Far-Reaching Proposed Immigration Legislation Alert

House of Representative to Consider Immigration Bill with Far-Ranging Implications for Both Aliens and US Employers

Border security and control of immigration are central aspects of homeland security.  The battle over how to balance these issues against the needs of US business and the rights of foreign nationals looks to be coming to a head in the House on December 15th.  The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437), introduced just last week by Judiciary Committee Chairman Jim Sensenbrenner (R-WI), is scheduled to be considered by the full House of Representatives on December 15th.  The Republican leadership asserts that this bill will improve border security and protect US jobs.  Opponents of the bill, including employer and business groups, believe this immigration measure will create unworkable hardships for the private sector and raise significant privacy concerns.  Opponents are seeking to defeat the bill or amend it to add a guest worker program and ease its employer verification requirements and penalties.  However, House leadership is anxious to pass this far-ranging legislation before the December 17th adjournment.

Among the significant provisions of this bill are:

• Mandatory Employment Verification.  Section 702 would mandate that every employer in the United States use a federal Internet/phone verification system (to be developed and implemented) to determine if a new hire is legally eligible to work in the US.  Section 703 authorizes employers to use the verification system to verify the eligibility of previously hired individuals.  Tough penalties are included for non-compliant employers.
  
• Waiver of Rights in Nonimmigrant Visa Issuance.  Section 806 of the bill would prohibit the issuance of a nonimmigrant visa unless the applicant first waives his or her right to any review or appeal of an immigration officer's decision at the port of entry as to the alien's admissibility, and gives up his or her right to contest, other than on the basis of an application for asylum, any action for removal.
  
• Criminalization of Unlawful Presence.  Section 203 of the bill would create a new federal crime of "unlawful presence."  Under current law, presence in the United States without valid status is a civil, not a criminal violation.
  
• Alien Smuggling and Related Offenses.  The bill would expand the alien smuggling provisions to include "offenses" where the "offender" acts with knowledge of, or in reckless disregard of, the fact that the alien lacks lawful permission to enter or remain in the U.S.  This will criminalize the work of social service organizations, refugee agencies, churches, attorneys, and other groups that counsel immigrants, treating them the same as smuggling organizations. In addition, family members and employers could be fined and imprisoned for "harboring" or "transporting" undocumented family members or employees.
  

The bill also would: 

• Create new grounds of deportability and inadmissibility;
• Impose mandatory detention even when the alien is not a flight risk or threat to the community;
• Militarize the border and authorize local police to transfer illegal aliens to federal custody; and
• Place limitations on naturalization for conditional permanent residents.

Steptoe's Immigration Group will keep you informed of developments regarding this legislation and other legislative activity affecting our immigration and business clients.

Lynda S. Zengerle, email: lzengerle@steptoe.com
Joan S. Claxton, email: jclaxton@steptoe.com