U.S. Workers Need Not Apply: Challenging Low-Wage Guest Worker Programs

Abstract

With the vow to protect U.S. jobs by cracking down on immigration, the current federal anti-immigrant agenda appears to limit any opportunities for comprehensive immigration reform. To the extent that such an agenda interferes with their low-wage immigrant workforces, many employers will likely turn to the expansion of guest worker programs as a way to obtain immigrant workers within a controlled migration program. The justification offered for such programs is that low-wage foreign guest workers are an easy way to fill “bad jobs” that no U.S. workers want. This Article challenges this commonly accepted narrative and explores how such programs create a cycle that fuels both U.S. worker shortages and the necessity for guest workers. In so doing, it demonstrates that guest worker programs are harmful to all low-wage workers. Scholars have amply criticized guest worker programs because they impair the rights of guest workers and contravene liberal egalitarian principles of social membership. These criticisms about how foreign workers are treated on U.S. soil, however, have been insufficient to tip the balance against these programs. What is missing from this debate is an attempt to understand why guest worker programs persist despite their many flaws. The programs’ legal framework broadly delegates power to employers to create U.S. worker shortages and to demand highly productive and compliant guest workers in the alternative. Cultural narratives operate to mask this reality by tying these trends to cultural explanations about low-wage workers. Together they create a climate that is favorable to guest worker programs. This Article’s close examination of these problems exposes why guest worker programs should not be a ready solution for immigration reform. It suggests a new approach to challenging such programs by broadening the lens to consider the plight of the U.S. worker. My purpose is not to pit U.S. workers against guest workers, but rather to offer a viewpoint that might connect normally disparate groups in unified opposition to guest worker programs. The U.S. worker can help shift the legal and social norms surrounding such programs by revealing how the fate of all low-wage workers is interconnected with government-enabled degradation of low-wage jobs. This approach thus suggests new advocacy strategies to eliminate guest worker programs in their current format in order to protect the dignity of all low-wage workers.