by Elaine Young

Following November’s election, a number of conservative leaders called on the GOP to embrace some practical approaches to resolving America’s immigration problems. If you’ve been following those stories, you’ve heard talk of “comprehensive immigration reform,” or CIR.

What does the current immigration system look like?

Each year, Congress allocates a fixed number of visas for foreign workers, relatives of U.S. citizens, and permanent residents. Many immigrants seek work in low-skill jobs for which there are virtually no visas. (There are exceptions for some seasonal or peak-load positions such as those in the agriculture or hospitality industries.) Additionally, there is far greater demand for highly skilled foreign workers in the science, technology, engineering, and math (STEM) fields than there are visas available. As a result, the availability of “legal” immigration options for those positions is low and, in some cases, nonexistent. At the same time, the government imposes sanctions on employers that knowingly hire unauthorized workers, even when employers find it virtually impossible to recruit qualified American workers.

What is CIR?

As has become evident in various state legislatures as well as in the Obama administration’s policies, there are two principal competing approaches to immigration reform: (1) the law enforcement approach and (2) the human rights approach.

The law enforcement approach attempts to patch the holes through which undocumented immigrants enter and remain in the United States. Advocates call for greater border security, enforcement of civil laws prohibiting visa overstays, and higher deportation rates. Another principal component of the law enforcement approach is mandatory use of employment status verification systems (e.g., E-Verify) and strict enforcement of employment-related immigration laws, including the imposition of fines and criminal penalties for employers that knowingly facilitate employment of unauthorized workers.

The human rights approach is more concerned with figuring out the best long-term solution for the approximately 12 million undocumented immigrants living in the United States. Advocates generally believe that the best approach is to increase the number of available visas and provide work authorization and a path to citizenship to immigrants who are already here. The human rights approach recognizes that many families include both undocumented immigrants and legal residents and that strict enforcement of existing immigration law could have the unintended consequences of breaking up families and penalizing young people whose parents brought them here as children.

CIR attempts to balance law enforcement and human rights to come up with a workable and enforceable solution that is financially and politically practical by:

• Addressing the entry of undocumented immigrants into the country;
• Resolving the legal status of immigrants already present in the country; and
• Reforming the visa application process to remove incentives for illegal immigration and encourage legal immigration.

What are the potential benefits of CIR?

Potential benefits of granting some sort of legal status to immigrants already present in the United States would include (1) the ability to target immigration-related spending on tighter border security and deportation of the highest-priority criminals and (2) a greater ability to collect income tax and other payroll taxes from the wages that undocumented workers currently are earning. Workers with legal status are more likely to start a business, spend money, secure good jobs, buy homes, and plan for the long-term education of their children. Immigrants with legal status also would be afforded greater legal protection under U.S. law. Further, putting those individuals on the same footing as American workers should eliminate the unfair advantage of employers that are willing to exploit undocumented immigrants.

Elaine Young is an attorney with Kirton McConkie in  the firm’s Salt Lake City, Utah, office and a member of the Employers Counsel Network. Her practice includes advising companies on the U.S. federal tax consequences of their international operations and assisting tax-exempt organizations on corporate and tax matters. She has significant experience handling the immigration, tax, and benefits aspects of cross-border employment, including inpatriate transfers and working with counsel around the world to help U.S. companies send their employees abroad. She may be contacted at newsletter@kmclaw.com.