Immigration Quandary

Immigration Quandary

LABOR TRENDS by Jean Gruss | Editor / Lee-Collier

Pity the immigration lawyer.

The situation is dire when the best advice they can give employers who are desperate for labor in booming Southwest Florida is this: Call your congressman.

"That's my number one line," says Josephine Gagliardi, an immigration attorney in Fort Myers.

Gagliardi is not alone. Southwest Florida attorneys say the solution to immigrant labor is primarily a political one. The laws on the books today don't even provide employers with the ability to help most employees comply with existing laws.

Meanwhile, barring a shift in political momentum in Washington D.C., attorneys are warning employers who depend on immigrant labor to prepare for greater government enforcement of immigration laws. Until now, enforcement has been limited to a few high-profile cases, but that's going to change, they say.

The American economic boom has led to low unemployment and employers are desperate for labor. In Southwest Florida, the unemployment rate hovers around a microscopic 2%. That's a level economists would say means anyone who needs a job can get one. The situation is especially dire for employers in areas such as construction and hospitality because there's almost no way for them to help workers obtain legal working documents. "Our regulations are embarrassingly poor, inefficient and lame," says Casey Wolff, a Naples immigration attorney.

What's more, the Sept. 11 terrorist attacks halted any effort to make it easier to hire immigrants. For example, the government slashed the number of visas available for foreign professionals by half since then. That's hurt industries such as architecture, engineering and computer services.

And lately, immigration opponents have been more vocal than employers. "The bottom line is Congress isn't going to listen to me," says Fernando Perez III, an immigration attorney in Tampa. "Their tendency is to look at me and say the only reason I'm complaining is to put money in my pocket."

Greater enforcement looms

Businesses that employ immigrant workers who have two years of training or less are particularly vulnerable to enforcement actions. With very few exceptions, work visas are not available and there's no effective way for employers to help workers to obtain legal working documents.

Many employers have turned a blind eye to illegal immigrant labor because under current law employers are permitted to accept work documents at face value. Because there's no verification system, employers have no way to check on the validity of work documents.

Many documents that workers need to show their legal status are widely available on the black market. For example, an illegal immigrant in Bonita Springs can obtain a forged green card for about $450 and attorneys say it would take a forgery expert to tell the difference.

Despite the fact that employers can accept immigration documents at face value doesn't absolve them completely when customs officials show up and discover forged work papers. "They can get in trouble if the documents are fakes," says Sarasota immigration lawyer P. Christopher Jaensch.

But the fines for getting caught range from $250 to $2,000 per unlawful worker and employers often treat those as just the cost of doing business, especially if that means the difference between losing and winning a valuable contract.

To compound the problem, employers who wrongly suspect their employees are illegal immigrants may be vulnerable to discrimination lawsuits based on ethnicity. The penalties for those are much more severe than for employing illegal workers. "They have to walk a tightrope," says Jaensch.

For now, attorneys urge employers to get on the phone. Wolff counsels employers to go one step further: "Fly up to D.C. and bang on their doors; you would be amazed at the impact."

Long wait for professional visas

Employers who want to hire highly skilled foreign professionals such as architects and engineers can't do so until October 2007. That's because the 65,000 visas available for professionals have already been used up this year.

Two years ago, the number of new visas of this type was reduced from 125,000 to 65,000, says Perez. Employers can help workers obtain these visas starting April 1, but the employee can't start working until Oct. 1. This year, all professional visas were issued by May and attorneys forecast that next year's visas will go even more quickly.

To hire foreign professionals starting October 1, 2007, attorneys say employers should have the paperwork filled out in advance and FedEx the application on April 1. Jaensch advises paying the extra $1,000 to receive an expedited answer; "We don't want them to run out before an answer is given," he says.

Some attorneys suggest another option: open an office overseas. With the advances in communications, it's not as difficult as it used to be to open an office in India, Australia or Great Britain.

Special cases

Despite overwhelming odds, there are still ways to get an employment visa in the U.S. One way is to apply for an investor visa.

An investor visa allows people from select countries, mostly Europeans, to invest money in opening a new business in the U.S. Although the paperwork is very cumbersome, attorneys say those visas are still available.

However, because people have to apply at the U.S. embassy in their home countries, they're at the mercy of the staff there. "The embassy in Frankfurt is wonderful," Jaensch says. "In London, it's terrible."

Another way to hire foreigners is to get them as they're graduating from an American university. A foreigner who graduates from a U.S. college can obtain a one-year work visa.

Finally, a select group called "aliens with extraordinary ability" can get special work visas also. These are athletes and professionals who have so-called extraordinary talents.

But in the majority of cases, employers will have to wait for Congress to act. It may be a while; attorneys in Southwest Florida say there's little hope any legislation will be passed before the midterm elections in November.

"It looks like they missed the window," says Perez.

PRACTICAL ADVICE

Southwest Florida attorneys say there are a few things employers can do to prepare for changes in immigration laws and the likelihood of tougher enforcement. Consider the advice they're giving clients:

• Don't discount your efforts to persuade politicians to reform immigration laws. Attorneys say employers' voices will be the key to resolving thorny labor issues.

• Immediately stop employees from using fake documents. Do the best you can to weed out employees who use forged green cards or other proof of work eligibility, but be careful not to violate tough anti-discrimination laws.

• Make sure your human-resource employees are familiar with immigration documents and how to fill them out. There's lots of useful information on the Web site of the U.S. Citizenship and Immigration Services, including instructions on how to fill out forms (www.uscis.gov).

• Apply for professional-worker visas by FedEx and pay the extra $1,000 to get an expedited review. Don't delay: Send the application on April 1, 2007, the first day that the government will accept such applications.