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.

Is it time to reshuffle the family farm?

America has a long tradition of family farms. My own ancestry includes farmers in Indiana and Illinois, as does that of millions of my fellow citizens. The land upon which this farming tradition is based was made available to families willing to farm it, many of whom immigrated to America in order to do it. It is easy to forget the connection between immigrants and the family farm, because a considerable number of generations have passed, blurring its origins.

Today, we have a situation where immigrants still perform a good deal of the farm work in America, but on very different terms. There has been a great consolidation of farms, with fewer and fewer owners running larger and larger agricultural operations, in a manner that would hardly be recognizable to the the present owners' great-great grandfathers who immigrated here, broke in the land, and raised their families on it. For example, as far as I know, I no longer have any relatives who own and operate family farms. And the immigrants aren't coming here with their families so they can have their own farms--they're coming to be farm labor on other people's farms.

A recent article pointed out an interesting side effect of the great consolidation. It seems that farmers are putting off retirement until well past age 65. In part, this is due to their long habit, and to their use of machinery that allows one man, even an old one, to run a farm. However, another important factor is that relatively few people are staying on the land. Farmers know that if they stopped farming, their land would be sold off, possibly to developers, possibly to other very large commercial operations to create even larger consolidations. But more and more often, there is no longer a connection between the family and the farm.

Now, some would say that this is perfectly desirable as an outcome. After all, the life of a farmer is one that contains a lot of drudgery, frustration, and disappointment. Why not industrialize farms? Perhaps in the end, there will be no more farm consortiums than there are automobile manufacturers or oil companies, that is, perhaps half a dozen or maybe a dozen. They will hire people to work on them using the products of their industrial peers: pesticides and fertilizers from the chemical industry; genetically engineered seed stock and live stock from the biological engineering companies; machinery from the manufacturing industries. The Calval farm corporation will compete with the Gulf farm corporation. Kismet.

On the other hand, there are at least two things that will be lost if this happens: diversity in the food marketplace, and the direct connection to the land by families or small groups that work and live on relatively small farming operations. There are somewhat abstract, and I can't really cite a lot of evidence in direct support of the idea that diversity in eating and a direct connection to the land is better than an ever-increasing consolidation and industrialization of farms, but I actually don't think I need to, It seems rather self-evident to me.

So what do we have: (1) immigrant farmers were given plots of land which they farmed and lived on, and passed on to their children, resulting in a long-lasting system of family farms; (2) over many decades, more and more families have moved on to other pursuits and their farms have been consolidated into large, semi-industrial, corporate farms; (3) the consolidation process has now reached the point to where farmers are afraid to retire, because they know that their farms will not be passed on to their families; (4) thousands of poor farmers in Mexico and other South American countries risk their lives to come to America to work in our farms. Doesn't there seem to be a rather obvious, if radical, possible solution to this developing problem?

Why not take back the land? The original land grants were motivated by the concept of the family farm. They weren't intended to create giant agricultural corporations or housing developments. If the family of a farmer who owns agricultural land no longer wants to farm it, it could be taken back--bought back, perhaps, under imminent domain--and then given away to families who will live on and farm the land. Very large farms should be broken up into manageable pieces, and given to people who will live on and work the land, under terms similar to those used in 19th century land grants. If Americans can not be found who will take up this opportunity, then the same thing will happen in the 21st century that happened more than 100 years ago: people will come into our country and meld with the land. It will become their land to an extent that most native-born Americans have never known.

Reshuffling the farmland deck like this will do two very important things: it will bring back the family farm, the backbone of the American way of life; and it will alleviate the immigration problem by providing a permanent home for a subset of the people who are sneaking under the wire to work other people's farms. A new deal for American agriculture.

Now, let's be clear: I'm not talking about all of the farmland in America. There is a trend, as mentioned in the above-cited article, for farms to be lost due to lack of interest by farming families, but this is surely a minority of the cases. I'm also not not talking about "solving the immigration problem" with this idea. There will still be a need for farm hands, just as there was 150 years ago. But at least some of the "unwanted" land ought to be made available to at least some immigrant families, just as it was to my ancestors and their families.

I believe that a rational approach to this would be to create a new designation for agricultural land that was originally granted to farmers by the government which is in danger of being lost as a family farm (or as a farm period, as for land sought by developers). The designation would be as a "family farm", and a farmer would be given this land by the government, for him or her to work and to pass on to family members in perpetuity, up until the point where no family member wanted to live on it and farm it; at that point, it would be taken back by the government and made available to some other farmer who was willing to accept it on those terms. One way to think about this would be as a kind of "family farm bank", run by the government, that would give land to farmers willing to work it in the "close up and personal" family-oriented way. If one of the products of this program was to allow former undocumented agricultural workers to become American family farmers, so much the better.

NAFLA

The North American Free Labor Agreement could be a possible title for a solution to the "immigration problem" in the US.

Here's what I was thinking: suppose that we negotiated an agreement among the NAFTA partners, Canada, the US, and Mexico, that extended the free trade zone to be a free labor zone. What would happen?

I'm basing this idea on similar agreements among the countries in the European Union. As I imagine it, negotiations would create a system that would allow properly identified citizens of any of the NAFLA countries to live and work in any of the others. Within certain limits, they would have all of the rights regarding residence and employment enjoyed by the citizens of the host country, as well as the right to travel freely back and forth across the various borders.

Let me mention some of the limits that would be present. First, convicted felons would not have the same degree of freedom as other individuals, and in fact, member nations could require such individuals to go through the same work permit process required for citizens of non-NAFLA nations. Second, certain jobs deemed critical to the nation(s) could be restricted to citizens of the host country with exceptions granted on a case-to-case basis. For example, jobs in the defense industry that required a security clearance would probably remain inaccessible to all but a very few foreign nationals. Third, communities could open their local elections to foreign nationals residing there, but state and federal elections would probably remain limited to citizens of the host country. In other words, it makes sense for all of the residents in a community to have a say regarding community services, schools, local surtaxes, and the like, but not for foreign citizens to be involved in decisions regarding state or national laws or policies. Another issue is social welfare. If you work or have recently worked for a significant period of time in the host country, or are the spouse, child, or dependent parent or sibling of someone who does or has, then under NAFLA, you would qualify for social welfare just like host-country citizens. However, if you aren't a worker or in the immediate family of one, then you do not qualify, unless a local jurisdiction allows it. And there are probably other similar limits on non-citizen workers that would all be decided during the treaty negotiations.

As for the process that would result from this, all of the member nations would issue ID cards and other documentation that would, as a matter of law, be recognized by all governments and employers in the other nations. It would probably be necessary to adjust the laws of each country to accomodate this, or to spell out rules to make up for mismatches. For example, employers in the US would be required to provide healthcare coverage comparable to that provided by the Canadian and Mexican governments (or to switch to a single-payer government-administered system, which is unlikely). Retirement or social-security type plans would have to be aligned, and laws regarding the pay-out of funds accrued to individuals residing in another NAFLA member would need to be passed. Rules regarding the length of the workweek, vacations, and other benefits would need to be discussed as part of the treaty negotiations, as would the details of rules regarding social welfare. When mismatches remained, they would have to be well publicized to reduce misunderstanding on the part of workers. This is not to underemphasize the difficulty of these negotiations, they would be lengthy and hard. Compromise would be necessary, and the end result would not please everyone. Still I think that a successful NAFLA treaty that would be acceptable to the NAFTA nations is at least theoretically possible.

So, what would happen if such a treaty could be constructed?

First, in the current immigration debate, the presence of undocumented workers is muddying the water. Apparently, about 10% of all Mexican nationals currently live in the US, most of them without papers. Under NAFLA, all of these individuals would have the same legal relationship to their employers and to the host governments as citizens. For example, they could be issued US Social Security numbers and have ordinary SS acounts; they could receive provincial health care cards in Canada; they could get Mexican drivers licenses, and so on. Taxes would be assessed on them just as for local citizens. They would have the same rights and obligations under the civil and criminal justice system as citizens. One effect of this would be to increase the number of taxpayers in the US to the tune of many millions. There would no longer be a sizable immigration problem here, but there would be a considerable flow of people back and forth. But it is very unlikely that the flow would be larger into the US than it is now, because of the limitations imposed by the treaty. In other words, it is only a free labor agreement, not a new nationality. There would be new administrative burdens, but there would also be new tax revenues and a more vibrant economy to help support them. Many of the security concerns regarding the leaky border would be eliminated because of the requirement for valid, secure identification of individuals who cross the border. In fact, anyone who crossed illegally would either be an idiot or some kind of criminal. The job of patrolling the border for criminal or hostile activity would be made much easier because the current noise factor created by illegal but harmless individuals who are merely seeking work would no longer be a factor.

Second, because of the open border, I believe that the issue of "a path to American citizenship" would become largely irrelevant, because I don't think that the majority of Mexicans would continue to want American citizenship. Given free passage back and forth between the two countries and full rights to live and work on either side, I believe that the overwhelming majority of Mexicans will decide to retain their citizenship, to maintain their familial and cultural relationships, and their identities as Mexicans. In short, the intense economic pressure for Mexicans to become American citizens would disappear. It is true that children born and raised in a host country should have the right to choose citizenship there when the reach their majority; this is currently the case and should not be changed. But absent any legal or economic incentive, it seems unlikely to me that the parents would become citizens, and it also seems likely to me that their children will be more likely to claim Mexican rather than American citizenship when they reach adulthood than under our current system of vicious inequity.

If we could somehow shift the energy currently being poured into debates about the dangers of "illegal immigration" and even the "browning" of America into active negotiations targeting a free labor agreement among the NAFTA partners, I believe that we could accomplish something that would increase security in all three countries, improve all three economies, and be a stabilizing influence throughout the hemisphere and the world.