(Photo: Sacramento Bee/Hector Amezcua)

Amnesty and phony enforcement are bad enough, but don’t overlook the guest-worker program.

The vast majority of media attention on the Gang of Eight’s immigration bill has focused on three aspects: the legalization of illegal immigrants, the promise of future enforcement (and to what degree that promise will be broken), and the political fallout of the bill and debates about it. However, the Gang of Eight bill also makes far-reaching reforms to other aspects of the immigration system. Under the proposed bill, the nation’s guest-worker programs would be considerably expanded — and this expansion has major implications for the nation as a whole, especially its workers. This guest-worker program could have three big outcomes: bigger government, bigger downward pressure on wages, and bigger problems for the GOP and the future of conservative principles.


Under this bill, the three principal guest-worker programs would be agricultural, low-skilled labor, and high-skilled labor. According to Jessica Vaughan of the Center for Immigration Studies, the U.S. already issues 700,000 guest-worker visas a year. Some of these visa-holders work in the U.S. for a short period of time, but others can stay for much longer. The Gang of Eight bill significantly increases the number of guest-worker visas. The annual cap on H-1B visas — meant for “high-skill” guest workers, especially those in technical fields — would immediately jump from 65,000 to 110,000. This new cap would be the floor for H-1B visa numbers in the future, and it would have the potential to rise in further years, all the way up to 180,000.

In addition to its revision of the agricultural guest-worker program’s rules, this bill creates a whole new program for “unskilled” guest workers: the W visa. The cap for the W visa bandied about in the media is 200,000 a year, but this provision could allow significantly more workers than that into the country. When dependents of visa holders are included, these two guest-worker programs alone could conceivably bring in over half a million individuals a year. At what could be the high end of estimates, Senator Jeff Sessions’s office has released a report suggesting that, all told, the Gang of Eight’s guest-worker programs could issue up to 25 million visas over the course of a decade.


Measuring the precise magnitude of this guest-worker expansion is hard because of the (perhaps deliberate) opacity and complexity of certain provisions of this bill. The loopholes matter a lot. Current H-1B law illustrates the power of loopholes. The cap on H-1B visas is commonly reported as 65,000 a year. But the law grants an additional 20,000 visas to holders of master’s or higher degrees, and current law does not count H-1B workers who work for certain nonprofit institutions against the cap. So even though the H-1B visa cap is officially 65,000 a year, about 136,000 H-1B visas were issued in 2012. Various loopholes will persist or expand in the Gang of Eight’s revision and expansion of the H-1B program. For instance, the exception for holders of advanced degrees is increased to 25,000, bringing the potential number of H-1B visa workers admitted to the country to over 200,000 (combining the new cap of 180,000 visas with the 25,000 visas for holders of advanced degrees).

Perhaps the biggest innovation of the Gang of Eight’s temporary-worker program would be its creation of the W visa for “low-skilled” labor, so it is worth paying particular attention to this part of the proposal. Holders of the W visa would be allowed to work in certain W-visa-designated jobs (such as retail and food service), and the visa could be renewed every three years. After employers fulfill certain conditions in terms of advertising a position, that position can become registered as a W-visa position, opening it up to workers who have a W visa.



In many respects, this provision takes a command-and-control approach to the nation’s work force. It creates a new bureau, the Bureau of Immigration and Labor Market Research. This bureau would be responsible for monitoring unemployment levels in various metropolitan areas, evaluating job needs for various industries, and assessing wage rates for various workers. It would then use this data to calculate the number of guest workers purportedly needed for each year and to promulgate wage requirements for these workers. The cap for the number of new W-visa positions allowed in a given year is derived from a mathematical formula so complicated that it takes over three pages of the bill’s text to explain (pages 831–34 of the latest version of the bill, for those interested). This formula and the centralized federal bureaucracy would control the yearly influx of temporary workers. This aspect of the bill seems to indicate great faith in the power of central planning and government regulation to manage the economy.

The W-visa program also includes some industry carve-outs and giveaways. In addition to the usual number of W visas granted, the Secretary of the Department of Homeland Security can make available an extra number for individuals who work in “animal production subsectors” (which would seem to include mostly meat cutters). This extra number of visas can reach as high as 10 percent of the number of standard W visas granted during a year. So up to 20,000 guest workers in the meat-preparation field could enter in a year. Moreover, the DHS secretary could add additional positions over the usual W-visa cap if employers met certain conditions.


But it would be a mistake to focus only on the W-visa holders themselves, because the treatment of the dependents of these visa holders could also have far-reaching effects. The spouse and minor children of a W-visa holder will be allowed to accompany the W-visa holder, so each visa issued could result in multiple individuals’ migrating to the U.S. And the spouses of visa holders will be able to do more than just live here. They will also, as the bill puts it, be “authorized to engage in employment in the United States” during the period of admission. A Senate source confirms that this authorization would be an “open-ended authorization,” allowing the spouse to work in any field — not just W-visa-registered positions. While W-visa holders are limited in where they can seek employment, their spouses do not seem to be so limited.


So reports suggesting that the W-visa program would be capped at 200,000 annually could substantially underestimate the number of workers brought in under this program. The giveaway to the meat-preparation industry pushes this figure up to 220,000, and each holder of this visa could bring along another possible worker (a spouse) in addition to minor children. So 300,000 workers a year admitted under this program would not be an impossible number — and that’s not including the other extra W visas that DHS could supply through various other loopholes.

If Republicans hope to “settle” the immigration issue by passing a legalization/guest-worker bill, they may be in for a rude surprise. These guest-worker programs, like much else in the Gang of Eight bill, could serve not to eliminate ambiguity in the nation’s immigration laws but to expand it. The W-visa provision, for instance, stipulates that visa holders must leave the country if they are unemployed for more than 60 consecutive days, but it seems that such visa holders are able to apply only for jobs that are registered under the W visa. What if a local employer without a W-visa position wants to hire this visa holder? We could see a public debate arise over allowing W-visa holders who are already in the country to apply for non-W jobs.

Furthermore, the DHS secretary can designate certain metropolitan areas as “excluded,” meaning that new applications for W-visa positions cannot be approved. But what if some employer in that region wants to hire a W-visa worker? What if a W-visa worker is laid off in an area that was declared excluded after he was hired? Should this worker have to uproot himself and his family to travel to another area where the government will allow him to work? Those sorts of limitations could provide even more incentive for non-citizen workers in the country to skirt employment law. And what about the dependents of W-visa holders — what educational opportunities should they get in the U.S.?


These debates could become particularly contentious when W-visa holders are parents of U.S. citizens, which brings to mind one of the great complicating factors of any guest-worker program: Any child born in the United States is, according to standard interpretations of constitutional and statutory law, a citizen of the United States. What happens to guest-worker-visa holders who have a child in the U.S.? What about the foreign-born siblings of this child? The expansion of the guest-worker program under the Gang of Eight bill could significantly increase the size of this legal gray area. Potential political tripwires like these permeate the guest-worker legislative provisions, as they do the rest of the immigration bill.

The implications of these guest-worker programs can be further contextualized by looking at recent employment data. Supporters of “comprehensive immigration reform” are considering a radical expansion of the pool of possible guest workers when American employment is still recovering from the Great Recession. The unemployment rate has stayed at or above 7.5 percent for over four years, a postwar record. The work-force-participation rate has dropped to a level not seen since the 1970s, when women were still entering the work force in large numbers.

As Brad Plumer noted in response to a study done by the Federal Reserve Bank of San Francisco, the Great Recession has shredded many mid-wage jobs, replacing them with lower-wage ones. Catherine Rampell reports that inflation-adjusted median household income has slipped over 7 percent since December 2007 (and the median income then, adjusted for inflation, was only a tiny bit higher than the same figure for January 2000). According to data from the federal Bureau of Labor Statistics, median weekly earnings for individuals 25 and older have not kept track with inflation over the past decade. With those statistics, it’s hard to say that the U.S. economy’s principal problem is too few workers demanding too high a rate of compensation.


We can see this employment stagnation in both high-tech and “low-skill” fields. A report from the Economic Policy Institute (EPI) on guest workers in STEM (science, technology, engineering, medicine) fields reveals some interesting trends. According to the EPI, computer and IT salaries have, when adjusted for inflation, remained more or less flat since 2000, and the number of guest workers in IT fields has grown considerably. EPI’s numbers suggest that guest workers could make up between a third and a half of all new IT jobholders.

Yet the increasing prevalence of guest workers in IT fields might not be due to a lack of U.S. talent for or interest in technology. EPI finds that half of the STEM graduates from U.S. colleges do not end up working in STEM fields, and every year U.S. colleges graduate 50 percent more people in computer science, information science, and engineering than there are new jobs available in these fields. The EPI report raises questions about how much the influx of high-tech guest workers has depressed wages in these fields and made it harder for U.S. workers to find employment in them. If the U.S. wants to maintain a leading edge in technology, it might seem prudent to ensure that native-born citizens and permanent-resident immigrants are drawn to and can work in these fields.

While wages for high-tech guest workers have stagnated, wages in many other parts of the work force have fallen. So-called low-skill workers have been especially hard hit. The unemployment rate for Americans without a high-school diploma is, as of April 2013, 11.4 percent. In 2007 it was around 7 percent. The labor-force-participation rate for this group has also fallen. The employment-population ratio (the percentage of working-age individuals who are employed) for Americans without a high-school diploma slipped from 43.3 in 2007 to 39.9 in April 2013. High-school graduates without any college have also seen a decline in employment. Their unemployment rate has skyrocketed since 2007 (from 4.4 percent in 2007 to 7.2 percent in April 2013) and their employment-population ratio has fallen from 62.8 in 2007 to 54.5 in April 2013. So barely more than half of working-age high-school graduates with no college experience are actually working.

Income tells an even grimmer story. Between 2003 and 2012, the median weekly earnings of someone without a high-school diploma, when adjusted for inflation, fell by almost 5 percent. The median weekly earnings of high-school graduates fell by almost 6 percent, and those of Americans as a whole fell by about 1 percent.

After Mitt Romney’s defeat in November 2012, many on the right, including Senator Marco Rubio (R., Fla.), came to the conclusion that the Republican party needed to become a party of middle-class restoration, economic opportunity, and upward mobility. This conclusion has been complemented by a growing recognition that the stagnation of opportunity and the undermining of the middle class pose serious threats to the future of small-government conservatism.

If that is the case, a guest-worker program could cause big problems for the GOP. Many of the institutions that would be central for administering this program are premised on the notion of bureaucratic control of the free market. The regulatory structure of a guest-worker program, combined with birthright citizenship, could place millions more in legal and cultural gray areas. And the expansion of such programs could put further pressure on the incomes and employment prospects of both native-born citizens and permanent residents. This guest-worker bill could at once deter Americans from working in the fields of the future and make life even harder for those at the economic margins. The precise details of the Gang of Eight’s guest-worker program clearly need more explication, but there might also be a broader theoretical difficulty with a Republican embrace of it.

At its very inception, the GOP championed the marriage of citizenship and labor. Abraham Lincoln’s vision of the Union was one where the labor force was composed of free citizens working to better themselves and their communities. In his speech at Independence Hall on Washington’s birthday in 1861, President-elect Lincoln declared that one of the promises of the Declaration of Independence was “that all should have an equal chance.” One of the premises of a guest-worker program is that all do not have an equal chance: Some workers will be welcomed for their labor but will never be offered a chance at citizenship. These workers will be limited by government in their employment prospects and, due to their status as not-entirely-accepted guests, will have a limited ability to negotiate the marketplace in a fair and free manner. This distortion of the market for labor could have major negative implications for citizens and immigrants alike.


As an electoral matter, small government seems most sustainable in an era of transparent regulations, economic opportunity, and popular prosperity. The guest-worker program envisioned by the Gang of Eight may undermine all three aims. But it also might challenge a principle deeper than electoral politics. America has done best when its citizens have recognized that they are all in the same national boat together — where no labor is too mean for a citizen, where wealth cannot collude with government to institute a petty tyranny, and where the opportunities of a free market and a free society are open to all rightfully in the body politic. By superseding these principles, the proposed guest-worker program could violate both republican and Republican ideals.

— Fred Bauer is a writer from New England. He blogs at A Certain Enthusiasm, and his work has been featured in numerous publications.