On May 25, 2006, a compromise Senate bill, S-2611, increasing border security and placing illegal immigrants on a road to citizenship passed 62-36 after a week-long, fiery debate.  In December of 2005, the House also passed an immigration reform bill, H.R. 4437.  Now the House and the Senate must brawl over the most substantial immigration law overhaul since 1986.  What does this mean for employers?  What is likely to happen?

According to one writer, "The gulf between the two versions is so vast, and the politics of immigration so heated in this election year, that the prospects for a deal remain murky at best."[1]  Let s take a look at the two bills to see whether a reconciliation is truly possible.

What do the immigration bills REALLY say?[2]

Emotion Fuels the Debate

Some groups advertise their views regarding the heated immigration debate on the Internet and even on billboards, while others choose to demonstrate.  Thousands of students took to the streets in Los Angeles, Phoenix, Dallas, and other cities throughout the debate to protest what they viewed as a possible toughening of immigration policy.

Ron De Jong, spokesperson for Grassfire.org, stated, "We support legal immigration but not the flood of illegal immigration."[3]  Billboards reading, "Stop the Invasion" of illegal immigrants have risen along major highways across the country.[4]  Cheryl Little, executive director of the Florida Immigrant Advocacy Center in Miami, stated, "Immigrants here are very concerned about . . . the anti-immigrant sentiment the billboards generate and fuel."[5]

U.S. Senator John Cornyn (R-Tex), chairman of the Immigration, Border Security and Citizenship Subcommittee, testified:

"I am wary of the effort by some to portray all immigrants as hardened criminals, gang members, or terrorists.  That is simply not true.  The overwhelming majority of illegal immigrants work hard, support their families here and at home, and contribute to our society.  When there is a shortage of U.S. workers, our immigration laws should allow those workers to enter our country through legal channels and work temporarily in the United States."[6]

Senator Cornyn is currently serving on the conference committee selected to hammer out a compromise between the two legislative bodies. 

Reaching a satisfactory agreement may be an insurmountable task for the committee as the House bill is an enforcement-only piece of legislation and the Senate bill is a comprehensive package.  The members must address competing, inflexible positions fueled by emotion and rhetoric.

What are the Potential Problems?

The implementation of the compromise legislation will likely be difficult.  First, processing a huge number of legalization applications presents a bureaucratic challenge that could be insurmountable and might equal the 2005 hurricane-season debacle.  The 1986 immigration law allowed nearly 3 million immigrants togain legal status.[7]  According to Peggy Gleason, senior attorney at the Catholic Legal Immigration Network, the 1986 amnesty law "was an enormous success.  Government made this huge effort to make all these offices that were very consumer friendly."[8]  Gleason fears that the government may face far greater problems if the more than 10 million eligible people actually apply for legalization.  The Senate bill would set a six-year processing window for applications for legal status and would require participating immigrants to register within 90 days.[9]  Michael Aytes, the associate director for domestic operations of the U.S. Bureau of Citizenship and Immigration Services, said, "We can t approach anything like legalization on the scale being discussed in a traditional way.  We would have to grow too far, too fast."[10]

Second, the application process would be ripe for fraud.  Immigrants would have to prove their U.S. work history with at least two documents.  An employer s affidavit verifying the immigrant s work history would suffice.  Questioned former Immigration and Naturalization Services commissioner, Doris Meissner, "How do you design an affidavit system that has integrity?"[11]  The Senate bill would require that by October 2007 all permanent immigration documents be machine readable, fraud resistant, and linked to biometric indicators such as fingerprints.  All U.S. employers would have to adopt an electronic system to verify the eligibility of workers within six years, a daunting task at best.[12]

Third, the volume of background checks required in the citizenship application process may overwhelm the FBI.  In 2004, the U.S. Bureau of Citizenship and Immigration Services submitted 1.9 million sets of fingerprints and 1.5 million names to the FBI; these numbers would grow tremendously if the Senate bill becomes law.[13]  Meissner stated, "The FBI is not set up to handle the volume that the immigration agencies are generating."[14]

RealSolutions for Employers

Stuck between a rock and a hard place, employers will likely face new burdens if and when an immigration bill is finally signed into law.  Until the Congress quits squabbling and the dust clears, employers can only speculate about the final outcome.  In the meantime:

1. Know what s happening.  Stay up to speed with resources such as www.epexperts.com, www.shrm.org, and www.dol.gov; utilize your local human resources group.  If, and when, an immigration law goes into effect, employers must be prepared. 
2. Screen the work eligibility of new hires.  Comply with current ability-to-work requirements.  Determine if Basic Pilot, a voluntary, online verification system available nationwide could help in eligibility screening.  Basic Pilot confirms the eligibility of new hires by checking the personal information they provide against federal databases.[15]  Both the House and Senate immigration bills would require employers to use Basic Pilot.[16] 
3. Do NOT help illegal immigrants enter the United States or stay in the United States. 
4. All policies, rules, and guidelines must be followed without running afoul of Title VII prohibitions against discrimination on the basis of national origin.

Conclusion

A showdown of mammoth proportions between the competing immigration interests awaits employers and could birth the most comprehensive immigration reform in 20 years.  Stay tuned. 

Susan Hance Sorrells is a Senior Consultant, with Employment Practices Services, a provider of services to assist employers in managing their employment practices risk. Prior to joining EPS, Susan practiced law for four years with the firm Kelly, Hart & Hallman in Fort Worth, Texas. She has a training background as an instructor in the legal assistant certification program at the University of Texas at Arlington and as an Adjunct Professor at Texas Wesleyan School of Law. Susan is based in the Dallas/Fort Worth area and can be contacted at ssorrells@epexperts.com.

With offices nationwide, Employment Practices Solutions, Inc., www.epexperts.com, provides organizations with assistance in preventing and minimizing workplace employment claims and lawsuits by providing the highest quality human resources consulting available.