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WASHINGTON, DC -- Witnesses told the House Education and Labor Committee today that federal requirements to ensure that qualified U.S. workers are recruited first for job openings before employers hire from abroad are inadequate and rife with abuses.
The two largest federal programs for low-skill temporary foreign workers are known by their visa categories, H-2A and H-2B. Employers who want to hire guest workers must first certify that qualified U.S. workers are not available. Employers must demonstrate that they made efforts to recruit U.S. workers for these positions and the employment of guest workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
“Hundreds of thousands of foreign guest workers come to the United States each year under various federal programs. For too many years, these programs have been allowed to operate with little oversight from the Department of Labor,” said Rep. George Miller (D-CA), chairman of the committee. “At the same time that unemployment is rising, many employers say that they cannot find available and willing U.S. workers to fill their labor needs. When employers misuse the guest worker system, not only do U.S. workers miss out on jobs, but other employers with legitimate temporary labor needs miss out on visas.”
Javier Riojas, an attorney with Texas RioGrande Legal Aid, represents U.S. workers who applied for and were denied jobs with an employer that instead hired foreign guest workers. The U.S. workers won a settlement against the employer that refused to hire them, and they continue to litigate against the Department of Labor for allegedly approving the employer’s misclassification for the agricultural guest workers – which should be H-2A – as H-2B workers. The classification allowed the employer to avoid the stronger labor protections and recruiting requirements in the H-2A program.
“Year after year, the Department of Labor continued to approve employers’ fraudulent application despite mounting evidence of visa fraud and U.S. worker discrimination,” said Riojas. “As a result, many U.S. workers are harmed, violating the statuary mandate that U.S. workers must be recruited first, and their wages and working conditions must not be adversely affected by the employment of foreign guest workers.”
Even the temporary summer job market, jobs historically held by students and other young workers, has been shrinking as the result of the increased use of both guest workers and undocumented workers. According to research conducted by the Center for Labor Market Studies at Northeastern University, the teen summer employment rate has steadily declined from 48.4 percent in 1989 to 34.4 percent in 2007.
“This summer, we project that U.S. labor markets will have the lowest rate of teen employment since we have kept data going back to 1948,” said Andrew Sum, professor at the Center for Labor Market Studies at Northeastern University. “Declines in youth employment have been matched almost one for one with increased employment of new arrivals over the past seven years.”
While witnesses questioned whether current regulations are sufficient to encourage employers to first look to hire U.S. workers, the Department of Labor recently proposed news rules that critics say would further weaken important legal safeguards for the agriculture guest worker program.
“The Bush Administration has proposed changes to the H-2A program regulations that would decimate labor protections for U.S. and foreign workers and return us to an era of abuses we thought had ended long ago,” said Bruce Goldstein, executive director of Farmworker Justice. “Congress needs to stop this from happening.”
Goldstein also cited an example of the Department of Labor’s mishandling of recruitment standards. In his example, a Department of Labor employee suggested to an employer that he falsely lower the number of hours he was promising workers when making his application for guest workers. By doing this, U.S. workers would be less inclined to apply for a job that guaranteed fewer hours. Goldstein argued that the Department’s actions were improper and harmed U.S. worker recruitment efforts as well as workers’ rights to certain wage protections.
Witnesses also said that the lax enforcement by the Department of Labor has encouraged some employers to hire undocumented workers.
“The failure to enforce our labor, employment, and civil rights laws has created an ironic incentive for unscrupulous employers to actually prefer hiring undocumented immigrants over U.S. workers,” said Bill Beardall, director of the Equal Justice Center and the Transnational Worker Rights Clinic at the University of Texas School of Law. “The main reason so many employers prefer hiring undocumented workers is because – in the absence of effective federal enforcement of worker protection laws – employers know their undocumented workers are easier to exploit and easier to intimidate into silence.”
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