FAIR Legislative Update

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FAIR Legislative Update January 24, 2011






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New Study Shows Foreign Workers Gain Jobs While U.S. Workers Lose Them

A new study from Northeastern University shows that between 2008 and 2010, 1.1 million newly arriving aliens gained jobs while U.S. household employment declined by 6.26 million. (Reuters, Jan. 20, 2011) The study, commissioned by Reuters and performed by the Center for Labor Market Studies at Northeastern University, reviewed U.S. Bureau of Labor Statistics and Census Bureau data for 2008 through 2010.



The study shows that aliens who are still landing jobs tend to be young, uneducated, unskilled or semi-skilled. Of the 1.1 million aliens landing jobs in the past two years, 42 percent were under 30. Yet, the unemployment rate for all Americans without a high school diploma in this age group is extraordinarily high, about 27 percent to 29 percent. Particularly noteworthy, the study found that many of the jobs obtained by these aliens were in the construction industry—jobs that are routinely sought by American workers. (Id.)



Professor Andrew Sum, Director of the Center for Labor Market Studies, said it was fair to estimate that around 35 percent of these workers were undocumented or illegal. "Employers have chosen to use new immigrants over native-born workers and have continued to displace large numbers of blue-collar workers and young adults without college degrees." said Sum. “One of the advantages of hiring, particularly young, undocumented immigrants, is the fact that employers do not have to pay health benefits or basic payroll taxes.” (Id.)



Maine Governor Rescinds State Sanctuary Policy

In one of his first acts as the recently-elected Governor of Maine, Paul LePage rescinded an executive order by former Governor John Baldacci that had turned Maine into a partial sanctuary state for illegal aliens. (The Portland Press Herald, Jan. 18, 2011) Specifically, the rescinded order prevented state employees – other than state law enforcement officers – from inquiring or disclosing information relating to an individual’s immigration status except for under limited circumstances. (See Executive Order 34 FY 04/05, Feb. 2005)



To reverse the former sanctuary policy, Governor LePage issued a new executive order explicitly rescinding the 34 FY 04/05. The new order states that “[e]mployees and officials of the State of Maine shall cooperate with employees and officials of the federal government on all matters pertinent to immigration. . . .” (Executive Order 08 FY 11/12, Jan. 6, 2011) The new order also states that Governor LePage’s Administration intends to promote the enforcement of federal immigration law. (Id.)



Amnesty advocates decried the new executive order. Shenna Bellows of the Maine Civil Liberties Union remarked that it is “the first step in an anti-freedom agenda.” (Bangor Daily News, Jan. 6, 2011) “It doesn’t matter where you were born. We’re all human and we’re responsible for one another,” she said. (Id.) But a spokesman for LePage said the Governor intended to send a message to those who have heard it is easy for illegal aliens to get driver’s licenses and social services in Maine. “We have got many fiscal issues, and I’m intending to take care of Mainers first,” asserted Governor LePage. (Id.)



Mississippi Senate Takes Stand against Illegal Immigration

Last week, Mississippi became the latest state to take action against illegal immigration. By a vote of 34-15, the state senate passed legislation that would allow state and local law enforcement to check the status of those suspected of being in the country illegally. (Clarion Ledger, January 18, 2011; Senate Bill No. 2179) The bill is modeled after legislation which passed in Arizona last year.



Mississippi State Senator Joey Fillingane, a Republican, argued that Mississippi’s version of the bill is an improvement over Arizona’s bill. He said that the Mississippi version of the legislation made clear that the immigration status of an individual can only be checked after a lawful stop or detainment for another offense. (Clarion Ledger, January 18, 2011) The bill includes stiff penalties for companies that knowingly hire illegal aliens, including potentially suspending the organization’s business license. (Senate Bill No. 2179) It also increases the risk of penalties for cities that become safe havens for illegal aliens by allowing any citizen of the state to bring a civil claim against the entity and prescribing a fine of $500 to $5000 for every day the policy is in effect after a claim has been brought. (Id.)



The bill brings special attention to Mississippi Governor Haley Barbour, who is rumored to be considering a 2012 presidential run. (Fox News, January 17, 2011) Governor Barbour has not committed to signing or vetoing SB 2179 should it also pass the Mississippi House of Representatives. Barbour has said that it is reasonable to allow officers to check immigration status when stopped for other offenses, but also noted that some provisions which might be appropriate in Arizona or Texas would not be needed in Mississippi. (Id.) Lieutenant Governor Phil Bryant, who plans to run for Governor of Mississippi after this term has ended, has been an outspoken proponent of the bill. (Id.)



GAO: Federal Agencies Improve E-Verify

Last month the Government Accountability Office (GAO) issued a new assessment of E-Verify, revealing that the U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA) have made significant improvements to the E-Verify program. (GAO-11-146, Dec. 17, 2010) E-Verify is an Internet-based system that compares the names and social security numbers of new hires to data from Homeland Security and SSA records to confirm an employee’s eligibility to work lawfully in the U.S. (USCIS Website, Jan. 22, 2011)



Among the numerous actions taken by federal agencies to improve E-Verify since 2008, the GAO specifically noted that:



USCIS and SSA have taken several measures to improve the accuracy of E-Verify;

USCIS has improved monitoring and compliance by increasing the size of its staff;

USCIS and SSA have taken actions to prepare for a possible mandatory E-Verify implementation; and

USCIS has taken actions to minimize the risks to privacy of personal information for employees participating in the program.

With respect to improving the accuracy of E-Verify, the GAO elaborated on several specific measures that have improved the accuracy of E-Verify. These measures consist of adding tools to help identify fraudulent documents, expanding the number of databases queried through E-Verify, and instituting quality control procedures to screen for data entry errors. (GAO-11-146 at 53) Some of the particular tools to reduce fraud include a photo matching program that allows employers to determine whether the photo on the employee’s green card (or other employment authorization document) matches the digitally stored photo within DHS databases. (Id. at 22) If the employer determines that the photos do not match, then the employer is required to indicate in the system that the photos did not match and the employee is issued a tentative nonconfirmation (which he is given an opportunity to contest). (Id.) USCIS reports that from October 2009 to August 2010, 393,574 cases initiated the photo-matching tool. (Id.) Of those cases, employers indicated that 1,569 employee photos did not match; only one of those employees contested his receipt of a tentative nonconfirmation. (Id.)



The report also makes suggestions to even further improve the accuracy of the program, such as using biometrics to make documents less susceptible to fraud as well as increase efforts to educate employers and employees on how to successfully use the E-Verify system. (Id. at 24) According to the GAO, including biometric technology –such as facial, fingerprint, and iris recognition—would create a verifiable link between identity and authorizing documents and supplement an employer’s review of the Form I-9. (Id.) However, the GAO notes the high costs of developing a biometric system as well as the costs to employers to use such technology. (Id.) In regards to increased education to employers, the GAO suggests efforts to teach employers how to correctly enter information from the Form I-9 into the E-Verify system. And when it comes to educating employees about the system, the GAO recommends disseminating information to employees on the importance of providing consistent name information to employers, the SSA, and DHS. (Id. at 53) Doing so would improve the accuracy of E-Verify by helping to prevent erroneous nonconfirmations attributable to name mismatches (usually those who are foreign-born and/or naturalized) who have multiple or hyphenated surnames. (Id.)



Significantly, the GAO also observed that programs like E-Verify rely on robust worksite enforcement efforts to catch unscrupulous employers trying to unlawfully employ illegal aliens. (Id. at 53) This is noteworthy given that the House Judiciary Committee Chairman Rep. Lamar Smith (R-TX) announced earlier this month that his committee would begin its work on immigration by tackling the issue of worksite enforcement. (See FAIR Legislative Update, Jan. 10, 2011) “The House Judiciary Committee will promote work site enforcement efforts that make sure scarce jobs go to legal workers,” said Smith. “And we will continue to support the use and expansion of E-Verify.” (CQ Today, Jan. 4, 2011)



GAO: H-1B Program Falling Short

In a report released last week, the Government Accountability Office (GAO) concluded that the H-1B guest worker program – which proponents claim is for “high-skilled” workers – may not be serving its purpose and, in fact, “may be detrimental in some cases.” (H-1B Visa Program: Reforms are Needed to Minimize the Risks and Costs of Current Program, GAO-11-26, January 2011) The GAO called on Congress to reform the current H-1B Visa program to help protect American workers and close loopholes.



The H-1B Visa program, which was authorized by Congress in 1990, allows U.S. employers to hire foreign workers for “specialty occupations.” (Immigration and Nationality Act, § 101(a)(15)(H)) Originally, federal law capped the number of H-1B visas at 65,000 per year. (GAO-11-26 at 1) However, the cap has changed throughout the years in response to legislation passed by Congress. It reached a high of 195,000 in the years 2001-2003; in 2004, the cap was returned to 65,000, and the following year an additional 20,000 visas were reserved for individuals with advanced degrees from U.S. universities. (GAO-11-26 at 13) Today the cap remains at 65,000 visas per year, with additional 20,000 H-1B visas available for individuals with advanced degrees from U.S. universities. In addition, universities, research institutions, and K-12 public schools seeking to hire foreign workers are not subject to the cap. Exemptions play a large role in expanding the H-1B Visa program. In Fiscal Year 2009, for example, a total of 214,271 H-1B applications were approved. (United States Citizenship and Immigration Services, April 15, 2010)



In its report, the GAO found that changes to the H-1B visa program over time have diluted protections for American workers. For example, before 1990, H-1B guest workers were not allowed to apply for green cards. However, now H-1B holders are allowed to apply for green cards and are allowed to remain in the U.S. for an unlimited period of time while their application is pending. This has increased the number of H-1B guest workers in the U.S. significantly beyond what was originally intended, though DHS cannot say with any precision how many H-1B workers are currently in the U.S. (GAO-11-26 at 30)



The GAO also noted that Congress had lowered the skill level required in order to receive an H-1B visa. Before 1990, an H-1B applicant had to be “of distinguished merit and ability,” coming to the U.S. to “perform temporary service of an exceptional nature requiring such merit and ability.” Now, H-1B applicants need only be coming to the U.S. to perform services in a “specialty occupation” and have obtained a bachelor’s degree in the specific specialty. This change has expanded the pool of applicants significantly and reduced their overall skill level. In fact, despite the fact that businesses generally refer to the H-1B visa as a visa for high-skilled or “high-tech” workers, the GAO reported that 40 percent of H-1B guest workers only had a bachelor’s degree and over half are receiving entry level wages. (See also United States Citizenship and Immigration Services, September 2008)



GAO also found that restricted agency oversight and statutory changes had weakened protections for American workers. For, example, although there are requirements and guidelines for H-1B programs in place, the Department of Labor only does a cursory review of applications. In fact, Homeland Security recently found that 21 percent of the H-1B petitions they examined involved fraud or technical violations. (See also United States Citizenship and Immigration Services, September 2008) In addition, GAO found that while the bulk of complaints regarding abuse of the H-1B program are with respect to staffing companies – which apply for a disproportionate share of H-1B visas in order to place those workers in other companies – the government engaged in poor oversight of such firms. (GAO-11-26)



Regarding whether the H-1B program hurts the wages of U.S. workers, the GAO’s findings were inconclusive, though it did find a “significant difference” between the earnings of several groups of H-1B and U.S. workers, evidence that H-1B workers may be having a negative impact on the prevailing wage in those occupations. (GAO-11-26 at 42) The GAO’s survey of wages of H-1B workers and U.S. workers did not find significant differences. However, the GAO itself noted that because the government does not keep adequate data on the program, it “could not account for all factors that might affect salary levels.” For example, the GAO explained that comparing the salaries of certain professions alone could not account for differences in age or skill level, which are key factors in wage levels. (GAO-11-26 at 41)



Among its many conclusions, the GAO specifically recommended that Congress reconsider the qualifications required for H-1B visas, exemptions from the cap, the appropriateness of allowing staffing companies to hire H-1B workers, the level of the cap, and allowing H-1B guest workers to apply for green cards.