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.).