Department for Professional Employees, AFL-CIO (2012)

Executive Summary

An array of skilled worker visas, including the H-1B, L, and J, is available to employers seeking guest workers. In FY2010 alone, over 350,000 guest worker visas, as well as OPT, were approved for employers hiring skilled workers. For the last 30 years, employers have expanded their access to guest workers through intense lobbying of Congress. This lobbying has created a system that largely benefits employers and harms workers.

Skilled visas are highly susceptible to fraud and abuse by unscrupulous employers. The victims are the foreign and domestic workers who are largely powerless against employers who created a system that favors their interests. Because powerful employers benefit from the system, Congress has been unwilling to work toward comprehensive immigration reform legislation that would curb employer abuses and protect workers.

Guest workers can find themselves in working conditions akin to indentured servitude. Workers hoping to be sponsored for permanent residency typically find themselves bound to one employer for the duration of the visa, which can be up to six years. However, the vast majority of visa holders will not be sponsored for permanent residency, because it would mean greater rights and protections for the workers. Guest workers who complain about their salaries or working conditions can be threatened with termination, which would require that they immediately leave the country.

U.S. citizens and permanent residents also have few protections against employers who game the system. In the vast majority of cases, employers are not required to determine if a qualified U.S. citizen or permanent resident is available for the job filled by the guest worker. U.S. workers can even be fired and replaced by guest workers. Employers actually have an incentive to hire guest workers because the required prevailing wage is below the market wage and in many cases there is no prevailing wage requirement. This system is unlike guest worker programs in other industrialized countries.

Comprehensive reform is imperative to protect workers and rein in employers. Unfortunately, instead of comprehensive reform, Congress regularly seeks to add on to the already broken visa system. Numerous legislative changes have been proposed in recent years, but they are largely designed to appease business interests who seek even more access to low- cost labor.

We can do better than piecemeal changes. We can have a skilled guest worker system that makes it easy for employers to bring in talented and highly skilled workers while not creating incentives to displace U.S. citizens and permanent residents. Fixing the system requires comprehensive reform, and most importantly the creation of an independent commission that would assess and manage future flows of labor.

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