Photo Credit: flickr: CIAT
July 31, 2013
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Immigration reform has been one of the biggest political fireworks
displays in Washington D.C. this year, with no end in sight. A
filibuster-proof majority in the Senate voted a much-celebrated
bill
through last month, which includes a 13-year path to citizenship and
includes numerous onerous provisions that will be hard for low-income
workers to bear. In the House Republicans are planning to vote
piecemeal legislation through the Judiciary Committee and have already passed one bill that would make it a
federal crime to illegally immigrate to the U.S., and an utterly barbaric bill regarding farmworkers. No Democrats voted for either one.
These
bills, especially the monstrous bill passed by the Republicans on the
Judiciary committee, would make life significantly harder for hundreds
of thousands of people. We’ve collected a list of the policies included
in the Judiciary Committee’s little noticed farmworker bill and the
Senate’s comprehensive plan that will make employer-employee relations
even worse than they already are.
On June 19, House Judiciary
Committee, chaired by Bob Goodlatte (R-VA) passed the Agricultural
Guestworker Act to relatively little fanfare.
Politico and the
Huffington Post have commented on Chairman Goodlatte’s political strategy regarding immigration reform, not to mention his
taste in ties.
But there was little reporting on the actual content of the farmworker
bill he steered through his committee, which is a shame because it’s
absolutely heinous. Like so many other Republican proposals of recent
years, the bill would set the clock back by over half a century. Pretty
much every element of the bill is awful, but here are three of the
worst.
1. Status: uncertain and unprotected. The
Goodlatte bill would replace the H-2A agricultural guestworker visa with
a new program, H-2C. Currently workers with an H-2A visa are dependent
upon their employer, who must provide some amount of transportation and
shelter but can force them to return to their home country at will. This
powerfully disincentivizes speaking out about abuses (which are
rife).
They must also pay a recruitment fee, so many arrive stateside already
in debt, putting them at an even greater disadvantage in their
relationship with their employer. Representative Goodlatte and the other
Republicans on his committee would essentially replace the H-2A program
with an even worse alternative.
“The Agricultural Guestworker Act
strips almost all of the protections out of the current H-2A program,”
says Adrienne DerVartanian, director of Immigration and Labor Rights
with the advocacy group
Farmworker Justice.
“It’s a bill that has even fewer protections than the
Bracero program,
a World War II-era policy that ended because of notorious abuses.
[Goodlatte’s bill] doesn’t offer a solution to the problem in
agriculture, which is that the workforce needs to be legalized and
stabilized. Instead he essentially allows the undocumented workers to
remain in the U.S. for up to two years but doesn’t really give them any
kind of status.”
Under the bill, workers will only be allowed to
stay in the United States for two years as temporary guest workers and
then they would be required to return to their country of origin
(regardless of the political or economic climate there). Even if they
can get a sponsor to continuously employ them, the employer is no longer
required to provide transportation or housing. Workers would
potentially have to find housing for themselves, which could be
difficult for non-English speakers. It virtually guarantees
homelessness, especially because these new costs will be borne by
workers being paid even less than the poverty wages already common
throughout the industry. The Goodlatte bill would also eliminate the
requirement for travel reimbursements H-2A workers are eligible for,
which could push workers even further into indentured servitude. There
are no measures ensuring increased wages to compensate for these added
costs.
2. Underpaid. To pressure workers to
return to their nation of origin, Goodlatte’s bill would withhold 10
percent of a farmworker’s paycheck upfront—a particularly cruel idea
considering that these workers will now be required to pay for their own
housing and transport. The money would be placed in a trust fund and
can only be reclaimed by going to a U.S. Embassy in their country of
origin within 120 days of the expiration of their visa, where they must
prove they have been in complete compliance with the H-2C program.
The
bill
essentially allows employers to sidestep the minimum wage:
“Notwithstanding the Fair Labor Standards Act of 1938…all employers of
H-2C workers shall withhold from the wages of the workers an amount
equivalent to 10 percent of the wages of each worker and pay such
withheld amount into the Trust Fund.” Due to an amendment introduced by
Representative Jason Chaffetz (R-UT), unclaimed money in the trust fund
will go to the Department of Homeland Security to fund the deportation
of people who are in the country without documentation.
And even
before the 10 percent is removed, the workers would be at a disadvantage
because, according to Farmworker Justice, Goodlatte’s bill virtually
guarantees even lower wages than those paid in what is already some of
the
lowest paid work in the United States.
The bill requires only that employers pay the minimum wage or the
“prevailing wage,” which is undefined, and reduces the “minimum work
guarantee” from 75 percent to 50 percent of the hours promised in the
initial offer.
3. Eliminating government oversight.Goodlatte’s
bill would also ensure that legal protections would be exceedingly
limited and government oversight of employment conditions would be
minimal. Enforcement of farm worker protections would be shifted from
the Department of Labor, which is designed for just this purpose, to the
Department of Agriculture, which has no background in such practices.
In
addition to making it harder for the government to regulate employer
practices, the Goodlatte bill would also make it harder for workers to
protect themselves through legal means. The Migrant and Seasonal
Agricultural Worker Protection Act, which offers minimum protections to
farmworkers, would not cover those enrolled in the H-2C program.
Meanwhile,
the Senate’s Border Security, Economic Opportunity and Immigration
Reform Act appears to be the most progressive bill we can hope for from
this Congress. After extensive negotiations between labor and business
groups, it
provides
protections and a shorter path to citizenship for many agricultural
workers than for many other groups. But the Democratic-controlled
Senate’s proposal, while less forthrightly barbarous, is still full of
unpromising proposals.
4. Becoming a citizen will cost low-income workers a lot of money.The Senate bill includes a
bunch of militarized border security measures,
but it also provides a pathway to citizenship for those who go through a
successful background check, provide biometric identification
information, and have no felony convictions. Then they have to pay a lot
of fines, processing fees and back taxes, while remaining outside the
social safety net and continuing to bear their share of payroll and
other taxes.
Let’s start with the upfront costs, which include an
initial $1,000 fine (which can be paid in installments) and a processing
fee of an amount not specified in the bill, which will get an immigrant
Registered Provisional Immigrant (RPI) status. This lasts six years
before they must apply again, at the cost of additional DHS processing
fees. After another four years RPIs are finally allowed to apply for
Legal Permanent Residency (LPR), which will incur them another $1,000
fine and more processing fees. Three years later they can apply for
citizenship. The $1,000 fines must be paid per person (over 21) in the
household and the fees will be applicable to those 16 and above,
although the Department of Homeland Security has flexibility to limit
the payment for families (if it so chooses).
But there’s more.
“It
doesn't say so explicitly in the bill, after they've been in RPI status
for 10 years, they will most likely have to pay to file for ‘Adjustment
of Status’ when they want to ‘adjust’ from RPI status to LPR/green card
status,” Daniel Costa, director of Immigration Law and Policy Research
for the Economic Policy Institute writes in an email. “Currently,
adjustment of status costs $1,070. Then, after you're an LPR for 3
years, filing for
naturalization
(i.e. to become a citizen), will cost an additional $680 bucks. So at a
minimum, before DHS processing fees and paying back taxes, you're
already at a grand…total of $3,750 over 13 years before you become a
citizen.”
Back taxes must also be paid, which could be an
imposing amount considering that many undocumented immigrants work
off-the-books. Meanwhile these workers’ payroll taxes will be going
toward our social safety net programs, from which they will be
excluded
for many years. Immigrants with RPI status will not be eligible for
Social Security, Medicare, Medicaid, food stamps, home energy
assistance, or the Affordable Care Act’s provisions.
5. Income and employment limits.The
Senate bill also forces RPIs to meet a draconian standard that would
grant unscrupulous employers even more power over immigrant laborers. At
the six-year mark, those who are re-applying for RPI status must prove
that their average income is at 100 percent of the poverty line and show
that they have never been unemployed for longer than 60 days. At the
10-year mark they have to prove an average income of 125 percent of the
poverty line, and again, continuous employment with no more than 60 days
of unemployment.
“People working at or below
minimum wage, who are undocumented, are totally vulnerable to their
employers,” says Michael Livingston, director of public policy for
Interfaith Worker Justice. “They are not going to make the continuous
employment or the minimum income requirements. No way if you are making
$6.50 or $7.25 or $8.25 will you be able to demonstrate adequate levels
of income. It’s about punishment more than it’s about people, and it’s
about security more than it’s about citizenship. They are just being
victimized in almost every way imaginable.”
How many people do you
know who have been continually employed for 10 years with no bouts of
unemployment lasting longer than 60 days? In the current employment
environment that would be hard enough, particularly in the high-turnover
jobs where many immigrant workers are employed. It’ll be even more
difficult the next time we have a recession.
And regardless of the
caprices of the business cycle, this will give employers another tool
to keep their workers in check. Thinking of speaking up about conditions
on the job? Better not. If your employer fires you and you can’t get
another job, you’ll be subject to deportation. Many will instead choose
to continue working in unsafe conditions or for lower than the minimum
wage…which would put them afoul of the income requirements.
But
despite their critiques of the bills in Congress, all of the advocates
interviewed for this article agreed that they would want to see a bill
like the one passed by the Senate become law. Even Livingston argued
that it would at least serve as a basis for future reform. And unlike
the House’s ideas, the Senate bill also includes some good ideas.
It
would overturn a recent Supreme Court decision that undocumented
immigrants could not win backpay if they are fired unjustly (the
reasoning being that the crime of working illegally trumps the
employer’s crime of not paying them or illegally firing them). And there
is another provision in the Senate bill that would protect undocumented
workers who blow the whistle on employers who are breaking the law,
including worker wage, hour and safety statutes. Currently 10,000
U-Visas a year are available to undocumented immigrants who cooperate
with authorities who are investigating a crime. The Senate bill would
create 8,000 more U-Visas each year.
“It expands the definition to
include labor violations and retaliations, which the current law
doesn’t really include that so you would have some protection,” says
Costa. "It also authorizes Homeland Security to give you a temporary
stay of removal. So even if you don’t end up getting the visa if you
apply for it, while you are waiting or taking part in legal proceedings
then you can stay. If you end up getting a visa you have a chance to get
permanent residency.”
Such protections could offer some hope for
those who run up against the unemployment or income violations for
illegal reasons—if they are fired for union organizing, say, or are
having their wages stolen—but they don’t offer shelter to those who are
simply being paid minimum wage (which would place them below the income
requirements) or are laid off in the normal course of business.
This
is as good as an immigration bill passed by this Congress will get. If
the House ever gets serious about passing a comprehensive immigration
reform bill, it would have to be merged with the Senate’s bill, and if
Goodlatte’s farmworker policy is anything to go by, the compromise could
be downright vicious. Any addition from the House will only be more
reactionary and the possibility of more progressive reform in the
foreseeable future looks even worse. The Republicans have a
good chance of winning control of the Senate in 2014.
Jake Blumgart is a staff writer and assistant editor at AlterNet. Follow him on
Twitter.
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