The Feds Had Their Turn. Time for State-Based Visas?

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By Laura D. Francis

A bill pending in Congress could shake up the way foreign guestworker programs operate in the U.S.The State Sponsored Visa Pilot Program Act ( S. 1040), introduced May 3 by Sen. Ron Johnson (R-Wis.), would allow the states to establish their own temporary worker visa programs on a pilot basis. A House companion bill is set to be introduced soon by Rep. Ken Buck (R-Colo.).

The legislation is backed by several groups, including pro-immigration advocates such as FWD.us and Compete America, as well as the U.S. Chamber of Commerce and the National Association of Home Builders.

It’s a “very intriguing idea” that “makes a lot of sense,” ImmigrationWorks USA President and Chief Executive Officer Tamar Jacoby told Bloomberg BNA May 10. “States have different needs,” and some states might want different types of visas than others, she said. And some states might not want them at all, she said.

The bill also “makes political sense in Republican Washington,” said Jacoby, whose organization advocates for immigration changes on behalf of small and midsize businesses. “Republicans like federalism,” she said.

“It may seem like a radical proposition to give the states some say over immigrant admissions,” Peter Spiro, a professor at Temple University’s Beasley School of Law, told Bloomberg BNA May 11. And it “would be unprecedented in U.S. practice,” he said.

But countries such as Canada have adopted a similar approach and “demonstrate that it can be done,” he said.

‘New Turn in the Conversation’

It’s not just about the bill itself, Jacoby said. A Republican introducing a bill to increase employment-based visas represents “an important new turn in the conversation” when the focus in recent months has been on building a border wall and cutting back on existing visa programs, she said.

The U.S. has operated under the assumption that the federal government has “exclusive control” over immigration, Spiro said. But turning at least some of that control over to the states is “an idea whose time has come,” he said.

In some parts of the country, there’s “intense anti-immigrant sentiment,” and residents don’t want more immigrants, Spiro said. But other regions are “just starved for people” and would love to have the added labor, he said.

The problem with the current system is that it takes the “lowest common denominator approach,” so that those who don’t want more immigration dominate federal policy making, Spiro said. Johnson’s bill “would allow for regional variance in preferences,” he said.

Need to See It in Practice

Any way to get more visas for immigrant workers is worth a try, although how it would play out remains to be seen, immigration attorney Sarah K. Peterson of SPS Immigration in Minneapolis said May 10.

“From a practical perspective, there’s a vested interest” in states getting more workers, Peterson told Bloomberg BNA. But from a budgetary perspective, the program could be problematic, she said.

States would be given a lot of latitude under the bill, Peterson said. That means they would be responsible for administering the guestworker programs, overseeing them and ensuring compliance—including making sure the workers don’t violate the terms of their visas, she said.

And that’s going to cost money, adding to already strained state budgets, Peterson said.

There also are likely to be enforcement issues, although that’s always the case with temporary visas, Spiro said. There are “different kinds of challenges” associated with foreign nationals in the U.S., as opposed to those coming across the border, he said.

Under the bill, workers for the most part would have to remain in the state that brought them in. That implicates the “somewhat novel constitutional question” of the right to travel freely within the country, a right the guestworkers wouldn’t enjoy, Spiro said.

“I don’t think ultimately that would prove much of a problem,” however, because of the discretion the federal government has in dictating the terms of immigrant admission, he said.

There’s also the consideration that the guestworkers are coming to work in the U.S., Spiro said. These particular workers likely wouldn’t have another avenue to live and work in the country, so they’d have an incentive to stay in the host state, he said.

Concern Over Worker Debt

But the bill doesn’t “get rid of” or “fix the existing flaws” in our current guestworker programs, Naomi Tsu, deputy legal director of the Southern Poverty Law Center, told Bloomberg BNA May 9.

“One of the major flaws in the guestworker program is that workers come in in debt” from paying recruitment and other fees, said Tsu, who spoke as a member of the International Labor Recruitment Working Group. And because of that debt, they have a “real fear of speaking up to enforce their workplace rights,” she said.

Johnson’s bill would allow states to require workers to pay a bond, which would be returned to them once they go back to their home countries, Tsu said. But actually getting that money to the workers could be a tall order, she said.

A similar system existed under the Bracero program, an agricultural guestworker program from the 1940s and 1950s, Tso said. Many of those workers never received their bond money even though they returned to Mexico, she said.

It’s “extremely difficult to cash checks from the United States” in Mexico, Tsu said. And nothing in Johnson’s bill “even starts to wrestle with that problem,” she said.

Not only that, but there remains a “power imbalance” in the proposed program that would make it very difficult for any workplace abuses to be addressed, she said.

Worker Portability

It’s “really important” that the bill allows for workers to change jobs, unlike the current guestworker programs, Jacoby said. Portability is like the vote—once you have that, you can bargain effectively for other rights, she said.

Portability is actually good for employers as well, Jacoby said. Workers would be able to move from an employer that might have overestimated the amount of work it had to one that still needs extra labor, she said.

But that’s not “true portability,” Tsu said. The concern is the imposition of “punishment"—loss of immigration status—if a worker even inadvertently crossed state lines, such as from Kansas City, Mo., to Kansas City, Kan., she said.

The program instead should focus more on ensuring that workers understand the terms of their employment and that they truly consent to the pay and working conditions, Tsu said.

There are also concerns with how states participate, Jacoby said. There may be some states that choose not to set up their own visa program—even if employers in that state want it—while others might seek only to allow a particular type of visa to the exclusion of other industries, she said.

Moreover, multi-state companies might have to apply multiple times for the workers, depending on how many states are involved, she said.

“They’re never going to do comprehensive reform,” Jacoby said. But “the hope is” this state-based visa system would be one of several changes to the immigration system, including at the federal level, she said.

“If you’re an employer who needs less skilled workers and you can’t find Americans, you have no recourse right now” if the work is year-round rather than seasonal, Jacoby said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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