Memo to Presidential Hopefuls of Both Parties: Guest Worker Programs Are Not Indentured Servitude

Republicans have hit new lows on immigration, but neither party is averse to pandering


Historically speaking, awfulness on immigration is neither party's sole province. But in this election cycle there is

Border Wall
Tony Webster Foter

no question that Republicans have set new lows from a libertarian perspective.

No candidate, Republican or Democrat, has a perfect record on this issue. Both sides pander to their respective bases. But at least Democratic candidates seem to be in a virtuous cycle toward more rational, humane and liberty-enhancing immigration policies. Republican candidates, on the other hand, are in a vicious downward spiral of ever more mean, insane and police-state expanding measures. Indeed, whereas Hillary Clinton and Bernie Sanders are beating each other up for being insufficiently nice to immigrants in the past, Republicans are beating each other up for being insufficiently harsh.

During last night's Democratic debate, Sanders called out Clinton for derailing New York Governor Eliot Spitzer's efforts to provide drivers licenses to undocumented aliens and turning away unaccompanied minors from war-torn Latin American countries. Clinton, in turn, accused Sanders of voting against President George Bush's 2007 comprehensive immigration reform bill (that would have created a path to citizenship for undocumented aliens) and, weirdly, supporting Minutemen, border vigilantes who took it upon themselves to capture illegal border crossers, which Sanders angrily denounced as a "horrific" and "unfair" statement. Both pledged to end workplace raids and deportations of undocumented children and anyone without a criminal record.

By contrast, thanks to Donald Trump's viciousness, all the major Republican contenders are turning into border pitbulls. The person who has fallen the most on this issue (with no effect on his poll numbers that are falling even more rapidly) is Marco Rubio: Instead of proudly defending his participation in the Gang of Eight immigration bill — a flawed effort that would nevertheless have given some relief to the undocumented population — he has all but repudiated the bill. He is pledging now to push no reform effort till the border is hermetically sealed. And both he and Ted Cruz are vowing to match the Great Border Wall of Trump, brick for brick. Rubio may have fallen the most on immigration, but Cruz is arguably the worst, worse even than Trump.

He is trying to outdo Trump's plan to restore the notorious Eisenhower-era program called Operation Wetback that created special federal squads to round up millions of undocumented workers and throw them out of the country. "Of course we should deport them," he crows. "That's what ICE exists for." But he wouldn't just stop at that. He insists that, in contrast to Trump who'll let these workers back in legally, he'll permanently ban them from re-entering, even if that means separating them permanently from their American children and forever breaking families apart. (How is that for a God fearing, family-values conservative?) And then there is the matter of his support — actually, authorship — of the Expatriate Terrorist Act that would strip, without due process, Americans of their citizenship if they are suspected of supporting government-designated terrorist groups

But one wrong-headed trope that is becoming increasingly popular among both parties is that guest worker visas such as H-1Bs for high-skilled workers and H-2A/Bs for unskilled workers are akin to "servitude" (Bernie Sanders) or slavery (various right-wing restrictionists, including at the National Review) and therefore should be scrapped. But this is just pandering to working-class special interests dressed up as altruism for foreign workers.

There is no question that these guest worker programs are hugely flawed. The worst aspect of both the high skilled and low skilled guest visas is that they tether foreign workers to the employer who sponsored them. In the case of H-1B visas, this wasn't a huge deal till the mid-1990s when converting these visas to green cards took only a couple of years. Foreign techies would grin and bear it, even though they couldn't switch jobs without having to begin the process all over again and their spouses weren't allowed to work in the interim. Since then, thanks to country-based ceiling on green cards, a multi-decade backlog has developed for countries such as India and China that supply the vast majority of foreign techies. Since these folks can't take up better jobs, they become subject to exploitation and abuse by employers. Indian and Chinese techies routinely end up stuck in horrible, dead-end jobs for much of their peak productive years.

The situation is even worse for H-2 unskilled workers because they are on non-immigrant visas, which means that they can't apply for green cards. Hence, often they end up staying in the country illegally, which makes them even more subject to employer abuse.

In the case of H-1Bs, the logical and humane fix would be to affix these visas to employees not employers (which would make them portable across jobs) and to remove the annual country-cap on green cards to expedite the permanent residency process. Likewise, the solution to H-2 abuse would be to not only make these visas portable but also convert them to immigrant visas so that low skilled foreign workers too could apply for green cards, just like high-skilled workers.

But to equate these visas with slavery or servitude is to torture a metaphor till it loses all meaning. And to demand their elimination is to pile injustice on top of abuse and call it principle.

The essence of slavery is to expropriate a worker's labor against his will. This means reducing his work options to just one from which he can neither quit nor switch. But guest worker visas do the opposite of slavery: They give workers more options. And having more options, even bad and suboptimal ones, is always better than having fewer options. Indeed, the only reason that foreign workers would put up with a bad work situation in the United States given that they can always quit is that their alternatives at home are even worse.

By all means, well-meaning people interested in justice and liberty ought to push policies to empower these workers, improve the trade offs that they confront, so that they don't have to put up with abuse. But taking away their existing options is to offer a cure worse than the disease.

The jihad against guest worker programs is ultimately about labor protectionism — no matter how much Republicans and Democrats try and dress it up in the language of human rights.