AILA Statement on Employment-Based Immigration Programs: Worker Protections and Systemic Reform

The American Immigration Lawyers Association (AILA) has never wavered from its commitment to an employment-based immigration system that is fair, transparent, and efficient. AILA unequivocally supports reforms that advance the basic rights of workers and promote the interests of employers in hiring a stable, legal workforce. Unfortunately, our immigration system is so fundamentally broken that in many industries neither the rights of immigrant workers and their U.S. counterparts, nor the interests of employers, are adequately protected.

In no sector of our economy is the dysfunction of our immigration regime so painfully evidenced as it is in agriculture. The failure of our immigration laws to provide a realistic means for farmers to hire seasonal works has forced employers to "opt-out" of the legal system and opt-in to an underground labor market. Estimates suggest that up to 75% of the agricultural workforce may be undocumented. This fact is evidence of a stark lose-lose situation: employers are forced to hire unlawfully and operate on the margins or lose their crops, and workers are forced to work without documentation and live in the shadows or lose their livelihood.

This unregulated labor market - which is mirrored in other industry sectors albeit somewhat less dramatically - triggers a host of untoward policy consequences: it undermines security interests, creates space for unscrupulous employers to exploit and abuse workers, disadvantages employers who attempt to use the flawed legal system, undermines respect for the rule of law, and breeds resentment within the American public.

A recent regulatory proposal by the Department of Labor to modify the agricultural worker visa program (H-2A) falls woefully short of the systemic reforms needed to correct and alleviate this dysfunctional Catch 22 situation. Some advocates have suggested that AILA's recent public comments on the proposed rule lacked sufficient attention to the legitimate concerns of workers triggered by this rule.

To dispel any uncertainty, we want to be clear: while our comments to the regulation focused primarily on whether and how proposed

changes could make this flawed program marginally more functional, AILA categorically opposes measures that undermine protections against any abuse of workers. For that reason, AILA has for many years been a leading proponent of the bi-partisan AgJOBS legislation that seeks to create a legal, sustainable agricultural labor market by balancing the interests of workers and employers.

AILA believes that the best protection for all workers - whether immigrant or not - involves systemic reform that brings the labor market out of the shadows, enabling employers to hire a legal workforce and workers to assert their rights. We believe that fair wages, decent housing, safe working conditions, and strong enforcement of the law against abusive employers are central prerequisites to a tenable agricultural worker program. As such, we renew our calls on Congress and the President to enact broad-scale immigration reforms that serve the nation's core socio-economic and security interests.

Cite as AILA InfoNet Doc. No. 08050268.