Employers are of two minds about the country’s primary guestworker program, the H-2 visa system. They love it when it acts as an open spigot for low-wage “surplus labor.” They hate it when labor advocates try to tighten the rules of the program in order to protect immigrant workers’ basic rights. So goes the love-hate attitude of industry toward all guestworkers: bosses welcome a fresh supply of docile low-wage surplus labor, but when they start asking for rights on the job and equal treatment, it’s time to ship them back over the border—and the system keeps workers churning through a cycle of precarity.
The careful balance—maximizing labor, minimizing labor costs—was upset last month when a federal district court effectively invalidated a set of pending new rules for industrial H-2B guestworkers, and the Labor Department temporarily suspended new visa application processing. The court ruled that the Labor Department lacked the authority to promulgate the new rules and instead had to coordinate with the Department of Homeland Security. Employers became anxious about the delay and even launched a vociferous public campaign to defend employers’ “rights” to continue absorbing low-wage migrant temp workers and keep industries like seafood processing and hotel services humming.
On the other side of the debate were labor advocates, who also wanted to see the program resume, but on different terms: They want the new rules to be implemented with critical reforms to limit the rampant labor abuses currently plaguing guestworker programs. In fact, the original proposal for new regulations, issued in 2012 by the Labor Department amid public pressure (and subsequently tied up in litigation), included new safeguards to ensure transparency in labor contracts and recruitment and a guarantee that workers be provided with three-quarters of the work hours promised in their contract. Workers would also have additional protection from retaliation if they challenged an abusive employer. Though the rules would not change the fundamental structure of guestworker programs as minimally regulated short-term labor, they would curb some of the most abusive practices that undercut labor standards for US workers.
Following the temporary pause in application processing, the Labor Department announced that it would resume the program, with plans to finally issue the new rules by the start of next month. And now workers and employers are waiting to see what the new regulations will look like. Even if the previously proposed reforms are ultimately implemented, loopholes in the law will persist. Guestworkers are basically indentured servants, excluded from core labor protections, so, like migrant guestworkers around the world, they are inherently more exploitable than US citizen workers (One Jamaican guestworker recently recounted how “I felt like I was under bondage” in her hotel cleaning job.).
And as Rachel Luban pointed out at In These Times, some activists deem programs like H-2B to be inherently flawed and unfair. So the ethical dilemma of guestworker programs as legalized trafficking won’t be resolved by regulatory tweaks.
That said, H-2B currently draws tens of thousands of workers annually and won’t be dismantled any time soon, which means that workers need protection today.
According to the advocacy group Centro de los Derechos del Migrante (CDM), the legal limbo surrounding H-2B serves the employers well as long as they can still recruit workers—and the fewer rules, the better: “We are pushing for them to jointly issue the 2012 rule. Employers are asking for no regulations,” CDM Policy Director Sarah Rempel explains via e-mail. “They only want to regulate the program through informal opinions and memos, as the program was operated prior to 2008.”
(Note that while employers were upset about delays in processing applications. they seemed far less troubled in past years when the H-2B reforms got ensnared in litigation and by Congress’s refusal to fund the implementation of the new rules, so long as their visas kept coming under the old rules.)
Yet according to Daniel Costa of Economic Policy Institute (EPI), it’s unclear what extent the new rule would strengthen standards or maintain the status quo:
[E]mployers are keeping their fingers crossed that DOL/DHS reissue as much of the substance of the 2009 rules as possible, while worker advocates are pushing to have as much of the 2012 rules as possible (preferably all of them)…. But the regs still don’t do enough—much more is needed.
Though the Labor Department has generally moved toward expanding labor protections for guestworkers, according to EPI, it’s uncertain how strongly the new standards would be enforced; historically, loopholes and lax oversight that have let companies ranging from seafood packers to fairgrounds pay substandard wages, eroding working conditions for guestworkers and US-based workers alike.
The impasse surrounding the H-2B rules follows numerous scandals involving massive exploitation of service-industry guest workers, along with ongoing abuses in the agricultural guestworker program, H-2A (other guestworker programs have been similarly tainted by scandals.) A recent report by the Government Accountability Office (GAO) documented lax enforcement in these programs, which absorb tens of thousands of low-wage workers from Latin America and Asia each year.
GAO’s investigation revealed numerous recruitment abuses, including “third-party recruiters charging workers prohibited fees; not providing information about a job, when required, such as wage level; or providing false information about job conditions.” Even when employers were temporarily blacklisted for violating program rules, GAO found there had been very limited tracking of the companies, potentially giving them free reign to violate again in the future.
By the start of May, the government is expected to issue the new rules, and it remains to be seen whether workers material circumstances will significantly improve. But they may see additional safeguards against retaliation, which would encourage a growing trend among guestworkers to organize and agitate for fairer labor conditions and long-term immigration reform. These efforts will be assisted by CDM and the National Guestworkers Alliance, which are developing transnational labor networks that organize and educate workers about their rights on both sides of the border.
Guestworkers are slowly growing more conscious of how they fit into a transnational economic arbitrage. Despite their position at the margins of the global economy, their struggles for equity are central to the future of a globalized labor movement.