On April 21st, 2017 the Cornell Law School hosted a colloquium to discuss the current state of Temporary Foreign Worker Visa programs in the U.S. and Canada. Professor Beth Lyon (Clinical Professor of Law and founder of Cornell's Farmworker Legal Assistance Clinic) brought together immigrant worker advocates, labor unions, a think tank and academic researchers to forge an engaged research agenda moving forward. Attendees included Justice in Motion, UNITE HERE, Economic Policy Institute and experts from Cornell University, the University of Ottawa, the University of Quebec and University of California at Davis. This meeting served to broaden the discussion and “explore deeper structural critiques” of guest work. Key takeaways include a lack of transparency in administering these visa programs, which further hinder proper research and solutions. The following article highlights the perspective of contributing experts:
On April 21st, 2017, experts on Temporary Foreign Worker Visa Programs (TFWP) came together at the Cornell Law School to discuss how the U.S. and Canada are faring in managing the needs of temporary foreign workers.
After an introduction by Professor Beth Lyons (Cornell University) and Professor Muna Ndulo (Cornell University), Professor Philip Martin (University of California at Davis) delivered the opening keynote lecture. This was followed by two panels of experts who specialize in research or advocacy for people in various guest worker programs.
Martin’s intro highlighted current trends in temporary workers, emphasizing that there has been an increase in the numbers of those recruited through guest worker programs in recent years. He explained the multitude of guest worker visas in the U.S. and how the current administration is increasing restrictions on H-1B (“high skilled” non-agricultural workers) but decreasing them for H-2A workers (“low skilled” workers), the administration is intending to increase inexpensive farm labor yet maintain American citizens in high skilled positions.
The Bracero program (1942-1964), the largest guest worker program in U.S. history, peaked at about 450,000 Mexican immigrant workers in agriculture. Martin estimates that the U.S. will near 200,000 H-2A guest workers by the end of 2017. Since H2-A workers enter legally through visas, employers must pay them the proper wages, Martin explained. In his book, Managing Merchants of Labor Martin describes a complicated recruitment system that relies on brokers and a series of frequent abuses of guest workers, despite having workplace authorization.
Panel One: High Skilled Workers
Steve Yale-Loehr, an immigration lawyer and Cornell Law School Professor, moderated the first panel on high skilled migrants. His first question regarding the structure of TFWPs, prompted answers from both the U.S. and Canadian perspective. Panelists all agreed that there is an overall lack of data and a dearth of research on this population of temporary migrants.
Shannon Lederer, the immigration policy director at the AFL-CIO, began by explaining some of the confusion that these various visa programs create for both guest workers and activists trying to help. While the Wage and Hour division of the Department of Labor has the enforcement responsibility of H2-B visas, immigration regulation has switched between various departments in recent years. Before this, H2-B visas were within the department of Homeland Security. This lack of clarity makes workers structurally vulnerable.
Following Lederer, Professor Delphine Nakache (School of International Development and Global Studies at the University of Ottawa) described the Canadian Temporary Foreign Worker (TFWP) programs. She reviewed three ways in which one can seek authorization in Canada, including:
- LMIA - Labor Market Impact Assessment
- Employers in Canada may need to apply for this document to show that they need a foreign worker to fill the job and that there are no Canadian workers available to fill the position.
- IMP - International Mobility Program
- The majority of workers (about 75%) enter the labor market through this program, and include both professionals, “low skilled” temporary workers and international students (who upon graduation can remain in Canada for 2 years to work).
- IRPR - Immigration and Refugee Protection Regulations
- Allows immigrants or refugees to apply for a visa, a permit or authorization.
Workers will often switch between permits, but more research is needed on this dynamic.
Nakache pointed out several key differences between the U.S. and Canadian immigration programs: The U.S. has far more categories of admission, while Canada’s foreign-born workforce is much larger relative to the U.S. About 2 percent of Canada’s immigrants (including 381,000 workers) are on guest work permits. In the U.S., less than 1 percent of foreign born workers (1.4 million) are guest workers.
H-2B guestworkers in the United States are concentrated in several specific industries such as landscaping, forestry, seafood processing, and hospitality industries. These industries have become dependent on these temporary visa programs. Consequently, Lederer argued, we need a careful analysis of the labor conditions these precarious workers experience. Tying guestworker visas to a particular employer, she emphasized, only heightens these vulnerabilities.
Daniel Costa, (Director of Immigration Law and Policy Research at the Economic Policy Institute), addressed the need for additional research by proposing an overhaul of the immigration system. Temporary visas should be temporary and workers should be able to self-petition for green cards if they want. Pointing to the Canadian system, Costa acknowledged online access is now available, supposedly to make applications more accessible. Yet, this process it is still quite confusing and requires a credit card, which is prohibitive for many workers.
Lederer ended with a call for additional research on how to better regulate the allocation of employment-based visas, which employers often turn to private brokers to access.
Panel Two: Low Skilled Workers
Cathleen Caron (Executive Director of Justice in Motion), moderated panel two.
Mike Hancock (Former Assistant Administrator for the Department of Labor), began by questioning the foundation of the current Temporary Foreign Worker Program. If there is indeed a genuine shortage of labor, Hancock argued for alternative paradigm that are not predicated on ultimate employer control over their temporary migrant workers. Much of the recruitment process (such as the payment of recruitment fees, which are illegal), occurs in countries of origin where there is little to no enforcement.
Meredith Stewart (Staff attorney at the Southern Poverty Law Center) next spoke extensively about the J-1 cultural exchange program, which employees often use as an alternative to H-2B visa once they had hit their cap in the H-2B program. While recruiters often presented the visa experience as something meant to foster ‘diplomacy and cultural exchange,’ the reality is often very different for workers. For example, Stewart explained a case study where a J-1 recruiter advertised summer jobs on Myrtle Beach, North Carolina to students from the Dominican Republic. Students instead ended up doing housekeeping work, hotel laundry and other constantly rotating jobs. Ultimately, these students returned to the Dominican Republic disillusioned and with negative sentiments of the U.S.
Canada has a similar visa issue with the International Experience Canada (IEC) Working Holiday visas, a program that claims to provide students with the opportunity to see Canada and often leads students to believe they have a shot at permanent residency. Unfortunately, however, there is no guarantee, emphasized Dalia Gesualdi-Fecteau (Professor at the University of Quebec). Instead, these students often find themselves working for minimum wage and below, further fueling a backlash on the immigrant workforce.
Gesualdi-Fecteau also described two other key components of the temporary foreign worker program in Canada. These include the Seasonal Agricultural Worker Program (SAWP), a 1966 bilateral state-agreement between Canada, Mexico, and some Caribbean countries. The program “attempts to respond to the labour shortage in the Canadian agricultural sector.” Another includes the IEC program mentioned above, which includes international internships (co-ops), young professionals and the working holiday visa – and is meant to enhance “key bilateral relationships between Canada and other countries and emphasize the importance of improved reciprocity.” Participating employers must receive a positive Labor Market Impact Assessment (LMIA) to prove that there is a lack of local workers available to fill the job.
As described by the panelists, there are upshots about each of the programs. Canada is a model for the U.S. in regard to TFWPs since more migrants end up with visas than in the U.S. However, despite the larger percentage of workers Canada allows relative to their population, Gesualdi-Fecteau pointed out that the program is not without flaws. The U.S. can use them as an example, but with caution. Additionally, while the U.S. program is more diverse in terms of the variety of visas, this ultimately allows employers to game the system and creates employee vulnerability.
Ashwini Sukthankar (Director, Global Campaigns Department at UNITE HERE) went on to speak about the Q visa, another under researched temporary foreign worker program. The visa originally came out of efforts to amend the J-1 program and is meant to foster cultural representation in work settings. It is used primary in amusement parks, museums and schools, and its application often raises concerns about cultural authenticity and stereotyping.
The panel ended with Hancock’s prediction of a dramatic expansion in H-2As, and possibly an effort to lift the cap on H-2Bs. Given this reality, efforts need to be placed towards averting the degradation of labor standards, and monitoring vulnerabilities in the labor recruitment process. Stewart added a need to support workers who fear deportation or blacklisting, and foster opportunities for organizing among workers to push for reform. She encouraged further research on the unemployment rates of the J-1 visas, and a return to the original purpose of legitimate cultural exchange.
Panelists ended by offering their suggestions for best practices. A few messages were clear. More research needs to be done in order to make proper conclusions and changes to the programs at hand and increased transparency, especially in the U.S., would help researchers and advocates to start to transform the process. Hopefully, more academics and advocates will continue to work together on this issue in the near future in order to make these programs as fair as possible.