Guest Workers Program with a Path to Legalization

Bill Ong Hing, J.D.


April 1, 2006

As we have seen in the last month, segments of the United States media, policy leaders, and populace continue to be obsessed with the issue of undocumented immigration to the United States. Turn on CNN and you may find Lou Dobbs chastising President Bush for failing "to enforce immigration laws that would slow the invasion of illegal aliens." Open the Los Angeles Times, and you can read about California Governor Arnold Schwarzenegger singing praises for the Minuteman Project, the volunteer group of Arizona vigilantes formed to patrol the U.S.-Mexico border. Open a paper in Las Cruces, New Mexico and you can read about Mexican workers in Chihuahua, Mexico waiting for the right time to cross the border illegally to find work as ranch hands in New Mexico or in construction in Chicago. In Boise, Idaho a letter to the editor complains about illegal immigrants and "[contractors] willing to pay cheap wages under the lieu of hiring American citizens."

The Bush Guest Worker Proposal

Addressing the challenge of undocumented migration was a front burner issue in the summer of 2001. As late as September 10 of that year, President Vicente Fox of Mexico was making demands that the United States provide some type of relief for undocumented Mexican workers in the United States. That all changed on September 11 when the terrorist attacks relegated immigration reform to low-priority status. But President Bush got the debate rolling again on January 7, 2004, with his proposal for a large-scale guest worker plan. Under the President's plan, which was reiterated shortly after his re-election, each year 300,000 undocumented immigrants and workers from abroad would be able to apply for a three-year work permit; the permit could be extended once for a total of six years. Workers would be allowed to switch jobs and to move from one type of work to another. Those coming from abroad would be able to bring family members. The shrewdness of the proposal begins with the fact that no automatic path toward citizenship is provided to the workers, addressing concerns of some anti-immigrant groups. But provided an opportunity to work for up to six years, many undocumented workers would step forward and reveal themselves, while a large pool of low-wage workers would make the business community extremely happy.

The debate over the guest worker solution does not divide along neat partisan lines. Until recently, Democratic U.S. Senator Dianne Feinstein, the AFL-CIO, and immigrant-rights organizations that recall the abuses of the Bracero program opposed guest worker programs. Republican Congressmen Lamar Smith and Tom Tancredo, as well as the restrictionist Federation for American Immigration Reform, are also quite vocal in their opposition. Yet President Bush, Senators John McCain and Ted Kennedy, Republican Congressmen Jeff Flake and Jim Kolbe, businesses, and even some farm worker organizations have come to embrace guest worker proposals. The proposals raise a number of questions, including whether a broad guest worker program should be established; whether such a program would reduce undocumented migration and, if so, whether the reduction of undocumented migration in this manner is in the national security interest of the United States; whether the program should include more than agricultural workers; and whether such a program should provide a path to legalization.

What about the Millions Already Here?

What to do about millions of undocumented immigrants is not a new question for U.S. policymakers. When the Immigration Reform and Control Act of 1986 (IRCA) was passed, Congress chose legalization (or amnesty) as the answer, coupled with employer sanctions that, in theory, would dissuade future undocumented migration by making it unlawful for employers to hire the undocumented. At the time, members of Congress perceived only a handful of options: first, to legalize many of the immigrants, second, to find and deport them, or third, to do nothing. The third option actually was not an option given mounting pressure to do something. And the second option was considered unworkable, given the expense and effort that would be necessary to round up and deport millions of individuals, while possibly violating the civil rights of many during the process.

The idea of establishing a large-scale guest worker program as a way to reduce undocumented immigration is a different option that was not considered in 1986, but that has a great deal of support today. For immigrant-rights advocates, a straight legalization program that is generous and broad is preferable. However, unlike the broad political support for a guest worker program (especially like that garnered by AgJOBS), no more than a handful of congressional representatives support straight legalization at this time. So pushing for a good and fair guest worker program that can lead to permanent status is something that immigrant-rights advocates ought to consider seriously. The potential benefit to undocumented immigrants is too real to facilely dismiss.

With modification, President Bush's guest worker proposal has it right. As a nation, the United States ought to do the right thing, especially when it comes to Mexican migrants, given our long historical ties with Mexico. We have demonized the undocumented, rather than seen them for what they are: human beings entering our country for a better life who have been manipulated by globalization, regional economies, and social structures that have operated for decades. The right thing to do is to develop a system to facilitate the flow to the United States of Mexican migrants who are seeking employment opportunities. Given the economic imbalance between the two nations, we know that the flow will continue-legally or otherwise.

Adding a Path to Legalization

Legalizing the flow through a large guest worker program is a step toward easing pressures at the border (thus freeing up personnel to concentrate on the serious challenge of looking for terrorists and drug smugglers), addressing the labor needs of employers, bringing the undocumented out of the shadows, and ending unnecessary border deaths that have resulted from current enforcement strategies. But we have to do this in a manner that provides the workers with respect from other Americans and hope for membership in our society. Thus, a path toward legalization becomes a critical ingredient of any guest worker program. Establishing a guest worker program without a path to legalization automatically erects boundaries between the enfranchised and the disenfranchised, and institutionalizes a division within our society. That scenario not only smacks of second-class citizenship, but has a familiarity to it that is reminiscent of the bracero days and even slavery. Only through a path to legalization can these individuals, upon whom we have depended for generations, attain a sense of enfranchisement and freedom from political subjugation and servitude. Our economic, social, and national-security interests demand that we pursue such a program.

Legalizing undocumented workers, coupled with a large guest worker program, is also in the interest of our national security and constitutes a step that would aid our country in its efforts to combat terrorism. By offering a program that would encourage undocumented workers to come forward, we would be able to conduct background checks on a large group that currently lives underground, while freeing up investigative resources to concentrate on real threats of terror at the border and within our borders. These new Americans would be more inclined to participate in civil society and aid law-enforcement efforts directly. Legalization would promote family reunification and the psychic benefits derived from enjoying the comfort of family. With more definite status, wages and working conditions for the new Americans and consequently all Americans would improve.

* Bill Ong Hing, Professor of Asian-American Studies and School of Law; University of California-Davis.

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