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Over the past decade in particular, the AFL-CIO has tried to stand in the breach: fighting both for justice for native and naturalized workers as well as for the undocumented. Even as it has embraced the cause of undocumented workers however, it has never adopted the ideological justifications and rhetorical devices of many in the business community. Perhaps no other phrase more epitomizes the difference between labor and others in the pro-immigration camp than “they are doing the work no one else wants to do”. To the person on the street, this may seem to be a simple truth and to some in the business community a handy heuristic, but from labor’s perspective, it is a justification for exploitation. The objection is that this type of thinking suggests that there is a natural law of labor markets that says that immigrants and especially those who are illegally present are destined for certain jobs. From labor’s perspective, wages are what make a job attractive—when they are higher, more workers will choose to do them.

Whether one comes out of the labor movement or not and even if one thinks that wages alone do not dictate the status of a job, the rejection of market fundamentalism—in this case the assumption that somehow the status quo position of undocumented and low skill immigrants doing the so called “3D” jobs is inevitable—is a useful counter-factual. From labor’s perspective, there is nothing inherent in a job that makes it good or bad--all jobs can be good jobs—if the workers who do them have negotiating power. Labor history is replete with examples of workers—garbage collectors, grave diggers, meatpackers, hospital orderlies and janitors—to name but a few, who have elevated their conditions through organization. From labor’s point of view, immigrant workers get stuck in the worst jobs because they lack legal status or English language skills and are forced to accept the worst conditions in exchange for an opportunity to work. The movement’s more nuanced view of migrant labor and low wage work is an important corrective to what Tichenor in other work has labeled the “free market expansionists”[endnoteRef:3] who support large-scale immigration to meet the labor needs of business interests but have less concern about seeing that labor and employment rights are followed or improved upon. In standing up for the wages and working conditions of all workers, resisting the commodification of labor and refusing to accept the “jobs no one else will do” fallacy, the unions’ stance must be viewed as something more than simply another interest group protecting its members. This is why we stand to learn so much from observing the immigration debate from a union vantage point. With this in mind, the remainder of this short paper will focus on the current debate over how levels of employment-based temporary and permanent immigrant admissions would be set going forward. [3: See Daniel Tichenor, Dividing Lines: The Politics of Immigration Control in America (Princeton: Princeton University Press) 2002, p. 35.]

The Challenge of “Future Flow”

The liberalization of admissions policies that followed the passage of the Immigration and Nationality Act of 1965, overturned four decades of racially and ethnically discriminatory national origins quotas and led to a dramatic shift in immigration sources to the United States. Latin Americans and Asians began to make up a large majority of immigrants arriving in the country after 1970. However, while the 1965 law ended discriminatory country quotas it placed limits on migration from the western hemisphere for the first time. The INA, or Hart Celler Act also privileged family reunification above all other categories for US admission, providing far fewer employment than family visas. In 1964, the US temporary worker, or bracero program with Mexico ended, abolishing a major pathway into the US for less skilled immigrants.[endnoteRef:4] Later policy changes placed Mexico under a 20,000 per year country quota, abolished the right of minor children to sponsor the immigration of parents and repealed the “Texas Proviso” that had exempted employers from prosecution for hiring undocumented workers. Nevertheless, in the ten years between 1980 and 1990, the number of Mexican immigrants living in the US doubled and then doubled again between 1990 and 2000.[endnoteRef:5] By 1980, Warren and Passel estimate that fully half of all Mexicans who were living in the US were undocumented. [endnoteRef:6] [4: Kitty Calavita, Inside the State: the Bracero Program, Immigration and the I.N.S., (Louisiana: Quid Pro Quo Books) 2010. ] [5: Jeffrey Passel, D’Vera Cohn & Ana Gonzalez-Barrera, Net Migration from Mexico Falls to Zero-and Perhaps Less (Washington, DC: Pew Research Center, 2012).] [6: Robert E. Warren and Jeffrey S. Passel “A Count of the Uncountable: Estimate of Undocumented Aliens Counted in the 1980 Census” Demography 24, (3) 1987: 375-393. ]

The passage of the North American Free Trade Agreement (NAFTA) in 1994 and structural adjustment policies had a devastating impact on Mexican agriculture as well as certain domestic manufacturing sectors, leading to increased levels of migration even while avenues for legal admission and to legalization once in the country, were increasingly restricted[endnoteRef:7]. All of these policy changes contributed to drastic increases in the undocumented immigrant population in the US, and most, without comprehensive immigration reform have had very little chance to get on the vaunted pathway to citizenship. Employment-based admission essentially excludes unskilled workers. Nevertheless, large numbers of Mexican workers—the most sizeable wave of immigration from a single country in the history of the US, along with smaller but significant numbers from Central America, migrated to work in the United States from the 1970’s until the late 2000’s when net migration fell to zero.[endnoteRef:8] [7: Douglas S. Massey, “The New Immigration and Ethnicity in the United States,”Population and Development Review 21, no.3 (1995), 631; Pierrette Hondagneu-Sotelo, Gendered Transitions: Mexican Experiences of Immigration (Berkeley, CA: University of California Press, 2004), 19-33.] [8: Jeffrey Passel, D’Vera Cohn & Ana Gonzalez-Barrera, Net Migration from Mexico Falls to Zero-and Perhaps Less (Washington, DC: Pew Research Center, 2012), 21. Migrant numbers from Mexico have decreased since 2007. Explanations for this range from the efficacy of government enforcement such as increased deportations and heightened border control to social and economic factors like lower birthrates and greater opportunities in Mexico combined with the lasting downturn in the U.S. ]

By 2009, foreign-born workers accounted for 15.7 percent of the civilian labor force, but eight million of them were undocumented immigrants accounting for over five percent of the labor force[endnoteRef:9]. The last large-scale amnesty had taken place in 1986 with the passage of the Immigration Reform and Control Act and whereas there had previously been mechanisms such as 245i, for undocumented immigrants to come forward and regularize their status, with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, penalties for immigrants found to be illegally in the country were drastically increased, subjecting them to three and ten year bars. For the estimated 11.5 to 12 million undocumented immigrants in the US today, excluding young people who have recently been offered temporary legal status through President Obama’s Deferred Action for Childhood Arrivals (DACA) memo of 2012, comprehensive immigration reform is the only pathway to some kind of immigration status and eventual citizenship. [9: Rakesh Kochhar, C. Soledad Espinoza & Rebecca Hinze-Pifer, After the Great Recession: Foreign Born Gain Jobs; Native Born Lose Jobs (Washington, DC: Pew Hispanic Center Report 2010). ]

With immigration reform again on the table (after failed efforts in 2003 and 2007) along with considerations of what various “earned legalization” programs would look like, over the past few years questions about “future flow”--how levels of employment-based temporary and permanent immigrant admissions would be set going forward—have come to the fore. Finding a workable approach to future flow is important; it is reasonable to assume that even after the estimated 11.5 million undocumented workers in the US today are provided some kind of legal status, immigrant workers will continue to enter the country and a new build-up of undocumented workers will be the inevitable result, unless a better system is put into place that provides a practical, legal way of entering the country to work. To see evidence for this point of view, one need only look at the Pew estimate of unauthorized immigration that was released on September 23rd of 2013, which found that after a sharp decline from 12.2 million in 2007 to 11.3 million in 2009, presumed to be caused by the Great Recession, the number in 2012 had risen to 11.7 million.[endnoteRef:10] As it had been a significant player in previous immigration policy moments,[endnoteRef:11] the national labor movement has been integral to the most recent conversation about future flow. [10: “Population Decline of Unauthorized Stalls, May Have Reversed: New Estimate 11;7 million in 2012” Pew Research Center’s Hispanic Trends Project, September 23, 2013.] [11: ” Janice Fine and Daniel J. Tichenor “A Movement Wrestling: American Labor’s Enduring Struggle with Immigration 1866-2007 Studies in American Political Development, Volume 23, Number 1, pp. 84-113, April 2009.]

Labor Forges a United Front

The Obama Administration, in analyzing Congress’s failure to pass immigration reform in 2007, concluded that the disunity among unions that had occurred during the previous effort, while certainly not the proximate cause, had complicated matters and needed to be avoided. The Federation was strongly encouraged to try to unite all of labor behind one immigration proposal. Despite declining membership and a deeply hostile climate in recent years, heavy participation in politics and public policy still enables labor to fight above its weight class[endnoteRef:12] and the Obama Administration felt that a united labor movement needed to be satisfied with any immigration policy initiative in order to put labor’s strength behind it. The AFL-CIO, despite having been weakened by the defection of five of its largest and most dynamic affiliates[endnoteRef:13], was still viewed as the central convener of the labor movement regarding many issues including immigration and was continuing to play an important role on immigrant worker rights issues.[endnoteRef:14] So the AFL-CIO, working with the Economic Policy Institute (EPI), brought in Ray Marshall, an economist and former Secretary of Labor under President Carter to help develop a proposal that could satisfy unions as disparate in their interests as the building trades, white collar professional organizations and those representing low wage service workers.[endnoteRef:15] [12: National exit polls have consistently shown voters from union households to have made up between one-fourth to one-fifth of the electorate in presidential elections since 1992. Taylor E. Dark, The unions and the Democrats: An enduring alliance. Cornell University Press, 2001.] [13: Four of the five founding unions of the new Change to Win Coalition had the largest numbers of foreign-born workers in their membership bases of the entire Federation and had ambitions to organize millions more. ] [14: “New Forms to Settle Old Scores: Updating the Worker Centre Story in the United States” Vol. 66 (4), 2011 of Relations Industrielles/Industrial Relations (RI/IR)] [15: Marshall, Ray “Getting Immigration Reform Right” EPI Briefing Paper, March 15, 2007 http://www.sharedprosperity.org/bp186/bp186.pdf]

As key players at the Federation saw it, there needed to be a legalization program for the 10-12 million undocumented residing in the country along with the establishment of a system for future flow—which would address how levels of employment-based temporary and permanent immigrant admissions would be set going forward. The AFL-CIO asked Marshall to chair a special committee on immigration that had as its mission bringing unions together around development and adoption of a common position on immigration reform.[endnoteRef:16] Well known for his efforts to raise labor standards, Marshall had the standing to visit with the principals of many national unions including construction unions like the bricklayers, ironworkers and electricians who felt that construction was being disproportionately impacted by immigration and had historically been hostile to the Federation’s support for reform and bring them into a process. Marshall also met with agricultural unions including the Farm Labor Organizing Committee that had long been working to unionize migrant workers in the fields including those who were working for R.J. Reynolds. [16: The Labor Movement’s Framework for Comprehensive Immigration Reform, AF L-CIO and Change to Win, April 2009 http://www.aflcio.org/issues/civilrights/immigration/upload/immigrationreform041409.pdf]

Among some of the building trades unions there was a view that immigration itself, rather than industry or government, was responsible for rampant misclassification of workers as independent contractors by employers and that the way to curtail it was to require employers to verify the immigration status of workers through e-verify. The white collar union International Federation of Professional and Technical Engineers (IFPTE) had been campaigning for reform of the H-1B and L-1 visa programs, arguing that employers were hungry for these visas because they made it possible to hire skilled foreign workers for less money—not because there was a shortage of similarly qualified domestic workers.[endnoteRef:17] The common thread running through Marshall’s conversations with national unions was the perception that immigration was undermining labor standards. [17: “Guest Worker Programs and the STEM Workforce” , Fact Sheet 2011, IFPTE]

Weighing all of the different issues raised by the various national unions, Marshall developed the framework that would comprise the basis for labor’s new immigration policy consensus. The basic tenets of the policy were:

1. An independent commission to assess and manage future flows, based on labor market shortages that are determined on the basis of actual need;

2. A secure and effective worker authorization mechanism;

3. Rational operational control of the border;

4. Adjustment of status for the current undocumented population and

5. Improvement, not expansion, of temporary worker programs, limited to temporary or seasonal, not permanent, jobs.

For the AFL-CIO, the future flow component was the linchpin of the entire framework because it addressed how immigration would be managed going forward (once undocumented workers and their families had a pathway to legalization and visa back-logs were cleared) and would replace what they viewed as a ineffectually regulated, no-hold’s barred market-driven system with a government run commission of experts for determining the numbers of permanent and temporary workers admitted into the U.S. The Marshall framework placed the setting of temporary and permanent employment visas in the hands of an independent commission that would assess labor market needs on an ongoing basis, examine the impact of immigration on the economy, wages, the workforce and business and, utilizing a methodology approved by the Congress, set the numbers of foreign workers to be admitted on employment visas. There would be no country caps or what is referred to as “arbitrary” caps on occupational classifications; admission numbers would be set based upon a determination of a long-term labor shortage in an industry. Employers would be required to prove that they had made a strong effort to hire US workers and to “fill those jobs at the prevailing wage and other conditions that will not cause a depression in wages or working conditions in that industry.”[endnoteRef:18] Prevailing wages would be set by state labor departments with geographically specific data and workers would be covered by all US labor and employment laws. Once an employer’s petition to hire a foreign worker was approved, the job would be listed on a computerized job bank list available through US consulates across the globe; workers would send in applications while living in their home countries and employers would hire based upon these applications. [18: “AFL-CIO’s Model for Future Flow: Foreign Workers Must Have Full Rights” p. 2.]

Hired workers would come into the US with a conditional green card that would turn into a standard green card once the government processed a worker’s petition to remain in the US. As unscrupulous practices on the part of recruiters has been a source of worker exploitation, no employer or labor contractor would be allowed to recruit abroad. To function properly, the system required congress to appropriate adequate funds to ensure against backlogs, which have been a major problem under the current system, and that “all visas that can be distributed each year are actually distributed, under both employment and family classifications.”[endnoteRef:19] Finally, the proposal called for reforms to existing temporary worker programs beginning from the principle that they apply only to seasonal labor shortages, are limited in size and scope, require employers to pay the adverse wage level set by state workforce agencies and to bear the costs of recruitment fees, hiring, subsistence and travel “so that workers are not exposed to large debts that hinder their ability to enforce their rights”.[endnoteRef:20] To aid workers in recovering pay they are owed, the proposal required employers to post a bond that is “at least sufficient in value to cover the worker’s legal wages…” and mandated creation of a system that facilitated workers making claims against the bonds.[endnoteRef:21] The AFL-CIO and Change to Win adopted the Marshall framework in 2009. [19: Ibid.] [20: Ibid] [21: Ibid p. 3.]

Not surprisingly, several prominent employer groups opposed the framework ideas arguing for a market-based rather than regulatory solution. The Essential Worker Immigration Coalition (EWIC), a group comprised of many of the largest employers in the fast food industry, denounced the proposal to have a commission. Instead, EWIC has argued for a provisional visa program that “gives employers, not government, the primary say in which workers they need to man their businesses and gives the US labor market, not Congress or a commission, the primary say in how many workers enter the country annually in a legal program”.[endnoteRef:22] The US Chamber of Commerce echoed EWIC’s position, asserting that “the free market is by far the best tool for setting immigration quotas and picking immigrants…Employers need and will continue to fight for a market-based immigration system.”[endnoteRef:23] A Republican-oriented pro-immigration think-tank, the National Foundation for American Policy (NFAP) issued its own policy brief critiquing the commission idea, concluding that a commission would “…likely harm US competitiveness, push more work outside the United States, fail to reduce illegal immigration and will increase the number of immigrants who die each year at the border due to a lack of legal avenues to work in America.” Strikingly, despite major philosophical disagreement, the Chamber was to become the Federation’s partner in forging a compromise. [22: “Business Group Disappointed by Immigration Proposal, Looking Forward to Congressional Debate on Reform” Essential Worker Immigration Coalition, December 16, 2009.] [23: Press Release, US Chamber of Commerce, June 2009.]

Labor and the Chamber

In 2012, the “Gang of Eight”, the bi-partisan group in the Senate that was working on developing a comprehensive immigration reform proposal that could move through congress, made another request of labor: that the AFL-CIO work with the US Chamber of Commerce on developing a compromise proposal for regulating the future flow of low wage workers into the US after some form of legalization was extended to the unauthorized currently in the US, which would address how levels of employment-based temporary and permanent immigrant admissions would be set going forward.

With its labor consensus plan in hand, the AFL-CIO began negotiations with the Chamber. Such an attempt to bring together labor and business around immigration policy was not unprecedented but certainly rare and had not been approached since 1990, when a potent left/right coalition supported the expansion of legal immigrant admissions.[endnoteRef:24] The stakes were high: if a future flow component was not included in the Gang of Eight’s proposal, there was fear that it could be dismissed by some as another short-term fix that did not address the underlying causes of high numbers of undocumented immigration. [24: See Daniel Tichenor, Dividing Lines: The Politics of Immigration Control in America (Princeton: Princeton University Press) 2002, pp. 281.]

During the period that the AFL-CIO had been developing the labor consensus proposal, the Chamber had developed its own future flow proposal for less skilled immigrants that would cover “any non-farm, low skilled job that does not require a college degree as standard preparation, including year-round employment”[endnoteRef:25] which became the basis for its negotiations. It proposed a new kind of two track program in which employers who demonstrated that they have made a “good faith” effort[endnoteRef:26] to hire US workers would be given permission to hire foreign workers for specific, registered jobs and foreign workers would obtain visas through a separate visa application process that is not job specific. Foreign workers would be granted visas based on initial job offers, but would then be free to change jobs within the US and to accept work from any employer who has gone through the process of demonstrating a labor need and registering with the program. While the initial visa would be for two years and could be renewed twice, the Chamber labeled it “dual intent” saying that visa holders should be able to transition to permanent visas by “earning the right to get in line for a green card.” Wages would be based on the “actual wage paid to similarly situated US workers in the same location OR an agreed upon prevailing wage, whichever is greater.” A major proposal underwriting the program was for a demand-based visa cap that would float up and down in response to employer demand up to 400,000 per annum. [25: Chamber of Commerce, “Less Skilled Worker Visa Program” February 5, 2013, p. 3.] [26: In its support for attestation which simply requires employers to attest that they tried to find US workers, as opposed to labor certification, which involves a determination of whether qualified workers are available to do the work and whether the hiring of foreign workers will adversely effect the wages and working conditions of similarly employed US workers, the Chamber’s sense of what a “good faith” effort entailed certainly differed from labor’s.]

Important business actors (as well as some scholarly and public policy organizations such as the Cato and Manhattan Institutes) in the future flow debate assert the argument that international migration to the US rises and falls with the market and that government is limited in terms of its ability to regulate it. In synch with the Chamber’s proposal, they argue for an approach that, rather than trying to staunch the flow would focus instead on providing a legal way for the same numbers to come. Those who support this approach are not a heterogeneous bunch, while some are motivated by poverty alleviation and worker rights and believe that if workers come legally they will have more standing in the labor market, others are more motivated by ensuring a robust low wage labor supply in specific sectors. Whatever the motivation, these groups are united in their belief in a “market-based solution” or “logic” that would transform the flow from illegal to legal by drastically raising the number of temporary visas available to workers and making them easy to get so that all are able to access the labor market legally rather than trying to restrict the flow. The Chamber, and these other proponents are inclined to argue for a flexible visa cap that would accommodate all who applied—in economic terms, one that would “clear demand”. [endnoteRef:27] [27: See for example, Stuart Anderson, “Making the Transition from Illegal to Legal Migration” National Foundation for American Policy, November, 2003. Daniel Griswold “Willing Workers: Fixing the Problem of Illegal Mexican Migration to the United States” the Cato Institute, October 15, 2002, Douglas S. Massey, Jorge Durand and Nolan J. Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration, pp. 142-164, New York: Russell Sage Foundation, 2002. and Janice Fine et al “The W Visa: A Workable Compromise in a Difficult Situation”, proposal prepared for Center for Community Change and SEIU, 2007. ]

The Future Flow Compromise

During negotiations with the Chamber, the AFL-CIO reluctantly brought forward its own temporary worker program (although given that it had a path to permanence the Federation insists it is not one) that would be keyed to the numbers produced by the new bureau regarding “shortage occupations” and “surplus occupations”. After the initial 18 month moratorium during which the Bureau would be getting up and running, the annual cap of W-visas would be 10,000 per year and would fluctuate solely on the basis of a statistical formula that would be based upon 4 factors: the rate of change in the number of new job openings in the economy (30%), the inverse rate of change in the number of unemployed Americans looking for work (30%), the percentage change the bureau recommends the annual cap number should decrease or increase (25%) and the percentage difference in which the number of applications for W-Visas either exceeds the cap or fails to meet the cap (15%). If a visa were unavailable, either because the cap had been exceeded, or the MSA unemployment rate was above 8%, through what they dubbed the “Safety Valve” process, an employer could still get a worker by paying the highest level wage possible and by conducting “robust recruitment” of American workers. They staked out a position that in no event would the W-Visa cap ever exceed 200,000, a number that, although not pegged to market demand, was comparatively quite high, given where some of its members would have liked it to have been.[endnoteRef:29] [29: “Proposal for Worker Program” internal document in possession of author.]

After many intense months of negotiations, on March 29, 2013, the AFL-CIO and the Chamber announced that they had reached agreement and released their plan. In a nutshell, labor got the commission it had hoped would be the linchpin of a comprehensive new approach to employment-based non-immigrant (temporary) and immigrant admissions and the Chamber got a version of the market-based visa program it had proposed. The future flow proposal the two agreed to attempted to stem future unauthorized immigration by creating opportunities for immigrants to migrate and take up jobs legally in sectors deemed to have labor shortages including some that have not previously been included in existing temporary worker programs such as home health aids. The program had two components: a new research bureau housed at USCIS that would study the impact of immigration on labor markets, identify labor shortages and make annual recommendations to Congress, and a new visa program for employers to petition for foreign workers in lesser skilled, non-seasonal, non-agricultural occupations, called the W-Visa.[endnoteRef:30] Wages paid to the W-visa holders had to be either “the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment based on the best information available as of the time of filing the application.”[endnoteRef:31] [30: The W-Visa was originally developed by a working group pulled together by the author, at the behest of the Service Employees International Union (SEIU) and the Center for Community Change (CCC) to try to come up with a workable solution to labor’s guest worker conundrum in 2007. During the intense campaign for comprehensive immigration reform in 2007, some labor leaders within Change to Win, the rival federation that had been formed by some of the largest unions in 2005, concluded that the federation’s hardline opposition to a guest worker program was preventing a workable policy compromise with business. Feeling that reform was within reach, in exchange for a means of legalizing roughly twelve million undocumented immigrants in the United States, some Change to Win unions acquiesced to an expansive temporary worker program. In contrast, the AFL-CIO adopted the position that once a labor market shortage and legitimate employer need for new immigrant workers was established, it should be met by increasing legal permanent resident (LPR) visas rather than expanding temporary programs. The W-Visa Working Group was an effort to come up with a temporary worker program that Change to Win and the AFL-CIO could accept. The Chamber’s proposal, developed six years later, shared some similarities. Although virtually every member was strongly in favor of regulation as a general principle and wished it were politically feasible to provide green cards to all who desired them, they found themselves on this project, largely united by a common belief in a more market-based, temporary worker solution because they wanted visas to be widely available and easily obtainable for workers and the program to stand a chance of congressional passage. They believed that in order for a visa to function the way they hoped it would, in addition to greatly expanded rights for workers intended to mandate complete equality between W Visa holders and other workers, every obstacle to hiring workers that had led employers to abandon guest worker programs in the past had to be removed and everyone who wanted to come needed to be able to do so legally, so the linchpins of the visa were minimal paperwork and numbers high enough to clear demand. Many of the original concepts underlying the W-visa were preserved but two of the most important, the idea of the employer playing no role in the visa acquisition process, and the availability of enough visas to clear demand, were not.] [31: (2) The “best information available” for determining the prevailing wage for the W nonimmigrant shall be defined as: (A) The wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data; or (B) If no Bureau of Labor Statistics Data is available, a legitimate, recent private survey of the occupation in the Metropolitan Statistical area; or (C) A controlling collective bargaining agreement or federal contract wage if applicable.]

The Bureau will be a separate and independent component within US Citizenship and Immigration Services (USCIS) with the director appointed by the President and confirmed by the Senate with a staff of experts in economics, labor markets, demographics and other specialties needed to identify labor shortages and make recommendations on the impact of immigration on labor markets as well as the methods of recruitment of US workers into lesser skilled, non-seasonal jobs. The Bureau is charged with publishing shortage lists by occupation and making annual recommendations and reports to congress on how to improve employment-based immigration. It also has a role setting the annual W-Visa cap.

The terms of the new visa represent a dramatic break from existing temporary worker programs—in which employers have total power over participating workers and are known for persistent abuses and workers have no pathway to permanence. The W visa would allow workers to move between employers rather than be bound to a single one and to self-petition for permanent status after a year. The new visa also allows workers to bring spouses and minor children and to travel outside the US. Most importantly from the perspective of guarding against unfair competition, workers are to be covered by all state and federal employment laws and employers are required to offer W-visa-holders wages and working conditions that would not adversely affect the wages and working conditions of US workers.

To guard against labor substitution or striker replacement, employers who have laid off workers within 90 days or whose workers are on strike or locked out would not be eligible to apply for visas. W-visas also cannot be issued to employers in geographic regions where unemployment is over 8.5%. One third of all visas available in any given year are required to go only to businesses with under 25 employees and, in an explicit nod to the building trades unions’ concerns and high unemployment, no more than 15,000 visas per year will be allocated to construction occupations. To address the issue of workers taking on large debts to labor recruiters, employers are required to pay all fees under the program and are not permitted to transfer any fees to workers and foreign labor recruiters are required to be certified by the Secretary of Labor.

These components were incorporated into the comprehensive immigration bill that passed the Senate in July of 2013. Those that were not incorporated, including portability of the visa between employers, a crucial component, presumably will be added in, either in a House version of the Senate bill or during conference committee deliberations.

The greatest controversy that emerged through the compromise concerns the number of visas that will be made available per year through the W-Visa program. These divergent positions on numbers are really indicative of a deeper disagreement over the “logic” of migration that underwrites immigration policy proposals.

Conclusion: Low Visa Caps, A Workable Compromise or Design Flaw?

To satisfy the concerns of some member unions, particularly those in the Building Trades, the Federation has vociferously worked to limit the W-visa numbers. Some national unions would like to see them even lower, while the Chamber’s ideal future flow proposal always rested on high numbers that would float with demand.[endnoteRef:32] In the end, the two agreed to a tiered implementation of a lower visa cap and that is what is currently in the Senate bill: 20,000 in year 1, 35,000 in year 2, 55,000 in year 3 and 75,000 in year 4. In year 5, the number of visas would grow or shrink based on a statistical formula that takes into account the unemployment rate, the ratio of job openings to workers looking for work, the Bureau’s recommendations as to the size of the annual cap and the percentage difference between that and the number of W-visa slots requested in the prior fiscal year. The total can never exceed 200,000. [32: Annual estimates by the USC’s Mexican Migration Monitor of the number of undocumented immigrants entering the US are: 2006: 665,755, 2007: 682,561. In 2008 the number dipped to 498,445. As mentioned above, after a dramatic decrease, Pew estimates the most recent numbers to back up to half a million. ]

Despite deep and abiding differences, the AFL-CIO and Chamber of Commerce have remained remarkably united since releasing their joint proposal, but this does not mean that individual unions, business groups and elected officials haven’t been raising concerns. Within a few weeks of the proposal being released, twenty-five business groups including the Associated Builders and Contractors, the International Franchise Association and the National Association of Home Builders wrote to the House of Representatives calling for larger visa numbers. “In the early 2000’s, when the economy was booming” they wrote “several hundred thousand unauthorized workers entered the country every year to fill low skilled jobs for which there were not enough willing and able Americans. If the new visa program is not ample enough, it will not succeed in replacing this illegal flow with a legal workforce,” they wrote.[endnoteRef:33] Along similar lines, Senator Mike Lee (R-Utah) filed an amendment to increase the maximum annual number from 200,000 to 400,000 W-visas but it did not make it into the Senate bill. [33: Kevin Bogardus “Business Groups: ‘Ample’ visas needed in immigration bill” On the Money: The Hill’s Finance & Economy Blog, 4/11/13, 12:39 pm ET. ]

Ultimately the future flow proposal embedded in the Senate bill was born of compromise: the chamber wanted more workers faster and saw the W-Visa as a step in that direction, and labor wanted the research-based system that the new Bureau represented. In explaining its reason for accepting the compromise, officials at the AFL-CIO felt that their ideal system could not happen right away but saw the Bureau and W-Visa as a way to begin bridging toward that system while at the same time addressing businesses’ more immediate needs. In the W-Visa they felt they would gain a “break the mold” temporary program that had the promise of ripening into green cards, their true preference. Some in the Senate seemed to perceive it that way, including Orrin Hatch who sought unsuccessfully to strike the provision requiring an employer of a W-Visa holder to “substantially comply” with all applicable labor and employment laws related to the immigrant’s employment.

For the Chamber, the underlying logic of having a market-based program large enough to clear demand was trumped by the political imperative of achieving a deal that both organizations could support and sending a proposal that would pass congress. Ultimately, if the numbers are not high enough quickly enough, the risk is that the W-Visa will be a bit too small to matter. While providing a better alternative program for some low wage workers, it could end up remaining one among several—taking its place beside the existing H2A and H2B programs, rather than growing to displace them as was envisioned by the Federation.

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