Senator Merkley Takes on H-2B Guestworker Abuses

The abuse of temporary foreign workers in the United States has been well documented, from the Bracero program of the 1960s to the recent cases of seafood workers in Maryland (PDF) and Louisiana, fast-food workers in Pennsylvania, and forestry workers in Georgia. The wrongs to workers are sometimes nothing short of criminal: wage theft, violence and threats of violence, even peonage.

But harm is done to U.S. workers, too, before temporary “guest” workers are ever brought to the U.S.  The businesses that could and should be recruiting and hiring workers here in the U.S. at decent wages are shunning them to hire more exploitable, more desperate foreigners. The law and regulations that govern guestworker programs, most notably the H-2B non-immigrant visa program, are ignored or circumvented, leaving U.S. workers jobless while people from thousands of miles away do jobs the local workers are able and willing to do.

The law and regulations forbid the admission of any H-2B guestworker to the U.S. unless the employer attests that U.S workers capable of performing the job are not available and that the employment of foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor and the various State Workforce Agencies are charged with verifying that the jobs of U.S. workers are protected, but they have failed to do so.

In 2009 and 2010, Sen. Jeff Merkley (D-OR) and Rep. Peter DeFazio (D-OR) learned that millions of dollars of Recovery Act funds were being used to hire foreign H-2B guestworkers to cut and process trees in Oregon while thousands of Oregon’s local forest workers were unemployed and looking for jobs. Both taxpayers and local workers were taken advantage of by unscrupulous employers who didn’t care at all that the vital purpose of the Recovery Act was to put Americans back to work.

The Office of Inspector General investigated the recruitment and hiring practices of the forestry companies involved and found (PDF) that they turned away more than 100 U.S. workers before hiring a workforce made up entirely of H-2Bs (who, it should be noted, could be paid less-than the average wage for a comparable U.S. worker). The companies reported hiring 29 U.S. workers, but never did, while concocting a laundry list of reasons for refusing the others. The OIG concluded that the DOL and state agencies were unable to protect U.S. workers.

New DOL H-2B regulations that would have better protected the interests of the local workforce have been blocked by Congress and are tied up in federal court, so the scandal of replacing U.S. workers with H-2B guestworkers continues. But Sen. Merkley is trying to do something about it.

The Senate Gang of 8 has decided to open the floodgates to temporary foreign workers, expanding the H-2B program, tripling the size of the H-1B skilled worker program, and creating another low-skilled visa that will admit three times as many guestworkers as the current H-2B visa. Sen. Merkley has introduced an amendment to the immigration reform bill that will require genuine recruitment of local workers before guestworkers are admitted to take local forestry jobs. His amendment requires DOL to verify that the companies are giving U.S. workers a fair chance and requires state agencies to sign off before foreign workers are hired. These rules should be applied to every U.S. industry that uses the H-2B program, but I applaud Sen. Merkley’s efforts to ensure that at least in one part of the United States, in one industry, the rule of law will be that U.S. workers have a fair opportunity to find good jobs before they are given away to temporary foreign workers.