Sen. Hatch’s H-1B bill and other guestworker proposals should be kept out of Senate immigration debate

In the context of this week’s immigration debate in the Senate, Republican Senators will push for the reforms in the Secure and Succeed Act of 2018, which reflect the White House’s policy priorities for immigration. It’s likely, however, that one or more Senators will try to attach legislation to increase the number of temporary migrant workers who lack adequate wage and worker protections onto any bill that emerges. The thrust of any guestworker proposals that may arise will be to widen the essentially lawless zone in the labor market that has been carved out by the proliferation of temporary work visa programs, which put American and permanent immigrant workers into competition with temporary migrants who are denied all opportunity to bargain meaningfully for higher wages. This week’s debate in the Senate should prioritize providing a path to citizenship for DREAMers, not opportunistically expanding the share of workers in America who are not protected by labor standards.

As the Los Angeles Times recently suggested, there may be an attempt to include a bill from Sen. Orrin Hatch (R-Utah) that would triple the number of college-educated temporary migrant workers who are employed in the H-1B visa program—a flawed guestworker program used mainly to outsource jobs in information technology and send high-tech jobs offshore. Hatch’s bill is known as I-Squared, and although Hatch is trying to sell it as an increase in “merit-based” immigration, it is primarily an attempt to increase the number of temporary migrant workers the tech industry can hire at low wages.

There is no question in anyone’s mind that the United States will always need to attract the best and brightest workers from abroad, and many employers claim the H-1B visas is a tool to achieve that. But any migrant workers who enter the U.S. labor market must do so with equal rights, fair pay, and a quick path to permanent residence and citizenship that the worker controls—not the employer. Unfortunately, the H-1B guestworker program fails to meet any of those requirements. Hatch’s I-Squared bill would exacerbate the problems the H-1B program creates by vastly increasing the number of H-1B workers while failing to fix the three main problems with the H-1B program: first, employers are allowed to legally underpay H-1B workers compared to similarly situated U.S. workers; second, employers do not have to recruit U.S. workers before hiring H-1B workers, allowing them to ignore the U.S. workforce altogether; and third, the H-1B program allows employers to replace U.S. workers with much lower-paid H-1B workers—a deplorable practice that has occurred far too many times—and the laid-off workers are often forced to train their own H-1B replacements as a condition of their severance pay.

I-Squared purports to fix the third problem but actually does a pump-fake by requiring that any enforcement agency investigating the replacement of a U.S. worker “shall bear the burden of proving that the employer acted with the purpose and intent to replace the United States worker with the H-1B” worker. Agents at enforcement agencies like the departments of Labor and Homeland Security are not mind readers, therefore this is an impossible legal standard to achieve. A commonsense standard would allow the “purpose and intent” of the employer to be inferred if an agency or worker can prove that an employer in fact replaced a U.S. worker with an H-1B worker. The legal standard in Hatch’s bill proves that the Senator doesn’t want any H-1B employer to ever be punished for replacing U.S. workers in order to pay lower wages to their workforce.

Other Republican Senators, especially Tillis (R-N.C.) and Flake (R-Ariz.), who are both on the Judiciary Committee, have long supported expanding guestworker programs for lesser-skilled, mostly low-wage jobs—namely the H-2B program, which is used primarily by employers in the landscaping, forestry, hospitality, seafood, and construction industries. Despite the fact that the H-2B program is associated with countless disturbing cases of worker exploitation, wage theft, and even human trafficking—an attempt by a senator to add provisions to a DREAMer bill that would result in a permanent or temporary increase to the H-2B annual limit of 66,000, or amend H-2B wage rules to allow employers to pay their H-2B workers even less than they do now—would not be surprising. In fact, it wouldn’t be a new strategy either: each of the past few years, members of Congress have added legislative riders to omnibus appropriations bills to expand and deregulate the H-2B program. There has been at least one recent similar attempt to modify the H-2A guestworker program for farmworkers—another temporary visa program that leaves workers so vulnerable and indentured that it has been described as “Close to Slavery”—through appropriations riders as well. There are senators in both parties that would likely support proposals on H-2A, and the U.S. Chamber of Commerce hopes they do just that, having called on senators this week to include agricultural guestworker provisions in any DREAMer bill the Senate produces.

The priority for both parties during this week’s immigration debate should rest squarely on protecting labor standards and providing a path to citizenship for DREAMers—immigrants who have resided in the United States for years, the vast majority of whom are employed and have seen their wages rise as a result of DACA—rather than growing the number of exploited and underpaid workers that employers can hire temporarily in U.S. guestworker programs.