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Immigration Reform And Guest Workers: "We Wanted Workers; We Got People"

by Daniel Shanfield

A thought provoking essay in the Washington Post by Ruben Navarrette, Jr. spreads the blame across the aisles for the lack of progress on immigration reform.  The conventional wisdom, particularly among pro-immigrant reformers, is that Republican restrictionists are responsible for the hold-up.  Not so, argues Navarrette, who claims a deal would be at hand if Obama would only throw his support behind the Republicans' guest worker proposals:

Republicans are under a lot of pressure from business groups to fix the immigration system so companies can more easily hire workers. As for Democrats, they were the ones carrying the ball in 2007, the last time Congress fumbled the chance at reform.

In fact, in this go-round, it is the Democrats -- specifically, Blue Dog Democrats -- whom Obama has to worry about most. An estimated 40 House Democrats are thought to be either too conservative to support a pathway for illegal immigrants to become legal, or at risk of losing their seats if they vote for such a measure.

This makes it all the more important that Obama win over at least some Republican votes to offset the Democratic ones he can't count on. But the problem stretches back to why Democrats had trouble passing reform two years ago. You see, the Democratic Party is beholden to organized labor, which supports immigration reform but with an important caveat. While it has no problem with legalizing workers it hopes will become card-carrying, dues-paying union members, it continues to resist the idea of allowing businesses -- as part of the bargain -- to bring into the United States hundreds of thousands of temporary foreign workers.

Navarrette suggests that breaking from the Dems' organized labor constituency is Obama's only hope to offset Democratic defections and win over enough Republican votes in support of reform from the likes of John McCain and Lindsay Graham.  From Navarrette's perspective, Obama's position is pure political calculation. However, could it not also be a principled realization that a guest worker program is not just inhumane, but that it would undo the key aim of immigration reform: to maintain a legal and nimble immigrant workforce?

Opposing guest workers isn't just about vote counting; there are sound reasons to disdain any guest worker plan.  Simply put, experience shows that these programs are inhumane.  They create an underclass of disposable low wage workers completely at the mercy of their petitioning employers.  The conditions of employment -- poor wages and short-term residency -- make redress of workplace violations and enforcement of labor laws practically impossible.  Workers will have neither the resources nor the time in the to see an employment violation claim through, even if provisions for investigations or administrative hearings are included for employer sanctions.  And once a worker's complaint is filed, employers have every opportunity to retaliate by terminating visa status and calling ICE to sweep away the problem. 

The European gastarbeiter experience should give caution to proponents of guest worker programs.  In the words of the late Swiss writer Max Frisch: ''We wanted workers, we got people."  "People" who put down roots, fall in love, get married, and have children.  People who contribute to  society, and will, inevitably, demand to be treated with dignity should they decide to remain in the U.S.  Do we want to create a situation, as the Europeans have, of creating a second class, who will be that much more vulnerable to workplace exploitation and societal discrimination? And for those who will inevitably break the rules, who will settle down and start a family in the U.S., do we want to keep repeating the situation we face now, of mixed status families being torn apart and loved ones being deported?

In the end, it's just incoherent to expect that a sizable number of guest workers will opt not to stay in the U.S. once the time on their visas are up.  And that's where proposals for immigration reform will crash on the rocks of a guest worker program.  Republicans in support of immigration reform are promising that they won't repeat the mistakes of the first immigration reform bill under the 1986 Immigration Reform and Control Act (IRCA), that this will be the last "amnesty" every handed out.  But that promise is pure nonsense under any proposal that features guest workers,  as some substantial segment of the temporary labor pool will inevitably remain in the U.S. unlawfully, and in turn become fodder for ICE as the new undocumented population.

So we could accuse Democrats and the Obama Administration of shilling for organized labor, or we could see opposition to a guest worker program as just making sense.  

About The Author

Daniel Shanfield is the founder and managing attorney of The Law Office of Daniel Shanfield, Esq. He specialized in Immigration Defense and has succeeded in some of the most difficult immigration cases. He is a former INS litigation attorney who advised the government on a broad spectrum of immigration law issues, he was the Legal Services Manager with the U.S. refugee program in Europe, where he brought immigrants to safety and helped reunite them with loved ones in the United States. Daniel has also served as a migration and refugee advisor to the United Nations, and as an attorney overseeing pro bono legal representation for the Lawyers Committee for Human Rights. Daniel is a graduate of the University of California, Berkeley, Boalt Hall School of Law and UCLA (magna cum laude). He is admitted to practice before the California Supreme Court, Federal Ninth Circuit Court of Appeals, the Federal District Court, Executive Office for Immigration Review, State Department, and Department of Homeland Security. He is currently the Immigration Court Liaison for the Santa Clara Valley Chapter of the American Immigration Lawyers Association (AILA SCV). Daniel, a California native, is fluent in Spanish and French. As the child of parents from Latin America, he understands the challenges his immigrant clients face.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.