Deborah Notkin, AILA Past President, contributes today’s blog on CIR:

For those of us who have long been committed to Comprehensive Immigration Reform including a path to legalization for the undocumented, family reunification, restoring the order of law AND having a reasonable temporary worker visa can see the great opportunities to achieve this under the Obama administration but great dangers as well.. The various constituencies who have been fighting for change for years know that there has to be something in it for all the involved parties, business, labor, the ethnic communities and the faith-based community in order to insure passage in Congress.

In the past, the various constituents have been able to forge reasonable, albeit imperfect, proposals going forward. Each group needs to feel that they have gotten the benefits most important to them but not to put a stop to the components of reform important to other sectors of this incredible coalition. A poison pill from any one of these constituencies will kill the possibility of going forward.

Unfortunately, some who have recently voiced partial support to comprehensive reform, take divisive positions that could become a poison pill which will ultimately defeat achieving reasonable reform. They take the position that our immigration system must be based solely upon permanent immigration. Statements made in the discussion assert that all temporary worker programs are exploitative by nature, take jobs from US workers and enrich the enemy – US Business. They not only demean the current H-1b, H-2A and H-2b programs without substantial foundation or facts but they clearly oppose anything that is not permanent immigration.

This disingenuous position flies in the face of not only the experience in the US but the success of other countries which have intelligent temporary worker programs. A reasonable temporary worker program that allows a pathway to permanent residence has been lacking in US temporary worker programs for non-professional labor, making it impossible in periods of employment shortages, for employers to fill chronic needs.

And our professional visa program is important to keep the best and brightest foreign students, who make up a substantial amount of our engineering, science and technology graduates from US universities. We know from all the authoritative research that we need to improve US education in these fields from kindergarten on up but in the meantime, our global competitiveness depends on our innovative industries to be able to get the professionals that they need. And the US labor market does not provide the needed talent in sufficient numbers. It is one thing to look at what may be problematic with the H-1b program and fix it, either through enforcement or regulatory change. It is quite another matter to nix it.

One might ask, why would we be talking about this type of program in this period of recession and unemployment? It is precisely a good time to measure our programs, to insure that we are protecting the US labor force but also providing employer’s workers for jobs for which US workers are not available. Given the difficulty of crafting and passing immigration legislation, when the opportunity arises, we need to craft proposals that work in periods of economic prosperity as well as in recessions.

There are many reasons why, even in this economy, jobs go begging. Skilled, state of the art machinery, requiring skilled workers is not available everywhere in the US Labor force And lesser skilled physical work, particularly when it means relocations to remote areas, frequently garners no takers.

Many advocates in the fight for a humane and productive immigration system also argue that our country needs to do more to shore up the economies of our immigrant “feeder countries.” primarily South of the Border in order to reduce the pressure to migrate to the US. One of these ways this can be accomplished is the seasonal worker program. Workers come to the US to work in agriculture or other industries during the down season for like products and services in their home countries. Many of these workers desire to leave their families at home, make US dollars to bring home and these dollars help these economies in many ways, including setting up small businesses, increasing consumption and sending children to good schools. This is called circular migration, which is indeed the choice of many migrants. It does not mean that there should not be a path to permanent residence for those who so desire and this dual concept of temporary to permanent was originally crafted in the AgJobs legislation, a brilliant proposal developed by business and labor together.

So why then, do a strident few oppose all temporary worker programs? Some have said it is because temporary workers don’t make permanent, dues paying union members. However, as mentioned above, several service worker unions have been in the forefront of the push for immigration reform since its inception and have recognized the need for reasonable temporary worker programs as an element of any rationale system going forward.

Whatever it is, the exemplification of temporary worker programs constituting “indentured servitude” and labeling the entire employer community as the oppressive, exploiting class, fly in the face of the facts of our current, imperfect and limiting temporary worker programs. For example, the employer must offer the prevailing wage, as designated by the Department of Labor. Even the most unskilled jobs on the ONET/SOC website, used as the primary prevailing wage source for the H-2b program, designate a prevailing wage that is well above the minimum wage. The abuses referred to by opponents of temporary worker programs involve in actuality a small number of businesses, primarily those that are “body shops” or job contractors and in the non-professional H-2A and H-2b programs, these contractors have pretty much been regulated out of their previous exploitative practices if not from the entire program as a whole.

And what about “displacing US workers”? For all the H-2b and H-2A programs, the employers are required, at their own expense, to try to recruit US workers. This recruitment is mandated and supervised by the Department of Labor. I have represented clients in this endeavor who could not find US workers as well as those who found US workers through the required H-2b US worker recruitment program, negating their need to move forward with the H-2b process and alternatively, hiring the US workers.

Another concern, legitimate indeed, is that the possibility of exploitation is greater when one cannot easily change employers. All of the legislation proposals in the past and most likely going forward, will give the immigrant workers “portability”, a system which allows them to switch employers in the same job category which qualified them for a work visa in the first place. While there is a lot to be said for overhauling the cumbersome H-2b and H-2A programs, temporary worker programs are essential to an overall rational immigration policy.

Department of Labor statistics point to a shortfall of available lesser skilled service workers in a number of sectors over the next decade. Without a temporary worker program as part of immigration reform, we risk having the same situation 20 years from now that we have now. During the Amnesty of 1986, we legalized over 3 million people. Those people have moved on. They have retired, they have become small business owners, they have educated themselves and their children. We need to remember several salient facts. According to the American Society of Entrepreneurs, 47% of successful new entrepreneurs are immigrants. And according to a number of surveys, children of immigrants are more likely to go to college than the domestic population. In short, legalized immigrants have attained the American Dream and moved on. They have contributed to our economy, our tax roles and our
culture. But what they have not contributed to is an eternal supply of lesser skilled workers. For this, we frequently need immigrant workers.

Let’s not make the mistake of the 1986 Amnesty. We legalized a lot of good people, many attained the American Dream and we did not include a reasonable temporary worker program for future flows. So what we created was the problem of illegality all over again when our economy was hungry for more skilled and lesser skilled workers than the US was creating. It would be tragic to create this cycle again. Next time, I don’t think the American people will be as open to yet another legalization program.

Hopefully, the rest of the pro-immigration community will see this poisonous stance for what it is – a spoiler to reasonable reform that promises to unite our families, build our businesses with necessary workers, and restore both human rights and border security.