Political pundits begin each year by talking about the bright prospects for comprehensive immigration reform, and every year, something harpoons the chances for even incremental reform. A comprehensive reform bill has passed the United States Senate, but it’s stalled in the House of Representatives, where Speaker John Boehner has slammed on the brakes.

Unless Boehner is intentionally downplaying prospects for reform, hoping to get past the primary season with the contentious issue on the back burner, this could be another year in which those hopes are dashed. Meanwhile, employers seeking the necessary skill sets to grow their companies wait and wait and wait. So do foreign students who graduate from American universities eager to get started, and unauthorized workers living in the shadows of American society, hoping for a path to citizenship.

Immigration attorney Grant Sovern, a partner with Quarles & Brady, said inaction is particularly harmful in a university community because of the lost opportunities for economic growth. “Immigration reform is such an opportunity for employers in a place like Madison,” he stated. “There are a lot of things we are losing because Congress has not taken action.”

In this look at immigration law, IB presents the various ways reform inertia impacts employers and individual immigrants.

Visa volume

The University of Wisconsin-Madison is a temporary home to more than 4,500 international students from over 100 countries, many of them enrolled in the STEM (science, technology, engineering, and math) disciplines. Instead of offering their skills to local employers upon graduation, many end up leaving the country because the existing legal framework does not create a path for them.

The culprit is the annual cap on H-1B work visas. While universities are not limited in the number of foreign students they can enroll with non-immigrant student visas, American companies are limited in the number of foreign graduates they can hire. That cap is set at 85,000 workers (including 20,000 with master’s or higher degrees), and it accommodates just 65% of the 130,000 H-1B petitions filed on an annual basis.

Under the bill that passed the Senate, the H-1B cap would increase to between 110,000 and 180,000, depending on economic need. To increase flexibility, the bill would establish committees that track economic activity and set the number of available visas based on perceived need.

One reason the H-1B cap has survived is that elected officials traditionally believed foreign students were taking American jobs, but Sovern and fellow immigration attorney Glorily Lopez (Murphy Desmond) doubt employers would go through the time and the expense of paying filing fees, which approach $3,000, and legal fees, which can exceed that, if they could find enough American workers with the right skill sets. To secure an H-1B visa, employers also have to pay the prevailing wage for that position in their geographic area.

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Every year by April 1, companies file petitions on behalf of prospective employees and the names go into a lottery; the students who are chosen stay and others leave. If their candidate is not chosen, the government-filing fee is returned, but the legal fees are not. “No employer would do it unless they really had the need,” Sovern noted. “Most Americans think, ‘Well, if there is a foreigner filling the position, they must be replacing an American.’ Not so.”

Lopez raised an additional problem — timing. She noted the fiscal year for the federal government starts on Oct. 1, which is also when H-1B workers can start. However, the filing deadline is April 1, a full six months earlier. The federal government does not take that long to hold the lottery, and several months elapse between receiving a visa and the recipient’s first day on the job.

Students with F-1 visas can apply for one year of optional practical training, or OPT, from May to May, but there would still be the timing issue the following year with an H-1B petition. “As an employer, ask yourself: Do you usually hire six months in advance?” Lopez asked.

One saving grace is that visa recipients don’t have to keep reapplying every year. Generally, H-1B petitions are for a maximum of up to six years.

Still, the current cap is a limiting factor, especially in an economy that is gradually improving. “The economy is getting better and companies are dying to keep this talent here, not have those individuals go back to their home countries — China, India, all over Europe, and many other parts of Asia,” Lopez explained. “They leave, and guess what? They compete against us. It’s not good for the American economy at all.”

Entrepreneurial juice

Some of those recent graduates are not content to work for others; they have entrepreneurial aspirations of their own, but another way the lack of immigration reform impacts Dane County is through the dampening of entrepreneurism. The conventional wisdom that immigrants are taking American jobs is refuted by the very nature of immigrants, especially when you consider how much they are willing to risk when they pick up their life and move to a different culture that speaks a different language.

There is a reason why immigrants represent 13% of the U.S. population but almost 20% of the nation’s small business owners, and it’s their risk-taking nature. Nationally, they helped create nearly 5 million jobs in 2010 among immigrant-owned small businesses, which generated an estimated $776 billion in revenue, according to a June 2012 study by the Fiscal Policy Institute.

They not only take risks, they innovate well enough to grow their companies into market leaders. The bipartisan Partnership for a New American Economy, a group of business leaders and public officials, reports that more than 40% of Fortune 500 companies were founded by immigrants or the children of immigrants. Some of the names of companies launched by people born overseas are very familiar: Intel, Google, Yahoo, and eBay.

Particularly germane to communities that are home to major research universities like UW-Madison, the partnership also found that in 2011, immigrants were involved in 75% of the roughly 1,500 patents awarded at the country’s top 10 research universities. Virtually all of those patents were filed in the STEM fields.

Mary Giovagnoli, director of the American Immigration Council in Washington, says the nation and communities like Madison are impeded from using the human capital immigration represents. “We know immigrants are far more likely to be entrepreneurs and to seek patents and channel that into the whole world of starting a small business or a high-tech business from scratch, almost by virtue of the fact they are immigrants,” she stated. “Taking risks and innovating are inherent to the immigrant mindset.”

The missed opportunities are not only due to the H-1B cap, but also the way green cards (for permanent resident status) are parceled out. Under normal circumstances, it might take on average three years to get a green card, but if you happen to be from Mexico, the Philippines, China, or India, it might take as long as 25 years to get a green card due to the backlog and the way they are counted.

“Most people in these highly skilled areas — doctors, physicians, engineers — the vast majority are coming from India and China right now,” Sovern noted. “Even if you could get an H-1B visa, why would you stay here if it’s going to take you 25 years to get a green card?

“We have to face that. There are other countries that are really emerging now, and a lot of people are going back to India or China because their economies are getting better now, whereas they would have never thought about that years ago.”

The Senate immigration bill would drastically reduce the wait, not by adding green cards but by adjusting who is counted. There are 140,000 green cards available each year to employers, and in the past the government has counted the spouses and children that come with them. The bill would reduce the backlog by no longer counting family members under the cap.

With so much attention focused on the estimated 11 million undocumented workers living in the United States, Sovern believes the green card process is the “most broken” part of the immigration process. “It can take anywhere from three to 25 years to get a green card, and that is where the problem is right now,” he stated. “The comprehensive immigration reform bill is a reflection of reality. You have high-skilled workers and companies who have the need, so you marry those two together and that will make it a better system for getting all the way to citizenship.”

Farm country

The green card process might be the most damaged aspect of federal immigration, but undocumented workers are the most controversial. These are the immigrants who are “living in the shadows” and, in a sense, working in the shadows.

They are not insignificant in number. While immigrants comprised 5.5% (167,500 workers) of the state’s workforce in 2011, according to the U.S. Census Bureau, unauthorized immigrants comprised 2% of Wisconsin’s workforce, or between 65,000 and 140,000 workers (all nationalities) in 2010, according to a report from the Pew Hispanic Center.

The Perryman Group, a financial and economic analysis firm, says that if all undocumented immigrants were removed from the state, it would lose $2.6 billion in economic activity and approximately 14,579 jobs, and those figures factor in adequate market adjustment time. What’s more, they paid an estimated $94.5 million in state and local taxes in 2010, according to data from the Institute for Taxation and Economic Policy. This includes $21.9 million in state income taxes, $6.1 million in property taxes, and $66.6 million in sales taxes.

Perhaps no industry is more impacted by the unresolved status of undocumented workers than agriculture. One UW-Madison study reported that migrant workers constituted more than 40% of all hired dairy employees (or roughly 5,316 people) here in 2008, and it’s widely assumed that a large percentage of them are undocumented, Lopez said.

People in agriculture and landscaping services are particularly supportive of reform because they need a predictable, steady supply of labor. Yet some nonsensical policies prevail in the current legal structure. Another visa classification is H-2B, and those are temporary visas given for lower-skilled workers who typically do seasonal landscaping, tourism, and agricultural work, but not dairy work. Dairy farmers cannot take advantage of the H-2B program because for this purpose, dairy farms are not considered to be agricultural.

Lopez has no idea why crop farms are treated differently than dairy operations, but she knows it’s impacting a key industry. “Within the whole scheme of immigration, there is no legal mechanism for a dairy operation to hire legally, and sponsor, someone to work on their farm,” she stated. “I get upset when people tell me, ‘Tell your clients to go to the back of the line, or apply legally.’ There is no line for certain categories.”

The Senate reform bill would require undocumented workers to pay fines for violating immigration law but also provide them a path to citizenship. For those who only want to work here temporarily, the bill sets up a guest-worker program, supervised by the Department of Labor, in which both workers and employers sign up, and the workers are issued a blue card. The program is designed to bring people out into the open and prevent employers from exploiting them with substandard wages and poor working conditions.

Nationally, the Immigration Policy Center estimates there would be a $1.5 trillion increase in GDP over a 10-year period if undocumented workers received some type of legal status. “Were we to take that productive capacity that exists with that group of people, give them legal status, and allow them to fully invest in their communities and fully invest in themselves via education and seeking jobs they are qualified for, the overall impact on the economy would be tremendous,” Giovagnoli said.

Bite-sized reform

In the absence of comprehensive reform, many wonder what’s wrong with a piecemeal approach, especially with so many areas of agreement. Why let the division over undocumented workers prevent lawmakers from addressing visa caps and green card restrictions?

Many believe the various issues are intertwined, and without the comprehensive approach represented by the Senate bill, there would still be some jagged edges. Sovern, who teaches immigration law at the UW Law School, believes leaving some people out probably means leaving them out permanently.

“If you just do the popular things first, it’s guaranteed that a lot of unpopular people will be left out, probably forever,” he stated.

Lopez also believes it makes sense to pass a comprehensive immigration bill, but she also knows a lot of employers who are “sick and tired of waiting and waiting, without an end in sight.” She’s open to passing parts of the Senate bill, such as H-1B expansion, because it would at least begin to fix the structural problems of the immigration system.

“Everyone is frustrated that they just can’t get along in Washington long enough to pass something that actually makes sense,” she stated.

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Crushing a dream

Perhaps the most sympathetic segment of the immigrant population is the “dreamers,” the children of undocumented workers who pursue their education in limbo, dreaming of attaining legal status so they can build a future in the United States.

Ramona Natera, who provides legal services for immigrants as an attorney for the Catholic Multicultural Center in Madison, often hears their stories. They are brought here as children, led to believe they are American citizens, and live a typical American life in most every respect — until they want a driver’s license or think about enrolling in college.

“Mom and Dad have to say, ‘Sorry, that’s not the case,’” Natera recounts. “Then they begin to wonder why they are getting straight As in school when they can’t go to college.”

So the dreamers pursue their education, hoping that someday they will attain legal status and remove the immigration roadblock that could prevent them from work and/or higher education — all because, like the parents who brought them here, they too are unauthorized.

The dreamers received a temporary reprieve in 2012, when President Obama signed an executive order stating the U.S. Department of Homeland Security would not deport undocumented youth, establishing “Deferred Action for Childhood Arrivals.” Deferred action is only two-year relief, and subject to renewal, but it does provide opportunities to obtain a driver’s license and obtain work authorization so that young people can at least start earning money for college.

What they really want is passage of the Dream Act, which would provide a conditional six-year pathway to legal permanent residence. Those conditions are that they complete high school, demonstrate good moral character, and complete at least two years of higher education or serve for at least two years in the U.S. military.

One such Madison area dreamer is “Rocio,” a sophomore liberal arts student at Madison College who plans to transfer to UW-Madison and pursue a business degree. She came to the United States nine years ago at the age of 14 and graduated with honors from La Follette High School. She worked as a housekeeper in hotels for three years before opting to pursue a college degree and, as she puts it, “have a better life.”

Rocio maintains a 3.85 grade point average, good enough to make the Dean’s List at Madison College. But even with her deferred action status, which expires in one year, she worries that she could earn a college degree but not be allowed to work.

She’s grateful for the opportunity to pursue a degree, but the thought of all her work going for naught is a constant fear. “We just want an opportunity to be able to have peace of mind,” she says, “and be happy like everyone else.”

Undocumented angst

Glorily Lopez cannot count the number of times employers have come to her and asked her for help in dealing with a longtime worker who they have suddenly discovered is undocumented.

Most of the time, there is nothing she can do.

According to Lopez, a lot of employers don’t even know they have undocumented workers. As a job candidate, a worker might have used a cousin’s identifying information to secure work, and employers have no idea. Oftentimes, these are people who have worked at the company for five, 10, or 15 years. They are good workers, and they are committed to the company, but they cannot stay or the business faces stiff civil and criminal penalties.

“There are many employers that do find out, through the course of employment, that someone might be here undocumented, and they want help,” Lopez stated. “They come to my office and unfortunately they get the bad news that it doesn’t matter what type of company you own or how many assets you have, or how much you spend in legal fees or filing fees, the law does not allow someone who is here undocumented to be sponsored by an employer.”

In those situations, an immigration lawyer examines his or her entire toolbox, starting by examining the individual’s immigration and family history. The immigrant might have a relative who can sponsor them, or they may be eligible for deferred action or have some other legal recourse, but those cases are rare.

Employers, including contractors, who unlawfully hire, recruit, or refer for a fee anyone not authorized to work in the U.S., are subject to a progressive scale of fines. While not foolproof, tools like eVerify can help avoid the following range of penalties for hiring an illegal immigrant:

• First offense: $250 to $2,000 fine per illegal employee.

• Second offense: $2,000 to $5,000 per illegal employee.

• Three or more offenses: $3,000 to $10,000 per employee; a pattern of knowingly employing undocumented workers could bring additional fines and up to six months in jail.

Under federal racketeering laws, employers who knowingly hire illegal immigrants can be sued by their documented employees for driving down wages.

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