| Guestworker Programs
for
Low-Skilled Workers:
Lessons from the Past and Warnings for the Future
Testimony before the Subcommittee on Immigration and Border Security
of the Judiciary Committee of the U.S. Senate
February 5, 2004
Statement of Vernon M. Briggs, Jr.
Board member, Center for Immigration Studies
Immigration policy is mine field of controversial issues.
Programs to legally permit low skilled foreign nationals to work in the same
labor market as U.S. citizens and permanent resident aliens are among the most
explosive. Because such endeavors have been undertaken in the past, they have a
track record. They have been the subject of extensive research. There is no need
to speculate about what might happen if any new such venture — such as that
proposed by the Bush Administration on January 7 , 2004 — were to be enacted.
The outcome can be predicted.
The Traditional Role
The origin of guestworker policy in the United States and its historic role has
been as a national emergency program. During World Wars I and II as well as the
Korean Conflict, extensive reliance was made of such endeavors. Guestworker
programs were included among other extreme policies such as wage and price
controls and the relaxing of antitrust laws used by policymakers during times of
national peril. They are extraordinary policies to be used as a last resort —
and then only as temporary measures. Unlike the other extreme measures that were
quickly abandoned after the wars were over, however, guestworker programs have
proven to be difficult to end. Starting such programs has always been far easier
than stopping them. Moreover, they all had unintended negative consequences that
must be included in any assessement of such programs.
The First Bracero Program. Only months after Congress enacted the most
restrictive immigration legislation it had ever adopted up until that time — the
Immigration Act of 1917, the first publicly sanctioned foreign-worker program
was initiated. Responding to strong pressure from agricultural growers of the
Southwest, the Immigration Act of 1917 contained a provision granting entry to
“temporary” workers from Western Hemisphere nations who would otherwise be
considered inadmissible. The Secretary of Labor was authorized to exempt such
persons (in this instance, Mexicans) from the ban on immigrants over the age of
sixteen who could not read. In May 1917, with the nation officially at war with
Germany, a temporary farmworker program for unskilled Mexican workers was
created. It was later expanded to permit the employment of some of these
laborers in nonfarm work. When the program was announced, a number of rules and
regulations were set forth. Ostensibly, these rules were designed to protect
both citizen workers and Mexican workers and to ensure that the Mexicans
returned to their country when their work was completed. As soon became
apparent, however, “these elaborate rules were unenforced.”
This temporary-worker program was established during World War I .The war ended
in 1918, but the program was extended until 1922. In later years the program
came to be referred to as “the first bracero program.” The term bracero is a
corruption of the Spanish word brazo, which means “arm.” (Literally, the term
means “one who works with his arms.”) The program was terminated in 1922 because
it could no longer be justified as a national defense policy. Organized labor
contended that the program had undermined the economic welfare of citizen
workers. Other critics argued that labor shortages no longer existed in the and
but greedy employers wanted the program to continue so that they could continue
to tap a cheap source of docile workers. During the life span of the program,
76,862 Mexican workers were admitted to the United States. Of this number only
34,922 returned to Mexico. Thus, the program spawned illegal immigration.
The Mexican Labor Program. With the advent of World War II, the military
manpower requirements of the United States and the related need for laborers in
manufacturing led to assertions that another labor shortage existed in the
nation’s agricultural sector. Growers in the Southwest had foreseen these
developments before the attack on Pearl Harbor in 1941. They had made two
fateful decisions: first to again tap the pool of cheap labor in Mexico in order
to fill the alleged manpower deficit; and second, to ask the federal government
to again serve as the vehicle of deliverance. The initial request in 1941 for
the establishment of a new contract labor program was denied but by mid-1942 the
federal government had come to favor the program. The government of Mexico,
however, balked at the prospect. In the 1940s the Mexican economy was
flourishing. Mexican workers feared that they might be drafted if they went to
the United States; they had bitter memories of the efforts to “repatriate”
Mexicans in the 1930s; and they were aware of the discriminatory treatment
accorded people of Mexican ancestry throughout much of the American Southwest.
Negotiations between the two governments ultimately resulted in a formal
agreement. In August 1942 the Mexican Labor Program — more commonly-known as the
bracero program — was created by the U.S. Congress. Originally included within
an omnibus appropriations bill known as Public Law 45 (P.L. 45), this program
was extended by subsequent enactments until 1947. According to P.L. 45, braceros
were permitted to work only in the agricultural sector. If they were found
working in any other industry, they were subject to immediate deportation.
Although the agreement expired on December 31, 1947, it continued informally and
without regulation until 1951. In that year, under the guise of labor shortage
caused by the Korean conflict, bracero concept was officially revived by P.L.78.
This legislation was extended on three separate occasions until the program was
unilaterally terminated by the United States on December 31, 1964.
Under P.L. 78, originally only Mexican workers could be hired. Their numbers
varied each year but averaged several hundred thousand workers. Its biggest year
was in 1959 when 439 thousand braceros were employed. Employers were required to
pay the prevailing agriculture wage, provide free housing, provide adequate
meals at a reasonable charge, and pay all transportation cost from government
reception centers near the border to the work site. As in the earlier bracero
program, these requirements often were not met. Braceros were exempt from U.S.
social security and income taxes, which meant that they received more income
than a citizen worker employed at the identical wage rate.
In Mexico, the federal government determined the actual allocation process by
which workers would be selected from the various states. The state governments
in turn made similar decisions for their cities and other political
subdivisions. Nevertheless, there were many more applicants than job openings in
every designated labor market where recruitment occurred. Corruption in the
allocation process soon became widespread at the local level. Potential workers
often were forced to pay a mordida (a bribe; literally, “a bite”) if they wished
to be chosen.
The bracero program of demonstrated precisely how border labor policies can
adversely affect citizen workers in the United States. Agricultural employment
in the Southwest was virtually removed from competition with the nonagricultural
sector. The availability of Mexican workers significantly depressed existing
wage levels in some regions, moderated wage increase that would have occurred in
their absence, and sharply compressed the duration of employment (i.e., income
earning opportunities) for many citizen farmworkers.
In its thorough report on the bracero program in 1952, President Truman’s
Comission on Migratory Labor found that “wages by States [for agricultural
workers] were inversely related to the supply of alien labor.” Citizen
farmworkers in the Southwest simply could not compete with braceros. The fact
that braceros were captive workers who were totally subject to the unilateral
demands of employers made them especially appealing to many employers. It also
led to extensive charges of abuse of workers by employers as most of the
provisions for the protection of braceros’ wage rates and working conditions
were either ignored or circumvented. Moreover, the bracero program was a
significant factor in the rapid exodus of rural Mexican Americans between 1950
and 1970 to urban labor markets, where employment and housing often were
difficulty to find.
The drive to repeal Public Law 78 was led by the AFL-CIO, various Mexican
American groups, and an array of other community organizations generally
concerned with the welfare of low-income workers. The Kennedy administration,
which came into office in 1961, did not initially support repeal of the program.
Instead, it sought significant amendments to the law which were designed to
strengthen the protection of domestic workers from the adverse effects of the
program. In mid-1961 the Department of Labor began setting an “adverse effect
wage rate” for each state. These were minimum wage rates that the department
determined had to be paid to prevent braceros from undercutting the wages of
citizen agricultural workers. In most cases, the adverse –effect wage rates were
actually higher than the prevailing wages. They had to be offered to citizen
workers if the agricultural employer also intended to hire foreign workers.
Under these terms, the bracero program became much less attractive to employers.
The bitter political struggle ended in 1963 when the program was extended for
one more year with the understanding that it would not be renewed after December
31, 1964. This was 22 years after it had been started. Ending the formal program
did not stop its consequences as thousands of former braceros continued to come
and seek jobs in southwestern agriculture, albeit as illegal immigrants.
The British West Indies Labor Program. Following the precedent of the
Mexican Labor Program, the U.S. government established a similar nonimmigrant
program to recruit workers from the British West Indies (Jamaican, the Bahamas,
St. Lucia, St. Vincent, Dominica, and Barbados). An intergovernmental agreement
was signed in April 1943 pertaining to the supply of agricultural workers. The
agreement became the British West Indies (BWI) Program. The BWI program was
established in response to concerns voiced by employers along the U.S. East
Coast that they , too, were experiencing wartime manpower shortages. Because
many of the potential BWI workers spoke English, they offered an advantage to
employers over the Mexican workers recruited for the bracero program. Like the
bracero program, BWI was formalized on the basis of P.L. 45 and was operative
from 1943 through 1947. In terms of aggregate number — about 19,000 workers a
year — the BWI program was small compared to the bracero program. But its impact
was substantial in the particular agricultural labor markets where these workers
were employed. Of the eleven East Coast states that participated in the program,
Florida was by far the largest recipient. During the actual war years, BWI
recruits were also permitted to work in the nonagricultural sector.
During the years 1947-1952, the BWI program was converted into a
temporary-worker program, as allowed under the provisions of the Immigration Act
of 1917. Tripartite contracts were drawn up between US employers, the foreign
workers, and the governments of the participating nations of the West Indies.
The US government was not a direct participant. Travel and recruitment expenses
were paid entirely by US employers, and the workers who were recruited were
employed only in agriculture.
A review of the BWI program by the President’s Commission on Migratory Labor in
1951 led to condemnation of the administration of the program. The Commission
attacked the lack of “vigilance for the protection of living and working
standards” of these workers.
During the legislative debate over the continuation of the Mexican Labor Program
in 1951, East cost employers — especially those in Florida — specifically
requested that BWI workers not be included in the legislation. The language of
the bill was changed and only “agricultural workers from the Republic of Mexico”
were included. The East Coast employers preferred to keep the BWI program as it
was, and hence the program continued to function according to the provisions of
the Immigration Act of 1917.
The Non-Traditional Role
The vastness and complexity of the U.S. labor market has also, on occasions, led
to the use of guestworker programs for low skilled workers during peace times
under certain circumstances. There are sometimes spot shortages of labor that
the normal working of a relatively free labor market cannot easily respond.
These adjustment problems are normally due to geographical factors (i.e.
isolated labor markets) or seasonal conditions (i.e., time limits on the
duration of labor demand). But even in these seemingly logical cases, there have
usually been undesirable side effects that challenge the efficacy of their
replication in the future.
The H-2 Program. In 1952, the Immigration and Nationality Act was passed.
Among its multiple provisions were the formal creation of the various entry
categories for nonimmigrants. Among these was the H-2 program for “other
temporary workers.” Initially, it was agricultural employers who made the
greatest use of the program. Its height of usage was in 1969 when over 69,000
visas were issued. In the Southwest especially, the arid nature of the much of
the land means that it is often not possible for farmworkers to live nearby.
Hence, either migrant workers who are citizens must be hired or foreign workers
be recruited to do the seasonal planting and harvesting. The program also became
popular with sugarcane growers in Florida and apple growers in the Northeast who
argued that the arduous work only existed for short periods of time so it as
difficult to attract and hold citizen workers. But other non-agricultural
workers were also sought to do various service jobs that were of “a lower status
than those entering on H-1 visas” (i.e., temporary workers “of distinguished
merit or ability”). In 1986 IRCA split the H-2 visa into two separate temporary
visas, the H-1A for non-agricultural workers and the H-2A for agricultural
workers.
Theoretically, H-2 workers can only be admitted if unemployed citizen workers
cannot be found to do the work. But the entire process of testing labor market
availability and the appropriate wage rate to be paid has been a never-ending
source of controversy. As a result (and because of the growing availability of
illegal immigrants), usage of the program has declined significantly from the
peak in 1969 although usage of H-2B visas has been soaring in recent years.
H-2 programs have also been criticized for being forms of indentured servitude.
The participating workers are totally dependent on their employer. They are tied
to their jobs by contractual terms. For this reason it is believed that they are
preferred workers by employers if they can get them.
The Virgin Island H-2 Program. In the 1950s the H-2 program was used on
the U.S. Virgin Islands to allow unskilled workers from various neighboring
islands to work in the agricultural and tourist industries. By the 1960, these
foreign workers were being employed “for any job” on the Islands. More and more
jobs ceased to be temporary so by the end of the 1960s H-2 workers accounted for
almost half of the entire work force. The cost of living on the Islands is high
so that citizen workers were reluctant to work for the low wages paid to the H-2
workers. Their unemployment increased dramatically. In the meantime, housing,
education and social conditions worsened and the H-2 program was described as
being “the biggest single problem” on the Island. As the number of H-2 workers
kept increasing, there was even fear that the native born population might lose
political control of their homeland. Efforts were made to stop the children of
the H-2 workers from attending public schools but federal courts intervened. As
the Island’s economy became dependent on H-2 workers a two tiered labor market
developed. Ultimately the program was abandoned in 1975 but most H-2 workers
were allowed to adjust their status to become permanent resident aliens because
by this time they had put down roots in their new land.
The Guam Program. The Island of Guam also made extensive use of the H-2
workers. In reality, the H-2 program ratified a practice that was already under
way. Foreign workers had been recruited by defense contractors working on the
rebuilding of the economy following World War II. When the H-2 program was
created in 1952, many of these workers were granted this status even though that
had been on Guam for many years. Before long a “triple wage system” evolved: one
for “state siders”; one for native born on Guam; and the lowest wages for H-2
workers. As criticisms mounted about the H-2 workers receiving “slave wages,”
the U.S. Immigration and Naturalization Service (I.N.S.) began to phase-out the
program in 1959 for non-defense sector jobs and in 1960 for defense related
jobs. But there was immense criticism by employers of these attempts. Finally
the U.S. Department of Labor acknowledged that employers were not complying with
the H-2 provisions and that as efforts to end the program were initiated,
illegal immigration soared. Ending the program was no easy feat.
The Proposed Role: To Combat Illegal Immigration
As the scale of illegal immigration was finally acknowledged as an issue of
national concern the 1970s, guestworker programs were proposed as a possible
remedy by several scholars as well as by some employer groups. Meanwhile,
President Jimmy Carter requested the National Commission on Manpower Policy (NCMP)
in August 1978 to study whether the existing H-2 provisions of the Immigration
and Nationality Act should be expanded as an alternative to employers
(especially those in agriculture) using illegal immigrants. After lengthy study
of the idea, the Commission advised the President in May 1979 that it was
“strongly against” any such expansion of the H-2 program.
During this same timespan, Congress established in October 1978 the Select
Commission on Immigration and Refugee Policy (SCIRP) chaired by Rev. Theodore
Hesburgh. It was requested to study all elements of the nation’s immigration and
refugee policies and to make relevant recommendations for changes. The notion of
creating a guestworker program as a possible remedy to illegal immigration was
given intensive scrutiny but it was finally rejected.
In follow-up hearings jointly held the subcommittees on immigrants of both the
Senate and the House of Representatives, Rev. Hesburgh carefully explained that:
The idea of a large temporary work program is tremendously attractive. Perhaps a
better word though, would be “seductive” There is a superficial plausibility to
this argument and the Commission gave it serious consideration for more than a
year and a half. I can recall being very much entranced by it when I first
joined the Commission. In the end, we were persuaded, after much study, that it
would be a mistake to launch such a program.
He elaborated the reasons for its rejection as follows:
1. A large temporary worker program “would have to have some limits which would
have to be enforced. It wouldn’t be a completely open program.” Who would be
eligible? What kind of jobs can they hold? How long can they stay? Can they
renew their participation? Who is going to enforce these terms and how capable
would such a body be to perform these tasks?
2. “It is difficult to turn off such a program once it gets started.”
3. “A large program would build a dependency on foreign labor in certain sectors
of the economy.”
4. “Certain jobs would be identified with foreigners,” which would effectively
stigmatize such jobs.
5. “A second class of aliens would be established in our countries who are not
fully protected by the law and its entitlements and who could not participate
effectively in mainstream institutions.”
6. Without the strict enforcement of employers sanctions against hiring other
illegal immigrants elsewhere in the economy, a temporary worker program “would
stimulate new migration pressures in the long run, and again we have the specter
of law disrespected as we have now.”
In summing up, he concluded:
“We do not think it wise to propose a program with potentially harmful
consequences to the United States as a whole.”
Responding to the SCIRP report, the Reagan Administration accepted to wisdom of
most of its conclusion but it proposed “an experimental temporary worker program
for Mexican nationals” be included in the reform legislation and, if it proved
feasible, it be expanded significantly in scale.
When Congress took up immigration reform in 1982, the sponsors of the original
bill (Senator Alan Simpson and Representative Romano Mazzoli) did not include a
temporary worker program. It did propose liberalizing the existing H-2 program
(which did not have any ceiling on the number of workers who could be admitted).
Over the ensuring five years as the various version of what would become the
Immigration Reform and Control Act worked its way though the legislative
process, no issue proved to be more difficult or controversial then efforts to
add a guestworker program for the agricultural working to the bill. Numerous
efforts were made. Indeed, after failing to be pass Congress in 1982 and 1984 it
appeared that the legislation would die in 1986 for this very reason. It was
only after an extremely controversial amendment was offered by Rep. Charles
Schumer that eventually would give permanent resident alien status (i.e. a green
card) to any person who could prove he/she had worked in perishable agriculture
for 90 days between May 1, 1985 and May 1, 1986. It was, in reality a second
amnesty to the general amnesty provided for elsewhere in the legislation. The
provision set off a firestorm of protest but it was given a debate rule that
prohibited any changes in this particular provision to be made on the House
floor. Representatives opposed to the compromise had only one choice: kill the
whole reforms package or accept this amendment as it is. It was not the first
time that such debate restrictions have been attached to a controversial bill
but it is certainly a tactic that undermines public confidence in the
legislative process. The idea could not withstand a vote on its own merits.
Despite such criticism, the amendment enabled IRCA to be passed and signed into
law by President Reagan in 1986. As a consequence, this adjustment program —
known as the Special Agricultural Workers program (SAW) — led to 1.2 million
persons applying for its adjustment of status benefits. Of these 997 thousand
applications were approved. The number of applicants far exceeded anyone’s
estimation of the number who would be eligible. The explanation for the excess
in applicants was the widespread usage of fraudulent documents that were used to
claim eligibly. Indeed the N.Y. Times described the SAW program as being “one of
the most extensive immigration frauds ever perpetuated against the U.S.
government.”
Because of concern about what the impact of IRCA might be on the agricultural
industry, IRCA contained provisions to create the Commission on Agricultural
Workers (CAW) in 1986. It was chaired Henry Voss, the Director of the California
Department of Food and Agriculture. Despite being disproportionately composed of
agricultural industry representative, the final report of CAW was remarkably
frank. After 6 years of study, it described a story whereby the living and
working conditions of farmworkers had shown little if any improvement due
largely to the continuing influx of illegal immigrants. It boldly stated that
“there is a general oversupply of farm labor nationwide” due to the fact that
“unauthorized migrants continue to cross the southern border in large numbers.”
It noted:
The surplus of labor in most areas militates against improvements in wages
and working conditions for seasonal agricultural employees… Illegal immigration
has a negative effect on workers who are faced with increasing job competition
and employers who are concerned about their continuing access to a legal labor
supply.
The report stated that “employer sanctions have been ineffective” with
fraudulent documents being the major cause for their failure. Based on the
experience of the industry with SAW, the report concluded that “worker-specific
and/or industry-specific legalization programs as contained in IRCA should not
be the basis of future immigration policy.”
Within three years of the passage of IRCA, it was clear that the legislation had
not succeeded in its efforts to stop illegal immigration. Employer sanctions,
which was the “centerpiece” of the deterrent measures, were being circumvented
by the use of fraudulent documents and by inadequate enforcement personnel and
funds. Congress, rather than address there inadequacies, ignored the issue in
1990 when it passed the Immigration Act of 1990 that dramatically increased the
annual level of legal immigration to the country based on the assumption that
the “back door” of illegal immigration had been close. The premise was, of
course, false. This legislation did, however, create another bipartisan
commission to study the nation’s immigration system. It was given seven years
(six in reality) to conduct its investigation.
It was the Commission on Immigration Reform (CIR) and was chaired for most of
its life by the late Barbara Jordan. CIR identified illegal immigration as the
most pressing problem confronting the nation’s immigration policy and
recommended a number of policy changes. But with regard to guestworker programs,
it adamantly rejected any notion that they be viewed as part of any solution. In
its final report, CIR stated that it “remains opposed to implementation of a
large scale program for temporary admission of lesser skilled and unskilled
workers” and it went on to say specifically that “a guestworker program would be
a grievous mistake.” The Commission stated in unequivocal terms the reasons for
its conclusions:
1. “Guestworker programs have depressed wages.”
2. Those whose wages are most adversely affected are “unskilled American
workers, including recent immigrants who may have originally entered to perform
needed labor but who can be displaced by newly entering guestworkers.”
3. “ Foreign guestworkers often are more exploitable than a lawful U.S. worker,
particularly when an employer threatens deportation if workers complain about
wages or working conditions.”
4. “The presence of large numbers of guestworkers in particular localities —
such as rural counties with agricultural interests — presents substantial costs
in housing, healthcare, social services, schooling and basic infrastructure that
are borne by the broader community and even by the federal government rather
than by the employers who benefit from inexpensive labor.”
5. “Guestworker programs also fail to reduce unauthorized migration.” [because]
“they tend to encourage and exacerbate illegal movements that persist long after
the guest programs end.” …[and] … “guestworkers themselves often remain
permanently and illegally in the country in violation of the conditions of their
admission.”
Concluding Observations
The reason for this lengthy statement is to document the mountainous
hurdle of opposition that confronts anyone advocating any form of temporary
worker program for foreign nationals presently outside the country or for
illegal immigrants already in the country. The actual program experience of the
past as well as the wise counsel of the distinguished Americans who served on
the host of national commissions cited in this testimony that have intensively
studied these endeavors all warn in the starkest of terms against pursuing such
programs. I know of no other element of immigration policy in which the message
not to do something is so unequivocal.
The heart of the problem is that guestworker programs seek to reconcile two
sharply conflicting goals: the need to protect citizen workers from the
competition of foreign workers who are willing to work for wages and in
conditions that few citizens would tolerate versus the wishes of some employers
who rely on labor intensive production and service techniques to secure a
plentiful supply of low cost workers. In addition, there are always unforeseen
side effects that harm the wider society.
With 34 million low-wage workers in the current civilian labor force, the
problem to confront is not a shortage of low skilled workers; it is the
oversupply of from 9-12 million illegal immigrants that needs to be addressed.
Getting illegal immigrants out of the labor force should be the first order of
business for policymakers. Neither guestworker programs or amnesties of any kind
should be part of the necessary efforts to end this labor market nightmare.
Guestworker programs do nothing to stop further illegal immigration and, in
fact, they serve to condone past illegal conduct. It is illegal immigration that
must be stopped!
Except in national emergencies, guestworker programs are bad public policy. They
may meet the short terms pleas of private interest groups, but they can never
meet the higher standard of being public policies that serve the national
interest.
Vernon M. Briggs, Jr., is Professor of Labor Economics at the N.Y. State
School of Labor and Industrial Relations at Cornell University. He is the author
of
Immigration and American Unionism,
(2001), and
Mass Immigration and the National Interest: Policy Directions for the New
Century, Third Ed. (2003)
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