Principles on Legalization and Foreign Worker Programs

There is a growing consensus across America for comprehensive immigration reform. Such reform must include an earned adjustment for immigrants currently working in the United States; create legal channels for future flow of immigrant workers; and reduce the vast backlogs in family-sponsored immigration. Republicans in Congress have recently introduced legislation that calls for adjusting the status of millions of undocumented workers who currently work and live in the United States (Senator McCain, and Reps. Kolbe and Flake of Arizona, Senator Cornyn of Texas), while at the same time creating new programs to bring in foreign workers.

These bills are significantly flawed in both the adjustment program and the foreign worker provisions, but are noteworthy for embracing the concept of bringing out of the shadows the millions of undocumented persons who work and live in this country. There are also rumors that other prominent members of Congress may soon introduce legislation that would include provisions for legalizing undocumented workers, while expanding programs to bring foreign workers to this country especially in the agriculture industry. Changes to, or the creation of new, foreign worker programs is seen by many as the only to achieve the bipartisan majority that will be required to enact sweeping immigration reform including the legalization of millions of undocumented persons.

While we all agree that the status quo must be changed, we are deeply concerned that many members of Congress will soon conclude that those demanding legalization will willingly accept any and all changes to, or expansion of, foreign worker programs as the price for achieving the long sought goal of legalization. Or as some have already begun to say: an expanded foreign worker program is better than the current situation of almost-daily deaths of migrants along the US/Mexican border.

We feel compelled to state clearly and unequivocally that legalization should not be obtained at the cost of future inequities. Sacrificing the future wages, labor protections and working conditions of both US and future foreign workers in order to achieve legalization is too high a price. We have too much experience with the problems and abuses of both current and past guest worker programs to accept quietly the expansion of these programs without regard to the future impact on both US and foreign workers. Below are key elements that must be part of any expansion of foreign worker programs.

• Labor Market Tests. There must be a method of identifying real labor market needs. Current programs that depend upon employers’ attestation, certification or affirmation that no US workers are available for work do not sufficiently protect US workers. Often the wages and lack of benefits being offered by employers are insufficient to attract US workers; other times there are real labor shortages. Alternative methods for making a determination that foreign workers are needed must be developed. Such methods could include referring to regional and metropolitan unemployment rates (including unemployment rates of different sectors of the population) as compared to the national average; the extent to and the manner by which US employers attempt to recruit US workers; the wages and benefits offered as compared to other similar occupations and localities; or some combination thereof.

• Wages and Benefits. There must be some method for determining the minimum wages to be paid to foreign workers. It is insufficient and indeed, catastrophic for US workers, if the only requirement is that employers will observe all federal, state and local laws regarding wages. Should a foreign worker program be enacted without a more stringent wage requirement, US workers will see their wages and benefits reduced as foreign workers come in willing to work at minimum wage and without benefits. Possible methods could be for employers bringing in foreign workers to pay a premium over the prevailing wage for similar jobs, to pay the median of wages and benefits offered for such jobs on a regional or national basis, to provide health insurance and other benefits (in part to ensure that local communities do not bear the cost of health and accident expenses for such workers) or some combination thereof.

• Job Portability. Foreign workers must not be tied to a particular employer for the entire length of the program While it is entirely appropriate to have some minimum period of time that a foreign worker must work for the sponsoring employer (some employers have suggested 3-4 months), it cannot be coextensive with the term of the worker visa. Past experience has shown that tying workers to a particular employer allows the unscrupulous employers to exploit those workers who have no alternative but to accept bad working conditions and wages or leave the program and return to their home country.

• Labor protections including the right to organize. As is apparent from the great numbers of undocumented persons not just in this country but in the migration of millions of people around the world, globalization means the movement of people and not just capital or information. To the extent that foreign workers have different and lesser rights at the workplace than US domestic workers, unscrupulous and even honest employers will seek to lower their employee costs by relying on foreign workers rather than US domestic workers. If the cost differential of hiring a foreign worker versus hiring a US domestic worker is minimal or nonexistent, employers will not have an incentive to hire foreign workers unless there is a real labor shortage. Labor protections must go beyond minimum wage and must include protection from sexual harassment, discrimination of any kind, workmen’s compensation, health and safety laws, a mechanism for these workers to accrue benefits under Social Security for work performed during their participation in the program and the right to organize.

• Enforcement of Labor Protections. It is absolutely necessary that protections afforded to foreign workers must be enforceable. It is insufficient to limit enforcement to federal or state labor departments as they will not have the resources to enforce aggressively those protections. A private right of action such as that under the Fair Labor Standards Act and applicable state law must be available to foreign workers. Again, if we are not to create incentives for employers to seek foreign workers unless truly needed, we should not make the rights and the ability to enforce those rights available to foreign workers different from those available to US domestic workers.

• Path to Legal Permanent Residency and Citizenship. Foreign workers must have the option after a reasonable and specific time period to choose to become lawful permanent residents of this country. Many will choose not to, preferring to work in this country for a period of time and ultimately choosing to return to their country of origin. But many others would eventually like to become part of this country. They must have that choice. To limit the ability to become legal permanent residents and ultimately citizens to those who have employer sponsorship is to once again place foreign workers at the mercy of unscrupulous employers. Such employers would exploit the desire of these workers for legal permanent status to avoid complying with wage requirements and other labor protections. Moreover, a path to permanent legal residency will protect and unify families.

• Family Unity. Any foreign worker program that contemplates bringing in workers for more than just a few months must also allow such workers to bring in their spouse and minor children during the period of the program. The social dysfunction that is resulting from parents’ extended absences, especially fathers, from their families as those parents seek to provide a future for their families is incalculable. It is inhumane to insist that foreign workers be available to meet our labor needs, real or perceived, yet also deny them basic human dignity of uniting families.

As is clear from the foregoing, the expansion of foreign workers programs which some view to be inevitable is fraught with pitfalls and dangers. Dangers exist not just to the foreign workers themselves, but to US workers and their future. Indeed, the very nature of our country as a land of opportunity, equality and liberty could be irrevocably changed by creating a system in which thousands of foreign workers would be permitted to work in this country but without equal rights as US workers. Moreover, US workers are in danger of seeing their wages and working conditions become depressed should inexpensive foreign workers be seen as a viable alternative to improving wages and working conditions for domestic workers. We must confront real labor market needs without sacrificing the ideals and principles of our organizations.