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  • AN EXAMINATION OF GUEST WORKERIMMIGRATION REFORM POLICIES IN

    THE UNITED STATES

    Merav Lichtenstein *

    INTRODUCTION

    The current undocumented immigrant population in the UnitedStates is estimated to be anywhere from ten to twelve million 1 and isincreasing by approximately five hundred thousand each year.' Today,undocumented migrants make up more than 29% of the nearly thirty-six million foreign-born residents in the United States.3 This enormousundocumented population demonstrates that the immigration policiesin the United States are failing and in need of a considerable overhaul.Failure to substantially repair the current immigration policy will resultin an unrelenting growth of the undocumented population. Throughprotests and messages to Congress, Americans are speaking out aboutthe need for immigration reform, placing the issue at the top of theirlists of problems facing the nation, "one that, in many people's minds,outweighs every other threat save international terrorism."4

    In January 2004, President George W. Bush proposed the institu-tion of a new guest worker plan under a policy called the "Fair and

    * Associate Notes Editor, Cardozo Public Law, Policy and Ethics Journal; J.D. Candidate

    (June 2007), Benjamin N. Cardozo School of Law; B.A. Emory University (2003). I thankProfessor Ellen Yaroshefsky for her assistance and guidance with this Note. I also recognize the

    efforts of past and present editors for their feedback and helpful editing. Most importantly, I

    want to thank my parents, brother, and friends for their support, love and constant encourage-

    ment, and Jonathan Purow, for his patience, warmth, creative insight, and humor during thefrustrating days of law school.

    1 JEFFREY S. PASSEL, PEW HISPANIC CENTER, UNAUTHORIZED MIGRANTS: NUMBERS AND

    CHARACTERISTICS 3 (JUNE 14, 2005), http://pewhispanic.org/files/reports/46.pdf.2 RAJEEV GOYLE AND DAVID A. JAEGER, CENTER FOR AMERICAN PROGRESS, DEPORTING

    THE UNDOCUMENTED: A COST ASSESSMENT 1 (2005), http://www.americanprogress.org/atf/cf/%7BE9245FE4-9A2B-43C7-A521-5D6FF2E06E03%7D/DEPORTINGTHEUNDOCUMENTED.PDF.

    3 PASSEL, supra note 1, at 3.4 Tamar Jacoby, Immigrant Nation, FOREIGN AFFAIRS, Nov. - Dec. 2006, at 50. Regarding

    American voters, Jacoby writes: "an overwhelming majority - between two-thirds and three-quarters in every major poll - would like to see Congress address the problem with a combina-tion of tougher enforcement and earned citizenship for the estimated 12 million illegal immi-grants already living and working here." Id. at 51.

  • 690 CARDOZO PUB. LAW, POLICY 6- ETHICS J [

    Secure Immigration Reform" program. 5 Though President Bush's pro-posal has not made any significant movement in the White House since2004, the idea did prompt Congress to draft a range of guest workerprogram proposals. Much debated but never completely agreed upon,the immigration reform bills proposed in Congress provide an exampleof the existing dispute underlying immigration reform policy, as well asa glimpse of what could happen in the future regarding the undocu-mented population.

    Despite the support of the President and the passage of a majorimmigration bill in the Senate last May,6 Congress has not been able toagree on how-and even if-a guest worker program should be legis-lated. Nevertheless, Democratic victories in the November 2006 mid-term elections have raised hopes for "sweeping changes '7 in immigrationreform and guest worker policies, and "the prospects for such a measure ..had markedly improved since November 7."8 At the time of thiswriting, members of Congress have resumed discussions regarding a newguest worker bill to be proposed in the coming months.9 Further, Presi-dent Bush stated in December 2006 that he would consider signing abill into law next year. 0 Though no solution will be perfect, somethingneeds to be done. -I

    A comprehensive discussion of immigration reform raises a varietyof issues, 1' most of which are beyond the scope of this Note. This Note

    5 Press Release, The White House, Fact Sheet: Fair and Secure Immigration Reform Act(Jan. 7, 2004), http:lwww.whitehouse.gov/news/releases/2004/O1/20040107-1.html (last vis-ited Feb. 24, 2007). See also Camille J. Bosworth, Guest Worker Policy: A Critical Analysis ofPresident Bush's Proposed Reform, 56 HASTINGS L.J. 1095, 1100 (2005). Since 2004, the Presi-dent has expressly repeated his appeal for immigration reform, including a guest worker policy,but has received much opposition from members of the Republican party. David Nitkin andMatthew Hay Brown, Bush's Push for Compromise is Greeted with Skeptiscim, President EncountersWary Democrats and Some Republican Opposition, BALT. SUN, Feb. 2, 2007, at 2A.

    6 In May 2006, the Senate passed a comprehensive immigration reform bill (for a detailed

    explanation, see infra section C), but the bill was later blocked by Republican opposition in theHouse. See Steven Labaton & Steven R. Weissman, Victorious Democrats Vow Cooperative Ap-proach on Taxes and Economy, N.Y. TIMES, Nov. 9, 2006, at Cl. See also Rachel L. Swarns,Senate in Bipartisan Act, Passes Immigration Bill, Tough Fight is Ahead, N.Y. TIMES, May 26,2006, at Al.

    7 Randal C. Archibold, Democratic Victory Raises Spirits of Those Favoring Citizenship forIllegal Aliens, N.Y. TIMES, Nov. 10, 2006, at A27.

    8 Rachel L. Swarns, Bipartisan Group Drafting Bill For a Simpler Path to Citizenship, N.Y.

    TIMES, Dec. 26, 2006 at Al.9 Id.

    10 Id.

    I I Including health care, education, taxes, Medicaid, etc.

    [Vol. 5:689

  • REFORMING IMMIGRATION

    will be limited to an examination of proposed guest worker programsand the legalization of undocumented immigrants, including, but notlimited to: whether the United States could implement a guest workerprogram sufficiently different from the one that it unsuccessfully exe-cuted in the 194 0s and 50s; how a guest worker visa program wouldcompare to the current temporary worker H-2A and H-2B visa pro-grams; whether there is a demand for guest workers in the United Stateslabor market; how long guest workers should be allowed to remain inthe country; whether guest worker visas should be tied to their em-ployer; whether family members should be granted visas; and finally,whether the program should provide a means for guest workers to ob-tain legal permanent resident status.

    In Part I, this Note briefly summarizes past immigration policiesregarding guest worker programs as well as the presently available tem-porary and permanent visas for immigrants looking to work in theUnited States today. This section also counters the argument that im-migrants are harmful to the U.S. economy and explores the apparentgap between the number of visas available to immigrants, and the actualneed in the United States for immigrant workers. Part II lays out arange of immigration reform strategies that have been proposed by thePresident and various members of Congress since 2004 to address theseissues. Part III provides an analysis and critique of previously proposedguest worker plans, including a consideration of the relevant issues listedabove. This Note argues that, in order for a guest worker policy to besuccessful, it must permit currently undocumented immigrants living inthe United States to adjust their status without having to leave the coun-try. Further, guest worker visas should not tie guest workers to theiremployer but should instead provide sufficient flexibility for workers tofind and switch employment according to demand. Additionally, theguest worker and his family must have the option to adjust to perma-nent status and not automatically be forced to depart the country uponthe expiration of their guest worker visa. In Part IV, the Note concludesthat, while eliminating the entire undocumented immigration popula-tion in the United States is impossible, an accommodating guest workerpolicy-such as the one passed by the Senate last May12-that suffi-ciently addresses the issues described above is a reasonable first step.

    12 See Senate Bill infra section C.

    2007]

  • 692 CARDOZO PUB. LAW, POLICY & ETHICS j [

    I. GUEST-WORKER IMMIGRATION POLICY: PAST & PRESENT

    A. A Step Back: A Look at a Previous Immigration Reform Policy

    Guest worker programs have been instituted in the past to copewith worker shortages at times of war. 13 The Bracero Program, estab-lished in 1942 during World War II, is the most well-known attempt ata guest-worker policy in the United States to date. 14 From 1942 to

    1964, more than four million Mexican immigrants worked in theUnited States as part of the Bracero Program. 15 Through an agreementwith Mexico, the United States permitted American farmers to hireMexican workers to meet their temporary employment needs by work-ing in the United States for up to nine months each year. 16 Linked totheir employers by federal government contracts regulating wages, andworking and living conditions,1 7 workers were then forced to returnhome to Mexico after the growing season ended.18

    The Bracero program was a large disappointment to both Ameri-

    cans and immigrants and came to an end after intense lobbying fromorganized labor and Latino organizations. Highly criticized for failingto keep its promises, 9 the American government was faulted for insuffi-ciently protecting workers and for ignoring the substandard workingconditions that occurred throughout the country.20 Workplace abuses

    13 ANDORRA BRUNO, CONGRESSIONAL RESEARCH SERVICE, IMMIGRATION: POLICY CON-

    SIDERATIONS RELATED TO GUEST WORKER PROGRAMS 1 (2005), http://shelby.senate.gov/legislation/Immigration.pdf.

    14 Patricia Medige, Panel Discussion: Perspectives on the Bush Administration s New Immigrant

    Guestworker Proposal: Immigrant Labor Issues,