Captive Workers: A Disturbing Trend in Immigration Policy

By Mark Krikorian on August 1, 1998

pp. 1, 4-8 in Immigration Review no. 33, Fall 1998

In a major victory for the nation's high-tech industry, the House on September 24 approved a measure aimed at bringing as many as 142,500 more skilled foreign workers into the United States on H-1B visas over the next three years. The 288 to 133 vote came after lawmakers added some provisions protecting domestic workers, without which the White House had threatened a presidential veto of the legislation.

The H-1B legislation is part of an implicit new model of immigration emerging from an accumulation of measures in Congress, wherein "nonimmigrants" (the technical term for those on temporary visas) are admitted for long periods of time to work for specific employers, without the ability to change the terms of employment or switch employers. Though most of today's immigrants are able to participate freely in the labor market, the number of captive foreign workers has been growing steadily. In 1981, only 44,770 temporary workers and trainees were admitted to the United States; by 1990, the number had grown to 139,587, and by 1996, the most recent year available, the number admitted was 227,440. This is just the annual flow — the total number of captive workers present at any one time is in the hundreds of thousands (including many in other visa categories not included in the figures above), and the H-1B legislation will increase that number dramatically.

In the old model, which governed our immigration law for more than 100 years, immigrants admitted to the United States were free workers, able to compete in the labor market on par with everyone else. They did not have political rights until such time as they demonstrated their worthiness for citizenship, but their right to work, negotiate with employers, and change jobs was guaranteed from the moment they arrived.

This free-worker model of immigration was formally articulated in the Contract Labor Law of 1885, which prohibited the importation of aliens under contract for the performance of labor or services of any kind. This was a reaction to the importation of "coolie" labor from China, a practice itself a successor to the institution of indentured servitude so widespread in the 17th and 18th centuries. Indeed, just as indentured servitude was a manifestation of pre-capitalist labor relations, like vassalage or serfdom or villeinage, the freedom of workers to negotiate wages and working conditions and to change jobs is an indispensable element of a free economy.

Today's emerging immigration model harks back to those pre-modern arrangements. Like their predecessors, today's captive workers come voluntarily, for the chance of earning more money or settling permanently, but they can't complain, can't strike, can't switch jobs, and can't form unions. Some critics compare this captive-worker model to slavery, but actually, for employers, it's much better — employers don't have to make large capital investments to procure the workers, nor do they have to feed and clothe the guestworkers, nor support them in their old age. Employers enjoy the benefits of a feudal relationship, without the costs.

The great exception to the free-worker model in this century is instructive: The Mexican Labor Program, commonly called the Bracero program, was a scheme to import temporary Mexican farmworkers to meet the labor shortages caused by World War II. Like most government programs, it was continued after the immediate need passed and was finally ended 20 years later as the logical consequences of a captive labor program manifested themselves through exploitation and corruption. Even worse, the networks and momentum established by this "temporary" migration program yielded today's illegal immigration crisis.

The bipartisan U.S. Commission on Immigration Reform was unequivocal in its opposition to the captive-worker model of immigration. Commenting on farmworkers, but with an eye toward all nonimmigrant worker programs, the Commission wrote that it "unanimously and strongly agrees that such a program would be a grievous mistake.... Experience has shown that such limitations are incompatible with the values of democratic societies worldwide."

What are the components of today's emerging captive-worker model of immigration?

H-1B: High-tech Braceros

The H-1B visa program took its current form in 1990, stemming from panic over a labor shortage that never materialized. The program allows for 65,000 temporary visas (spouses and children usually add another 40-50,000), good for up to six years, for people in "specialty occupations" tied to a specific employer. In practice, computer programmers and physical therapists have accounted for the large majority of H-1B visa users.

The captive nature of this labor force doesn't start with the H-1B visa. Many of them arrive in the first place on student visas, then extend their visas for one year for purposes of "practical training" (tied to an employer), and only then get H-1B visas. What's more, the power the employer holds over an H-1B visa-holder stems not only from the difficulty in getting assigned to a different employer; more important is that, since the main payoff for an H-1B visa is being sponsored by one's employer for a green card, the worker doesn't want to have to start the green card process from scratch by switching jobs, possibly extending it so long that his temporary visa will expire first. Once the immigrant acquires a green card, he's free to work anywhere he wants, but his period of indenture is long enough for his employer to profit handsomely from the arrangement.

This power employers hold over H-1B workers is the primary reason high-tech companies are pushing for an increase in these visas rather than the re-allocation of some family-based green cards to the employment-based categories — a change which Congress would almost certainly approve if it were backed by business. Computer firms are looking for ways to prevent job-hopping, and simply increasing the number of programmers by handing out more green cards won't solve the problem, since immigrants with green cards are free to job-hop too. To be fair, however, the desire for captive labor is not the only reason computer firms haven't promoted a re-allocation of family visas. To kill legal immigration reforms proposed in Congress in 1995, business interests and libertarians forged an alliance with leftists and ethnic advocates, and the main interest of the latter is in preserving and expanding family immigration. This alliance has not only persisted, but has become so intimate that representatives of the National Association of Manufacturers and the Cato Institute have joined representatives of the ACLU and the National Council of La Raza on the board of the National Immigration Forum, a re-packaged leftist organization founded in the 1980s with generous assistance from the Ford Foundation and the National Lawyers Guild.

Farmworkers: New Plan, No Limits

During every Congress, the indefatigable advocates for agribusiness float proposals for new agricultural guestworker programs, contending that the existing "H-2A" program is too unwieldy and bureaucratic, and thus allows for only a small number of temporary farmworkers to enter the country (around 20,000 a year). In July, these advocates finally succeeded in the Senate, which overwhelmingly approved a new program with neither numerical limits nor worker protections. It is no exaggeration to say that the measure would be a giant step toward The Wall Street Journal's stated desire to abolish America's borders.

Farmers perennially claim that without either illegal aliens or captive guestworkers, the crops will rot in the fields and American agriculture will implode. Guestworker programs thus become the only honorable means of feeding America's children.

Fortunately, this Hobson's choice is false. If deprived of both illegal workers and captive guestworkers, American agriculture would not only survive, it would thrive. (See Center for Immigration Studies Backgrounder No. 2-96, "How Much Is That Tomato in the Window? Retail Produce Prices Without Illegal Farmworkers" and Backgrounder No. 2-97, "Alternatives to Immigrant Labor? Raisin Industry Tests New Harvesting Technology.") While some marginal producers would go under, the industry as a whole would adapt and become stronger, as the smaller labor force becomes more stable (because of better pay and benefits) and productivity increases (through more-efficient use of labor and more-extensive mechanization). In any case, labor costs account for such a small portion of the retail price of fruits and vegetables that even the magical disappearance of all illegal farmworkers overnight would result in a barely perceptible increase in supermarket prices.

CNMI: Kuwait in the Pacific

The Commonwealth of the Northern Mariana Islands (CNMI) presents the most sobering look at the development of the captive-worker model of immigration. The United States wrested this island chain in the Pacific north of Guam from the Japanese in World War II and granted it commonwealth status, comparable to Puerto Rico, in 1986. Part of the commonwealth deal was that the islands would control immigration, in order to protect the indigenous culture from being overwhelmed by newcomers from nearby Asian countries (China is only 600 miles away).

Ironically, the local administration used this power to import a turnkey garment industry staffed entirely by guestworkers. These Chinese, Filipinos, and others now number 35,000, compared to only 25,000 U.S. citizens. The captive workers are subject to all the abuses one would expect, including payless paydays, sexual exploitation, coerced abortions, and, for some of the Chinese, no freedom to go to church. As for the native population, it is almost entirely employed by the government or on welfare, with foreigners accounting for more than 90 percent of the private-sector workforce. The only comparable examples in the world are Persian Gulf dictatorships like Kuwait and the United Arab Emirates.

Many Republican congressmen have resisted a Clinton Administration initiative to extend U.S. immigration and labor laws to the islands. This would make sense if a conservative alternative, like independence, were also on the table. But these conservatives — lawmakers, staffers, journalists, and others — have been seduced by the captive-worker model of immigration (not to mention scuba-and-luau junkets funded by the island government) and have touted the islands as a "phenomenal economic success" and an "experimental laboratory of liberty," as though the CNMI was Hong Kong with coconut trees instead of Kuwait without oil.

New Frontiers

There's more. New York City, reaping the rewards of 30 years of cultural revolution, can't find enough competent math and science teachers for its high schools. So it is airlifting hundreds of teachers from Austria, who will be labeled "research scholars" for visa purposes and allowed to work for three years — at wages and conditions set by their employer and without the right to seek employment elsewhere. These "research scholars" are being imported on J visas, a new frontier of captive labor.

And Sen. Alphonse D'Amato (R-NY), up for re-election in November, has cooked up a bill — sponsored in the House by Rep. James Walsh (R-NY) — that would establish a whole new nonimmigrant visa program, admitting 10,000 people each year from Ireland, north or south, for five-year stays, "for the purpose of providing practical training, employment, and the experience of coexistence and conflict resolution in a multicultural society" (as though they couldn't already do that in Dublin, London, or Berlin). Although the recipients of these visas would not be tied to a specific employer, their insecure status as temporary workers nonetheless gives their employers power over them which they would not have over a genuine immigrant.h1>What Is to Be Done? Now, there are plenty of reasons to oppose mass immigration of any kind — immigration is running at historic highs of more than one million per year, and the immigrant population now exceeds 27 million, about twice the peak around World War I and equal to about 10 percent of our population. With multiculturalism deeply rooted in every American institution, from the greatest corporation and foundation to the humblest local church and elementary school, we are in no position to properly Americanize our own children, let alone the children of so many strangers from overseas. Furthermore, 40 percent of the foreign-born are high-school dropouts, an "input" our high-tech economy doesn't need any more of. This unskilled immigration is also a significant drain on state and local tax coffers, thus concentrating yet more power in Washington. And even the immigration of skilled workers, other than the handful of genuine Einsteins, is helping turn certain occupations, such as nursing, physical therapy, and software design into "work Americans won't do."

But even if one believed there to be a need for foreign workers, importing indentured servants is precisely not the way to do it. Regardless of the level of permanent immigration, the captive-worker dilemma can be resolved by abolishing all long-term non-immigrant visa categories and ensuring that "temporary" visits by foreigners are truly temporary by limiting them to less than, say, six months. Since this would violate international agreements, particularly the General Agreement on Trade in Services (GATS), which prohibits Congress from cutting the H-1B visa program below 65,000 visas a year, the agreements would have to be changed.

The emerging captive-worker model is pro-immigration, but it is also explicitly anti-immigrant. And the anti-immigrant nature of these policies is hardly the way to win the hearts of newcomers to our country and their families, a group whom Republicans, the chief supporters of captive-worker immigration, have been particularly anxious to at tract in the past few years. Especially ironic is the role of Sen. Spencer Abraham (R-Mich.) — he has positioned himself as the champion of immigrants, going so far as to accept the 1997 Congressional Award from the National Council of La Raza for being "stalwart in his defense of legal immigrants," but is, at the same time, a stalwart defender of guestworker programs.

Proponents of captive-worker immigration forget the first principle of a free society: All of us, including immigrants, are human beings, created in the image of God, not mere factors of production to be used and discarded. After the failure of Germany's guestworker program, one writer lamented, "We asked for workers, but they sent us men." Some businesses may seek a labor force of captive workers, but the national interest demands a citizenry of free men.

(An abbreviated version of this article appeared in the September 14, 1998 issue of National Review.)