Emergency foreign worker legislation

We have reached an impasse regarding immigration. We have basically three camps:
  • So-called "patriots" who can't stand the fact that millions of undocumented workers are soiling our...soil.
  • So-called illegal aliens who are doing work that Americans can't or won't do.
  • American employers who can't find citizens or legal resident aliens to do business-critical work.
The three camps are trying to solve this problem with long-term solutions that appeal to partisan idéologues who, let's be honest here, are using the immigration issue as a political football, with much more symbolical than practical value.

But there is another way to look at this situation: undocumented workers are being hired in America because there is a great emergency here: Americans in sufficient numbers simply are not available to do hard manual labor at low pay, yet our economy still has a critical need for workers who will do that work. The immigration system that we have in place is oriented to the top end, seeking to find immigrants who we want to join us as members of an upwardly mobile, consumer-oriented nation. This system may or may not be optimal for that purpose, but it is completely useless in the ongoing employment crisis. That is why the informal, but very widely accepted, system of undocumented guest worders has evolved, and it's why it won't go away.

As is so often the case, the underlying problem here is denial. We simply do not want to admit that there is a "slow crisis" at the lower end of our job scale. The unofficial acceptance of foreigners who have stepped up to help us deal with the emergency feeds into our denial, because those foreigners and those who employ them basically work together to conceal direct evidence of their presence. If we could simply accept that we have a crisis and that without the assistance of millions of foreign workers, our economy would be in much worse shape than it is, then I think we could resolve the immigration issue.

Basically, what we need is legislation that formalizes what is now going on. If an American employer or group of employers wants to hire people to perform certain work at a very low wage, and can't find citizens or holders of work visas to do the work, then they should be allowed to request the needed number of workers through the Emergency Foreign Worker Act (EFWA). There would be a process required to certify that the position(s) cannot be filled via citizens or holders of normal work visas, resulting in a renewable "EFWA certification" for the positions, or for certain classes of position. EFWA certification would allow workers to be brought in, bypassing the normal Immigration Service procedures, to do the work. It would also gather biological personal identification of the workers, such as height, weight, and fingerprints, and issue them photo IDs. This information could be used to screen out undesirable candidates. Finally, in gratitude for the willingness of these foreigners to help us deal with our labor crisis, we should give those who have served in this capacity several benefits:

  • First, they should be allowed to move to another EFWA-certified job without leaving the country. However, they would not be allowed to move to non-EFWA jobs.
  • They should be allowed to apply for normal immigrant status even while working in EFWA, and their EFWA record could be cited in favor of their request for normal immigrant status.
  • Using their EFWA ID, they could receive some, but not all, social services avail to normal immigrants, for example, drivers licenses, bank accounts, and so on.
  • They would be entered into a Social Security escrow system, and they would pay income tax and other taxes.
A word about taxes, Social Security, and minumum wages. The reason why it is important that EFWA workers and their employers pay income and social security taxes is that otherwise, employers would be more likely to use the program as a way to bypass American workers. This is not the intention of EFWA. On the other hand, the status of an EFWA worker is such that their Social Security account is not standard. If they do not progress to standard immigration status, they will not be allowed to stay in the USA as retirees, because that would also be contrary to the purpose of EFWA, which is to deal with the employment crisis. The solution for this is that the amount of money that they deposit into the Social Security system would be held in escrow. If they become conventional immigrants, then the escrow account would be converted into a normal Social Security account, in effect giving credit for their EFWA work. On the other hand, if and when they withdraw from EFWA and leave the USA, then their escrow accounts, plus an amount of interest established by law, would be transfered to the country of origin, based on treaties negotiated with that country (for example, into their equivalent of social security); or, in the absence of such a treaty, into a an annuity paid directly to the individual. Note that in either case, the obligation of the Social Security system would be limited to the amount actually paid into the escrow account, plus interest. An EFWA worker would also be eligible for health insurance and life insurance, including group plans organized by the employers or possibly by the EFWA program itself. This could also be paid for via payroll deductions. The logic of this is the same as for taxes. In fact, payroll-deducted insurance is identical to a tax, except that it enriches a middleman. If health benefits were not allowed for, then once again, it would be too tempting for employers to abuse EFWA in a manner discriminatory against American citizens and normal residents. Finally, the same logic holds for minimum wage. Once again, employers should be required to pay at least the local minimum wage to EFWA workers, because otherwise abuses would result in discrimination against American workers.

Americans and holders of work visas should be able to question EFWA certification. The EFWA certificate would need to be renewed periodically, and during the renewal process, those who want to remove the certification should be allowed to make their case. Basically, the main argument would be that EFWA unfairly discriminates against Americans or visa holders who want to do the work. It is important to point out, by the way, that EFWA certification would not prevent Americans or visa holders from being employed in the job, and in fact, the presence of large numbers of residents would inherently question the need for EFWA certification. Also, the certification process would need to prevent abuses where an employer lowers the wage scale to uncompetitive levels just to qualify for EFWA. If other employers in similar industries pay higher wages and fill their positions without recourse to EFWA, then EFWA would not be granted. Also, if there are sufficient numbers of qualified American or visaed individuals who are willing to do the work at, or perhaps slightly higher than, the minimum wage, then EFWA would not be granted. It would be very important that a set of fair rules for granting EFWA certification be part of the act, and also that the decision-making process be transparent and completely accessible to the public, because of the risk of abuse. In addition, the renewal process must allow those who feel that there has been an abuse of EFWA to make their case.

I believe that EFWA or something like it would change the dynamic considerably. It is true that some overly greedy employers would complain, because they are probably paying currently undocumented workers less than they would have to pay EFWA workers. But on the other hand, the only requirement made by EFWA is that minimum wage and minimal benefits be paid. As long as foreign workers are available who are willing to work under those conditions, then that segment of the economy would benefit from EFWA. Some of those who object to "illegal immigrants" would also complain, because it is fairly clear that many of those objections are based on racist or exceptionalist viewpoints. Still, the EFWA ID system could screen out undesirable candidates, and so I believe that objections to it from "patriots" would become marginalized.

So, to summarize, what I'm suggesting is that we enact an Emergency Foreign Worker Act to deal openly and explicitly with the crisis of hard manual labor. The costs to the employer for EFWA workers would be as low as possible without unfairly discriminating against citizens and resident aliens. The normal waiting lists of the immigration service, and most of the requirements for visas, would be bypassed on the basis of the labor crisis. However, because the EFWA would be part of the federal government, workers would be minimally documented, and as a result, EFWA status could be denied to undesirable individuals.

I think it could work.

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