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Business & Labor
Can Congress Cure Decades of Bad Immigration Policies?
(southeast.construction.com,
August 2006 issue)
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.
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
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