March 22, 2006

Senate Judiciary Committee Continues to Mark-Up Specter’s Mark: What does this mean to the business community?

The Senate Judiciary Committee, led by Chairman Arlen Specter (R-PA), is continuing to work towards comprehensive immigration reform legislation. As previously reported by GT, a draft of the Chairman’s Mark was released on February 24. The Senate Judiciary Committee began mark-up, the process by which the bill is analyzed and amended, on comprehensive immigration reform on Thursday, March 2nd with opening statements. The Committee continued its work on Wednesday, March 8th and Thursday, March 9th when it marked-up Title I Border Enforcement, Title II Interior Enforcement and began on Title III, Unlawful Employment of Aliens. Though the Committee set aside last Wednesday and Thursday to continue mark-up of Title III, Title IV, Nonimmigrant and Immigrant Visa Reform, Title V, Backlog Reduction, Title VI, Conditional Nonimmigrant Workers, it was unable to address each Title and no votes were taken. Due to an overwhelming number of amendments offered, the Judiciary Committee has not yet completed mark-up and it is unlikely that it will. Chairman Specter did however conduct frank and open discussions with committee members regarding some of the more contentious issues including a guest worker program and the undocumented immigrants in the U.S.

While the Senate is on recess this week, Congressional staff will continue to work towards a practical and acceptable piece of comprehensive immigration reform legislation. The last day of mark-up is set to be Monday, March 27th It is important to note that the Sections and/or Titles that do not get marked-up by March 27th, will be dealt with on the Senate floor. This means that there may not be open debate on many of the crucial issues.

The business community is specifically concerned with Title III of the Chairman’s Mark, Unlawful Employment of Aliens, which addresses the employment eligibility verification system. Last week, Senator Kennedy (D-MA) proposed several amendments to Title III and, as Chair of the Finance Committee, Senator Grassley’s (R-IA) staff is currently working on considering and incorporating many of these amendments into the legislation. We are hearing from our sources on Capitol Hill that notable revisions that may be made to Title III of the Chairman’s Mark, including:

• Employers would not be financially responsible for the creation, implementation and like costs associated with a new employment verification program;

• The standard regarding the hiring of illegal aliens in the original Chairman’s Mark was as follows: “It is unlawful for an employer to hire, or to recruit, or to refer for a fee, an alien for employment in the United States knowing, or with reason to know, that the alien is an unauthorized alien with respect to such employment.” The term “reason to know” will be removed and thereby, the standard would be an actual knowledge standard.

• The Specter Mark states that an employer that hires ten (10) or more workers in a calendar year who, upon inspection by Department of Homeland Security agents, are found to be undocumented would create a rebuttable presumption that the employer engaged in unlawful hiring. It is our understanding that this presumption will be removed, as it is an unfair and inequitable standard.

• The confirmation process, that is verifying that the employee’s name and Social Security number provided match, will be amended so that should the employer not receive secondary confirmation within ten (10) days, the employer may presume that the employee is authorized to legally work.

Some other areas of interest to the business community include the guest worker program and the fate of the estimated 11 million undocumented aliens currently in the U.S. In regard to the guest worker program, Senator Kennedy and Senator Cornyn worked together collaboratively to reach an acceptable compromise. The Senators deserve to be commended on this effort. Congressional staff is continuing to iron-out the details of the program. Once released, GT will update on the specifics. As for undocumented immigrants, although Chairman Specter seems to understand the challenges posed by sending the estimated 11 million back to their ‘home’ country, there is still some reservation by the Judiciary Committee members regarding the promotion and support of an earned adjustment program. We believe that a compromise will be met but, it may be accompanied with a ‘home’ country touch base component. As with many of the provisions still being debated, Congressional staff will continue to work towards workable and acceptable solutions. We expect to know more on March 27th, the last scheduled day fir mark-up.

In related news, on Friday, March 17th, Majority Leader Frist (R-TN) introduced his own bill which focuses more on enforcement than reform. The bill also does not address many f the key issues including a guest worker program and a workable solution for the estimated 11 million undocumented immigrants currently in the U.S.

Greenberg Traurig is intimately involved with the mark-up and continues to work diligently with key Committee members on real comprehensive immigration reform. To this end, GT’s Business Immigration Group continues to firmly support a temporary worker program, some form of an earned adjustment program, and a fair and practical employment eligibility verification system as part of comprehensive legislation to be introduced by the Senate.

It is important to contact Senators on the Judiciary Committee and commend them on their work on comprehensive immigration reform thus far and urge them to go to Senator Frist to request additional time to address all the issues involved. There are still many issues left unresolved and the Committee should be given the opportunity to do its job.