Brooklyn's Progress
August/September 2006

BY STUART REICH

As an immigration lawyer dealing mostly with business-related immigration, I constantly receive phone calls from business owners trying to get the needed legal, labor documents for foreign nationals trying to become (or remain) legal in order to work.  With all the different legislative proposals and  proposed rules, the vastly different House & Senate perspectives, and the endless rhetoric from both sides, how do we know what the current immigration debate is really about, let alone how it will affect Brooklyn’s businesses?

Remember that for proposed legislation to become law, both the House of Representatives and the Senate must agree on a bill, and then send it to the President for his signature.  Only after the President signs a bill does it become law. 

So far, all the discussion has resulted in little real substantive change.  Both the House of Representatives and the Senate have seen the introduction of many bills for consideration.  The House of Representatives has to date expressed a willingness to pass only bills dealing with stricter enforcement of immigration laws – both against those who are here without documentation and the businesses which employ them.  Generally speaking, the Senate proposals try to balance stricter enforcement with some immigration benefits, such as earned legalization for those here without documents and increased availability of certain work visas and permanent residence categories which have been in short supply.

The impact of all this talk about immigration on business owners to date has largely been frustration and fear: frustration that in many cases there is no way to legally get  neededget needed workers, and fear on the part of those businesses who are concerned about increased enforcement (and stricter punishment) for employing the undocumented.

Getting the Necessary Employees
Employers of both high- and low-skilled workers are increasingly concerned they will be unable to get the people they need.  While some of the proposals out there focus only on enforcement and offer no relief to employers seeking to hire, others do offer some benefits.

On the skilled side, perhaps the most visible examples are employers who use the numerically-limited H-1B professional worker visa.  The H-1B is among the most commonly used temporary visas, and this year the statutory numerical caps were reached earlier than in any previous year.  Often, anxious U.S. employers can’t hire some of the best and brightest coming out of U.S. colleges and universities – even when insufficient qualified U.S. workers are available – because of the lack of H-1B visas.  These highly educated foreign nationals must take their skills overseas – and very often the jobs follow them.  Some of the Senate proposals would increase the number of H-1Bs and other visas while taking steps to decrease processing waits for permanent residence processes applicable to more skilled and educated workers.

Many Brooklyn businesses depend on unskilled labor to handle the jobs generally viewed as less desirable.  There are normally no temporary visas available or appropriate for those coming to perform this kind of work, and low-skilled workers are more likely to be undocumented.  Among the most talked-about proposals are the versions of the temporary guest worker programs which would allow a period of legal status here to do these jobs.  Some proposals even include a pathway to permanent residence or naturalization. 

Enforcement
Employers already face rules and corresponding penalties concerning work authorization of employees.  An employer cannot knowingly hire an employee it knows lacks authorization.  Here, “knowingly” means either having actual knowledge or constructive knowledge, which refers to situations where an employer has information which would tip off a reasonable person to inquire further. 

For all employees hired since November 1986, an employer must verify employment eligibility by completing an I-9 form to confirm viewing of certain acceptable documentary proof.  An employer who correctly completes an I-9 generally has a “safe harbor” defense against an accusation that the employer knowingly hired a foreign national who was ineligible to accept employment.  Though, he/she can still find himself in trouble if knowledge of an employee’s lack of employment authorization can otherwise be proven.  However, the employer is not currently expected to play detective or to be an expert on the authenticity of the documents presented.

Some of the new proposals would boost enforcement efforts, for instance: use of a program for electronic verification of social security cards and numbers, currently in an experimental stage, would be made universal.  Penalties would be increased across the board.  A regulation proposed separately by the Bureau of Immigration and Customs Enforcement would specifically make receipt of a “no-match” letter without certain specified attempts at resolution, a ground for a constructive knowledge finding (a no-match letter is sent to employers by the Social Security Administration when the social security number provided for a given employee does not match with that person’s name in their records).

Conclusion
These are the issues – not the answers.  Right now all we have are proposals, and we can’t make firm plans for the future of our businesses without greater certainty.  At the same time, one article can’t advise on the best course of action for your unique business. Always seek the advice of a qualified immigration lawyer before making any major business decisions.

Stuart Reich is the Principal of The Law Offices of Stuart J. Reich, and can be reached at sreich@ReichImmigration.com or at 718-237-1683.