Breakthrough Reached Between Business, Labor on Guest-Worker Program

Posted March 30, 2013 at 9:40pm

Labor and business groups have agreed on the details of a new guest-worker program, likely removing a major hurdle to an immigration deal in the Senate, according to two sources familiar with the negotiations.

The framework for a guest-worker program has long vexed an immigration overhaul, as labor interests feared a flood of low-wage workers undercutting American workers, while the Chamber of Commerce has led the push for a steady supply of workers.

The agreement was consummated on a conference call Friday night with Sen. Charles E. Schumer, D-N.Y. Both AFL-CIO President Richard L. Trumka and Chamber of Commerce President Thomas J. Donohue told each other they agreed on the compromise with Schumer on the line.

Schumer spoke Saturday to White House Chief of Staff Denis McDonough to brief him on the agreement.

“This issue has always been the dealbreaker on immigration reform, but not this time,” an optimistic Schumer said through his office.

But the source noted that the Senate’s bipartisan “gang of eight,” which has been negotiating a comprehensive immigration bill to release in early April, is reviewing the guest-worker agreement. The source also said that other issues remain that still must be worked out by the group.

“It’s not a fait accompli,” the source said.

Disputes over a guest-worker program were one reason a comprehensive immigration overhaul collapsed in Congress in 2007. This time, senators had hoped to punt the question of guest workers to the labor and business groups while they focused on other aspects of the bill. But the outside groups’ inability to strike a compromise forced the senators and their staffs to get involved in the talks earlier in March.

A final sticking point resolved by the Chamber and the AFL-CIO involved wages. The agreement will require employers to pay the same to guest workers as they typically pay their regular workers doing the same job, or the prevailing wage, whichever is higher.

Both sides agreed to set the initial number of new guest-worker visas issued in the first year of the program at 20,000. That’s fewer than the 400,000 that the Chamber wanted and more than the 10,000 that the union was hoping for.

The negotiators also agreed on a formula that would allow the number of visas issued to fluctuate beyond that initial number because of economic needs. Sources on both sides said the formula would involve around four factors.

First, it would take the national unemployment rate into account. Second, it would be based on the Job Openings and Labor Turnover Survey, a Bureau of Labor Statistics measure that assesses labor shortages by industry across the nation. The formula would also rely on employer demand and on the recommendation of a new bureau set up to analyze the labor market by sector and by region.

Overall, the program would be capped at 200,000 visas a year, although a “safety valve” would allow employers to pay a premium and hire a foreign worker once that cap has been reached.

The two sides agreed earlier that foreign workers brought in under the program should have a chance to become legal permanent residents and citizens. They also agreed that the workers should not be dependent on their employers for visas. Foreign visa holders who quit their jobs under the program would have 60 days to find another job from an employer that is certified by the government to take part in the guest-worker program.

Details of the agreement were still emerging Saturday, including the creation of a new government agency to monitor the labor market, according to the AFL-CIO.

The new agency would be called the Bureau of Immigration and Labor Market Research. Along with the agency a new visa program would be created for low-skilled workers called the W-Visa Program.

Trumka applauded the proposed new agency and the deal with the Chamber. “We expect that this new program, which benefits not just business, but everyone, will promote long overdue reforms by raising the bar for existing programs,” Trumka said in a statement. “But a new visa program is only a small part of our campaign to build a common sense immigration system. Mass deportations are a moral and economic crisis. The senseless thwarting of DREAMers’ efforts to live the American dream is a crisis. And we are leading a national campaign for reform that addresses these crises.”

The W-Visa program would allow for employers to petition for foreign workers in lesser skilled, non-seasonal non-agricultural occupations, which include jobs in hospitality, janitorial, retail, construction and other areas.

The bureau would be a separate and independent component within U.S. Citizenship and Immigration Services, Its director would be appointed by the president and confirmed by the Senate.

Bureau staff would include experts in economics, labor markets, demographics and other specialties needed to identify labor shortages and make recommendations, among other things, on the impact of immigration on labor markets as wells as the methods of recruitment of U.S. workers into lesser-skilled non-seasonal jobs.

The Bureau would also publish shortage lists by occupation and make annual recommendations and reports to Congress on how to improve employment-based immigration. The Bureau would further have a role in setting the annual cap on W Visas.

When the Bureau publishes a shortage list, those shortage occupations would have priority for W visas.

The program would start at 20,000 visas; then 35,000 visas would be available in the second year, 55,000 visas in the third and 75,000 in the fourth. On year five, the program will grow or shrink based on a statistical formula.

The cap can never be below 20,000 or above 200,000 in any year. One third of all visas available in any given year will go only to businesses under 25 employees and no more than 15,000 visas per year will be allocated to construction occupations.

Citizenship and Immigration Services would fund the bureau through registered employer and registered openings fees for employers.

Under the W-Visa program, workers would not be tied to a single employer. The program would not be available to employers who have laid off workers within 90 days, or to employers during a strike or lock-out.

The Department of Labor would establish a complaint process regarding an employers’ non-compliance with any condition in the program. The DOL would also pre-certify foreign labor recruiters.

State and federal employment laws would cover visa recipients to the same extent that U.S. workers are covered.

Employers are required to pay for all fees under the program and would not be permitted to transfer any fees to workers. The visa program would begin April 1, 2015, but the Secretary of Homeland Security could extend the start date by 6 months.

David Harrison contributed to this report.