. It is not out of the question for Congress to require that employers submit a separate application for each L-1 visa. Whether true or not, the linkage of the L and H with outsourcing to India is very much on Congress' radar screen. Any employer who sends white collar jobs out of the United States should not expect an easy time in using the H or L visa when they seek to bring foreign workers in. It does not matter that this is an anecdotal outrage limited to an unscrupulous few; Congress now believes it to be so and, given our credibility on the Hill and with the American public, will not hesitate to frame immigration policy on the basis of this belief.

We do not face a choice between enforcement and no enforcement. Enforcement is going to come whether we like it or not. The only question is whether we can soften the blow and get something for it. How can we do that you ask? OK, I'll tell you how but you won't like it. It is to stop talking just with those who agree with us. It is to reach across the aisle and start a dialogue with those whom we reckon with great good reason as our sworn enemies. We need to go beyond our comfort zone. We need to go beyond our normal business partners and coalition allies. We need to disabuse ourselves of the fatal illusion that there can be gain without pain, victory without defeat, and achievement without sacrifice. If we want more Hs, what are we willing to give up? Is it worth taking on the burdens of recruitment and attestation? If we want to limit random audits, are we willing to agree that no H1B dependent employer should be able to file a petition? If we want to get rid of the H cap, are we willing to accept a limit on the number of H petitions that any one employer can sponsor? If we want more employment immigration numbers, are we willing to let go of the extended family? If we want to save legal immigration, are we willing to advocate an employer sanctions regime with teeth so that the I-9 is more than a bad joke? If we really care about protecting the undocumented, are we willing to enlist in meaningful border enforcement efforts?

Advocates who cherish the cause of the undocumented as their own, who feel betrayed by the failure of the Senate to step up to the plate and deal with the problem, should be the first enlistees in the army of those calling for tougher sanctions and more vigorous enforcement. Only that way will Congress ever be willing to pass a meaningful legalization program. Good intentions and high rhetoric are not an effective substitute for actually making legalization happen. By not realizing this, by fighting every attempt to make the border meaningful, we actually postpone the day when the deserving objects of our very real compassion can come in from the darkness and be warmed by the bright sunshine of freedom, a freedom made possible only through the rule of law. If lawyers do not feel that in that bones, who will? Nothing could please our enemies more than to hand them, as we always have, the issue of enforcement. This is the bloody shirt that the Lou Dobbs' of the world waive nightly and we let them do it.

Compromise is a necessary and noble calling. In an ideal world, there would be no electronic employment verification system. There would be no I-9, no ICE, no bait and switch tactics by renegade federal agencies that tell us one thing and do another. We do not live in such a place or at such a time. Neither do our clients who look to us not for sympathy but solutions. Hard times are on the way; the only real issue is on what terms they come and whether we are smart enough to turn them to our advantage. We can never hope to get more EB visa numbers unless and until we face up to the level of enforcement that our skeptics will demand for legalization. If you want to avoid the mess of the July visa bulletin in the future, be prepared to solve legalization by paying the price of enforcement that hurts. This is all of one piece; it hangs together. Do not repeat the mistake of 1996. Do not split the bill again! If Rep. Loefgren moves to mark up a bill in the House to give us what we want on skilled immigration, on more EB numbers, on a more elastic H cap, on allowing adjustment applications without a current priority date in order to counter the Visa Bulletin charade, does any rational being think this will not come without some castor oil ? Are we ready to swallow hard and say yes to the bad stuff or are we going to hold out for the whole enchilada only to see everything go down the drain, save for the enforcement measures that command broad bipartisan backing?

If we refuse to bend, our clients will break. If we treat compromise as a sign of moral decadence and pragmatism as proof of greed incarnate, then we will be able to preserve our own purity, but only at a high price. Such exalted notions of integrity do not come cheap these days. We can insist on getting everything and giving up nothing. How has this worked for us so far? This will not turn aside the draconian measures whose poison will infect the national bloodstream. The enforcement will come, our clients will suffer, but such unearned suffering will not bring redemption, merely the wormwood of regret. For us, at least, we will be able to hang our heads high, knowing that our hearts are pure. Is political impotence a just exchange for such enduring comfort? There is another way, to enter the arena, shake hands with the Devil, and get the best deal with can for our clients now, however imperfect and incomplete it may be, knowing that we and they will live to fight for a more complete truth in the better days to come. This is our choice and our moment, if we but have the will and the vision to decide.

This article is dedicated to the shining memory of Sam Williamson whose dedication, decency and scholarship remains an inspiration to those with the great good fortune to have been warmed by the pleasure of his company.