Thanks to Tony Herrera for giving us the URL of Sen. Specter’s bill, which as posted is unnamed and unnumbered. The meat of employer obligations is in Title IV, Section 403, “Employer obligations”, starting on page 204. Without having carefully compared the language with that of Sen. McCain’s bill, I surmise that the employer’s obligations and penalties in some respects seem either identical or similar. For instance 204 (b)(3) states that “All workers in this H2C category will be provided the working conditions and benefits that are normal to workers similarly employed in the area of intended employment.” The employer must provide workers comp insurance, regardless of what is normally done.
Sen. Sepecter’s bill does not have the foreign labor contractor provisions of Sen. McCain’s S.1033. Instead, the employer appears free to hire directly or through contractors, but bears per Title III all the legal liability of employer failures to comply. The bill expects to roll out the program throughout the entire economy starting with employers with workforces of at least 5,000. I cannot yet find a prohibition of independent contractor status, which is a remarkable feature of the McCain bill as I pointed out in an earlier posting.
I have not located an actual copy of the 300 page –plus bill so I am quoting from a New York Times article. His bill treats workers here before 1/4/04 (my estimate: 6.7 million) more generously than those who have since come (my estimate: 600,000), and all future applicants.
Senator Introduces Bill Creating Guest Worker Program, by Rachel L. Swarns, New York Times, February 25, 2006.
The proposal would require employers to attest that they had tried to recruit American workers before bringing in additional foreigners from abroad and to pay prevailing wages. The plan would not place a restriction on the number of foreigners who could take part in the guest worker program. Those workers would not have the right to become permanent residents or citizens.
Under Mr. Specter’s proposal, the guest worker program would be open only to foreigners living outside the United States. Applicants would be sponsored by employers – though they would be allowed to switch employers during their time here – and would undergo background checks and medical screening. If approved, applicants would be allowed to bring their spouses and children to the United States.
Work permits would be granted for three years, after which the worker would have to return to his country for a year and apply again. The guest worker could then be authorized for a second and final work permit for three years.
Illegal immigrants already here
The draft would also authorize millions of illegal immigrants who arrived in this country before Jan. 4, 2004 to remain here indefinitely, along with their spouses and children, as long as they registered with the Department of Homeland Security, paid back taxes and remained law-abiding and employed, among other conditions.
Illegal immigrants who arrived in the United States after Jan. 4, 2004 could also participate in the guest worker program, but only if they returned home and applied from their countries. Those illegal workers who arrived in this country before Jan. 4, 2004 could stay in this country indefinitely, provided that they underwent background checks and did not remain unemployed for 45 days or more.
The Center for Immigration Studies has brought together several newspaper articles about the current status of immigration reform in Washington. The debate is 99% focused on undocumented workers, and involves internal divisions among Republicans. Some want a get tough program alone; others like Specter and Frist want to ensure a continued supply of labor.
Specter trying to forge a consensus
“Congress to Debate Illegal Immigration” by Suzanne Gamboa of the AP, 3/2/06 as printed in the Washington Post writes that “Pressure to move forward intensified this week as governors meeting in Washington said they consider immigration one of their major concerns and made them an agenda item in their private meetings with Bush and his Cabinet.
The House managed to pass a border security bill last year – pleasing conservatives clamoring for an immigration crackdown. But that came only after House leaders beat back an attempt by some GOP members to include President Bush’s proposal for a temporary worker program.
In contrast, the Senate is wading right into the thorny guest worker issue. Debate was starting Thursday with the Senate Judiciary Committee taking up an immigration reform bill drafted by the committee’s chairman, Sen. Arlen Specter, R-Pa.
Specter told fellow senators in advance that the bill is ‘a framework for building a consensus.’ Specter’s plan would allow immigrants who entered this country before Jan. 4, 2004 and who have jobs to participate for up to six years in the temporary worker program.
[My guess is that since then there has been a net increase of 600,000 in the number of undocumented workers – PFR]
Continue reading The undocumented worker debate in Washington this week
The failure of existing guest temporary visa programs can be summarized in these figures: the number of workers under them in Florida is probably equivalent to 1% of all undocumented workers in that state.
These programs are designed to attach each worker to a particular employer for a specified period of time – in months. The Palm Beach Post ran on Dec. 9, 2003, as part of an extensive series on farm labor, an analysis of how the federal governments guest worker provisions for temporary farm labor have worked in Florida. Farm employers rarely use these programs. According to the federal government only 2,423 H2A and H2B visas were issued to Mexican for work in Florida. I have previously estimated, drawing on Urban Institute figures, that as of 1/1/06 there were roughly 600,000 undocumented workers in Florida. Assume that total figure in 2002 was 450,000: H2 visa programs were equivalent to less than 1% of Florida’ undocumented workers.
According to the Post:
Continue reading Failure of existing guest worker programs as seen in FL figures
The current draft of S. 1033 probibits non-immigrant aliens using the Act to work in the U.S. from being employed as independent contractors. They will instead be employees of a foreign labor contractor. This provision is decidedly helpful to the worker in any industry that sees a lot of sub-contractors of questionable financial competence and sees aggressive use of independent contractor status to lower worker costs. Best example: construction, in particular residential construction. Jon Coppelman of WorkersCompInsider considers the independent contractor provision is very beneficial to the worker and questions if it will survive the legislative process. (He himself is a formeer union carpenter.)
My summary of some provisions:
Recognizes role of foreign labor contactor.
The term `foreign labor contracting activity’ means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(v)(a).
The worker will not be treated as independent contractor
Notwithstanding any other provision of law– A) a nonimmigrant alien is prohibited from being treated as an independent contractor; and (B) no person may treat a nonimmigrant alien ….as an independent contractor.
Enjoys all labor “rights and remedies”
A non-immigrant alien shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien’s status as a nonimmigrant worker.
McCain’s bill calls for gradual conversion of undocumented workers to a legal status. It is free of the Rube Goldberg complexity and get-tough approach of proposals of Arizona Sen. Jon Kyl and Texas Sen. John Cornyn.
According to the Phoenix Business Journal
The U.S. Chamber of Commerce is teaming with top labor unions, other business interests and the U.S. Conference of Catholic Bishops in support of a guest worker program and legal way for undocumented workers already in the U.S. to stay in the country. Arizona Congressmen Jeff Flake and Jim Kolbe, as well as the Arizona Chamber of Commerce & Industry, behind the bill
Also behind the bill are U.S. Sen. Edward Kennedy (D-Mass.) are the Service Employees International Union, the second largest union, the Laborers International Union, the American, bishops group and the American Health Care Association. The Arizona state chamber also backs that guest worker effort. The ALF-CIO has taken a position in opposition to guest worker legislation.
The Republican National Committee (RNC) officially endorsed a guest worker program.
Other heavyweight business interests backing guest worker include the Travel Industry Association of America, Ford Motor Co., Eastman Kodak, DaimlerChrysler and the California Chamber of Commerce.
Go here to get a copy of the bill, Secure America and Orderly Immigration Act – S. 1033
The New York Times today carried a profile of Eliseo Medina, vice president of the Service Employees International Union, the nation’s second-largest union, and an advocate of Bush’s guest worker program proposal.
The wage or rate of pay must be the same for U.S. workers and H-2A workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The AEWR is established every year by the Department of Labor. For 2005, the minimum wage set by DOL for Washington State is $9.03.
The employer must provide workers’ compensation insurance where it is required by state law. Where state law does not require it, the employer must provide equivalent insurance for all workers. Proof of insurance coverage must be provided to the regional administrator before certification is granted.
Time Magazine February 6 2006 issue’s cover story is “Inside America’s Secret Workforce.”
Here are some Time Magazine polling results:
How serious a problem is illegal immigration into the U.S.? – Extremely 30% Very 33% Somewhat 26% Not very 8%
Concerned that providing social services for illegal immigrants costs taxpayers too much – 83%
Concerned that illegal immigrants increase crime – 71%
Illegal immigrants are taking jobs that citizens don’t want – 56%
Do you pay less for some items or services because of low-wage illegal immigrant labor? Yes 17% No 71%
Had hired a contractor or company that may have used illegal immigrants – 14%
Is the government doing enough to keep illegal immigrants from entering the U.S.? — Yes 21% No 74%
All illegal immigrants should be deported – 50%, but —-
Illegal immigrants should be able to earn citizenship – 76%
Favor guest-worker registration for those already here – 73%
Favor issuing temporary work visas for seasonal work – 64%
Craig Barrett, Chair of Intel, recently wrote a commentary for the Financial Times (payment required) and afterwards responded to reader questions.
Begun in 1998, the H-1B program has annual caps which in 2003 was 195,000. In 2004 the cap was cut to 65,000. As of 2004, close to 1,000,000 H-1B visa holders were believed to be working in the United States, up from about 360,000 in 1998. This means an annual addition of about 150,000 workers a year into the American workforce.
Compare this stream to the supply of engineers coming from American higher education (many of whom are foreigners)? In 2004, there were about 70,000 bachelor, 40,000 master, and 6,000 doctoral degrees were awarded by American colleges and universities. This is from the American Society of Engineering Education
H1B Visa (Professional in a Specialty Occupation) allows a U.S. employer to fill a position requiring the minimum of a baccalaureate in the particular field with a qualified worker from abroad. The foreign worker must possess that U.S. degree or an acceptable foreign alternative. In some cases, a combination of studies and relevant experience may substitute for the degree if it is determined by a credentials expert to qualify the foreign professional. The large majority of H1B visa holders are believed to be engineers.
Continue reading H-1B visas and the engineering workforce shortage, per Chair of Intel