Immigration Reform May Come With Big Gifts to Employer
- Immigration Reform May Come With Big Gifts to Employers
By Samantha Winslow
February 18, 2013
Unionists and immigrant rights activists are at once excited and
apprehensive about the immigration law overhaul proposed by the Obama
A path to citizenship, though it will be arduous, could give some of the
nation's 11 million undocumented workers a chance to get their papers
and become full participants in work and civic life.
This could be a breakthrough for unions: every worker who becomes
documented is a worker whose boss can no longer threaten to have her
deported if she stands up for her rights on the job.
But, as a pro-business trade-off, the law may also come with an expanded
"guestworker" component. Historically, defenders of worker rights,
including unions, have objected to guestworker programs, calling them
"modern-day indentured servitude."
Guestworkers are tied to their employers on pain of deportation—making
it hard for them to protest mistreatment or low pay, causing employers
to hire them instead of U.S. residents.
"One fundamental starting point for any immigration reform is that
deportation of the undocumented has to end immediately," said Saket
Soni, executive director of the National Guestworker Alliance. "You
can't deport today the citizens of tomorrow."
But Obama's administration has deported more people than Bush's, and
many immigrant rights activists have spent the past four years
protesting these deportations.
The new law is also certain to step up border security enforcement. And
the package includes stricter electronic verification of job applicants'
legal status, which could lead to heightened profiling and intimidation
for immigrants, both documented and undocumented.
Even the proposed path to citizenship—the carrot alongside all these
sticks—requires payment of fines and back taxes and proof of long-term
employment, all of which could be difficult or impossible for a large
portion of undocumented immigrants.
They must start at "the back of the line" behind other immigrants
applying for citizenship. In 2010 alone more than 700,000 people applied
for naturalization, according to the Department of Homeland Security.
After years of harsh anti-immigrant rhetoric, some Republican lawmakers
are open to some kind of immigration reform, as a way to gain a foothold
in the growing Latino electorate that overwhelmingly voted for Obama
last fall. But they will seek to give it a pro-business cast—as do some
of the administration's proposals.
The number of Latinos in unions actually grew in 2012. To re-activate
the many who worked to elect Obama in 2012, unions in the AFL-CIO and
Change to Win are holding rallies in 14 cities across the U.S. in
February and March, beginning in Raleigh, North Carolina, and Las Vegas.
The two labor federations reiterated their 2009 joint framework on what
needs to be included in immigration reform. It includes a path to
citizenship for the undocumented, a de-politicized plan for future
immigration flows, a rational border control system, a secure and
effective system to verify workers' status, and improvement, not
expansion, of current guestworker programs.
But what are the devilish details? Representatives of both coalitions,
including the AFL-CIO's Rich Trumka and the Service Employees' Eliseo
Medina, are speaking to the media alongside representatives of the
Chamber of Commerce, to show common ground between business and unions.
Although advocates don't want to go on the record, some fear that
labor's willingness to collaborate with business interests could weaken
its position. By analogy, at the end of the health care reform debate in
2010, union leaders were willing to back just about any bill the
administration proposed, even when some provisions would hurt union
So despite labor's stance against expanding guestworker programs, Trumka
and Medina may end up backing expansion in hopes of citizenship for some
current immigrants. Already they are speaking of flexibility, based on
U.S. employment levels and other "data-driven" factors, to decide the
number of foreign workers to be allowed into the U.S. in the future.
Guestworker programs allow employers to bring in foreign workers on
temporary visas. Current law allows an unlimited number of agricultural
workers for up to 10 months at a time; in 2011 there were are about
80,000 agricultural guestworkers in the U.S., according to the
Department of Labor—a small proportion of all farm workers.
A second program brings in workers for industries such as landscaping,
forestry, seafood processing, and hospitality. The 2012 cap on these
workers was 66,000. Highly skilled workers such as engineers enter under
a separate program.
Some employers want flexibility to expand the type and number of
guestworkers they can import. The American Health Care Association, for
instance, wants to import nurses, nurse assistants, and LPNs to work in
The Laborers say one in five workers in construction now is an
immigrant. The union's immigration coordinator, Yanira Merino, said for
years employers have misused guestworker programs, hiring workers for
jobs in other industries and then moving them into construction work as
a way to cheat the system.
The law requires employers who recruit guestworkers to first demonstrate
that there aren't enough U.S. workers able to do the job—but enforcement
is weak. The union doesn't want to "open up a situation where employers
will be able to bring in workers with not much of an effort, and that
will undermine standards in our industry," Merino said.
Despite concerns about some provisions, the union doesn't want to be
labeled a spoiler of historic immigration reform. "We don't think a ‘no'
position is a constructive one," Merino said. "But we will speak out if
we think it will hurt workers." RED FLAG
Josh Stehlik, a workers' rights attorney at the National Immigration Law
Center, was encouraged that the president spoke about the need for
workplace protections as part of immigration reform. But the employment
verification system raised a red flag, he said.
NILC has opposed mandatory status-verification systems because immigrant
workers—even those with legal status—are vulnerable to the error-ridden
NILC and the Guestworker Alliance want any new law to include the
protections contained in the POWER Act, which was introduced in 2011 but
garnered little support in Congress. Undocumented workers who report
workplace law violations, including wage theft, would be granted
temporary visas, to protect them from retaliation.
Saket Soni of the Alliance said any reform will be tainted if workers'
rights aren't explicit. "No matter what the size [of the program], the
labor rights of guestworkers and their right to access basic civil
rights and organize collectively have to be protected," Soni said.
The Alliance is part of the United Workers Congress, a coalition
representing workers excluded from labor law protections, such as
domestic and farm workers. They gathered in Washington in February to
pressure Congress for their own immigration platform—which is strikingly
different from Obama's.
Their proposals include social safety net protections for immigrants
during the legalization process; an end to collaboration between police
and immigration enforcement; minimization of fines and high fees; no
mandatory expansion of E-Verify, "the error-ridden electronic
verification system which has repeatedly been used to destroy union
organizing campaigns"; a "labor law enforcement fund" for industries
with large numbers of immigrants; and partnering with worker
organizations to help implement legalization. HARVEST SEASONS
Adrienne Der Vartanian of the advocacy group Farmworker Justice said
that, to avoid the abuses guestworker programs have allowed in the past,
they must allow workers portability—so they're not tied to one
employer—among other protections.
More broadly, she says, all farm workers, including guestworkers, should
be eligible for the path to citizenship.
One union has organized guestworkers, and Baldemar Velasquez, president
of the Farm Labor Organizing Committee (FLOC), thinks it's not realistic
to keep them out. "I would venture to say guestworkers would be a
necessity in agriculture," Velasquez said.
Temporary workers from countries like Mexico, he said, are the only
group willing to take such short-term, low-paying jobs as bringing in
the crops during the short northern harvest seasons.
It's not a bad thing to allow workers from other countries to make money
to bring home to their families, Velasquez said. But "if you are going
to have a guestworker program, give them their right to organize."
FLOC's contract, covering 8,000 seasonal guestworkers at cucumber and
other farms in North Carolina, includes a grievance procedure and
seniority. It took years of organizing, boycotts, and other pressure on
the Growers Association to win.
Many in labor are skeptical that guestworkers can be organized on a
FLOC, part of the AFL-CIO, is now working with the United Farm Workers,
a union formerly at odds with guestwork in agriculture, to push for
agricultural workers to be protected in whatever legislation passes. The
UFW plans a series of marches in farmworker communities in California
Gone are the days when most union policies were simply anti-immigrant.
Unions have committed to organizing immigrants and supporting equal
rights at work.
The questions for labor in this year's reform debate are whether it can
nail down immigrants' rights on the job, how many it can include under
the umbrella, and how it can avoid a bill that contains too many sticks
for a too small carrot.
A version of this article appeared in Labor Notes #408, March 2013.
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Samantha Winslow is a staff writer and organizer with Labor
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