When President Bush's immigration initiative flopped in the Senate earlier this year, pundits hastily declared the start of his lame-duck presidency. Apparently, they forgot to tell President Bush. The Bush Administration has continued to quietly pursue major elements of an immigration agenda with simple changes to rules and regulations that conveniently bypass Congressional scrutiny.
Consider the "no match" rule, which, if implemented, would result in job losses for millions of undocumented low-wage workers in the United States. With the unwieldy and misleading title "Safe Harbor Procedures for Employers Who Receive a No-Match Letter ," this rule, implemented by Executive Order, uses the Social Security database to search for any discrepancy between a name and Social Security number on the worker's W-2 form and the corresponding Social Security Administration record. It then gives the employer ninety days to clear up the discrepancy or fire the worker.
US District Court Judge Charles Breyer in San Francisco temporarily blocked implementation until a final ruling on its legality, likely in several months. If the court ultimately lifts the injunction, the rule will result in the mailing of over 100,000 "no-match" letters. Should this happen, not only would tens of thousands almost immediately lose their jobs, certain industries would also suffer enormously from the lack of workers. Then another part of the Bush immigration plan would then come into play, one that has so far been rejected by Congress: a vastly expanded guest-worker program.
A foreign labor program does currently exist and is known as the H2 visa. The H2 system tells us clearly what kind of a labor structure would be ushered in should the guest worker program be expanded.
The H-2 visa program was implemented in 1952 to fill the need for low-paying seasonal labor that farm owners claimed could not be found within the United States. H2-A is the sub-category for agriculture workers, while H2-B visas are for seasonal jobs that do not require a college degree--hotel workers in tourist towns or ski-lift operators. H-2B visas are issued for a period of up to one year. When the visa expires, the worker must leave the United States. The H2 worker cannot work for anyone besides the company whose name appears on their visa, otherwise they will have violated the terms of the visa, making them deportable.
An illuminating case study of the current seasonal guest worker program is currently playing out in the Gulf Coast region, which saw its population dramatically decline in the aftermath of Hurricane Katrina.
Kathy Fulton, an Alien Certification Officer at the Louisiana Department of Labor (DOL), described the process that US companies must follow to hire foreign workers legally under the H-2B rules. They must prove that no qualified US-born worker has applied for the same job. This translates to a requirement that a job advertisement be placed in a local newspaper where the job opening exists, to run for three consecutive days. If granted, this certification can last for a period of up to one year and can be renewed a maximum of three times. Given that so many residents of New Orleans are still living in shelters, hotels and trailer parks scattered around Louisiana and other parts of the country, only a select few would even see the newspaper ad.
The Decatur Hotels, which owns fifteen "luxury" hotels in New Orleans, took full advantage of the post-Katrina workforce displacement to aggressively pursue a new pool of workers. After successfully petitioning the Louisiana DOL for foreign workers, Decatur hired Accent Personnel Services, a Baton Rouge-based company to find workers in Peru, Bolivia and the Dominican Republic.
In late 2005, Pedro (not his real name), a middle-aged civil engineer, came to the United States from Peru on a H-2B visa. Pedro answered an ad in a Lima newspaper and went to an initial informational session that promoted the benefits of working in the United States.
"They were so nice to us and answered all our questions and made the jobs in New Orleans sound so wonderful," Pedro said. "Lots of money for the exact work we were doing at home."
It didn't take long for the recruiter to convince Pedro that a job in the United States was a ticket to quick riches. This is when, Pedro said bluntly, "the exploitation began."
Pedro said he paid the recruiter fee ($250 up front and then a further fee of $1,750 on acceptance by the US Embassy), a highly inflated charge for a round-trip flight ($1,200), the passport fee ($55) and US Embassy costs ($15), and that he was $3,270 in debt before even leaving Peru. His roommate Camilo claimed to have paid an extra $5,000 to the middle man who brought him to the recruiter and to owe $8,270.
Other H2-B workers who are currently working across Louisiana for other employers have reported paying up to $20,000 in fees to come and work for less than a year. Comparatively, Pedro is one of the luckier H2-B workers. Not only did he pay distinctly less than others, he also signed a contract with Decatur that guaranteed him a forty-hour work week at $7.79 per hour, company-furnished housing (for $50 per week), two low-cost meals per day and free transportation to and from work.
But Decatur never honored the contract, according to Pedro. Pedro said Decatur did not provide him with daily subsidized meals or a place to cook. He never received the free transportation promised by the company from work back to the hotel. He had to share a tiny motel room with three other workers and each worker was charged $100 a week for the shared room that they paid directly to Decatur. Pedro, with visible contempt, describes himself as tied in every possible way to Decatur, a relationship he says is one of "indentured servitude."
Decatur tells a very different story.
"These employees were just wonderful and became an immediate part of the...family," said Betsy Gambel in January, a Decatur spokesperson who recently changed employers, regarding foreigners working for Decatur.
Decatur lost roughly 90 percent of its work force after Hurricane Katrina, according to Gambel. So the company went on a proactive recruitment drive.
It was "very much a cooperative effort among all the people in the tourism industry trying to bring people back to work," Gambel said about Decatur's recruiting campaign. Gambel also claimed that Decatur paid new immigrant workers above minimum wage and made it a priority to house workers in its own "luxury" hotels. But many disagree on these points.
"Putting workers in tiny, windowless motel rooms and charging market-rate rent is outrageous," said Saket Soni, a workers-rights activist who leads the New Orleans Workers Center for Racial Justice, which has organized for the rights of immigrant workers post-Katrina.
Guest workers also have very little protection against abuses of their labor rights. In New Orleans, those abuses are stacking up. From the under-payment of wages or refusal to pay wages, to companies seizing workers' passports and documents, to failure to provide workers with a forty-hour work week, every H2-B worker I met in New Orleans articulated one grievance or another.
Fulton said that Louisiana's DOL could act only if workers filed an "official" complaint. When asked if DOL could protect workers from being fired should the employer discover the complaint, Fulton simply responded, "No."
Pedro, his roommates, and other H2-B workers, all members of Saket Soni's project, the Alliance of Guest Workers for Dignity, took the courageous step in August 2006 of filing suit against Decatur, claiming that it had violated the Fair Labor Standards Act (FLSA). The Southern Poverty Law Center filed the suit, charging that Decatur had violated the FLSA because it had not reimbursed H-2B workers for the costs associated with being able to work for the company--visas, transportation and recruiters' fees.
The suit  named Decatur's CEO F. Patrick Quinn III as the defendant. Decatur put up a vigorous defense asking that the suit be dismissed. In January, Betsy Gambel said that she was confident that Decatur had not violated any worker rights and that the suit would be dismissed. In May 2007, a federal court in Louisiana denied Decatur's motion to dismiss, finding that FLSA did apply for H-2B workers. This was the first step towards justice for the workers. But if further rule changes that the Bush Administration is pursuing get passed, immigrant rights and workers rights would take many steps backwards.
A guest-worker program is profitable for employers. They do not provide employees with benefits, while the workforce is expendable, less likely to organize, and dependent on their employer for their very status in the country.
Since Pedro left New Orleans in January, he has moved across the country to find work more than once. In August, Pedro and two other guest workers left Maryland after their employer didn't pay them for two weeks.
"I wish I'd never come to the US," Pedro said. "But now I am here, I am just working to pay off my initial debt. It might take me years."