Impasse on immigration reform frustrates employers

Advocates held repeated rallies in favor of immigration reform in Washington, D.C., last year. Advocates held repeated rallies in favor of immigration reform in Washington, D.C., last year.

With immigration reform stalled in Congress, last year saw a surge in the number of laws passed by states hoping to better regulate the use foreign workers. As a result, employers with sites in multiple locations are facing an increasingly complex – if not conflicting – set of rules for immigrant labor. 

The National Conference of State Legislatures issued a report last month showing a significant jump in immigration-related measures passed by states in 2013. In total, 437 laws and resolutions addressing immigration were passed by state legislatures last year, a 64 percent increase over the 267 laws and resolutions passed in 2012, the report said.

NCSL officials said inaction on the part of federal lawmakers is leaving states with little choice but to fill the void by addressing ongoing immigration issues with state and local initiatives. “The immigration issue is not going away,” said Virginia state Sen. John Watkins, co-chair of the NCSL Task Force on Immigration and the States. “The federal government needs to address immigration reform and consider the fiscal impacts on states. Without a national solution, state lawmakers will continue debating policy and forming local responses to address needs within their states.”

The NCSL report listed a wide variety of laws passed in 2013, including laws on drivers’ licenses and identification cards; immigration enforcement measures; and residency requirements for higher education. Employment-related bills accounted for approximately 11 percent of the laws passed. Many of these concerned E-Verify, the online service that allows employers to confirm employment eligibility of immigrant workers. More than 20 states currently use E-Verify to supplement the federal Form I-94 employment eligibility verification process that all employers are required to follow.

Supreme Court ruling 

Although immigration has traditionally been regulated by the federal government, a 2011 Supreme Court ruling on an Arizona law gave states more leeway. The practical effect was to allow states to take away licenses of business found to have hired illegal immigrants.

According to Mike Aitken, vice president of government affairs at the Society for Human Resource Management, the resulting state laws have been inconsistent with each other and, at times, with federal rules. “If there’s ever a role where the federal government should be pre-eminent, it’s with immigration,” Aitken said. “We just think this is not the way to go. You don’t want 50 states interpreting United States’ immigration law.”

SHRM and other business groups have been pushing hard for Congress to pass a comprehensive immigration reform law, including a single, nationwide electronic employment verification system. At different points last year, it looked as though immigration reform’s time had come. At the end of June, the Senate passed a bipartisan bill, The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, by a margin of 68-32.  But the bill stalled in the House, where many in the Republican majority oppose a comprehensive solution that would include a path to citizenship for undocumented immigrants.

According to Justin Storch, manager of agency liaison for the Council for Global Immigration, an Alexandria, Va.-based group affiliated with SHRM, the impasse on federal reform has left employers struggling to navigate the patchwork of requirements and rules that they face. “Employers would like consistency, so they’re not having to look at a variety of state laws,” he said. “We understand why some states are looking at implementing new laws, but we do think it really should be the federal government moving the ball on this issue.”

Employment verification is not the only issue that affects employers, Storch notes. Laws that place barriers to housing, or obtaining drivers licenses, for example, can have a direct impact on a company’s workforce. “Drivers licenses are definitely a big issue; you have states going in every direction,” Storch said, noting that some states have made it harder for immigrants to obtain licenses at the same time others are easing access to licenses for immigrants. “You have someone at the DMV looking at an I-94 — is every employee at a DMV supposed to be an expert in immigration documents? It can get very tricky.”

Incremental change?
Congressional observers hold out hope that the House might somehow still find a way to pass an immigration reform bill during this session of Congress.

Senate majority leader Harry Reid, D-Nev., has said that Republican House members in swing districts may feel more pressure to pass immigration reform as the November election nears. Others have suggested that immigration reform may be taken up during a lame-duck session of Congress after the election.

Meanwhile, some groups say a large, comprehensive bill is not needed, and that employers’ concerns can largely be addressed through a more gradual, piecemeal approach. Mark Krikorian, executive director of the Center for Immigration Studies, a nonpartisan, Washington, D.C.-based think tank, says a far-reaching reform law is more likely to please special interest groups than rank-and-file employers.

“I think the whole comprehensive law idea is a mistake that the Washington lobbyists have made, but the businesses out in the field are the ones who are paying the price for that mistake,” said Krikorian. “Breaking it down and trying to move forward on particular pieces and putting others off until later makes more sense legislatively, and it also is more likely to fix this particular problem for businesses around the country.”

That said, Krikorian noted CIS supports the idea of a uniform, consistent E-Verify system for employers. And he agreed that the federal government should take the lead on immigration reform. “Immigration really is one of the handful of truly federal issues,” he said. “This issue of verifying legal status is better handled with a single rule across the country.”

Until that rule can be established, however, employers will continue to struggle to comply with various state rules and regulations. “Our employers want to do the right thing. They want to make sure they have a legal workforce — they just need the tools to do that,” Storch said. Until that happens, he said, companies will have to pay close attention to the many laws that apply to immigrant workers. “They need to dot the i’s and cross the t’s in every state where they have employees.”

Photo: Senate majority leader Harry Reid, D-Nev.

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