The Center for Immigration Studies hosted a panel discussion Thursday, April 2, on the Justice Department’s “Protecting U.S. Workers Initiative”, which was launched in 2017 to protect the interests of U.S. workers by cracking down on employers who are abusing temporary visa programs to deny U.S. workers job opportunities. The starting point for conversation was a Center report, highlighting the agencies and programs working to ensure that American workers are not being passed over for employment by businesses that are abusing visa programs to bring in cheap labor from abroad.
Center for Immigration Studies
Resident Fellow in Law and Policy
Center for Immigration Studies
MARK KRIKORIAN: Good afternoon. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies, and we’re online at CIS.org. We’re doing a panel discussion today, a virtual panel discussion, on a new paper about Justice Department efforts to protect American workers and more broadly on the concept of protecting American workers, especially in the current circumstances we’re facing.
Before I forget, anyone has any questions, please either email them to [email protected] or go to our Twitter feed; tweet us at @CIS_ORG. And I’ll repeat those after our discussion between us is over.
The issue of discrimination related to the immigration issue has always focused on discrimination against either immigrants of people thought to be immigrants. When the bill that finally turned into the 1986 amnesty law, the Immigration Reform and Control Act of 1986, the debate over that took a number of years – five or six years of wrangling in Congress where one house passed a version, the other didn’t, and then they had to start all over again. And one of the major holdups was that if the employment of illegal immigrants was going to be banned – because remember, before 1986 it was legal to employ illegal aliens – if we were going to change that, and the law did finally, many advocates for immigrants were concerned that immigrants who were not illegal, or even maybe citizens who were thought to be immigrants, would be discriminated against by employers; that employers would say, look, I don’t want the hassle so I’m just not even going to bother to look at you even if you say you’re legal. If you look or sound foreign – that was the terminology that was used – they were afraid employers would discriminate against those people, even though they were lawfully eligible to work.
And so there were various things built into the legislation – one of which was setting up an office in the Justice Department, which is what we’re going to be talking about in a second – to police those kind of things; to look after employers that were potentially discriminating against legal workers and fine them or whatever sanctions were appropriate. What seems to have really happened over the years is that although there are instances of legal workers who were discriminated against, usually the discrimination, if it’s – if that’s the word, was that employers would be asking for extra documents. Somebody would present something and they’d say, look, I don’t – you know, I don’t buy that; do you have anything better – you know, that sort of thing. And the law actually does not allow employers to do that, so that was usually what was involved.
What we’ve seen, though, over the past 30 or so years is that there is at least as large, if not larger, problem of discrimination against Americans in favor of people who either are or are thought to be immigrants. And that’s what the paper we’re going to be talking about today and the issue more broadly is about.
The author of the paper – I’m going to introduce and he’s going to tell us a little bit about what he found – is Andrew Arthur. He is a researcher here at the Center, known to his friends as Art, so I’ll be calling him Art. And he has a long history in immigration. He was in the old INS, he worked on the Hill actually drafting immigration legislation, was also an immigration judge, so he has an extraordinary body of knowledge and experience in this issue. And so I wanted to – I’ll pass it over to Art to describe what he found, what this office in the Justice Department is, what it does. And then we’ll talk a little bit about what the implications of that are, and maybe more broadly then about what this issue of benefiting immigrant workers at the expense of American workers is about. So, Art, why don’t you start your spiel?
ANDREW R. ARTHUR: Well, thank you, Mark. And Mark had alluded earlier to the Immigration Reform and Control Act of 1986, IRCA. IRCA’s probably best known for its amnesty provisions. IRCA provided amnesty for millions of aliens who were unlawfully present in the United States.
Along with the amnesty provisions it also included the employer sanctions provisions, which Mark alluded to, which make it illegal for an employer in the United States to hire an alien who does not have employment authorization. As Mark again alluded to, there was concern that these provisions in turn would lead to discrimination. So in Section 102 of the Immigration Reform and Control Act of 1986, IRCA, the Congress added a new Section 274B to the Immigration and Nationality Act. Section 274B prohibits discrimination against any authorized individual for employment on the basis of national origin for employers that have between four and 14 employees. Any employer with more than 14 employees is covered by the EEOC under the Civil Rights Act of 1964. But importantly for purposes of the paper, it prohibits discrimination on the basis of citizenship status for any employer that hires – that has more than three employees.
For purposes of the citizenship status discrimination provisions, an individual has to be a protected individual. Protected individuals are defined as United States citizens and nationals, lawful permanent residents, refugees, and asylees. Those are the individuals who are protected for purposes of the citizenship provisions in Section 274B of the Immigration and Nationality Act. So that really is the key provision that we’re going to be talking about today.
In April 2017, President Trump issued EO 13788, the Buy American and Hire American Executive Order. In that order President Trump directed the secretary of state, the attorney general, the secretary of labor, and the secretary of homeland security to protect the interests of U.S. workers – and those individuals that I just described, those protected individuals, are collectively known as U.S. workers or American workers – the administration of our nation’s immigration system, including by preventing fraud and abuse.
In line with EO 13788, the Immigrant and Employee Rights Section of the Civil Rights Division of the U.S. Department of Justice launched the Protecting U.S. Workers Initiative. Through that initiative, IER – the Immigrant and Employee Rights Section – is cracking down on employers who are abusing temporary visa programs to deny U.S. workers job opportunities.
Hiring foreign workers for employment in the United States normally requires approval from three separate government agencies. First, employers must seek certification from the Department of Labor. In order to do that, they have to show that they have attempted unsuccessfully to hire U.S. workers and that they’re willing to pay either a prevailing wage or an appropriate wage, which would normally be higher, to those workers that it wants to bring into the United States.
Once the employer gains certification, the employer must then petition U.S. Citizenship and Immigration Services for a visa. Approval of a certification by the Department of Labor does not guarantee visa issuance will occur.
The Department of State then must issue an immigrant visa number to the foreign worker for U.S. entry. Applicants must establish that they are admissible to the United States under the provisions of the Immigration and Nationality Act, and most specifically under the provisions of the Immigration and Nationality Act that show that their employment in the United States will not adversely affect the wages and working conditions of American workers. They also have to show that they don’t have a communicable disease, they’re not criminals, that they’re not terrorists, et cetera. But for purposes of those temporary workers, that really is the key provision of the INA.
Under the Protecting U.S. Workers Initiative, the Immigrant and Employee Rights Section of the Civil Rights Division is partnered with those other agencies, entering into memorandums of understanding involving information sharing with the Bureau of Consular Affairs at the Department of State, U.S. Citizenship and Immigration Services at the Department of Homeland Security, the Employment and Training Administration at the Department of Labor – and this is an important one because it’s the Office of Foreign Labor Certification at the Employment and Training Administration that certifies employers seeking employment-based visas, including H-2As and H-2Bs.
Finally, the predecessor to the Immigrant and Employee Rights Section, the Office of Special Counsel for Unfair Immigration-Related Employment Practices, had already entered into a memorandum of agreement with the Wage and Hour Division at the Department of Labor in January of 2017 that addressed information sharing within the respective agencies of jurisdiction. Wage and Hour is the section of DOL that ensures that the employers actually are paying the wages that they promised to those workers and that they are working in safe and secure working conditions.
U.S. Citizenship and Immigration Services and the Wage and Hour Division also have their own procedures by which they can protect U.S. workers. Workers who believe that they have been subject to discrimination can go onto the USCIS website and they can fill out a tip sheet. That tip sheet will allow individuals – any individual who is aware of fraud or abuse of our visa systems, not just the employment-based visa systems but also asylum fraud, refugee fraud, marriage fraud – to file a complaint with USCIS that USCIS will then investigate through its Fraud Detection and National Security Section. The backgrounder that Mark alluded to earlier contains contact information not just for IER, but also for USCIS and the Wage and Hour Division.
Thus far there have been dozens of investigations under the Protecting U.S. Workers Initiative at IER. One lawsuit has been filed and eight settlements have been reached, for a total of $1.2 million in civil penalties and back pay to U.S. workers who have been, IER alleged, discriminated against through the employment system. Those settlements involved three farms or agricultural companies that IER had alleged had favored H-2A workers over American workers; four businesses – a landscaper, a housekeeping contractor, a bus company, and a construction business – that IER had alleged had preferred H-2B workers over American workers; and a global certification company that administers professional exams that IER had alleged had favored H-1B workers over American workers. Settlements in those cases included penalties up to $321,000 and back pay for affected workers up to $85,000.
The purpose of the Center issuing this backgrounder particularly at this time is to let American workers know that there are places that they can go to where they can seek recourse at the highest levels of government for discrimination in the employment process in favor of temporary visa workers. The temporary visa worker program that Mark had alluded to, you know, is very tightly controlled. And the United States government, especially President Trump, is very serious about enforcing those provisions. It’s important that people know that there is a place that they can go to – numerous places that they can go to – to seek recourse, but it’s also important that everyone listening hold those agencies accountable for fulfilling their mandate under EO 13788.
And with that, I’ll hand it back to Mark.
MR. KRIKORIAN: Thank you, Art.
One thing I wanted to ask was – and this isn’t something you wrote – but in the fall, last fall, we published a paper along the same lines but related to the EEOC, the Equal Employment Opportunity Commission, doing something similar; in other words, suing companies that had discriminated against Americans based on, you know – that’s what I want to ask. It’s national-origins discrimination, as I understand it. Could you tell us a little bit about the different ways that the government can address this issue of discrimination against American workers? In addition to the thing you talked about, what is it that the EEOC can do?
MR. ARTHUR: EEOC has jurisdiction over national-origin discrimination for any employer that employs 15 or more individuals. So if a United States citizen, a United States national, believes that he or she has been discriminated against in the employment process, they can go directly to EEOC and file a complaint. That complaint has to be filed within 180 days of the discrimination. There’s a little bit of wiggle room there, but it’s very important that as soon as the worker knows that discrimination has occurred that they go to EEOC. EEOC is a separate agency within the United States government that addresses this and that carries out enforcement of the antidiscrimination provisions that are contained in the Civil Rights Act of 1964.
Another way to address this issue is to go to a private immigration – a private employment attorney. You’ll see advertisements for those attorneys on sporting events, as soon as we have sporting events again, but you’ll also see those on a lot of television programs. If you’ve been discriminated against in the workplace, it’s important to reach out to either EEOC or to a private immigration attorney so that you can seek recourse because this is serious discrimination that the United States government takes extremely seriously.
MR. KRIKORIAN: I’m looking at some of the questions that we’ve gotten in from listeners and one question is a good question, actually, is, why are the penalties so light? You had said that there was about 1.2 million (dollars) in civil penalties and back wages for, what is that, eight cases where they got settlements or seven cases. It doesn’t seem like that much. And so my question is, what kinds of penalties can be levied? And specifically – and this wasn’t in the question, but – one of the things that can be done is a company can be debarred from using the program. In other words, that’s the terminology for basically prohibited/excluded from using a visa program. And it does happen, and we’ve published a few things on this, but it doesn’t happen very often. It’s only the most egregious cases, and even then often it’s, like, a one-year suspension where they can’t use it. Why aren’t we seeing more – you know, more significant penalties against some of these employers that, I mean, let’s get back to it, what they’re doing is they’re discriminating against American citizens that the American government is supposed to be serving?
MR. ARTHUR: Yeah, that’s a good question. You had alluded briefly to my resume. My first job within the United States government was actually at the Office of the Chief Administrative Hearing Officer, which is a DOJ component in EOIR, the Executive Office for Immigration Review, that handles claims under Section 274B of the Immigration and Nationality Act. Unfortunately, proving discrimination in these cases can be difficult, but alleging discrimination to a degree where the employer agrees to comply is a little bit easier. Part of the reason why the penalties that these employers have agreed to haven’t been as high as we would hope is because they have settled claims that had been brought against them by IER in lieu of litigation.
Really, though, the most important thing that IER, that DOL can do is to force compliance by employers. You had mentioned debarment. Debarment is generally a penalty that is enforced by the Department of Labor for employers that refuse to comply with document requests or to cooperate in their investigations. But the process by which employers are forced to subject themselves to enforcement, to agree to monitoring by the Department of Labor, by the Department of Justice, those are equally important, particularly in some of the jobs that we are talking about.
The H-1B situation involved some, you know, pretty highly skilled individuals. The construction company in question was a company that had had a number of U.S. citizens or American workers – I don’t know whether they were U.S. citizens or not – but American workers who had been referred to it by the State of Maryland for employment that were passed over for employment. So getting those companies to comply is really a key component of this.
Initiatives like these really put the heat on employers and, more importantly, give the impetus to the numerous law firms that assist those employers to make sure that they are following the law. The penalties are important – $1.2 million in civil penalties and back pay. As Judge McGuire, who I used to work for, said, that’s after-tax dollars that those companies have to pay. You can’t deduct that from your tax returns the next year.
You know, those are, you know, significant amounts of money to smaller employers, but really, the most important thing is to put the fear of god into those employers that they need to comply with the law in the future. And again, that’s part of what these initiatives do, and that’s part of what we’re doing today.
MR. KRIKORIAN: You brought up the one case in the ones that you looked at that was a white-collar employee – or the H-1B case – or not – yes, the H-1B case you talked about. Well, one of our readers did ask – or listeners – why no action on white-collar programs? And obviously it’s not no action, but the majority of the cases you looked at, as well as the majority of the cases – in fact, I think all the cases in the paper on the EEOC instances that we published back in October, they were all blue-collar related. In other words, they were usually H-2A, which is farm workers, or H-2B, which is seasonal, non-farm, low-skilled workers.
And I have some thoughts myself. I was just wondering if you could speculate a little on why you think there has been less action on the H-1B, or maybe more generally the white-collar guest worker programs where you’ve got to figure there is a significant amount of discrimination against American workers there as well.
MR. ARTHUR: Well, I think that there are a number of reasons. One is a lack of information. I think that a lot of American workers have been passed over for those jobs, and they just don’t think that there is anywhere that they can go. And the fact is there is somewhere that they can go. They can go to USCIS. They can go to DOL. DOL has a specific form that an employee can fill out and submit directly to the department. And there is IER. Plainly, IER wants to bring those cases; they have every incentive to do so.
I think the other reason that it’s possible that we’re not seeing as many white collar cases brought is because those American workers have other job opportunities. When we’re talking about H-2A workers, when we’re talking about H-2B workers, those are generally, you know, fairly – it’s a fairly tight job market whereas more skilled workers have other opportunities.
But let me underscore it’s crucial that white-collar workers know that they have these opportunities, that they have somewhere that they can go to – not just these agencies, but also to labor lawyers who will bring these cases if they believe that discrimination has occurred because they want to get their share of the pie, too.
MR. KRIKORIAN: Yeah, I mean, we’ve got another question here from someone who is a U.S. citizen in a white-collar position; says he’s the only U.S. citizen remaining in my functional role, actively pressured and exploited into serving on employment interview panels which are corrupted with discrimination. He says he has complained a number of times, hasn’t seen any results.
I actually would add to the point you made on why this is the case. This is speculation, but I think the employers of these white-collar workers frankly probably have deeper pockets. They have attorneys that the government is frankly worried about, you know, fighting cases, dragging them out. In other words, they are able to fight to protect their ability to discriminate against American workers in a way that may be – and this may not be true, but I speculate it is – a lot of the employers of these lower-skilled workers, of H-2A and H-2B workers, may not have the same legal departments, basically, in order to try to fight off the government. So, in a sense, it seems to me almost incumbent on the government to go – to make extra efforts in going after discrimination against Americans in favor of H-1B or other white-collar workers precisely because it’s harder to do, but the discrimination is still there.
MR. ARTHUR: Yeah, and I think that your instinct is correct. When I was with the INS in San Francisco, I handled cases under Section 274A, the Employer Sanctions provisions. And, you know, with smaller employers they would generally, you know, settle fairly quickly. With larger employers, they would bring in large law firms, and I would have to fight those law firms tooth and nail in order to get compliance with the law.
So yeah, there is a built-in disadvantage on the surface. But again – and I think it’s, you know – one of the reasons why it’s important that we, you know, put out the paper, that we have this discussion today, is to let employees know that there are avenues for relief. Yes, you know, big employers have deep-pocket lawyers, but the American people are paying a lot of lawyers, too. There are tens of thousands of lawyers at the Justice Department. There are many very good lawyers at IER. DOL is well-staffed with lawyers, and they are supposed to be fighting on behalf of the American people.
President Trump has given a mandate – Buy American, Hire American – that they are supposed to be doing that job. So it’s absolutely crucial that everybody watching, everybody who reads the paper and, you know, everybody who is involved in the government expect the Department of Justice, expect the Department of Labor, expect USCIS and DHS to actually do their jobs to enforce these provisions.
I know that, you know, plainly this is something that’s important to Ken Cuccinelli. It’s something that’s important to William Barr. So, you know, it’s something that they need to make sure is important to their representatives, and it’s important to those departments as well.
MR. KRIKORIAN: Yeah, and along those lines, I mean, we do – and this isn’t so much a question; this is sort of just something for us to kind of ruminate on – but it’s not – there’s mixed messages from the various parts of the administration on how committed they are to protecting American workers. Obviously the president’s executive order was hire American, buy American so, I mean, that’s pretty clear.
But, for instance, the IER, the section within the Justice Department that your paper is about that is supposed to be protecting workers from discrimination, has no head – no permanent head. In other words, nobody is in charge over there. I assume there is some acting head, but nobody has been appointed to be in charge of that, and that – you know, that makes a difference because, you know, personnel is policy, and if there is no political appointee pushing that forward, you know, there’s a real possibility you are not seeing the same level of commitment.
And maybe even in other areas – for instance, the H-2B program. Like I said, it’s a seasonal work visa for non-farm workers, so it’s a lot of landscapers, hotel, amusement parks – that kind of thing – food processing in some cases. The Congress passed the buck in – one, in increasing the number of visas. They didn’t want to take a vote on that, so – they were pressured by lobbyists so what they did is they gave DHS the authority to increase up to a certain level if it wanted to, basically so that it would have to take the heat. And what we saw before the current virus crisis was that the DHS authorized an increase of 35,000 extra workers under this program.
So again, there you have a mixed message, and as of yesterday, they were supposed to start distributing the first 20,000 extra visas. Now – we just found out literally just now the – DHS has tweeted out that that increase is on hold.
So my point here is – and is you have thoughts on it I’d like to hear them – we’re seeing mixed messages from the administration. There seem to be different currents of opinion and different views, also, like on farm workers where the farm worker program is continuing.
Any thoughts on maybe how the administration can make those messages less mixed and be clearer in its commitment to the president’s executive order to hire American?
MR. ARTHUR: Well, the point about the fact that there is no current special counsel who is the head of IER – and that’s an entire story in and of itself as to why there is a special counsel – is a problem. But the fact is that the head of the Civil Rights Division is a presidential appointee, and the head of the Department of Justice, Bill Barr, is my first boss, is also a political appointee. And these are individuals who are, you know, concerned about these issues. They understand the president’s mandate, and they want to carry them out.
With respect to the mixed messages within the government, I think that that’s a problem. During a period of time when we were looking at record low unemployment, I think that, you know, Congress didn’t actually want to, you know, take the heat for saying we need to bring in more foreign workers, and as you’ve said, they passed the buck to DHS. DHS, I think, had to listen to, you know, the lobbies, and the lobbies are well-funded for these programs. And so, you know, they did cave to that pressure.
We’re in a very different world today. The fact that you and I are sitting in two different locations having this conversation is indicative of that. We heard today that there were 660 – I’m sorry, 6.6 million, rather, new unemployment claims filed last week on top of 3.3 million unemployment claims filed the week before.
There is a huge population of Americans who need jobs. And again, when I say Americans, remember I’m talking about citizens, lawful permanent residents, asylees and refugees who need jobs, who want jobs. Jobs are important not only as a paycheck, but as a reason to get up in the morning. And I think that we’re going to see a lot more pressure – I hope we see a lot more pressure from the president, from this administration to actually more fulsomely enforce these laws and to make sure that people don’t cheat, to make sure that the restrictions are limited, to make sure that American workers are the first ones in line for those jobs. That’s a statement that Attorney General Jeff Sessions made at the time that the IER settled that lawsuit.
So again, it is the policy of the Department of Justice. It is the policy of the United States government that American workers get jobs before we bring in foreign labor. Everybody listening, everybody who is concerned about this topic needs to make sure that that is a(n) important priority for their elected representatives – Democratic or Republican.
MR. KRIKORIAN: I just wanted to give a shout-out to former Attorney General Jeff Sessions because the reason this IER office exists – or at least that it was renamed and, in a sense, almost given this broader mandate to look after discrimination against American workers, not just against immigrants – is because of Attorney General Jeff Sessions. He’s the reason. This is one of the unheralded – many, many unheralded things that he actually pushed forward quite successfully when he was at the Department of Justice.
But along the lines of what’s going on now with regard to American workers, it was just reported this week that there were 275,000 applications for H-1B visas for the 85,000 capped visas. And it’s – those aren’t distributed till the fall, in October. But we’ve gotten a lot of questions on email and Twitter about, you know, what can be done about that because even if the employers are – let’s just stipulate they’re all following the rules, there’s no discrimination involved, so that the kind of things that this Justice Department office or the EEOC handle, let’s just say, are not happening; that this is all according to the book. It’s still 85,000 workers who are going to be given these H-1B visas.
And so one reader – one listener asks, does the president have the authority to halt this? And so, in other words, the law itself can’t be changed, but we are in extraordinary circumstances, and the law – and if you could just briefly tell us a little bit about that – does give the president the authority to keep out of the country any alien or any class of aliens whose admission is contrary to the interests of the United States. And I’d have to say, with 10 million people applying for unemployment just in the past two weeks, it seems to me importing additional foreign workers, even if they are admitted legally, is not in the interests of the United States – if you could just tell us a little bit about that provision and how it was recently upheld by the Supreme Court.
MR. ARTHUR: Yeah, Section 212(f) of the INA does give the president that authority, and it was upheld by the Supreme Court in the case of Trump v. Hawaii, which was the travel ban case. Again, travel ban is a misnomer because it really addressed restrictions on travel of certain nationals from certain countries.
But this is a very powerful authority that the president has been given. Again, Section 212 of the INA also provides – and Section 212(a)(5) – that certification of any individual to enter the United States is only on the condition that the secretary of Labor certifies that it will not adversely affect the wages and working conditions of American workers.
There is no question that, at this time, the admission of additional skilled workers – when we have skilled workers who have been let go – as a lawyer, I’ve seen – you know, law firms have let go legal professionals, and I’m sure that that’s happening in other professions as well. You know, this is a salient point; it’s moving target. The president does have strong authority.
Now the problem, as you know, Mark, is that every time that the president takes action under Section 212(f), that we see lawsuits filed in various district courts around the United States and, you know, malleable judges who are willing to, you know, accede to temporary restraining orders.
But I think that, again, we live in a very different world, so if the president were to take that action, I think that he probably – within his authority – could take that action, that there would be lawsuits. And again, you know, there are these laws in place for a very specific reason, and that is that we want to make sure that, in industries that are absolutely crucial where we do need people that we don’t have, that they are available. So that would have to be very narrowly tailored if the president were to do that. It would probably widely lauded, but again, the odds that some district court judge somewhere – in the Northern District of California, for example – would enjoin that are particularly high, so that if the president were to take that step the Department of Justice would need to be ready to enforce it.
But I think that, you know, given the amount of trouble that it takes to go through this process, the ideal employer that you are talking about now has a huge pool of American workers that they can draw upon.
MR. KRIKORIAN: Well, as far as the lawsuits go, obviously somebody would sue to stop the president from excluding the admission of foreign workers. But in a sense – and this is more of a political question – if I were president I would welcome such lawsuits. I mean, it’s – that would be almost the most unsympathetic plaintiff you could possibly imagine. I mean, it would be a, you know, step above Charles Manson suing for better conditions in jail. I mean, under what we’re facing now – I mean, if I were the president, I would – I would welcome being sued by people who want to bring in foreign workers.
But there’s one category, one issue on this that I wanted to bring up. And again, this isn’t discrimination so much as American workers or foreign workers in general. The H-2A program is for foreign farm workers, and what the State Department has said is that even though it has closed a lot of its offices abroad, that it’s still going to expedite the importation of foreign farm workers because it’s a national security priority. That is actually what the State Department said and, in other words, that our agricultural supply chain, if you will, or agricultural labor supply chain, you know, has to be preserved by importing foreign workers.
It seems to me that after the immediate emergency we are facing is over, that is one of those vulnerabilities – like importing pharmaceuticals from China, which we’ve now learned is a vulnerability – that we’re going to need to address. In other words, if our ability to feed ourselves is dependent on bringing in foreign labor, that’s a problem that we’re going to have to fix in the future by excluding foreign labor from at least our agricultural labor markets if possible.
So I think we’ve gone through most of the questions here. A lot of them were on this H-1B issue, and as far as we know, there hasn’t been the same level of enforcement in the kind of area you are talking about regarding cheating and lawbreaking on these white-collar programs as there is in the blue collar for reasons that are understandable and we talked about.
But I just wanted to direct listeners to Art’s report. It’s online at CIS.org. It’s called protecting U.S. workers – “The Protecting U.S. Workers Initiative,” which is the name of the program that the Justice Department office undertook. But at the end of the paper, under the conclusion, specifically has the phone number for American workers who are aware of discrimination, the phone number for employers who have seen other companies involved in discriminating against Americans, a tip form at USCIS, which is part of Homeland Security, for them to – in other words, to report violations, and then also instructions on how to report them to the Department of Labor.
And I think maybe the last big question we should talk about is a sort of bigger picture issue, and this was something a listener emailed, said, while it’s important to have these procedures – the kinds of things you talked about – these procedures in place to handle individual problems, would it not make more sense to have overall policies that seek the same goals? In other words, are there policy changes that should be made to make it less likely this kind of discrimination against American workers can take place?
And this is in my words, but to put it in a different way, aren’t these guest worker programs themselves inherently discriminating against American workers even if the companies, the employers involved dot all the i’s and cross all the t’s. What are your thoughts on that?
MR. ARTHUR: Well, yeah, I mean, that’s a very good point. Again, you know, these programs exist putatively in the world of the ideal employer and the ideal job to, you know, fill positions for which there just aren’t any Americans available.
But today there are Americans available, you know; 6.6 million new ones this week. And so, you know, I think that the ability of employers to certify that they couldn’t find anybody to fill these jobs is going to become a bit more questionable as we go forward; at least until we work our way out of the current situation that we find ourselves in.
As for a larger initiative, I think that that’s something that the White House should undertake. I think that the president should direct the Department of Labor and the Department of Homeland Security to come up with greater securities to ensure that these provisions are not abused, and to actually bring the hammer down on a few major employers.
The fact is if you read the websites of law firms that, you know, handle employment law, they regularly talk about – they regularly scare their clients with stories about things like the Protecting U.S. Workers Initiative. And so, you know, there are things that the government can do. There are steps that the president can and should take. And there are, you know, people out there who are concerned employers who are concerned with complying with the law. So the more stringent those restrictions get, the fewer individuals that these companies are going to try to bring in from abroad and the more Americans who are going to end up getting these jobs.
MR. KRIKORIAN: Yeah, the last thing I would add is that the administration has a role in better enforcing laws that Congress has passed, but Congress’ role is fixing the law itself. And a continent-spanning nation with a third of billion people – even before the current virus disaster – simply has no need for importing foreign labor except in the most extraordinary and narrow circumstances.
So the idea that we even have an H-2B program, that it exists at all, in my opinion, is by definition discriminatory against American workers – not in the legal sense we’re talking about but in a broader sense.
So let me wrap it up here. And let me repeat: CIS.org is our website. The paper that Art authored is “The Protecting U.S. Workers Initiative.” It’s on the site. If you go to the end of it, to the conclusion, he has specific links and phone numbers for American workers or employers who are worried about discrimination.
And thank you, everybody, for joining us, and we hope to be doing another one of these virtual panel discussions in the near future. Thanks a lot.