empowering farmworkers to improve their living and working conditions since 1981

How Guestworker Programs Work

Thursday, 11 February 2010 13:27

Immigration Labor

Lack of bargaining power means poor wages and reluctance to complain

Guestworker programs in the United States, by their very nature, have subjected the foreign workers and corresponding U.S. workers to poor wages and working conditions. In affected occupations, guestworker status also has contributed to the foreign and domestic workers' lack of economic and political bargaining power.

This lack of bargaining power arises largely from the foreign workers' status as "non-immigrants" on temporary visas. They are dependent on the employers for their ability to stay in the country and their opportunity to obtain a visa in the following year. That status effectively prevents workers from demanding better wages or working conditions, forming a labor union, or challenging illegal conduct. In fact, once the Department of Labor certifies an employer's wage rates as acceptable, a worker who refuses to work at that wage level is considered "unavailable" for work and can be replaced by a guestworker.

Employers often prefer guestworkers because, as poor citizens of poor countries, they will work to the limits of human endurance and for low wages. Consequently, many employers create artificial labor shortages for themselves by not recruiting United States workers, by offering low wages and poor working conditions so as to deter U.S. workers from applying for jobs, by forcing U.S. workers to quit their jobs, and by firing them. Such conduct is illegal but widespread.

Adverse Effect on Domestic Workers

Congress has recognized that the hiring of guestworkers can displace U.S. workers and "adversely affect" the wages and working conditions of U.S. workers. Consequently, there are some labor protections under the H-2A temporary foreign agricultural worker program. Fewer labor protections exist under the H-2B temporary foreign non-agricultural worker program (used by landscape companies, resorts, and other seasonal employers). Congress and the Administration should substantially strengthen both the H-2A and H-2B labor protections to improve the abysmal wages and working conditions in most of these jobs.

Even the current labor protections are inadequately enforced. The political will has never been present for strenuous enforcement by the U.S. Department of Labor or state agencies. The H-2A employers are important political constituents, well-organized into trade associations and active in opposing labor law enforcement. The workers are not. Private-practice lawyers rarely take guestworkers' cases because the wage losses are too small to make the cases economically viable. H-2A workers are eligible for federally-funded legal services. Diminished resources and restrictions on their activities, however, limit the effectiveness of legal services offices. H-2B workers are ineligible for such assistance.

The Bracero Program: A Brief History

The H-2A program began in 1943 when the Florida sugar cane industry obtained permission to hire Caribbean workers to cut sugar cane on non-immigrant temporary visas.

The Bracero program began at the same time to respond to alleged wartime labor shortages. It started small but grew to 400,000 visas per year at its peak. A total of about 4.5 million jobs were filled by Mexican citizens by the time the Bracero program ended in 1964. The Bracero program evolved over time, but generally was based on a government-to-government (U.S.-Mexico) agreement that regulated recruitment and job terms. The H-2A program was not part of an international agreement, although Caribbean nations formed a consortium (the West Indies Central Labor Organization) to monitor and assist the program.

The Bracero program ended in 1964 after years of controversy. The little-known H-2 program remained on the books. It was revised in 1986 and divided into the H-2A agricultural program and the H-2B non-agricultural program. Unlike the H-2A program, the H-2B program has an annual numerical limit on visas (66,000 until recently, but now higher). The H-2A program has doubled in the last ten years to about 45,000 approved jobs. As it has increased, its reputation for abuse has spread.

This history is relevant today. During the 1990's, agribusiness lobbied for legislative changes that, if successful, would have made the H-2A program worse than the Bracero program by reducing substantive labor protections and government oversight. Farmworker advocates defeated those efforts.

Today, some legislators are again making proposals for new guestworker programs, this time for millions of jobs in many occupations. Some proponents of these guestworker programs contend that they "would not create another Bracero program." Such statements are wrong. Critically important to understand is that the two guestworker programs, H-2A and Bracero, contained similar statutory, regulatory and contractual labor protections for recruitment, wages, benefits, transportation, minimum-work guarantees, working conditions and housing. As abusive as the Bracero program was, some of the new proposals would be far worse.

"We wanted guestworkers but they brought us human beings"

An observer of the German guestworker programs said "we wanted guestworkers but they brought us human beings." Most guestworker programs are predicated on denying the humanity of the workers who fill those jobs. The guestworkers are isolated from others in society and stigmatized. They are denied the right to compete economically for the best available job. They are too vulnerable to ask for better wages. Families are broken up. The workers are not granted the democratic rights on which this country was founded. It is indentured servitude.

The human beings who contribute to this country through their labor deserve immigration status. Guestworker programs should not supply this nation's labor.

If the moral argument is not persuasive, then consider a practical one. One common conclusion is "guestworker programs don't work." That is, they do not fulfill the claimed goal of bringing in needed workers without adding to the permanent population. As the saying goes, "there is nothing more permanent than a temporary foreign worker program." Some guestworkers overstay their visas or "jump contract." In addition, the employers of guestworkers are constantly searching out new communities in foreign countries to send laborers, creating new migration streams, some of which last long past the authorized migration. The people who work in the United States should be given the opportunity to settle here as immigrants and then as citizens who enjoy the economic opportunities and political representation on which this country prides itself. True immigration status should be emphasized and guestworker programs should be de-emphasized. For agricultural workers and employers, a reasonable compromise on these issues exists in the proposal known as "AgJOBS," the Agricultural Job Opportunities, Benefits and Security Act.