Yet, regardless of who wins the White House, there will be no comprehensive immigration reform this year or next. Instead, employer fines anchored in Notices of Inspection will set all-time highs, and unauthorized workers will be forced out of jobs in record numbers.
The principal reason immigration reform won’t happen is because it can’t happen. At least, not yet. Setting aside political agendas, there are two giant “sleeper” issues that must be resolved to enable reform.
The first elephant in the room is the numbers. Although there are widely varying estimates, the most conservative suggest there are more than 10 million undocumented people in the country, and that most of them would qualify for legalization.
If that assumption is correct, it is important to realize that the government has no more capacity to process 10 million people for legalization than it has to deport 10 million people.
To illustrate the challenge of the numbers, let’s say 10 million people qualify for legalization and the government opens offices 300 days during the first year of implementation.
That would mean that more than 33,000 people would have to get through the entire application process, including interviews and background checks, each day to complete the process in a year. Obviously, this program would have to be extended out to multiple years, but it is important to realize that for the duration of the program, all undocumented people in the country would be presumed eligible for the program. No determinations of unauthorized status to live or work in this country could be made until eligibility for legalization is first addressed and adjudicated.
That means worksite enforcement, Form I-9 requirements, and E-Verify would have to be suspended. The implication toward fraud and even more volatile incoherent immigration enforcement policies would be great.
The second issue is just as compelling: unemployment. Unauthorized workers hold jobs that would otherwise be available to American labor. And, contrary to popular belief, authorized workers want and need those jobs. Our high unemployment rate will force the government to address this issue soon. Jobs held by unauthorized workers cannot escape battle cries for more jobs much longer.
Despite the rhetoric, there is general acknowledgement by the government that the most viable solution to these challenges is barring unauthorized workers from jobs. The theory is that the dignity of a job attracted our illegal workforce and that same incentive will lure them elsewhere when those jobs are no longer available for unauthorized workers.
These issues and assumptions will keep employers at the forefront of the immigration debate and immigration enforcement. Although the government does not have the capacity to process millions of people for legalization or deport millions of people from the country, it is important to realize that they do have the capability to remove unauthorized workers from the workforce.
Albeit, still well-constrained by policy decisions, the Social Security Administration through its “No Match Letter” program and the Department of Homeland Security through its Notice of Inspection program have demonstrated extraordinary ability to identify unauthorized workers in the workforce at will.
These programs, coupled with expanding employment eligibility programs such as E-Verify, provide the government the ability to push unauthorized workers out of the workplace as fast as they desire.
The pace of government engagement will be measured against the urgency for immigration reform and unemployment as well as political pressure from state and community governments.
Similar bantering and pandering around this issue during the past election cycles always has resulted increased enforcement rather than less. This year will be no exception.
Enforcement efforts targeting employers and jobs occupied by unauthorized workers as well as border control will be elevated to unprecedented levels this year. Risk associated with unauthorized workers continues to merit the attention of all employers.