Cheat Sheet: A quick guide to the American stalemate on immigration policy

InsideCounsel's analysis of the Supreme Court's immigration decision in Arizona v. U.S.

 

InsideCounsel’s August cover story, “How the immigration policy stalemate is hurting businesses and the economy,” examines the recent 5-3 Supreme Court ruling that struck down much of Arizona’s controversial 2010 immigration law and its implications for employers nationwide. While the decision in Arizona v. U.S. eased many employers’ anxieties by affirming the supremacy of federal immigration law over a hodge-podge of state legislation, some experts say that U.S. immigration policy is still stymieing economic growth. 

Preemption Affirmed

In its Arizona v. U.S. ruling, the court overturned three of the immigration law’s four provisions, one of which barred illegal immigrants from seeking work or being employed in Arizona. Writing for the majority, Justice Kennedy noted that federal law has already laid down guidelines for employment verification and alien registration, which preempt state regulations.

Some experts believe the court’s ruling will dissuade other states from passing immigration legislation of their own. “Employers can breathe a bit easier with the implications from this ruling that the growing trend of a patchwork of different states’ immigration laws may finally abate,” said Jackson Lewis Partner Sean Hanagan.

Enhanced Enforcement

In his first term, President Obama has shifted the focus of immigration policy from U.S. Immigration and Customs Enforcement (ICE) raids to ICE paperwork audits and fines, with the aim of deporting illegal immigrants with criminal records. He has also instituted policies such as the recent DREAM Act, which would allow some young illegal immigrants, brought to the U.S. as children, to remain in the country.

“The nature of enforcement has changed,” according to Ford & Harrison Partner Charles Roach. “Now the focus is on the employer and doing desk audits of I-9s. The incidence of I-9 audits has increased in number, frequency and fines under the Obama administration.”

Hiring Handcuff

The U.S. v. Arizona ruling settled the question of Arizona’s immigration law. But many uncertainties remain when it comes to the U.S.’s broader immigration policies, which some say are hampering economic growth. Especially at issue are visa caps and quotas that can complicate the hiring of overseas workers. “We have a worldwide economy, and with advances in technology it is possible to employ people abroad and remain productive,” said Andrew Merrills, shareholder at Ogletree Deakins. “This has a very negative effect on the U.S. economy.”

Call for Action

Americans have the economy on the brain this election season, and immigration policy is an integral part of economic development, according to a recent report from the Partnership for a New American Economy. The report advocates revised visa caps and green card policies, especially as they apply to workers in the fields of science, technology, engineering and mathematics.

“When firms cannot find the scientific talent they need among native workers, they have two options: hire immigrants to fill these vital jobs or establish facilities in countries with more welcoming immigration policies,” the report said.

Conclusion

With its Arizona v. U.S. decision, the Supreme Court largely gutted the state’s immigration legislation. In doing so, the court reaffirmed the federal government’s supremacy over state governments in the immigration arena. But the ruling did not resolve the complexities of an immigration system that some say is stifling economic growth and hindering the U.S.’s ability to attract talent in the global marketplace. Read the complete cover story here.

Alanna Byrne

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