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Let's Make A Deal: The Way To End Employer Sanctions and Make Everyone Like It
by Gary Endelman

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

Biography The end of days is at hand when the AFL-CIO and the US Chamber of Commerce agree on something, but a shared desire to hasten the demise of employer sanctions has given this odd couple a common purpose. Both business and labor now want to legalize undocumented workers. AFL-CIO President John Sweeney and US Chamber of Commerce President Thomas Donohue both told the Senate Judiciary Committee this past Friday that a broad amnesty replacing a failed system of labor market controls was justified as a matter of economic logic and social justice. Big business and big labor back a new guest worker program, but only Donohue wants this to happen in the context of comprehensive immigration reform that ensures job mobility and provides a path to permanent resident status. Sweeney wants employer sanctions to go away and most everything else to remain the same.

Sweeney wants to organize the undocumented and reverse labor's long, slow decline as a political and economic force in American life and politics. Donohue sees a huge pool of workers to fill unmet manpower needs. President Bush worries about re-election and looks to the growing Hispanic vote as the best hope to renew his lease on the White House for another four years; hence, this week's love fest with Mexican President Vicente Fox who wants a deal on immigration to prove that he knows how to deal with the Colossus of the North. The restrictionist wing of the GOP worries that Bush is going soft on immigration and looks for some signs of toughness. The President can read the political tea leaves as well as anybody, and is unlikely to expend major political capital in pushing for the repeal of employer sanctions. This does not mean that the President will fight to save the I-9; on the contrary, he is likely to sign such a bill if it can be achieved through consensus without a big fight.

Last week in Toledo with President Fox, President Bush put the focus squarely on what the economy needs, as opposed to what individual employers want, when he said that America, "ought not to penalize an employer who's trying to get a job done, who hires somebody who's willing to do that kind of work...This is an employment issue in the United States. We've got employers who can't find workers and, therefore, then employ undocumented workers. And under our law that's illegal. And it seems like to me we ought to have a direct and honest assessment of part of the issue is how do we match a willing employer with a willing employee, to recognize the value of the work, and to legalize that part of the process." Folks, this is nothing less than the end of labor certification as we know it. It magically transforms the Schedule B list of occupations for which no labor certification can be obtained into a pre-approved Schedule A list of occupations for which no individual labor certification is necessary. It is unlikely that the President can limit the scope of his proposal just to Mexico and who knows where the policy ends up when the focus is squarely on matching immigration policy with how America really works.

This is how it can happen. Big business is not up in arms over employer sanctions since the INS and DOL have, in essence, admitted sub silentio that enforcement is not a major priority. Criminal aliens and drug raids, along with the installation of high tech equipment along the border with Mexico, are what get the headlines. Work site enforcement is intrusive, but few employers feel a serious I-9 bite; it is an annoyance which they want to go away, but really not more than that. The absence of sustained I-9 enforcement on a broad scale means that corporate America is not going to open up its pocketbooks to fund any emergency campaign that seeks only to eliminate employer sanctions, particularly since that is all labor now seems to desire. So, if the AFL-CIO wants Wall Street and Main Street to support a crusade to end sanctions, they are going to have to give business something in return. Business, big and small, will join in a crusade to rid the land of the I-9 if labor backs a reform of the employment-based immigration system. This means, among other things, increasing the immigrant quotas in an open and honest way, rationalizing the labor certification system and replacing it with either a Canadian-style points program or an attestation system with post-approval random audits, and making the temporary levels of H-1B immigration permanent.

The unions do not want to do any of this, but they desperately want to organize illegal workers now living in the shadows who are flocking into the service industries in huge numbers, and present labor's best chance in a long time to make some real and lasting gains. To get this, they will give business what it wants: more workers and a way to keep them here. If the unions go along, the Democratic Party will follow since it cannot afford to alienate a key constituency, particularly if it hopes to retake the House and hold on to the Senate. Bush can accept the end of sanctions as a fait accompli and no one, business or labor, will cry at its demise. The deal is there to be made. Pull up a chair.

About The Author

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.