Posted on January 4, 2006

After The Fall: Making Sense Out Of Sensenbrenner

Gary Endelman, Immigration Daily, Jan. 4, 2006

Now we know how Tom Paine felt at Valley Forge. It has been a cold December for those who think immigration is good for America. On December 16th, the House of Representatives approved the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005(H.R.4437), perhaps the most draconian bill of recent memory, and, a mere three days later, the House approved an agreement with the Senate on a comprehensive budget reconciliation package stripped bare of any pro-immigration provisions. While there is some satisfaction in the fact that the House did not get the higher L fees that it sought, this is cold comfort. Truth be told, it was a tough week, the worst in a long time, and the shock among pro-immigration circles, both on Capitol Hill and beyond, is palpable.

For the first time in a long time, the Republican House defied the US Chamber of Commerce, the National Association of Manufacturers and other corporate lobbying groups who sought to block adoption of a mandatory electronic employment eligibility verification system that would link Social Security Administration and Homeland Security databases. Such business opposition is not hard to figure out. Electronic verification would be on top of, not as a substitute for, the current I-9 compliance regime. Not only would new hires be subject to electronic verification, but all private sector employers would be compelled to reverify existing employees within six years; federal, state and local governments, not to mention non-governmental employers at critical infrastructure facilities, such as airports and nuclear power plants, would only have three years. All private sector employers must electronically check their entire workforce by 2012.


Pro-immigration lobbyists were most effective in the good old days when immigration was an inside the Beltway game. You met with a few friendly legislators who depended on your technical expertise and usually something could be quietly and quickly worked out. Three things have made this impossible. First, the Immigration Reform and Control Act made all US employers junior immigration agents by mandating completion of the I-9 employment verification form as a condition of hire. No longer would it be acceptable for American companies to hire those illegal aliens who had made their way through the maze. Now, immigration became a daily fact of business life. As was predicted, IRCA did not solve the problem of illegal migration, so much as defer the day of reckoning for a future time. The marker for IRCA has now come due. Second, the Immigration Act of 1990 tripled the number of employment visas, but fatefully, at the last minute, chose not to reform the labor certification system that, even then, had broken down as the inevitable contradiction of mass migration and micromanagement became too heavy to bear. . Moreover, IRCA introduced the concept of amnesty as a way to cope with rising illegal migration without doing anything to restore the structural imbalance between family and employment-based options that had made it necessary to come in under the shadows in the first place. That was what IMMACT 90 was supposed to do- serve as the second act to IRCA’s overture. Yet, the number of immigrant visas for the other worker category- a paltry 10,000 (originally only 5,000)- was, and always has been, wholly inadequate to the task and the demand, thus leaving both desperate aliens and equally anxious employers little incentive but to act in an extra-legal fashion. What the law did not make provision for , the economy did. Third, 9/11 changed the world and everything in it would never be the same. Immigration was now synonymous with terrorism and those who hated both immigration and the immigrants now had a powerful new club to swing. They set about wielding it with gusto. Lou Dobbs meet Mohammed Atta.

As bad as HR 4437 is, the real loss is the removal of the pro-immigration provisions that had been enshrined in section 8001 of the Senate budget package. It is impossible to overstate the stimulus that Senate Budget Bill section 8001 would have injected into an employment immigration system that is on life support. Even its authors do not realize what has been lost. Restoration of up to 90,000 unused immigrant visa numbers that had been gathering dust is only the least of it. Much more was at stake. The additional unused H-1B numbers that Section 8001 would have made available would have been a shot in the arm for desperate US employers with openings where these foreign nationals are sorely needed. Section 8001 would have tripled the number of employment-based immigrant visas simply by not counting family members against the 140,000 cap. Just by backing out dependents , the EB quotas would have been utterly transformed. Good bye backlogs! But wait, I rejoice too soon. Not counting family members would erase much of the current EB backlog, but does nothing to guard against its re-emergence, phoenix-like from the ashes. The day for immigration reform on the cheap is long since gone never to return. Section 8001 did not enlarge the EB quota nor give employment based migration priority over family migration, something that must happen if the same, or even longer, backlogs, are not to come back with a vengeance . There was one other fly in the ointment, namely that the architects of Section 8001 did not realize the need to amend the Child Status Protection Act so that, while Mom and Dad waited for their day of green card deliverance to arrive, their kids would have aged out. The CSPA only freezes a dependent’s age if there is a current priority date. How many parents are going to wait patiently for final adjustment approval if their kids have to go home?


Having said that, in the long term, Section 8001 meant a lot more than HR 4437 does not mean that the number of poison pills in Sensenbrenner’s bill do not make it exceedingly painful to swallow. Purely from a $ standpoint, the bill does not work, particularly at a time when the Administration wants to rein in federal spending, eliminate the estate tax, scrap the alternative minimum tax, rebuild the Gulf Coast, keep defense spending at record levels, pay for a new prescription drug benefit under Medicare and make the President’s tax cuts permanent. Did I forget Iraq?. The Congressional Budget Office estimates that initial implementation will cost $1.9 billion with more in later years as additional restrictions come on stream. Just do the math. Providing DHS with secure access to a reliable database of Social Security numbers will not come cheap. When you factor in the need for the Social Security Agency to answer phone inquiries, handle personal visits and produce replacement SSN cards for people whose employers get a nonverified electronic response, you begin to get some idea of why the Social Security folks are less than wild about this new toy. Take off the price tag, and HR 4437 still does not look too good. Here are some holiday treats that you probably will not stuff into your stocking over the fireplace:

  1. All visitors processed in the US VISIT system will now offer up ten fingerprints to enhance the reliability of biometric data collection. Think that is going to shorten the lines at your friendly airport?
  2. Illegal presence in the USA goes from a civil offense to a crime punishable by a year in the pokey. This covers anyone who overstays or violates the terms of their visa. Advising such aliens on their legal options, or helping them to become legal, could easily be prosecuted as harboring. How’s that for chilling the attorney-client relationship? It is hard to imagine that the feds will arrest millions of people, but it is not beyond imagining to speculate that they might move against high profile lawyers, corporate employers, and non-profit advocates, if only to make an example out of them, and scare the hell out of everyone else. Nothing succeeds like intimidation. The criminalizing of immigration misconduct, often innocent and frequently the direct product or inevitable result of government inefficiency, recalcitrance or sheer refusal to abide by law or logic, is a blatant attempt to convert understandable public concern into overt xenophobia . It is grandstanding masquerading for public policy and must be denounced as such.
  3. Jack Kemp, former Secretary of Housing and Urban Development and the Republican Vice-Presidential Candidate in 1996, has done just that:

    H.R. 4437 is so overreaching that it would effectively transform any relative, employer, co-worker, co- congregant or friend of an undocumented immigrant into an “alien smuggler” and a criminal. The legislation’s far-reaching “smuggling” provisions go far beyond any common-sense definition of a “smuggler” and include average Americans going about their business. It also inappropriately conscripts the American business community into the U.S. government’s immigration police force by requiring burdensome investigative and reporting activities where prospective employees are concerned:

  4. The maximum period for voluntary departure shrinks from 120 to 60 days. You might not get even that if you cannot pay to post a bond nor prove up hardship to excuse you from such obligation.
  5. There is a new ten year statute of limitations for immigration-related crimes.
  6. State and local law enforcement can now investigate, arrest and detain, or even transfer to federal custody, any alien in violation of immigration laws. The very population that is most vulnerable to crime, that is most in need of protection, and has the most reason to distrust the police, now has one more reason to keep quiet. Will this make our cities safer?
  7. Expedited removal moves inland to lasso any alien arrested within 100 miles of the border up to 14 days after entering the USA and any nonimmigrant visa holder must give up the right to challenge a refusal to admit, regardless of how arbitrary or capricious, save for asylee or refugee claims. Due process is simply too much trouble.
  8. The time you must wait after a naturalization interview to take your case to federal court has just been extended from 120 to 180 days. Even then, if you do manage to get to the courthouse, all the judge can do is send your case back down to the CIS with instructions to behave; no longer can the court order an outright grant.
  9. The border with Mexico is to be militarized. HR 4437 authorizes two layers of fencing and the installation of additional barriers with priority given to certain high entry sections. One wonders what will happen to our northern border with Canada and how effective any attempt to seal off thousands of miles will be. Beyond that, the moral position of the USA in the rest of an already suspicious world will be seriously compromised. What are we to tell other countries when they seek to build their walls? What will be the consequences be for our foreign relations with our neighbors, the same neighbors that we are pressing for trade concessions and security cooperation? At a time when the reaction against globalism is in full swing throughout the Western Hemisphere, is this really the time to retreat behind a Fortress America?

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The U.S. House of Representatives passed an immigration bill recently that critics say would punish good samaritans who help undocumented immigrants in any way.

Under the Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005, which moved to the Senate on Dec. 17 for consideration, it would become a crime to help someone who is an undocumented immigrant stay in this country.

The bill’s language is so broadly written that it would extend to schools, hospitals, shelters, food pantries and even soup kitchen services, said Ouisa Davis, outgoing director of the Diocesan Migrant and Refugee Services.

“As it exists, any U.S. citizen married to an undocumented immigrant could be tried . . . spouses have no defense,” she said. “The legislation is so broad that there is no definition as to what activity would be covered.”


Ruben Garcia, director of Annunciation House, which provides emergency shelter to refugees from around the world, said the proposed bill “would implicate vast numbers of people . . . This is no longer about trying to deal with undocumented immigrants, this is about a hidden aspect of racism.”