THE GUEST WORKER PROGRAM Earned Legalization & Reform: The Best Solution By Lindsay DuVall Honors Scholar Seminar Spring 2002 Chicago-Kent College of Law THE GUEST WORKER PROGRAM Earned Legalization & Reform: The Best Solution The guest worker program is designed to respond to labor shortages by bringing workers to the U.S. on a short-term basis, but instead allows the mistreatment of workers, adversely effects the wages and working conditions of domestic workers, promotes an illegal class of immigrants, and creates tensions between the U.S. and Mexico. There has been much proposed legislation aimed at fixing the guest worker program, most of it falling into one of three categories of reform. The first includes legislation that would grant amnesty to all illegal immigrants who are currently in the U.S. The second category includes reform that would modify the current guest worker program, addressing the various abuses. The third area of reform would create a hybrid of the first two, and would be a revised and expanded program offering a chance for earned legalization. This paper proposes that the hybrid model is the reform necessary for remedying the guest worker program’s many ailments. The problem with the current program as well as with past guest worker programs is that they focused solely on the needs of the employers. In order for program reform to be effective, it must focus not only on the needs of the employers in filling labor shortages, but also on the needs of the employees and on those of the U.S. and Mexico in instituting and maintaining the program. This article will explore the reform necessary to realize a guest worker program that incorporates the needs of all involved parties. It will first give an introduction to the proposed hybrid model as well as to the current climate and attitudes towards the program in the U.S. and Mexico. Next, it will look briefly at the history of the guest worker program along with the current H-2A visa which all guest workers must apply for. In the third section, the paper will look to legislation that has been proposed to deal with the problems outlined in section two. Finally, the paper will offer a suggested reform model, incorporating much of the legislation that has already been introduced in Congress. Hopefully, the proposed reform will not only meet the needs of the Mexican workers, the U.S. workers, the employers, and the two countries, but it will also lend to improvement of the program, the Immigration and Naturalization System (INS), and the immigration system as a whole. I. INTRODUCTION Illegal immigration into the United States across the U.S.-Mexico border, and the mistreatment of Mexican immigrants who are in the U.S. legally, primarily as part of the guest worker program, are problems that must be addressed through cooperation between the U.S. and Mexico as well as through legislative reform in the U.S. The 2000 Census estimated the number of illegal Mexican immigrants in the U.S. at 3-4 million[1] and yet the borders are still flooded with those trying to enter both legally and illegally[2], often risking death.[3] It is not only the illegal border crossings that give cause for concern since immigrants that are already in the U.S., legally and illegally, are often treated as indentured servants, denied the protection of U.S. labor laws, and offered no hope for legalization. In describing the plight of Mexican immigrants in the U.S., Senator Phil Gramm emphasized this point by stating that “millions of Mexican citizens go to work every day in America in violation of our immigration law and outside the protection of our labor law.”[4] In early September 2001, Mexico’s President Vicente Fox met with President George W. Bush and other officials in the U.S. to discuss immigration reform. While the tragic events of September 11thhave delayed the talks, they remain a high priority for both nations and will be revisited in the near future. Meanwhile, Mexican nationals are hoping for reform that will improve the regulation of their transit into the U.S. labor market[5] and millions of undocumented immigrants are hoping for reform that will lend them protection under U.S. laws and give them a chance for legalization of their status. Additionally, employers, economists, and legislatures are waiting to see how businesses, the economy, and the infrastructure of the INS will be affected by the anticipated reform. In February of 2001, Presidents Bush and Fox established a “high-level migration working group” led by U.S. Secretary of State Colin L. Powell, Attorney General John Ashcroft, Mexican Foreign Minister Jorge G. Castaneda and Mexican Interior Secretary Santiago Creel.[6] The goal of the working group is to create “an orderly framework for migration that ensures humane treatment and legal security, and dignifies labor conditions.”[7] Their hope is that the high-level discussions will help address the web of immigration issues that have plagued relations between the two nations.[8] This working group is essential for effective reform because it creates an environment of cooperation and partnership rather than of opposition. The working group is currently dealing with three major proposals aimed at “fixing” the immigration problems with Mexico.[9] The first proposal supports legalization or amnesty for those illegal workers who are already in the U.S. This would allow those that came to the U.S. illegally or who stayed in the U.S. after their visas expired to be granted an “exemption” and stay as legal immigrants. This reform is supported by Representative Luis V. Gutierrez of Illinois, who introduced it in the U.S. Employee, Family Unity and Legalization Act in the House in February of 2001.[10] This legislation would grant temporary legal status to Mexican workers who were in the U.S. before February 2000 and full status to workers here before February 1996.[11] The legalization date would then roll forward to eventually encompass all Mexican workers who are in the U.S. illegally.[12] The second proposal focuses on the expansion and modification of the current guest worker program, encompassed by the H-2A visa.[13] This reform would be aimed not only at future workers but also at those who are already here. Undocumented workers already in the U.S. would have six months to apply for a guest worker permit which would automatically be granted.[14] After six months, enforcement of employer sanction laws and penalties would be increased.[15] This reform is supported by Senator Phil Gramm of Texas as well as by various other Republicans. The third proposed reform focuses on a hybrid of the first two approaches: a combination of a revised and expanded guest worker program as well as incorporation of legalization. Florida Senator Bob Graham introduced this approach in AgJOBS[16], a combination program where unauthorized workers who can prove that they have worked in the U.S. will receive temporary work permits and will eventually receive immigration visas if they continue to work in agriculture for several years.[17] The best hope for a solution lies is the hybrid approach, focused on admitting workers under a revised version of the H-2A visa as well as offering a chance for earned legalization to undocumented workers currently bringing labor and money to the U.S. economy.[18] This combination program will focus on the needs of employers seeking temporary labor, as well as on those of the workers and countries that are part of the program.[19] It is essential that all three sets of needs be considered in order to achieve a balanced program that will decrease illegal immigration and worker abuse. The current guest worker program shares the same problem that plagued previous guest worker programs: a primary focus on employers’ needs for cheap labor.[20] In times of labor shortage, legislative reform and relaxation of INS regulations made it easier for employers to fill jobs with workers willing to work at or below the minimum wage and under poor working conditions. While it is important for our economy and our businesses to consider the needs of employers, social and labor protections are essential for immigrants doing our work. The guest worker program must be modified and expanded in order to afford Mexican workers the rights and protections of U.S. laws. It should give guest workers visa privileges such as health insurance, access to courts, and the right to join a union. The modified program will need to provide an enforcement mechanism for protecting workers’ basic human rights as well as their rights as employees. The program will need to ensure that labor conditions and wages are regulated and maintained. The modified program must also focus on workers’ needs by providing a path to legalization rather than continuing to take advantage of Mexican labor without providing any hope for eventual immigrant status. Although immigrant status cannot be granted to all that request it, the current situation, with no path to legalization, exploits the workers and perpetuates the existence of an abused labor class that that takes jobs from U.S. workers. An effective guest worker program will also focus on the needs of the United States and Mexico by encouraging workers to eventually return home, therefore decreasing the number of permanent illegal workers in the U.S. while sending capital and skills to Mexico.[21] Modifications such as the creation of an IRA-type fund, paid out upon return to Mexico, will encourage workers to return while at the same time stimulating the Mexican economy.