12/17 Immigration Update: Congress's Spending Bill Will Remove Labor Protections from Guestworker Program

Congress has come to a bipartisan agreement on a spending bill to fund the government for the rest of FY2016 and a tax bill that makes permanent some tax breaks for individuals and corporations. Farmworker Justice is extremely disappointed that the appropriations bill contains harmful policy “riders” that will prohibit the Department of Labor from using funds to implement important worker protections in the H-2B non-agricultural temporary foreign worker program. One result will likely be to lower wages for H-2B guestworkers and US workers that work alongside them.

The H-2B program riders will affect forestry workers (who are brought in under the H-2B program but are considered agricultural workers under other laws) as well as landscaping, food processing, hospitality and construction workers. In addition to changing the wage formula, which will likely lower wages in most instances, the riders will prevent DOL from requiring additional recruitment of US workers based on labor market history and from auditing employers’ recruitments. The riders also strip protections for US workers in “corresponding employment” so that very few US workers will be entitled to the same wages and working conditions as H-2B workers that they work alongside. The bill defunds the ¾ minimum-work guarantee, which requires employers to pay H-2B workers for at least 75% of the hours they are promised over a 12 week period. This rule aims to curb the practice of hiring excess H-2B guestworkers and then offering them little to no hours. The bill also effectively enlarges the program by exempting H-2B workers who came in FY2013, FY2014 and FY2015 from being counted toward the annual cap on the number of H-2B visas.

Farmworker Justice opposes expansion of guestworker programs outside the context of comprehensive immigration reform and opposes the removal of labor protections in the H-2B program, which is rife with abuse. Placing these substantive immigration and labor changes into must-pass appropriations bills in order to avoid the legislative process and input from workers, their advocates and the public is shameful.

Farmworker Justice worked through the International Labor Recruitment Working Group Advocacy Committee to oppose these harmful provisions. We thank Senators Richard Blumenthal (D-CT), Bernie Sanders (D-VT), Dick Durbin (D-IL), Elizabeth Warren (D-MA), Jeff Merkley (D-OR), Mazie Hirono (D-HI) and Al Franken (D-MN) who sent a letter to Senate leadership and top appropriators opposing the H-2B riders. However, it was an uphill battle with many Republicans and the top Democratic appropriator, Senator Barbara Mikulski (D-MD), championing the cause of businesses that seek to lower their labor costs and hire vulnerable guestworkers. The ILRWG also sent an organizational sign-on letter in opposition to the riders and released this statement on the appropriations bill. Our previous blog on the H-2B proposals describes the House and Senate bills that would further and permanently strip protections in the H-2B program.
While the tax bill makes permanent important tax credits for families (along with some corporate credits) and postpones the “Cadillac tax,” a tax on expensive health care plans (a priority for some unions with generous health care plans that were bargained for in lieu of higher wages or other benefits), it also contains some harmful provisions that will negatively affect some immigrant and mixed status families.

Both bills are expected to pass and be signed by the President before Congress goes on recess for the holidays. The appropriations deal will avoid a government shutdown. The appropriations bill is expected to rely heavily on Democrats voting in favor of it to pass, which gave them significant leverage in the negotiations process.

As Daniel Costa’s Economic Policy Institute blog explains, there is no evidence of a labor shortage in the industries that use the H-2B program. Even if there were such evidence, there is no valid justification for lowering wages, stripping protections from vulnerable workers, and facilitating hiring vulnerable guestworkers under substandard conditions. Congress should be focused on creating a path to immigration status and citizenship for undocumented workers and opportunities for better job terms for workers in these industries. Foreign workers should not be treated as commodities. When foreign workers are needed, they should be treated with dignity and offered strong labor protections and the opportunity to obtain greencards. We are a nation of immigrants not a nation of guestworkers.

As a final note, if you haven’t already, you should read the Buzzfeed articles on the H-2 agricultural and nonagricultural temporary worker programs. The first, “The New American Slavery: invited to the US foreign workers find a nightmare” focuses on the abuses of H-2 guestworkers, while the second “All you Americans are fired” focuses on the harm caused to US workers by the program.