Immigration Reform: Can Congress Cure Decades of Bad Immigration Policies?

By John P. Horan
Foley & Lardner LLP

How does a "nation of immigrants" find itself in this situation? Why can't Congress pass a simple law that secures our borders yet allows a reasonable flow of needed labor? The answer is, as "blue collar" comedian Ron White might say, "You can't fix stupid."

There are approximately 11 million undocumented workers in this country, many of whom are performing unskilled or lower-wage jobs that American citizens are not taking. They did not appear overnight. Many have been here for years and have been allowed to stay as a result of the government's "wink and a nod" attitude towards enforcement. The economy needs these "illegal" workers, so the government has looked the other way.

American history tells us that immigrants have always been willing to work at lower-paying jobs. A burgeoning immigrant population performed the lower-wage or unskilled jobs generated by the emerging industrial economy of the U.S. during the 20TH Century.

But then the proportion of European immigrants decreased. Immigration policies discouraged immigration of unskilled labor in favor of higher-wage workers or students who aspired to be engineers or work in the science, health care or technology fields.

The construction industry operates in the wake of what these policies have wrought. Consistently, the construction industry accounts for approximately 10 percent of the nation's gross domestic product and is one of the top two or three employers. Nonetheless, despite continued efforts to promote workforce recruitment, education and training through school-to-work programs, college and university outreach, and professional development training, there still remains a drastic shortage of workers in the industry at every level, both skilled and unskilled.

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There are not enough workers (immigrant or domestic) to do the unskilled work (even though the industry pays the same legal wages to both), and the educational system is producing fewer skilled craftspeople and engineers.

Current immigration law provides construction companies the ability to bring in workers to perform unskilled tasks in nonagricultural industries through the H-2B visa program. Unfortunately, there are only 66,000 of these visas available, and the workers allowed to enter the United States via this program can stay for less than one year.

The Department of Homeland Security announced on Jan. 4, 2005, that the annual cap for H-2B visas had been exhausted for 2005, meaning that no more applications for those workers would be accepted for the remainder of the calendar year.

Nonetheless, according to the Pew Hispanic Center, the construction industry has more than 1.4 million unauthorized workers, accounting for about 12 percent of the industry workforce. This is the largest number of unauthorized workers in any major industry category.

According to these same studies, most unauthorized workers are performing lower-wage or unskilled jobs in private households, or in the food, manufacturing, farming, furniture, construction, textiles, food service, hospitality or manufacturing sectors of the economy.

These people work in the shadows of our society. In the early part of the 20th Century, these "illegal" immigrants would have been granted entry visas to work under standards that then existed. They were our parents, our grandparents and our great-grandparents.

Comprehensive immigration reform is needed, but you can't fix decades of "stupid" with one law. Nonetheless, we need to begin.

The U.S. House has passed proposed legislation that focuses on border security, "criminalizes" illegal immigration and makes assistance to undocumented aliens a felony. Proposals emanating from the U.S. Senate largely incorporate the tough border enforcement aspect of the House bill but offer undocumented workers an opportunity to legalize their status. Proposals coming out of the Senate have included a guest worker program that makes temporary work visas available for lower-wage workers and allows for renewal of employment eligibility as warranted by market demand.

Senate proposals have also included the creation of an immigration identification system that would allow employers, as well as government officials, to electronically verify and track workers. Recent refinements of the Senate proposals include dividing the "illegal" population into two groups: long-term illegal immigrants, generally defined as those who have been in the country for more than five years who would be eligible for legalization, and short-term illegal immigrants, who would either have to leave the country permanently or leave and then reapply for temporary worker status.

The House and Senate versions will be debated in a conference committee. It is likely that no one will be totally satisfied with the final legislative outcome if, indeed, there is one.

But this is an important debate for a nation of immigrants. Our nation should expect its lawmakers to pass legislation that effectively secures our borders and allows a reasonable flow of immigration needed to fill jobs for the American economy. Stupid need not be forever.

John P. Horan is a partner with Foley. He is the founding chairman and a current member of the Construction Practice Group