Immigration has emerged as a major issue on both sides of the 2016 Presidential campaign. While Democrats’ sanctuary cities and Trump’s proposed wall along the border have dominated the immigration debate thus far, guest worker programs have also proven to be a key component of candidates’ immigration proposals on both sides of the aisle. Marco Rubio cosponsored recent legislation that increased the number of guest workers allowed in the country. Hillary Clinton has also supported this position, reflected by her voting record as a former Senator from New York. Bipartisan efforts in Congress have failed to pass in both houses, but leadership from the White House after the 2016 cycle could change this. Any effort to reform the program should include individual worker protections and a pathway to legal protection to incentivize labor participation and a more robust workforce within the U.S.
The Current Model
The largest temporary guest worker programs fall under the H-visa category, which includes specialty workers with at least a bachelor’s degree (H-1B visa), seasonal agricultural workers (H-2A), and seasonal non-agricultural workers (H-2B). For the H-2 visa programs, workers are only admitted from a list of 59 eligible countries, set by the State and Homeland Security departments. Admitted workers are able to stay in the country for up to one year with opportunities to renew their stay for up to three years. In 2012, over 350,000 of the 611,000 temporary workers in the U.S. were admitted under the H-visa program.
The admission process for bringing temporary workers into the country is lengthy. Businesses are required to go through different workforce agencies at the state level and the Department of Labor (DOL) to receive certification, then through U.S. Citizenship and Immigration Services (USCIS) to file a visa petition for a particular number of guest workers. Employers are responsible for keeping the workers employed full time, with a guarantee of work for at least 75 percent of their stay. The employers must reimburse some visa-related and travel expenses, and must promise to keep the workers employed within their intended employment occupation. Before hiring guest workers, employers must also make a strong effort to hire local citizens and are encouraged to look into visa petitions only when these efforts yield no qualified employees.
Guest Worker Protections
During the first Democratic presidential debate, Senator Bernie Sanders said that he supports guest workers to help grow the economy, but raised serious concerns about their harsh treatment at the hand of U.S. employers and the lack of protection workers were given for their visa duration. Sanders said that many workers who stand up for their rights are thrown out of the country, while those who remain in their jobs often work under horrible conditions.
Senator Sanders did not highlight the fact that some temporary workers overstay their visas and fail to leave the country, but he did touch on a vital critique with the current guest worker program: The current system grants a large amount of power to employers, who are able to set job descriptions and apply to the DOL for certification. Once workers arrive, employers have the ability to alter the work requirements or treat workers poorly with little concern that they will be held accountable for their actions. Workers are restricted to only working with one employer, and are not legally able to change jobs once within the country. Prior reform efforts have failed to address this lopsided approach. For example, the Southern Poverty Law Center (SPLC) described the guest worker provisions proposed in 2007 as ‘semi-slavery’ because they continued the practice of an employer-centered model.
The treatment of workers raises concerns about efforts to combat human rights abuses that could be committed against foreign workers on U.S. soil. In 2013, the SPLC reported that recruiters in other countries who link workers to jobs in the U.S. often charge the workers outrageous sums of money, and U.S. employers reimburse only some of these expenses. SPLC also reported that some employers do not distribute visa extensions or social security cards for workers that have been approved to receive the documents from the U.S. government. SPLC emphasizes that the power of the employer is a major concern that must be addressed for guest worker reform.
What Could Reform Look Like?
The 2013 comprehensive and bipartisan Senate Immigration reform package (S.744) included a new category, the ‘W’ visa, to fill jobs requiring less than a bachelor’s degree. The package included new wage requirements for workers and allowed movement between different employers and job occupations for those within the ‘W’ category. Under S.744, the issuance of visas would be adjusted annually to ensure that any labor shortages or surpluses are accounted for and reflective of the current job market. Despite its failure to pass in Congress, S.744 provides a glimpse of what a successful start to temporary worker protection could resemble.
Guest worker protections can also be initiated by the coordination between governments. In Canada, government officials partner with Mexican authorities to recruit workers, expedite visas, and guarantee health and safety standards. Workers are afforded protections guaranteed by the Canadian government in this model, which encourage guest workers to seek legal routes to employment. Improved dialogue between the DOL, USCIS, and other nations’ labor departments could improve these protections as well, preventing domestic recruiters in home countries from charging steep fees to connect workers with jobs and even ensuring a safe and affordable system of transportation to and from the U.S.
Another potential reform would be providing guest workers a pathway to some form of legal protection, allowing them access to the court system or an appeals process. Guest workers who have been abused, had documents withheld, or were not paid by their employers should have some recourse to take action against their employer, perhaps by contacting DOL to assist in moving the workers to another occupation or potentially removing the employer’s labor certification and future visa petitions. Such an approach in providing a legal pathway could help level the playing field between employers and guest workers.
Guaranteeing fair treatment and legal protections will attract more foreign workers to fill jobs that American workers are not taking in the agricultural, seasonal, and even STEM fields. The support from the pool of presidential candidates for changes to the guest worker program remains a positive sign, but such efforts are meaningless if reform fails to address worker protections.