The United States guestworker program: the need for reform.

• Author: Johnston, Elizabeth

ABSTRACT

Although often marginalized, guestworkers are an integral part of the United States economy. In 2006 alone, the U.S. government certified visas for 18, 736 temporary workers. The program expanded in subsequent years and continues to grow each year. Despite its broad scope, huge impact on the labor force, and the extensive existing legislation regarding it, the guestworker program has permitted most employers of guestworkers to eschew the regulations or find loopholes, resulting in a system that is largely exploitative. Abuse of workers begins in their home countries, intensifies during the period of employment, and often continues even after employment terminates. Workers frequently fail to earn enough money to cover their basic needs while in the United States or to repay the debts they incurred in order to travel to the United States.

The U.S. guestworker program is structured in a way that promotes abuse, exploitation, and injustice. It needs to be amended. First and foremost, new legislation must enhance guestworkers' access to justice by lifting current restraints on federally funded lawyers and permitting aggrieved workers to remain in the United States long enough to prosecute their claims. Second, the law must hold U.S. employers liable for abuses perpetuated by those acting on their behalf. They cannot hide behind willful blindness and disclaim responsibility for their employees. Third, the Department of Labor (DOL) must begin to adequately enforce the protections in place to prepare employers for legislation enhancing their obligations to their workers. Finally, the legislation must alter the existing balance of power and create a way to ensure that employers fulfill their contractual obligations.

1. INTRODUCTION II. FROM BRACEROS TO H-2S: NEW NAME, SIMILAR PROBLEMS A. History of the Guestworker Program B. The Current System III. REALITIES OF THE PROGRAM A. Paying to Get Here B. Policing the Recruitment Process Is Impossible Under the Current Law C. The Structure of the Program Allows Abuse 1. Wage and Hour Abuses Are Rampant 2. The Program's Structure Leads to an Imbalance in Bargaining Power Between the Employer and the Guestworker 3. Forced Labor 4. Trafficking Violations Against H-2A Employers Are Difficult to Prosecute Successfully IV. SOLUTION A. Enhance Access to the Legal System 1. Allow Legal Aid Attorneys to File Class Actions Against Farmers 2. Allow Workers to Remain in the United States to Prosecute Their Claims. 3. Hold Employers Liable for the Actions of Recruiters and Farm Labor Contractors 4. Improve Department of Labor Investigations B. Amend the Law to Better Protect Guestworkers 1. Do Not Bind H-2 Workers to a Single Employer 2. Hold Employers Liable for the Expenses Incurred Procuring Employment and Traveling to the United States 3. Force Employers to Fulfill 100 Percent of Their Contract 4. Extend the Agricultural Worker Protection Act to Cover H-2A Workers V. CONCLUSION I. INTRODUCTION

   Recently, immigration emerged in the national conscious with the passage of SB-1070, Arizona's controversial immigration bill. (1) Although both the bill (2) and the nationwide response focus almost exclusively on undocumented immigrants, the immigration problem extends much deeper. Concerns over illegal immigrants overshadow the problems with existing programs and legal foreign workers and visitors. Any type of comprehensive immigration reform must go beyond the simple distinctions between legal and illegal, and documented and undocumented. It must recognize that the system is failing both groups. This Note addresses one group specifically: workers lawfully in the United States on H-2 visas. This guestworker program desperately needs reform.

   The official guestworker program began in 1952, (3) and in 2006, the U.S. government certified visas for 18,736 temporary workers. (4) Despite the large number of workers certified yearly, both the public and the government focus instead on curtailing the illegal workforce. (5) Promising comprehensive immigration reform in his 2007 State of the Union Address, President Bush admonished foreign-born workers for "sneak[ing] in" and emphasized the need to give employers a way to ascertain the legal status of those they hire. (6) The President did not mention the appropriate avenue for legal workers. (7) He did not address issues relevant to the protection of guestworkers or express concern over the program's failure to protect the rights of legal guestworkers. (8)

   A brief description of the experiences of a few guestworkers provides a framework for the program and its shortcomings. Carmelo Fuentes, a guestworker in North Carolina, feared losing his job and visa to a faster worker. He felt extreme pressure from his boss to continue working and ignored signs of dehydration. He labored until a heat stroke shut down his internal organs and caused severe brain damage. (9) In Louisiana, a group of Mexican guestworkers, expecting to work in Arkansas in forestry, arrived in the United States where the crew leader immediately confiscated their passports and sent them to Louisiana to pick sweet potatoes. (10) They lived in an abandoned two-story house with no heating or blankets, and they were rarely paid. (11) If they did receive a check, it was often as little as $70 for an eighty-four hour workweek. (12) The crew leader demanded a $1,600 bribe for the return of their passports. (13) Unable to pay, the workers fled, but are still working to recuperate their legal documents. (14)

   There are tomato pickers working in Immokalee, Florida who pick two tons of tomatoes to earn $50 a day. (15) Grapefruit pickers there climb twelve-to-eighteen foot high ladders stuck into soggy soil, reach into the branches to twist fruit from its stem, and stuff it into a pick sack that can weigh up to one hundred pounds, while often earning as little as $56 a day. (16) Unlike those crossing the border illegally, these people are nameless and faceless to the American public. Migrant workers live silently in conditions that are often horrifying. (17) Undocumented workers remain silent because their employer or supervisor can call immigration at any time and have them deported. (18) In contrast, documented guestworkers fear immigration enforcement because the structure of the guestworker program deprives them of the security a visa ostensibly grants. (19) While it is hard to imagine U.S. citizens living similarly without engendering public outrage and governmental response, thousands of legal guestworkers do it every day. (20)

   Despite the frequency with which exploitation occurs, there have been very few high-profile legal actions highlighting cases of guestworker abuse. Various circumstances unique to foreign workers make such cases extremely difficult to prosecute. (21) Existing legislation creates disparity in bargaining power that is often insurmountable, and guestworkers remain anonymous and oppressed. This Note focuses on H-2A agricultural workers as they face great obstacles under the current regulations. It examines the various reasons guestworkers are poorly protected and proposes several ways to improve their situation. Part II examines the history of guestworkers in the United States and identifies patterns of abuse deeply rooted in the program's history. Part III analyzes current legislation and demonstrates its shortcomings. Part IV suggests several potential ways to improve the program.

2. FROM BRACEROS TO H-2S: NEW NAME, SIMILAR PROBLEMS

   1. History of the Guestworker Program

      An understanding of the modern guestworker program and the current approach of the United States towards foreign workers requires an examination of its history. The first Mexican guestworkers arrived in the United States in 1917 in response to the Immigration Act of 1917, which waived many immigration requirements for temporary workers. (22) Within four years, more than 72,000 foreign workers lived and worked in the United States. (23) By 1930, the United States housed more than 300,000 legal Mexican workers and as many as one million undocumented workers. (24) However, as the economy crashed during the Great Depression, Mexican workers experienced backlash. (25) Between 1929 and 1932, the United States sent 345,000 Mexican workers home. (26)

      After the Depression, the U.S. government re-welcomed Mexican workers and quickly implemented the Bracero Program, which was a series of bills and agreements with Mexico relaxing immigration requirements for temporary workers. (27) Through a bilateral agreement between Mexico and the United States, the program brought Mexican workers to the United States to perform temporary agricultural work and then return home. (28) The program permitted up to 50,000 workers to enter each year and, as written, expired at the end of World War II, if not earlier. (29) However, subsequent bilateral treaties between the United States and Mexico extended the program through 1964. (30) Although many historians believe that the Bracero Program was a response to wartime labor shortages, ample evidence exists to support the proposition that farmers lobbied for the system to avoid paying higher wages. (31) A report by the Center for Immigration Studies argues that because the New Deal programs paid growers to plant less, "by the end of the 1930s [U.S.] farm workers were more likely to be poor, homeless, and marginally employed than ever before." (32) Thus, growers became accustomed to "a great over-supply of workers," desired to continue paying low wages, and lobbied hard for a bill that maintained the status quo. (33) Employers recognized the desirability of workers that were disposable, easily manipulated, and willing to work harder for less. (34) This attitude prevails today.

      Citizens of the United States paid little attention to migrant farmworkers until 1960 when Edward Murrow broadcasted Harvest of Shame, a documentary detailing the plight of domestic farmworkers, the...