The U.S. badly needs a comprehensive reform of its federal immigration policies, instead of leaving each state to cope with recent crises on its own, which is what's been happening lately. Since comprehensive reform is dead for 2014, the Obama administration may make a limited gesture toward reform via executive order or regulation that grants undocumented immigrants more leeway to remain in the U.S. and improves border security. If that happens, some Republican opponents may throw up their hands in exasperation with the president, although each side's basic position on these issues isn't dramatically different.
The trouble with the standoff is that more states are improvising their own immigration solutions. Last year, lawmakers in 45 states and the District of Columbia enacted 437 laws or resolutions related to immigration, up 64% from the 267 adopted in the same period the year before. Luckily, only one out of 10 of those measures had to do with employment. And that's where the concern should be when it comes to any federal reform plan.
Checking Work Authorizations
With any federal reform, Obama or Congress could put more responsibility for verifying the work authorization of new employees on the shoulders of contractors. In 2012, eight states enacted some law related to the voluntary federal E-Verify system, and three—Pennsylvania, Michigan and West Virginia— now require the use of E-Verify by at least some private employers. In 2012, Georgia made all public and private employers enroll in E-Verify if their staff is bigger than 10.
Broader mandatory use of E-Verify will help to stamp out abuse, which is good. The Quality Construction Alliance, composed of union employers, last year pointed out that misclassifiers and abusers have "more to fear from E-Verify" than companies that comply. True enough. And every contractor would have "vicarious liability" to worry about if any "reform" made contractors responsible for verifying the work authorizations of their subcontractors or suppliers.
The other key component of any comprehensive immigration reform is a guest-worker program, and that split the industry's union and open-shop employers in predictable ways. Last year, the Senate passed a reform bill that later died in the House. When those reforms were first proposed, the Quality Construction Alliance advocated protecting domestic workers by limiting any expanded guest-worker program for skilled construction trades. In contrast, big contractor associations understandably fretted about worker shortages and the low 15,000-person cap originally considered by the senators for construction. These kinds of problems can crop up with a comprehensive reform. Despite these worries, the broader issues of immigration require preemptive federal reform instead of ad hoc, state-by-state legislation.
