Title Page
 Table of Contents
 Migration for employment project...

Group Title: Working paper
Title: A massive temporary worker programme for the U.S.
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00087140/00001
 Material Information
Title: A massive temporary worker programme for the U.S. solution or mirage?
Series Title: Working paper
Physical Description: 63 p. : ilus. ; 30 cm.
Language: English
Creator: Miller, Mark J
Yeres, David J. ( coaut )
Migration for Employment Project
Publisher: International Labour Office, World Employment Programme Research, Migration for Employment Project
Place of Publication: Geneva
Publication Date: 1979
Subject: Empleo -- Oferta -- EE. UU
Trabajo y trabajadores -- EE. UU
Genre: non-fiction   ( marcgt )
Statement of Responsibility: by ... and David J. Yeres.
General Note: Migration for Employment Project.
 Record Information
Bibliographic ID: UF00087140
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 48324424

Table of Contents
    Title Page
        Title Page 1
        Title Page 2
    Table of Contents
        Page i
        Page ii
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
        Page 57
        Page 58
    Migration for employment project working papers
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
Full Text


Working Papers

International Labour Office, Geneva

WEP 2-26/WP 44


Working Paper




Mark J. Miller and David J. Yeres

Note: WEP Working Papers are preliminary documents circulated
informally in a limited number of copies solely to
stimulate discussion and critical comment. They are
restricted and should not be cited without permission.

November 1979

Copyright ( International Labour Organisation, 1979

ISBN 92-2-102262-5

The designation of countries employed
and the presentation of the material in this
publication do not imply the expression of
any opinion whatsoever on the part of the
International Labour Office concerning the
legal status of any country or territory or
of its authorities, or concerning the
delimitations of its frontiers.

The responsibility for opinions expressed
in signed studies rests solely with their
authors, and publication does not constitute
an endorsement by the International Labour
Office of the opinions expressed therein.

- i -


A. FOREWORD, by W.R. Bbhning . . . . . . . . . .


MIRAGE? by Mark Miller and David J. Yeres . . .

I.INTRODUCTION . . . . . . . . . .



IV.THE H-2 PROGRAMME . . . . . . . .



(a)Composition of workforce . . . . . .
(b)Large-scale programmes (models I, II and III . .
(i) Number of work permits . . . . . .
(ii) Rotation of workers . . . . . . .
(iii) Duration of permits . . . . . . ..
(c)Small-scale programmes (models IV and V) . . .
(d)Statutory Revision . . . . . . . .
e) Nature of the work permits . . . . ..
f)Contracting . . . . . . . . . .
g)Role of governments of countries of origin . .
h)Programme administration . . . . . . .
i)Workers' rights . . . . . . . . .
j)Dependents' rights . . . . . . . .

VII.ASSESSMENT . . . . . . . . . .

(a)General advantages . . . . . . . .
(b)General disadvantages . . . . . . .
(c)Ranking of options . . . . . . . .
(i) Model I . . . . . . . . . .
(ii)Model IV . . . . . . . . . .
(iii)Model II . . . . . . . ... .
(iv)Model V . . . . . . . . . .
(v)Model III . . . . . . . . . .

VIII.CONCLUSIONS . . . . . . . . .


(a) H-2: nature of sojourn and position to
temporary . . . . . . . .

. . . . 1

. . . . 2

. . . . 2

. . . . 2

. . . . 21
. . . . 23
S . . . 1724
. . . . 25
. . . . 25
. . . . 26
. . . . 28
. . . . 30
. . . . 31
. . . . 30

. . . 33
. . . . 34

be filled must be
. . . . . .

(b) Table 2: components of expanded temporary worker programme
models . . . . . . . . . . . . .

(c) Table 3: prognosis of impact of expanded temporary worker
programme models . . . . . . . . . . .

X. NOTES . . . . . . . . . . . . . . .


. .

* *

* *

tf .

- ii -


This is the forty-fourth paper appearing in the World Employment
Programme working paper series of the research project on Migration
for Employment. The aim of the project is to investigate the implica-
tions of international migration movements from low-income to high-
income countries for economic and social policy making.

In this third paper concerned with Northern America, the authors
seek to assess the pros and cons of introducing in the U.S. different
kinds of temporary worker programmes in the place of the present influx
of illegal migrants, especially from Mexico. Some kind of temporary
worker programme is currently one of the most favoured options in the
American debate on the labour market dimension of immigration policy.
It is therefore timely that the various options and their implications
be evaluated; and it is in this spirit that the following paper was written.
The first-named author, Mark Miller, has distinguished himself by work on
the "guestworker" policies of several Western European countries. David
J. Yeres is the former Executive Director of the Interagency Task Force on
Immigration Policy, that was created in response to President Carter's
policy proposals of August 1977 and which directed the Attorney General
and the Secretaries of Labor and State to conduct a comprehensive inter-
agency study of existing immigration laws and policies. 2 It goes without
saying that the views expressed in this paper are those of its authors and
not necessarily those of the now defunct Interagency Task Force on Immigration
Policy or of any other Government agency.

November 1979 W.R. BUhning

The other two are W.R. Bbhning, Regularising indocumentados
(Geneva, ILO, April 1979; mimeographed World Employment Programme research
working paper; restricted); and D.S. North, The Canadian experience with
amnesty for aliens: What the United States can learn (Geneva, ILO,
October 1979; mimeographed World Employment Programme research working
paper; restricted).
Its main report has meanwhile appeared in print. See Interagency
Task Force on Immigration Policy (ed.), Staff Report (Departments of
Justice, Labor and State, March 1979).



Mark J. Miller
(Department of Political Science,
University of Delaware,
Newark, Delaware, USA)


David J. Yeres
(Commodity Futures Trading Commission,
Washington, D.C., USA)

- 2 -


The presence of millions of "illegal aliens" or undocumented foreign
workers is fraught with significant social, economic, political and cul-
tural consequences for the United States.1 The estimated four to six mil-
lion illegal aliens are a source of troubled bilateral relations, diminished
American international prestige, acrimonious and divisive domestic public
policy debate, likely (but undetermined) displacement of indigenous wor-
kers, depression of conditions and wages in low-skilled occupations and
the wholesale violation of immigration law. An appropriate American
public policy response to the illegal alien problem thus far has proven
to be elusive. Proposals to resolve the problem through general amnesty
or sanctions against employers of illegal aliens have met with resistance.
This has set the stage for consideration of a massive American temporary
work programme for aliens as a way first to "regularise" or legalise the
status of illegal aliens and then to regulate and eventually diminish the
illegal alien phenomenon in the future with minimal disruption to society
and economy.

This report examines past American experience with temporary worker
programmes and that of comparable Western European nations, outlines
the basic forms that an American temporary worker programme could take
and analyses the short- and long-term implications of adopting a temporary
worker programme as a response to the illegal alien problem.


Until the final decades of the nineteenth century, the United States,
with the questions of slavery and indentured servitude aside, presented
itself as the land of opportunity for all. Only in 1882, as the "last
frontier" was eclipsed, did the United States begin to take restrictive
measures against continued unfettered immigration. Initially taken to
halt the influx of Asians, measures (including a frequently unenforced 1885
law.,barring non-immigrant contract labour) eventually were implemented
to restrict immigration from all quarters save for the Western Hemisphere.
An often xenophobic impulse eventuated in the "quota system" of 1924 which
permitted strictly limited numbers of foreigners to immigrate on the basis
of national origins.4 It was only with the restrictions placed upon previ-
ously open or laissez faire American immigration policy that the problem
of illegal aliens could arise.

- 3 -

Mexicans, like other inhabitants of the Western Hemisphere, were
exempted from the numerical quotas of the National Origins Act. However,
as early as 1917, Mexican nationals were required to obtain official per-
mission upon crossing the border.5 During the First World War and in the
early 1920s, large numbers of Mexicans were attracted by employment oppor-
tunities and relatively high wages north of the Rio Grande. Mexican
workers were welcomed especially during the war with its attendant man-
power shortages. While many northward-bound migrants did duly register
with American authorities, many others did not, either out of ignorance
of the law, the inability to pass mandatory literacy tests or the desire
to avoid paying the visa tax.7 Since at least the mid-1920s, then, a
significant, and ever more salient, aspect of the problem of illegal
entry into the United States has been centred on the Mexican-American
border region. Indeed, the term "wetback" entered into American idiom at
this time. Extensive illegal entry by Mexican migrants was largely
tolerated by American authorities until the Great Depression. Thus,
there are grounds to argue that the United States condoned a de facto
temporary worker influx during this period. However, with the growth
of widespread unemployment and its corollary of bitter indigenous resent-
ment against competition from non-citizen job seekers, the Government
moved to clamp down upon abuses of its immigration law. Throughout the
1950s, hundreds of thousands of illegal (and some legal) aliens in the
Southwest, and from other regions of the United States as well, were
deported or constrained to repatriate. While this vigorous enforcement
of immigration law occasioned little economic disruption (as an influx
of labourers from the "dustbowl" area compensated for the loss of illegal
manpower), perhaps the most important impact of the enforcement drive
was upon Mexican-American relations. The massive deportations, often
accomplished in a manner that evidenced little respect for the human
dignity of the unfortunate individuals involved, were the source of national
humiliation, additional economic burdens and anti-American hostility on
the part of Mexico.11 American relations with its southern neighbour
were seriously strained by this unilateral action and remained so until
the United States entered the Second World War.

Anticipated labour shortages due to the war effort, especially in
the agricultural sector, led American officials to reconsider policy
toward Mexican migrant labour. Organised agricultural interests in the

- 4 -

Southwest requested that the Government facilitate the entry of Mexican
agricultural workers. Initially rebuffed in 1941, in part due to Mexican
Government resentment, the growers were able to secure U.S. governmental
acquiescence by mid-1942. This set the stage for implementation of the
first officially sanctioned, large-scale temporary worker programme.
Heretofore, again excepting the slavery question, American immigration
had been founded upon the fundamental, if largely unstated, principle
that no distinction be drawn between being a member of the American labour
force and access to membership in the American body politic. Participation
in the economy of the country implied the right to citizenship, or access
to it, and vice-versa. This principle, affirming the essential and appropri-
ate complementarity of the economic and political man, is at the very foun-
dation of American democracy and the notion of equal opportunity for all.
Thus, a policy permitting the introduction of a labour force without the
right of access to citizenship marked a significant break with the American
political heritage. The exigencies of the wartime economy, though, left
little time for contemplation of the long-term implications of such a

The Mexican Government, still smarting from perceived American
mistreatment of its nationals during the Great Depression, had to be
enticed into permitting a northward flow of its workforce again. Accor-
ding to paragraph XXVI of Article 123 of the Mexican constitution of 1917,
it was illegal for Mexican citizens to be hired for employment abroad with-
out governmental regulation.13 When approached by the United States,
the Mexicans insisted that any new introduction of their nationals into
the American labour market be accomplished on the basis of inter-governmental
negotiations which provided safeguards for the migrants. The pressing
American need for agricultural workers along with Mexican demands that
certain safeguards be afforded its emigrant labourers were the two major
factors shaping the Mexican Labor Agreement of 1942 which came to be known
as the"Bracero programme". Although originally intended to last only
the duration of the war, the Bracero programme was informally continued
after the expiration of the bilateral agreement in 1947 and then formally
renewed by Public Law 78 (82nd Congress) during the manpower shortages
of the Korean War.14 It was not until the end of 1964, a noteworthy pro-
longation of nearly twenty years, that the Bracero programme was unilaterally
discontinued by the United States.

- 5 -


Under the provisions of the Mexican Labor Agreement, the fundamental
hiring mechanism was a written contract between employer and migrant. In
theory, employer job offers, upon certification by U.S. officials, were
to be transmitted to Mexican authorities, there to be filled through
recruitment of young, male workers. The Bracero programme limited
temporary worker employment exclusively to the agricultural sector in
the Southwestern region of the United States. Any migrant who took a non-
agricultural job exposed himself to deportation. Furthermore, a migrant
who, for whatever reason, proved to be deficient in fulfilling his con-
tract was subject to deportation. Another provision required that
temporary workers must not displace indigenous labour but were only to
fill manpower shortages.15

In return, the Mexican migrants were not to be discriminated against
in wages and working conditions. Indeed, a minimum wage was guaranteed
them as was employment for at least three-quarters of the duration of
their contracts. The two-way transportation expenses of the temporary
workers also were to be paid, while certain minimal norms regarding
migrant housing, medical care and diet were to be enforced. Upon expiration
of their contracts, temporary workers were required to return home. No
provision was made for dependents of migrants to join them during their
sojourn in the United States. Ten per cent of a migrant's earnings were
placed in a savings account made payable upon repatriation. Thus, the
programme incorporated a monetary incentive for return.

Over the twenty-two years of its existence, some four million temporary
workers participated in the Bracero programme. In the peak year of
1956, there were nearly half a million braceros. The programme
provided a significant, and profitable, supplementary workforce for
Southwestern agriculture. Yet, many of the provisions of the bilateral
accords never were effectively implemented.17 This often resulted in
economic exploitation of braceros and deplorable living conditions for
them. Public concern over bracero living and working conditions, pres-
sure from organised labour and the discovery by employers that illegal
aliens could substitute favourably for braceros contributed to the ces-
sation of the programme. Why, then, had the Bracero programme gone wrong
and what lessons are there to be learned from the experience?

- 6 -

Perhaps the major flaw of the Bvacero programme stemmed from the
ability of employers to hire short-term Mexican workers without going
through official channels set up to ensure minimal safeguards for mi-
grants. American employers often avoided procurement of temporary
workers through amthorised Mexican labour bureau by directly oontmacting
with illegal migrants who then had their status "regularised", frequently
through what came to be known as the practice of "drying out wetbacks".
This was especially prevalent during the Mexican Government-organised
boycott of Texas growers because of alleged discrimination. In brief,
the practice involved the ex post facto legalisation of illegal entrants
by the Border Patrol who transported illegals to the border, had them
touch Mexican soil and then declared them to be bona fide braceros.
This permitted employers to disregard safeguards that would have been
included in the contracts if procurement through the official labour
bureaux would have been effected. The combination of the Border Patrol
facilitating the entry of braceros without Mexican governmental consent,
the admittedly difficult administrative task of inspecting living aad
working conditions of hundreds of thousands of migrant workers, and a
lack of co-ordination and implementation arising from the involvement
of three governmental departments State, Labour and Justice in the
administration of the programme from the American side, resulted in
noteworthy abuses of temporary workers and the terms of the Mexican
Labor Agreement.

The Mexican Government was powerless to counteract these abuses.
However, since 1975, it has from time to time suggested that a temporary
worker programme be reinstituted.18 The seeming paradox of the Mexican
Government advocating a return, albeit with more stringent provisions
for migrant protection, to a policy that frequently had resulted in
exploitation or inadequate protection of its nationals abroad underscores
the complexity, and the importance, of the migration issue in Mexico.
While the Mexican GSvernment is undoubtedly concerned with the welfare
of its emigrants, other considerations of more general political and
societal importance exert influence also. However, restricted or violated
the rights of braceros were, the Mexican Government clearly feels that
foreign worker-like status is preferable to illegal status. The former
enhances the welfare of individual migrants by rendering legal the migration
of people who constitute a very vulnerable group,

- 7

Among the most important lessons to be derived from the Bracero
programme, then, would seem to be the difficulty of enforcing safe-
guards for temporary workers, the complexity of the task of adequately
administering such a programme and the untoward diplomatic complications
that can arise from such a seemingly inconsequential public policy in
the event of unsuccessful policy implementation. A further consideration
in this respect stems from a putative relationship between a temporary
worker programme and illegal immigration.

Several students of the Bracero programme have suggested that this
temporary worker policy served to increase, rather than diminish, illegal
immigration. The theory put forth by these scholars is that every slot
accorded to temporary workers in the yearly quotas was the source of
expanded expectations on the part of potential migrants, only a fraction
of whom actually could be accommodated within the temporary worker
programme. Thus, an unanticipated consequence of the Bracero programme
was what one Mexican scholar has termed a "magnet effect". la news
of employment opportunities in the United States spread by word of mouth
in rural Mexico, more and more campesinos were motivated to journey
northward in the hopes of securing employment in the United States. This
parallel inflow of illegal aliens alongside, and seemingly because of,
the braceros resulted in the single most important mass expulsion of
illegal aliens in American history. In 1954, President Eisenhower
charged the then Commissioner of the INS, General Swing, with a "clean
up" of the border area. What was heralded as "Operation Wetback" resul-
ted in the expulsion of over one million Mexican illegal aliens, all of
whom were there in addition to 300,000 Mexican braceros. However, it
should also be noted that illegal immigration steadily has grown since
the termination of the Bracero programme. It is believed that the
initial increase in illegal immigration in the 1960s consisted of former
braceros returning to resume jobs. Hence, the impact of temporary worker
policy upon illegal migration is complex and certainly not readily pre-

Whatever the international complications that arose from the Bracero
programme and the decision to terminate it, which was a unilateral initi-
ative on the part of the United States, the dismantling of this experiment
with a large-scale temporary worker programme can overwhelmingly be
attributed to domestic political opposition led by organised American

- 8 -

labour including the United Farm Workers. The labour unions maintained
that the Programme took away jobs from indigenous workers and served
to depress wages. Since the termination of the Bracero programme,
however, the United States has continued to permit limited temporary
alien employment. This has taken place under the non-immigrant labour
provisions of the Immigration Act of 1952, as amended.


In enacting present immigration law, it was the intent of Congress
to give public officials a certain flexibility to respond to unusual
circumstances involving the entry of aliens. Thus, the Attorney
General was granted the discretion, to be sparingly and judiciously
utilised, to authorise the entry of several categories of temporary
workers as an exception to the general rule prohibiting non-immigrant
labour. It is under this discretionary power that the H-2 programme
(referring to provision 10la(H)ii of the Immigration and Nationality
Act) has been established.

While the H-2 programme is derived from the power of the Attorney
General, it is largely administered by the Department of Labozu as a
corollary of its labour certification mission in non-immigrant and resident
alien administration. In bare outline, an employer who cannot find
indigenous workers to fill job openings can petition the Labor Department
for certification that indigenous labour is unavailable and that recourse
to temporary alien labour will not be detrimental to local wage scales
or working conditions. If the Department of Labor determines and
:ertifies that these conditions obtain, it then recommends that the INS
issue H-2 temporary work permits to alien workers contracted by the employer.
The INS, in liaison with the Labor Department, supervises the recruitment,
admission and eventual departure of the workers.25

The purpose and justification for the H-2 programme might be best
described as that of a fine-tuning instrument for the labour market. It
is intended to provide a supplementary alien workforce for those cases
where indigenous workers cannot be found to fill job openings. Over the
years, the size of the H-2 workforce has been slowly reduced from a high
average of 57,000 permits issued annually in the late 1960s to under
30,000 permits issued in 1977. About one-third of the H-2 workforce is
made up of farm workers, mainly from the Caribbean, who play a key man-


power role in several important harvests. Most H-2 aliens, however, are
admitted for work in urban areas. The single most important contingent
of non-farm labour is made up of entertainers, especially athletes and
musicians. The law expressly prohibits that H-2 workers be employed in
permanent jobs (see Appendix). Consequently, a routine H-2 permit is
valid for 11 months. Some permits can be renewed up to a limit of three

It has been calculated that H-2 workers comprise only .05 of one
per cent of the total American workforce.24 Yet, for such a minor pro-
gramme, the H-2 temporary worker certification system has been an
exceptional source of public controversy and administrative commotion.
Since its inception, the H-2 programme has been plagued by the curse of
labour certification in general: the difficulty of fixing criteria to
determine: when labour shortages exist. There simply is no thoroughly
objective way to do this. What constitutes exhaustion of possible
avenues of indigenous worker recruitment, for example, is open to manifold
interpretations. Hence, by its very nature, temporary worker certifi-
cation requires that labour officials exercise a great deal of judgement.

Over the years, there has been a persistent tendency for employers
who are denied temporary alien workers to dispute the judgement of Labor
Department officials. On the other hand, when the Labor Department sees
fit to certify temporary workers, there is predictable concern of labour
interests about a return to the Bracero programme. As indicated by the
minor number of temporary workers admitted annually, the Labor Department
generally has had recourse to temporary worker certification only with
reserve. Such administration is consistent with the intent of Congress
that temporary workers be permitted to enter the country only under
sharply circumscribed conditions.

Above and beyond the question of determining when labour shortages
occur, is the problem of what happens after a request for temporary
workers is denied. As follows from the derivation of the H-9 programme
from the power of the Attorney General, Labon Department denial of cer-
tification is not conclusive. Employers, as is their right, frequently
try to have Department of Labor refusals of certification overruled or
rescinded. They do this by complaining to the press, contacting their
elected representatives or mobilising employer interest groups on their

- 10 -

behalf. Normally, the Attorney General's office concurs with Labor
Department recommendations that certification not be granted. However,
when the Attorney General is persuaded to overrule the Labor Department,
administrative confusion can ensue.

A memorable example of this occurred in the summer of 1977.
Certification was denied a Texas onion-growing area on the grounds that
the growers did not provide adequate housing for temporary workers.
Arguing;,that the crop would rot without the employment of temporary
workers, the growers appealed to their Congressmen who contacted President
Carter. Upon Presidential intervention and the request of the Attorney
General, certification was granted by the Labor Department. All of this
was well covered by the press and afforded the appearance f the Govern-
ment seemingly mishandling a minor administrative matter.

At present, an employer of H-2 certified aliens has exceptional
discretionary power over them because their residency rights stem from
the contract which the employer initiates and may terminate at will.25
While temporary workers are guaranteed employment during three-quarters
of their contract period, they are tied to a single employer and, thus,
are dependent upon the employer's approval of them. This approval might
even extend to non-job related aspects of their lives. The exceptional
discretionary power wielded by employers over H-2 certified employees is
reinforced by an informal blacklisting system that has developed wherein
temporary workers who have proved to be troublesome are not rehired.
In effect, the status of an H-2 alien has been said to resemble that of
an indentured servant. Indeed, in the U.S. Virgin Islands, where non-
immigrant labour issues have been a significant source of socio-political
malaise, non-immigrant workers were referred to as "bonded" workers.27
The livelihood of H-2 workers is subject to arbitrary disruption;
the aliens are not free to travel as they are tied to one employer; and
they receive no social security or unemplojmant benefits.

Temporary workers also are not granted the right to unionise.
With no control being exercised over where and with whom the employer
contracts, H-2 workers are fated to be the least demanding of employees
in terms of living and working conditions. Any collective effort on
their part to improve their lot can be stymied by termination or non-
renewal of contract and the replacement of recalcitrant by more docile

- 11 -

workers. It is not surprising that temporary workers generally are
prized by employers because of the passivity.

Directly responding to the exceptional aspects of the temporary
worker status, the Federal Government has undertaken to protect tempo-
rary workers and, simultaneously, the domestic labour force. In this
regard, the H-2 programme represents a marked case of governmental inter-
vention into a generally laissez-faire labour market. Most farm workers
brought in under the programme are guaranteed what is known as an
"adverse effect" wage rate.28 What this means is that the Department
of Labor, to ensure that temporary workers are not used to undercut the
wages and working conditions of indigenous workers, sets a wage for the
labour to be performed and stipulates that certification conditions be
fulfilled. These stipulations include free housing for the H-2s,
reimbursement of round-trip transportation expenses (except when con-
tracts are broken) and provision of three meals a day at minimal cost.

Temporary workers are not barred by law from bringing their depen-
dents with them. However, H-2 dependents do not automatically receive
visas upon request. Also, the employer is not obligated to provide
housing for dependents. Presently very few H-2 workers are accompanied
by dependents, which perhaps accounts for their presumed low rate of

In many cases, most notably that of Jamaican workers, a portion of
temporary worker wages is channelled into a mandatory savings account
back home. While apparently intended to assure that the dependents of
temporary workers receive some income during the sojourn of their pro-
viders in the United States, this device also is an incentive to repatri-

In view of the exceptional dependenceof temporary workers upon the
good will of their employer and the deviation of temporary worker employ-
ment from American labour market principles, it is somewhat surprising
to note that there has been little litigation against the H-2 programme
at the behest of labour interests. Most litigation to date has involved
agricultural growers challenging the administration of the H-2 programme.
In part, this relative paucity of litigation can be attributed to the
minor impact of the programme upon the American labour market. Since the

- 12 -

programme has not adversely affected the employment opportunities of a
sizable number of American workers, it has largely gone unchallenged
by organised labour, despite H-2 certification at times being granted to
aliens engaged in jobs of a permanent or non-temporary character. A
rationale called the "peak load" concept has been developed administratively
to justify apparent deviation from the principle that H-2 certification
not be granted for jobs of a permanent character. Succinctly stated,
the concept holds that what are normally characterized as permanent jobs
(e.g. waiters) can be classified as temporary when they are subject to
short-term demand (e.g. high season in a resort area). To date, this
administrative practice has not been seriously challenged in the courts.

As it now stands, the H-2 programme has very little ameliorative
impact upon the illegal alien problem. The contracting of H-2 workers
takes place outside of the United States. H-2 certification requests
can be turned down by the Labor Department if the employer has a history
of hiring illegal aliens. Actually, there is reason to suspect that
even the currently minor H-2 programme may have served to encourage
illegal immigration from the Caribbean through spreading the news of
employment opportunities abroad and raising hopes for employment in
the United States.30

Designed to be a fine-tuning instrument, the H-2 programme has not
adversely affected indigenous wages or working conditions in general.
The H-2 temporary workforce simply is too small to have anything more
than local impact. While the disadvantaged status of temporary workers
is of intrinsic concern, and this workforce certainly is appreciated by
employers in agricultural regions, the importance of the H-2 programme
lies more in recent advocacy of its expansion than in its present attributes.
Heretofore, very few Mexicans have been brought in under the H-2 programme,
which largely explains its minor relevance to the illegal alien problem
to date. If the H-2 programme were to be opened up on an expanded basis
to Mexicans as a means of attenuating the illegal problem,
then the controversial aspects of this programme currently obscured by
its quantitative insignificance probably would come to the forefront of
public debate.


There are important similarities between the illegal alien problem
in the United States and the foreign worker phenomenon in Western Europe.

- 13 -

Presently, there are about twelve million aliens residing in Europe,
three-quarters of whom live in France, Switzerland, and the Federal
Republic of Germany. Of particular interest to the United States
are the experiences of these three countries with foreign worker or "guest
worker" policies.51 This sectionlrwill provide a brief outline of the
Western European experience, which will be supplemented by further
explanations in later sections.

With the Marshall Plan and postwar reconstruction, Western European
economies experienced rapid and enormous growth. This created manpower
shortages, especially in blue collar occupations. To respond to these
shortages, which frequently threatened to create economic bottlenecks,
foreign workers began to be admitted on a temporary basis. Especially
in the Federal Republic of Germany and Switzerland, which have never con-
sidered themselves immigration countries, it was assumed that foreign
workers would be a conjunctural supplement that eventually would return
home. As the temporary worker programmes were implemented, however,
Western European countries ran into a multitude of unanticipated problems.
Chief among these were the ever growing dependence upon temporary workers,
as some blue collar job categories came to be filled largely by aliens.
There were also the unforeseen social and political integration problems
created by temporary workers and their dependents. Eventually, these
problems became so severe that they contributed significantly to the
recession-related decisions of 1975-74 to suspend, or drastically curtail,
temporary worker programmes. By this time, though, an important fraction
of supposedly temporary alien workers had become long-term, and probably
permanent, residents. While foreign workers had important beneficial
impacts upon postwar economies, these contributions were overshadowed
in the eyes of many Europeans by mounting concern over unemployment and
integration problems in the 1970s.

The significance of the Western European experience with foreign
worker policies boils down to several major lessons for the United States.
These lessons recommend caution on the part of the Government in adopting
a temporary worker programmed If such a programme were adopted, the U.S.
would not necessarily replicate the experiences of Western European coun-
tries. Rather, it is the intent of this comparison to point out patterns
of problems associated with foreign worker policies (as limited by vari-

- 14 -

nations in institutions, colonial legacies, etc.) so as to contribute to
foresightful public policy planning and a better foreign worker policy
if such a decision is made.

While the United States presently has a much more imaertant unemployment
problem than did Western Europe during the 1960s, the Western European
experience warns that recourse to a temporary worker programme encourages
the development of a two-tiered and essentially discriminatory society.52
Foreign worker policy widens the wedge between "good" and "bad" jobs
in an advanced industrial society and inhibits the theoretical gain in
wages and working conditions that would accrue to low-skilled indigenous
workers in a situation of labour autarchy. Foreign workers in Western
Europe, according to many observers, have become a seemingly permanent,
and potentially explosive, underclass. Restricted by law, hiring&ractices
or skills from many occupations, and disadvantaged in terms of education,
health and social discrimination, foreign workers tend to be employed
in low paid manual labour and accident-prone occupations which often are
shunned by indigenous workers.33 The still not fully understood process
whereby certain occupations became "degrading" or otherwise disfavoured
in the eyes of indigenous labour created a self-feeding process resulting
in dependence on foreign workers. The disadvantaged place of foreign
workers in European societies has become the source of socio-political
unrest (as civil rights-type campaigns have developed on this issue) and
sometimes the source of economic disruption, as initially passive foreign
workers have become militant.34

The development of foreign worker rights movements suggests the
fundamental flaw of Western European temporary worker policies. Implicit
in their policies was the assumption that economic man could be divorced,
for the purposes of public policy, from the social, cultural and political

Another lesson to be drawn from the Western European experience is
that the social, cultural and political identities of aliens must be borne
in mind and accommodated in the formulation of an American temporary worker
programme. Not to do so would be to invite the societal unrest and inter-
national criticism endured by the Western European governments in the 1970s.
It would also serve to obfuscate many of the long-term socio-political
costs of temporary labour.

- 15 -

When foreign worker policies were initiated in Western Europe,
generally at the behest of employer interests, foreign workers were seen
primarily as a workforce and were given limited rights. Slowly, however,
the Western European governments have conceded ever greater rights to
aliens in response to pressure from domestic constituencies, the aliens
themselves, the governments of Mediterranean countries and international
organizations. Presently, foreign workers generally can be said to share
most of the rights of Western European citizens except that they only
rarely can vote or hold office in countries of employment. The corol-
lary of the extension of rights to migrants has been their increased
participation in all phases of societal life,from membership in political
parties and trade unions to sending their children to school and benefiting
from governmental services. While foreign workers certainly have played
an important role in Western European economic expansion, the governments
found that foreign worker policies became costly in terms of outlays for
additional education, vocational training, social welfare and health
care services. However, it should be stressed that the alleged social
costs of foreign worker policy are hotly disputed as few scientifically
sound methods of estimating social impact are available. The perception
that socio-economic costs stemming from foreign worker employment outweigh
economic benefits, at any rate, was a major factor in the decisions to
freeze or terminate temporary worker programmes.

Western Europe also discovered that large-scale foreign worker
programmes became a considerable administrative undertaking. Perhaps the
most important lessons to be derived from the Western European adminis-
trative experience are the advantages of comprehensive planning as
opposed to the stopgap, piecemeal policy-making that characterized the
formulation of foreign worker policies and the difficulty of protecting
foreign worker rights. Abuses of foreign workers and the terms of bi-
lateral agreements frequently strained relations between the countries
of employment and the countries of origin.55 They also provoked foreign
worker protests that served to fuel xenophobic reactions. What at the
inception of Western European foreign worker policies was a limited critical
audience of programme administrators, gradually grew to include most major
societal interest groups, plus the foreign workers themselves and the
governments of their countries of origin. The extensive nationwide con-
sultative organisms that developed over the years testified to the complexity

- 16 -

of administering the programmes. Despite often sincere intent, it proved
to be agonisingly difficult to implement in a satisfactory fashion policy
decisions aimed at improving the conditions of foreign workers, especially
in the areas of housing and vocational training.

The Western European experience (specifically that of the Federal
Republic of Germany and Switzerland) casts doubt upon the starting assum-
ption of a foreign worker policy that the programme and its workers are
temporary. Due to the demands of domestic allies of foreign workers,
humanitarian considerations, various treaty commitments and international
pressures, millions of supposedly temporary foreign workers and their
dependents have become long-term or permanent residents of Western Europe.
N foreign workers coming to Western Europe did return, but a large
fraction did not. As few foreign workers and their dependents
accede to citizenship,because the policies of the countries of origin
encourage return and restrictive European citizenship laws, they remain
in Western Europe in a kind of state of limbo being full-fledged
citizens neither of Western Europe nor of their countries of origin. In
the case of France, which has relatively liberal naturalisation laws,
even a cash incentive programme for foreign worker repatriation has met
with mixed results.36 While the number of foreigners employed has been
reduced significantly since the decisions to suspend or freeze temporary
worker programmes were taken,37 the alien populations of the three coun-
tries have remained constant or have increased due to family reunifi-
cation. The steady influx of foreign worker dependents, administratively
and diplomatically difficult to end, has frustrated Western Europe's
efforts to reduce its alien populations. The Western Europeans now
realise that, as a result of their foreign worker programmes, they have
acquired seemingly permanent minorities questions that bode socio-
economic, political and cultural problems in the future.38

Foreign worker policies undoubtedly account for the much lower
rates of illegal migration to Western Europe as opposed to the United
States. However, even large-scale legal employment opportunities combined
with stiff employer sanctions and mandatory identity cards did not prevent
some illegal migration. Nor did the provision of extensive socio-economic
and political rights to foreign workers preclude charges of discrimination
and exploitation from being levelled against European governments. Indeed,
to some observers, it is precisely these attributes which characterise
Western European foreign worker policies.

- 17 -

It should be noted that misgivings over Western European foreign
worker policies have been shared in part by governments of the countries
of origin, which increasingly are conscious of the negative impact of
labour emigration upon their societies. Emigration has provided only
temporary relief of chronic unemployment and perhaps has served to fore-
stall necessary structural changes. Emigrants' remittances generally
have not been channelled into development projects but usually are spent
on consumer items (a response in part to the potentially destabilising
"revolution in expectations" fostered by emigration), and this tends to
offset part of the beneficial impact of remittances on the balance of
payments. The expectation of countries of origin that they would receive
skilled workers when their citizens returned has been sorely disappointed.
Many of the skills acquired by migrants are not transferable back to their
home countries; and European vocational training for foreign workers
generally has lagged behind promises. The belief that foreign worker
policy is not as beneficial to the countries of origin as often assumed
has led to proposals for compensating the labour-sending countries by
the countries of employment39

Thus, in view of the expectations attached to foreign worker programmes,
they must be considered marginal successes at best. In spite of the
generally immigrant-welcoming attitude of France, even the French do not
now want foreign worker employment to eventuate in permanent residence
because of their unemployment and integration problems. The Swiss
and Germans did not welcome immigration as opposed to foreign worker
employment. Yet, many supposedly temporary aliens, a number greatly
augmented by subsequent family entry, have become long-term members of
European society, a fact that the United States should not ignore.


In light of recent advocacy of an expanded temporary worker policy,
the possible forms that this expansion might take need to be examined,
especially with respect to the Bracero, H-2 and Western European guest-
worker experiences. Small- or large-scale expansion of the temporary
worker programme could develop along one of two paths: either it could
emerge through modification of the present H-2 programme, or it could
result from new international treaty arrangements. Depending on whether
the programme expansion would be minor or massive, limited to Mexico or

- 18 -

open to foreign workers from other countries as well, and based on a
treaty or not, five general models of expanded American temporary worker
programmes could be differentiated. The considerations relating to them
are only speculative and there are many possible forms such programmes
might take. The task at hand, though, is not to describe all their
possible variations, but to elucidate only the key administrative, legal,
socio-economic and political factors that would have to be considered in
the decision to expand the temporary workforce.

Briefly, the five models, all of which assume that the employment
opportunities involved will be in the unskilled farm and non-farm sector,
can be described as follows:

Model I is a large-scale (500 to 800 thousand permits
yearly) non-treaty type programme. Although new legislation
would be necessary for its implementation, this programme would
resemble an enormously enlarged version of the present H-2
temporary worker programme. Under this model, workers would
come from various sanding countries and would be rotated on a
yearly basis.

Model II is also a large-scale (500 to 800 thousand permits
yearly) multinational programme but differs in that it would be
based on a series of treaties betweeathe U.S. and various
worker-sending nations. Temporary workers under model II would
be rotated every two to three years. Thus, there would be one
to three million present at any one time. These workers would
likely receive greater benefits and rights than model I workers,
who would not enjoy the guarantees set forth by treaties.

Model III again is a large-scale (500 to 800 thousand permits
yearly) treaty-based programme but unlike models I and II is bi-
lateral only, limited to Mexico. Mexican workers would receive
two to three year permits and benefit from extensive rights,
although their access to jobs would be restricted and their
geographical mobility limited to the Southwest.

Model IV is a smaller (100,000+ permits yearly) non-
treaty foreign labour programme, which would draw its workers
from Mexico only. This model would most closely resemble an
enlarged H-2 programme and might not require new legislation.
Workers would be rotated every 6 to 12 months in this model
and restricted to the Southwest.

Model V is a small-scale (100,000+ permits yearly)
Mexican labour programme differing from Model IV in that it would
be based on a U.S.-Mexican treaty and therefore carry with it
additional rights for workers and additional responsibilities
for the U.S. Government as in other treaty-based models.
The following table lists the salient features of the various models.
(A more comprehensive tab3t appears in the Appendix.)

Table 1: Salient features of models of

Legal authority

Permits yearly
Permit duration

Type of work

Geographical scope


New legislation
(H-2 type)


1 year

Unskilled farm
and non-farm


Large-scale model



2-3 years
1-3 million

Unskilled farm
and non-farm


Small-scale model


Bilateral treaty Current H-2

2-3 years
1-3 million

Unskilled farm
and non-farm


6-12 months

Unskilled farm
and non-farm



Bilateral treaty

6-12 months

Unskilled farm
and non-farm


- --

expanded temporary worker programme

- 20 -

(a) Composition of workforce

The first questions that arise in contemplating an expanded temporary
worker programme are: who would qualify, how many and from where? Accompany-
ing President Carter's legislative proposal to grant permanent and full
amnesty to all illegal aliens whs could prove residency prior to 1 January
1970, was the offer of a five year, perhaps renewable, temporary status to
those illegal aliens who did not qualify for permanent and full amnesty.
This offer, along with the amnesty proposal, however, met with Congressional
opposition. The Administration's bill was not acted upon by the Ninety-
Fifth Congress and has not as yet been resubmitted. Thus, to be politically
feasible, it seems unlikely that an expanded temporary worker programme would
be used to "regularise" (i.e. legalise) the status of illegal aliens already
here. Rather, an expanded programme would be directed toward legalizing,
controlling, and eventually diminishing the future inflow of illegal aliens.
What one should do with the existing illegal alien population is a question
outside the scope of this paper.

To the extent that an expanded temporary worker programme is limited
in size and locale, it will also be limited as a response to the illegal
alien problem in general. If the expanded programme is limited to Mexicans,
who are presumed to comprise more than half of the total illegal alien popu-
lation, then the problem of illegal immigration from countries like Haiti,
Colombia and the Philippines remains unresolved, at least for the present.
Over the long run, it is possible to speculate that a massive Mexican tempo-
rary workforce might fill most of the jobs traditionally taken by illegal
aliens of all nationalities and thereby lessen the attraction of the United
States to non-Mexican illegal aliens. While this last point remains in
the realm of speculation, it seems likely that other major illegal
labour-sending countries would take umbrage at the unequal treatment accorded
their nationals and would pressure the United States to extend to their emi-
grants the same considerations afforded Mexicans. Therefore, a key early
decision influencing the subsequent nature of temporary worker programme
expansion would be whether the enlarged programme is to pertain exclusively
to Mexicans or to other nationality groups as well. If expansion were to be
limited to Mexicans only, then the geographical area open to foreign worker
employment under the new programme would be presumably limited to the South-
west of the United States.

- 21 -

In the event that the expanded programme were to be multinational
rather than strictly Mexican in composition, along the lines of the present
H-2 programme, a second decision would have to be made either to grant all
temporary workers uniform status or to establish a variety of more or less
favoured temporary workers.40 Key elements determining the status of
temporary workers need not be uniform. Temporary workers in certain job
categories could be allowed to stay longer than others and temporary
workers from one country need not be granted the same privileges as tempo-
rary workers from another. Other countries have had temporary worker pro-
grammes with sharply different statuses for various categories of Workers.
Yet, the experiences of temporary worker programmes elsewhere would suggest
that multiple or non-uniform status for various temporary worker categories
in a country complicates the task of administering the programme and in-
vites misunderstanding of governmental policies.41 It could be expected
that the countries of origin who are at a disadvantage vis-a-vis others
whose citizens have a more privileged status, would exert pressure upon
the United States to end "discrimination" against their nationals. For
the purpose of this report, it has been assumed that the United States would
grant uniform status to any temporary workers brought in under an expanded

(b) Large-scale programmes (models I, II and III)

(i) Number of work permits

While the rate and nature of clandestine influx is uncertain, it is
estimated that between 500,000 and 800,000 illegal aliens enter the United
States each year.42 If the goal of an expanded programme were to legalise
the status of illegal aliens presently entering, then the maximum size of
the programme would have to be in the range of estimated inflow.

The size of a temporary workforce is determined by two variables:
the number of work permits issued and the length of time for which the
permits are valid. The permit, of course, is the governmental document
that a temporary worker receives to be granted residence and working rights
in the United States. The nature of a temporary work permit for aliens is
determined primarily by the duration of its validity, the restrictions which
it places upon the employment of its holder and whether it is renewable or
not. In any temporary worker programme a certain number or quota of permits
presumably would be allotted each year to aliens desirous of working in the
United States. Whatever the yearly quota of temporary work permits granted,

- 22 -

this number multiplied by the duration of time for which the permits are
valid yields the total number or stock of temporary workers administered
by the programme (barring early repatriation). Hence, if temporary workers
were given two-year permits, the size of the programme would be twice the
number of permits allotted in theyearly quota, three times the quota in
the case of three-year permits and so on. This calculation assumes that the
number fixed as the yearly quota of temporary worker permits would remain
constant over the years and that, if the permits were to be renewable,
those renewed would decrease the number of new permits granted under the
quota in a corresponding fashion.

A temporary worker programme designed to "regularise" the influx of
illegal aliens would soon take on the size of the estimated yearly inflow
multiplied by the duration of the permits to be given. Whether the programme
is based upon a treaty or whether it develops along the lines of an expanded
H-2 programme will influence the duration of the permit. In the first model,
the scenario of a large-scale temporary worker programme developed out of the
existing H-2 programme on a non-treaty basis, the duration of the permits
presumably would remain eleven months as under the current H-2 programme.
Thus, the size of a large-scale, non-treaty programme, hereafter referred
to as model I, would be in the range of 500,000 to 800,000 temporary workers.
In the scenario of a large-scale programme sanctioned by a treaty, i.e. models
II and III, the duration of the permits would be longer, either two or three
years. The longer permit durationprobably would be demanded by the countries
of origin in treaty negotiations. This permit time span approximates inter-
national patterns of temporary worker employment.43 The governments of
countries of origin probably would insist that the American temporary worker
programme conform to guidelines for migrant workers suggested by the
International Labour Organisation44 and other international organizations.
Since these guidelines stipulate that migrant workers should not be treated
less favourably than nationals as regards apprenticeship and vocational
training in the countries of employment, and that adaptation to their new
surroundings be facilitated, it would be difficult to respond to these guide-
lines if temporary workers were not granted permits in the order of two or
three years' duration. Thus, it is likely that the temporary workforce in
models II and III would assume the proportions of one to three million

It might be objected that a programme designed to substitute temporary
workers for all illegal aliens presently entering would be considerably

- 23 -

smaller than the maximum sizes estimated above, for one could hold that
many of the illegal entrants detected each year actually cross and recross
American borders several times a year. Thus, the counter-argument would
run that the goal of legalising the on-going influx of illegal aliens could
be achieved through the creation of much smaller "maximum" programmes than
those suggested.

It might be further argued that the number of temporary work permits
allotted annually also could be progressively reduced as the population
reservoirs currently giving rise to illegal immigration are gradually
diminished through the granting of temporary worker status. This argument
rests on several assumptions concerning the nature of the illegal alien
influx. There is reason to doubt the soundness of these assumptions. First
of all, the bottom-heavy demographic structure of the countries which send
illegal aliens to the United States would indicate that the number of
temporary worker permits required to achieve the maximum goal, that of
substituting temporary worker employment for illegal immigration, probably
could not be progressively decreased through time.4 Over the foreseeable
future, an ever greater number of young adults will reach the age when
migration becomes an alternative to continued residence in most countries
which presently have significant illegal alien populations in the U.S.
With economic conditions in those countries unlikely to be dramatically
improved over the next decade, the number of young adults inclined to emi-
grate can be expected to increase significantly simply due to the coming of
age of the disproportionately huge, youthful population cohorts. Thus, if
the goal of a temporary worker programme were to substitute temporary legal
status for illegal immigration, the annual allotment of temporary work
permits initially would have to be affixed somewhere in the 500,000 to
800,000 range and probably could not be reduced for a long time without
engendering pressures for illegal immigration.

(ii) Rotation of workers

A second consideration in this respect pertains to the question of
permit renewal. Unless temporary workers are "rotated" or not given the
legal option of remaining in the United States as temporary workers upon
expiration of their permits, renewal of temporary work permits will result
in ever lengthening waiting lists in the countries of origin. Every year,
the number of aspiring temporary workers frustrated by the renewal of permits

- 24 -

for temporary workers already in the United States will grow. As the
number of openings for new temporary workers in the yearly quotas declines,
the temptation for illegal immigration will increase. However, this con-
sideration must be weighted against a likely consequence of a rotation
policy. If temporary workers are obliged to repatriate when they would
rather renew their stay for another few years, they would be more inclined
to become permit violators. Or, if they are constrained to leave, they
might return as illegal immigrants. After establishing contacts in the
United States, it would be much easier for former temporary workers to
return clandestinely than it would be for potential illegal aliens lacking
familiarity with the United States to enter.

(iii) Duration of permits

The duration of the work/residence permits also is a point of con-
tention in the controversy whether a large-scale temporary worker programme
would have to be massive if it were to become a viable alternative to illegal
immigration. Besides the international guidelines already mentioned, the
fundamental consideration in this respect is that the offer of temporary
worker status must be sufficiently attractive so that potential illegal
aliens would request such status in the first place. If the duration of
entry is too short to satisfy the aspirations or needs that motivate
people to emigrate, permit violation or the clandestine return of erstwhile
temporary workers would be likely. Adherents of the point of view that
much of the illegal entry detected actually represents seasonally-determined,
two-way border crossings assume that short permit-time-spans would suffice
to satisfy many or most present-day illegal aliens. If this presumption
were correct, such a short permit duration would considerably reduce the
potential number of temporary workers present at any one time.

The notion that short-term work permits would correspond to a short-
term inflow and outflow of illegal aliens is extrapolated from evidence
gathered through interviews of illegal aliens who actually returned to
Mexico. However, there are others who do not return and the over-all
degree of temporariness is a mixture of the two phenomena. It is, there-
fore, only a reasonable hypothesis that much illegal immigration is seasonal
or short-term. In the absence of hard evidence proving a high rate of
short-term stay, it must be wondered whether an American version of the
"myth of return" is developing.6 In Western Europe, social scientists
have found a consistent disparity between the belief expressed by foreign
workers that they relatively quickly will return home and their actual

- 25 -

lengthening duration of stay.47 Expectations of foreign worker rotation
in Western Europe were disappointed in part because a significant proportion
of foreign workers did not return as it was assumed they voluntarily would.
It is plausible that a similar sociological phenomenon could come
into play if an expanded temporary worker programme were established in the
United States. To the extent that it did, a short-term work permit ostensi-
bly corresponding to the desires expressed by emigrants, might prove to be
unsatisfactory to them in practice and lead to permit violation.

(c) Small-scale programmes (models IV and V)

An expanded temporary worker programme would not have to aim at the total
replacement of on-going illegal immigration through the granting of temporary
worker status. Rather, the goal and size of the replacement would be much
more modest. In the small-scale scenarios, the temporary worker programme
would be expanded in regional limits in the Southwest of the United States -
to become a partial abatement rather than a total solution to on-going
illegal immigration. Small-scale expansion would be expected merely to
"thin out" the ranks of illegal aliens in the Southwest, making the politi-
cally salient illegal alien problem there more manageable. To have any
impact at all on the illegal alien problem in the Southwest, even small-
scale expansion of the programme presumably would involve the granting of
at least 100,000 additional temporary work permits. In the scenario of
small-scale expansion through modification of the H-2 programme, i.e. model IV,
the duration of the permits would be eleven months at the longest. In the
scenario of a small-scale, treaty-based Mexican labour programme, i.e.
model V, the permit duration would also probably be less than a year.
Given the largely seasonal, farmworker employment envisaged for temporary
workers in this scenario, it would not be inconsistent with international
practice to limit model V permit duration to less than a year. Precedents
would be the French and Swiss "seasonal" worker programmes.48 Thus, in
both models IV and V the size of the expanded temporary workforce would
number around 100,000. Permits would be renewable. Before turning to the
nature of permits that would be granted in each model, however, there remains
to be considered the important matter of whether the various models of an
expanded temporary worker programme would require statutory revision or

(d) Statutory revision

As noted in the review of the H-2 programme, the non-immigrant labour

- 26 -

provision of the Immigration and Nationality Act of 1952, as amended,
authorising the entry of temporary workers, stipulates that temporary
workers only be allowed in for work of a non-permanent or seasonal
nature.49 To date, apparent violations (e.g. sheep herders receiving three-
year H-2 visas) of this requirement have gone unchallenged. This is due
primarily to the quantitative insignificance of the present programme. If
the H-2 programme were to be expanded, however, the legality of the pro-
gramme certainly would be challenged. This would be a ready way for
opponents of an expanded programme to block it. In view of the restricted
number of seasonal jobs, such as harvesting, implementation of an expanded
temporary workforce of the size envisaged in models I, II and III could not
be accomplished under existing legislation.5 Even the modest expansion
proposed in model IV probably would require statutory revision. The only
way that revision might be avoided in this model is by restricting the
temporary workers to seasonal agricultural jobs as in the Bracero programme.
Such a stringent restriction, though, might run counter to the Mexican
Federal Labor Law which requires that a Mexican worker employed abroad be
accorded the same status and rights enjoyed by workers in Mexico.51 It
is difficult to see how such a stringent restriction could be reconciled
with Mexican law. Even the less stringent restrictions envisaged for
Mexican workers in other models will be difficult to reconcile with
Mexican law. The point, though, is that modest expansion of the workforce
on a non-treaty basis probably also will require statutory revision or risk
being voided by the courts. For example, if temporary workers were to be
given access to restaurant and hotel jobs, for which they competed with U.S.
workers, a change in the law would be required, unless the "peak load"
concept held up to a legal challenge.

In the cases of temporary worker programmes based upon bilateral treaties
(models II, III and V), the "non-parmanent" character provision would not
bar expansion, since a treaty would supercede the current law and authorise
the employment of non-immigrants in jobs of a permanent character. This
is one of the most significant differences between the non-treaty and
treaty-based models.52

(e) Nature of the work permits

As already noted, the nature of a temporary work permit is determined
mainly by its duration, the restrictions put upon its alien bearers and

- 27 -

whether it is renewable or not. A further consideration is whether the
permit can lead to citizenship. By definition, a temporary worker policy
should not allow access to citizenship. Otherwise, it would be a de facto
immigration policy. Indeed, it may be that advocates of an enlarged temporary
workforce see in such an expansion the means to expanded immigration.
However that may be, the assumption behind the five models considered here
is that they should not eventuate in citizenship. This dictates that renewal
of the one year permits in models I, IV and V be limited to a maximum of
five consecutive years. Prolongation beyond this limit would result in a
span of residence after which mandatory repatriation would be both inhumane
and unlikely.53 The temporary worker would have sunk such a stake in
American society that it would be inconsistent with human rights policy to
require repatriation. Furthermore, the longer temporary workers are allowed
to stay, the more likely they would be to become permit violators if forced
to leave.

Thus, permits given in models I, IV and V could be renewable, whether
consecutively or not, up to a total of five years. In models II and III
with their two- or three-year duration, it would seem that permits should
not be renewed. If they were, they should be renewable only once. Any
further renewal should lead to citizenship and, hence, would constitute a
de facto immigration policy.

The restrictions placed upon aliens by temporary work permits will con-
stitute the most controversial aspect of any decision to expand the temporary
workforce. To be politically acceptable to labour interests and the American
public troubled by a high rate of indigenous unemployment, a temporary
worker programme will have to include restrictions upon the access of tempo-
rary workers to certain job categories. In all five models, temporary workers
would be restricted from skilled jobs. Generally, they could be employed
only in low-skill manual labour jobs. Because of the size of models I, II
and III, there would be far more temporary workers than agricultural jobs.
Therefore, temporary workers would likely work as hotel and restaurant
employees, low-skilled factory workers and domestic help as well as farm
workers. Because smaller size and short permit duration of models IV and V,
it is conceivable that Southwestern agriculture might be able to absorb most
of these workers.

In the models relating only to the Southwest (models III, IV and V)
temporary workers would be geographically resticted. Under the current H-2

- 28 -

programme, of course, temporary workers are tied to one employer and are
not entitled to move about freely. Due to the nature of the present H-2
contracting system, temporary worker permits are revocable if the employer
terminates the contract. These sorts of restrictions are tolerable only
because the small size of the current H-2 programme makes less noticeable
its controversial aspects. If the programme were to be expanded, and cer-
tainly if bilateral labour treaties were negotiated, such restrictions
probably would have to end.

In other words, an expansion of the American temporary worker programme
could not simply be an approximation of the Bracero programme. Expansion
of the temporary workforce would bring the status of temporary workers in
America to the forefront of public scrutiny, both domestic and international.
The environment surrounding temporary worker policy has been dramatically
transformed since the inception of the Bracero programme by three main
phenomena: first, there has been a revolution of consciousness concerning
human rights; second, the Third World countries which send out temporary
workers no longer are quiescent and willing to brook mistreatment of their
nationals working abroad; third, the Western European experience with
foreign workers has altered expectations of how foreign worker policies
are to be conducted. International expectations and guidelines concerning
temporary worker policies have evolved considerably since the Second
World War. Thus, the contracting system now used in the H-2 programme, which
is at the source of its severe limitations on worker freedom, would have
to be modified if an expanded H-2 type programme (models I and IV) were

(f) Contracting

There are two basic ways that alien workers can contract with employers
in a temporary worker programme. First, temporary workers and employers
can be permitted to contract in a laissez-faire fashion with the contracts
being required to conform to Government standards. Second, the Government
can establish what is in effect a monopoly over the introduction of tempo-
rary workers into the labour market. The Government, in liaison with labour
ministries of the countries of origin, then becomes a sort of matchmaker
between employer and temporary worker as employer requests are processed
by the Government, transmitted to labour officials in countries of origin,
and filled by temporary workers who have submitted their names as candidates

- 29 -

for temporary work abroad. The H-2 programme presently approximates a
laissez-faire contracting system, but this is unlikely to continue under an
expanded programme.

The small-scale models (models IV and V, 100,000+ yearly permits to
Mexican workers) are relatively close in size to the H-2 programme (50,000
yearly), but their goal to "regularise" the illegal migration to the
Southwest will make it necessary to use other than the H-2 contracting
system. It would no longer make sense to permit the employer the choice of
the sending country as well as the individual worker. Continuation of that
perogative would not ensure the hiring of workers otherwise most likely to
enter illegally. Consequently, direct employer contracting would be
unlikely. A network of temporary worker bureaux, jointly administered by
American and Mexican officials, probably would have to be established in
the areas of Mexico which produce large numbers of illegal aliens, even
in these small-scale models. The bureaux would match requests by American
employers with demands for temporary work by local Mexicans.

It should be recalled that the Mexican law requires every labour
contract between Mexican workers and a foreign government to be notarised
by a Mexican municipal authority and countersigned by a counsel of the foreign
government in question. Thus, without changing their laws or purposefully
ignoring then, it would not seem that Mexican authorities could allow American
employers to contract directly with Mexican workers in a laissez-faire
fashion on Mexican soil.

The contracting in large-scale treaty-based models (II and III)
would almost certainly be accomplished through a governmental matchmaker
arrangement. First, international guidelines suggest that the introduction
of migrant workers by a country of employment be organised in conjunction
with the competent authorities of the country of origin. Secondly, the
labour-supplying countries probably would insist that the treaties provide
for the U.S. Federal Government directly to control all aspects of temporary
worker employment. This provision would be designed to protect against
employer abuses and corruption of officials in the countries of origin, as
well as to prevent violations of bilateral accords from being justified on
the grounds that the Federal Government is without the jurisdiction to act.

In model I (the large-scale, non-treaty scenario) it is conceivable,
but very unlikely, that employers be allowed to contract directly with

- 30 -

temporary worker candidates abroad. Such a large-scale programme,
carried out without being organised by the governments involved, would
preclude the competent authorities of countries of origin playing a role in
the programme which is tantamount to precluding that model altogether.

(g) Role of governments of countries of origin

Any expansion of the American temporary workforce assumes the approval,
even the active involvement in programme development, of major labour-supplying
countries. If temporary workers are not to become citizens of the United
States, then eventually they must return to their homelands. Expansion of
the temporary workforce cannot be contoured solely after American needs. To
succeed, the sending and receiving countries must work together to control
all aspects of labour emigration: from organised recruitment of the tempo-
rary workers in their home area, to the transportation of the recruits,
their placement in jobs, supervision of their well-being in the United
States, and eventually their return and reintegration into their own societies.
Each stage of the programme must be linked with the rest in order for the
entire programme to work. Recognition of the important role that the govern-
ments of the countries of origin would have in any expansion of the American
temporary workforce raises the question of the nature that role would take
in the five models.

Judging from the French, German and Swiss experience with foreign
workers, the role of the labour-supplying governments in the treaty-based
models (II, III and V) would be threefold. First, bilateral commissions
would be created to monitor compliance with the treaty provisions and resolve
disputes. Second, the governments of the countries of origin probably would
demand and receive inspection rights wherein their officials could visit
temporary workers in the United States and examine their living and working
conditions. Third, the consular activities of the concerned labour-supplying
governments probably would be expanded.

The United States would have to tolerate a broader scope of foreign
governmental political and administrative activities on American soil.
For example, the voting of temporary workers in elections in their coun-
tries of origin would have to be facilitated, foreign political campaigns on
American soil countenanced, periodic public consultations between temporary
workers and their governmental representative organised, etc. In the case
of model IV, the Mexican Government probably would be granted certain peroga-

- 31 -

tives even though a treaty were not enacted. The Mexican Federal Labor
Law requires that the Government inspect the living and working conditions
of Mexican national employed abroad as done under the Bracero programme.
It is not evident precisely what the perogatives of the labour-supplying
governments would be under a large-scale non-treaty programme, if any at

(h) Programme administration

Changes in contracting procedures and consideration stemming from sheer
quantitative increase will require that the administration of an expanded
temporary worker programme vary considerably from that of the present H-2
programme. This would be especially true of a treaty-based programme which
could be expected to conform closely to existing international guidelines
on migrant workers.

The H-2 programme is intended to be a fine-tuning instrument for
the American labour market. As long as it is modest in size, it can be
administered through the time-consuming and painstaking procedure of
certifying each job to be filled. Any large-scale expansion of the tempo-
rary workforce would render this individual labour certification unworkable.
Even in the case of small-scale expansion (100,000 workers), it is unlikely
that individual certification could cope with the expanded administrative

The most important reason why it is unlikely that individual labour
certification would persist is that it ties temporary workers to a
single employer. As already noted, this practice is unlikely to be
acceptable in an enlarged programme. Thus, it is likely that any expansion
of the temporary workforce would be accompanied by recourse to blanket
certification. In the case of large-scale expansion, such a new administra-
tive procedure would be a certainty.

Blanket certification refers to the administrative procedure which
would declare entire categories of jobs open to temporary worker employment.
Under this procedure temporary workers would be free to move around from
job to job in specific employment categories, thereby eliminating both the
need for case-by-case certification and total temporary worker dependence
upon one employer. To prevent abuse, any blanket certification system would
require the inauguration of a counterfeit-proof temporary worker identification
system. Otherwise, there would be no quick way of checking whether an employer

- 32 -

has hired bona fide temporary workers or illegal migrants. To be an
effective deterrent to the hiring of illegal migrants, a temporary worker
identification system would have to be complemented by strong sanctions
against employers of illegal aliens and a system of internal controls.
Thus, all five models would be likely to require a temporary worker identi-
fication system and its attendant administrative control and monitoring

Due to their treaty basis, models II, III and V would probably include
the full complement of administrative programmes for temporary workers
suggested by international guidelines and established in Western Europe.
These programmes would be designed to facilitate the adaptation of temporary
workers to their new surroundings. Hence, it would be expected that a net-
work of temporary worker information, reception and counselling aent-reste
established. These centres would function as a hybrid of a legal aid office
and a social services centre. Their function presupposes the capability
of making extensive information available to temporary workers in their
native languages and a staff of specially trained social workers who could
assist the temporary workers with manifold problems that accompany living
in a different society. Except in Hispanic areas, temporary workers would
need at least minimal knowledge of English in order to cope with their
new living environment and to prevent work accidents stemming from language
barriers. Thus, an English training programme for temporary workers might
have to be implemented as might some form of vocational training programme.
In Western Europe, provision for temporary worker vocational training is
now seen as a normal component of foreign worker policy. Furthermore,
international guidelines and precedents increasingly call for the establish-
ment of consultative councils and other administrative structures designed
to facilitate the expression of temporary worker grievances and suggestions
to administrators.

Perhaps the most important difference between the treaty and non-treaty
scenarios is the likelihood that many of the above-mentioned programmes for
temporary workers would not be implemented in the non-treaty scenarios.
Still, even models I and IV, the non-treaty models, would require extensive
administrative modification to the present H-2 programme well beyond blanket
certification and a temporary worker identification system. Any expansion
of the temporary workforce implies the need for additional administrative

- 33

staff. The local, state and federal agencies concerned with health, housing
and workplace inspection would have to adapt to meet the increased load
of temporary worker supervision. The Justice Department would have to expand
its mission to cover protection of temporary workers from discrimination as
well as prosecution of employers and alien abusers of the temporary worker
laws. Any large-scale expansion would probably require the creation of a
comprehensive administrative co-ordinating council bringing together repre-
sentatives from agencies on the local, state and federal levels concerned
with temporary workers.

Depending on the rights accorded temporary workers (which are likely
to be more extensive in the treaty-based models), an expanded H-2-type
programme could also render social security administration more complex.
Special provisions would have to be made for the disability, death and old
age of temporary workers. Similarly, if temporary workers were to be exten-
ded unemployment compensation and the right to bring in dependents,
appropriate administrative changes would have to follow. For example,
temporary worker dependents would require additional social services and
educational programmes. Again, these administrative changes would most
likely occur only in the treaty-based programmes (models II, III and V),
where temporary workers would likely be granted extensive rights by the
treaties themselves.

(i) Workers' rights

Bilateral treaties sanctioning an expanded American temporary
worker programme would likely oblige the Federal Government to guarantee
equality of rights between temporary workers and American citizens except
for the rights to vote and hold public office. While the governments of
countries of origin might agree to restrictive measures precluding tempo-
rary worker employment in certain occupations as a means of protecting
American labour, they would insist that there be no discrimination between
foreign and American workers employed in the same job categories.

Under models II, III and V, temporary workers would be granted the
same rights as Americans with respect to conditions of employment, wages,
social security and unemployment compensation. Furthermore, they would be
entitled to full participation in governmental services and equal pro-
tection by governmental agencies. In essence, the United States would
extend to temporary workers all theirights and benefits of American labour

- 34 -

except total access to jobs and citizen rights. Temporary workers would be
free to join trade unions and would enjoy the right to strike. In addition,
they would be entitled to equal protection and due process of law as are all
aliens within the territorial jurisdiction of the United States.

While not entitled to vote or hold public office, temporary workers
brought in under a treaty arrangement nonetheless would be entitled to
civil liberties. They would be free to express their opinions, form
associations and organise public demonstrations. Western European govern-
ments have deemed it necessary to limit these political rights by the
proviso that their exercise neither disrupt the public order nor jeopar-
dise foreign policy. Such limitation would prove more difficult to effect
in the United States as Constitutional rights apply universally to all
persons, including presumably temporary workers.53 As already noted,
special consultation councils probably would be established on the local
and national levels to provide public forums for the articula~ih of tempo-
rary worker grievances and suggestions.

Although the granting of some of the afore-mentioned rights would be
less likely in the non-treaty scenarios, the guarantees would still be
applicable. Currently, the H-2 programme makes no provision for temporary
worker social security and unemployment. H-2 workers do not have union
rights or the right to strike. Furthermore, as a practical matter, they
do not enjoy freedom of movement or expression due to their dependence upon
one employer.

(j) Dependents' rights

Significantly, the H-2 programme does not bar temporary worker
dependents from accompanying work permit holders to the United States.
Neither does it greatly facilitate their coming to the United States, how-
ever. Temporary worker dependents man apply for H-4 visas, but rarely do,
and are not guaranteed to receive one if they should apply. This situation
would be likely to continue in the case of non-treaty expansion of the
workforce. In other words, it is unlikely that temporary worker dependents
would have any greater rights than under the present H-2 programme. Those
temporary worker dependents who did come here would presumably not have
the rights to all governmental services. However, humanitarian considera-
tions would probably result in many services being opened to them in practice.

An important consideration with respect to the likely number of depen-

- 35 -

dents in all models is permit renewal. The greater the length of stay,
the more likely that dependents will join (legally or illegally) tempo-
rary workers in the United States. In the treaty scenarios, the situation
of dependents would be different. Especially in view of the longer permit
duration under models II and III, it is likely that the labour-supplying
governments would demand the granting of non-immigrant visas to temporary
worker dependents. However, since the departure of dependents would tend to
lessen the homeward flow of temporary worker remittances, their govern-
ments might not insist upon the rights of dependents to family reunification.
The United States certainly would be expected to facilitate visits by
dependents and would have to extend governmental services such as schooling
to temporary worker children who accompanied their parents) to the United
States under a temporary labour treaty. It is assumed that temporary
worker dependents wouit not be authorised to work. However, if denied this
right they might, at least under the larger-scale models, become a substan-
tial "undocumented" workforce themselves.


A source of troubled bilateral relations, diminished American inter-
national prestige, acrimonious and divisive domestic public policy debate,
probable displacement of indigenous workers, depression of conditions and
wages in low-skilled occupations and the wholesale violation of immigration
law, the illegal alien problem demands forthright corrective governmental
policy initiative. Yet, the nature of appropriate public policy response is
not evident. For all the clamour about illegal aliens, far too little is
actually known about them. Not only is the size of the illegal population
the object of widely diverse estimates, but there is only impressionistic
data on where illegal aliens come from, why they come, what their impact on
the national economy is, how they live and whether they eventually return
to their countries of origin. Certsanly, this paucity of information compli-
cates the task of intelligent policy-making. But it need not preclude
governmental response. Even if little is known about the economics and the
sociology of illegal immigration, it is obvious that there is wholesale
violation of American law. This realisation alone would seem to make
governmental response imperative.

In that it proposes itself as a response to the illegal alien problem,
the notion of an expanded American temporary worker programme is both timely
and constructive. The task at hand, though, is to determine whether this

- 36 -

programme genuinely offers a solution to the illegal alien problem.
The proposed programme, in its several possible forms, should not be
judged with reference to the present state of governmental inertia and
ambivalence concerning illegal aliens. Rather, the proposal should be
judged on its own merits to the extent possible. Indeed, a misconceived
policy initiative could exacerbate the illegal alien problem with possibly
serious, and irrevocable, long-term consequences.

In this section, a rough balance sheet of general advantages and
disadvantages stemming from an expanded temporary worker policy will be
drawn up. This will provide a frame of reference for assessment of the five
models of an expanded temporary worker programme that have been envisaged.
A rank ordering of the utility of the models based upon their probable
impact if transformed into policy will then be made from the standpoint of
American interests.

(a) General advantages

The promise held out by an expanded temporary worker programme breaks
down into a six-fold calculation of potential advantages. These advantages
primarily reflect legal, economic and foreign policy considerations as
opposed to domestic political considerations.

Adoption of a massive American temporary worker policy above all
offers the advantage of terminating with dispatch flagrant violation of
American law. The regularisationn" of illegal aliens would give them
legal status in American society which would recognize and legitimise the
role that illegal aliens have come to play in the economy. Legalisation
would curb many of the abuses to which illegal aliens are exposed, especially
illicit labour smuggling. Under such a programme, much of the fear and
naked exploitation which characterise the lot of illegal aliens would be
ended. Thus, the granting of temporary worker status would be a humanitarian
measure which would rectify violations of the law and would enable aliens (most
of whom are otherwise law-abiding persons) to lead lives free from the fear
and abuses now engendered by their illegal entrance.

While rectification of rampant abridgement of American law constitutes
the major benefit that would accrue to the United States, diplomatic con-
siderations, especially Mexican-American relations, of late have been in
the forefront of advocacy of a temporary worker programme. Mexico, with
its simultaneously burgeoning population and oil-producing capabilities,

- 57 -

has suggested that the United States reinstitute a temporary worker pro-
gramme for Mexican nationals.18 Adoption of such a programme is presumably a
way to ameliorate strained relations with Mexico. More specifically, it
is hoped that the United States might be able to secure commitments from
the Mexicans with regard to their energy policy and reinforced border patrols
in return for American co-operation in instituting a temporary worker
programme. Given the function of emigration as a safety valve reducing
unemployment and domestic political tension, it also has been suggested
that adoption of the programme would serve to enhance Mexican political

Similarly, expansion of the temporary worker policy has been recommended
on the grounds that it will serve to improve bilateral relations with other
illegal labour-supplying countries if the programme were to be multinational,
instead of exclusively Mexican, in nature. The temporary worker programme
is seen as providing these largely Caribbean and Central American countries
with a steady flow of remittances,which would spur capital formation for
investment and reduce balance of payment deficits while easing their
internal problems.

A further policy advantage seen as being secured by such a programme
would be the reduction of illegal immigration a social problem that is
increasingly becoming the object of international and domestic criticism.
Legalisation through the granting of temporary worker status is a way of
resolving the illegal alien problem in the humane fashion demanded by
domestic as well as foreign critics. Thus, such a policy initiative pur-
portedly would enhance the present Administration's stature domestically and
in the world community.

On the home front, another important aspect of the promise held out
by a temporary worker programme is that it would sustain the benefits already
being reaped from the participation of the illegal aliens in the economy.
There would be no widespread disruption of the economic patterns that
have developed as a result of the illegal alien influx over the years.
Hence, the decision would satisfy those employers which have come to
rely upon illegal alien labour. The creation of a temporary worker man-
power pool is seen as a way of assuring a steady supply of mobile, low-
skilled labour which would prevent economic bottlenecks due to labour
shortages predicted for the 1980s. Also, it is argued that an expanded
temporary workforce would alleviate inflationary pressure by dampening con-

- 38 -

summer demand (because they send home remittances) while enhancing the
international competitiveness of American industry through their relatively
low wages and high productivity.

Finally, the creation of a temporary workforce would seek to fulfil
expectations of several other domestic interest groups besides employers.
Most notably, certain segments of the Hispanic-American population might
rally to the support of such an initiative as might several Roman
Catholic organizations if provisions for fair treatment and eventual citi-
zenship were included. Thus, the promise held out by a temporary worker
programme includes satisfaction of elements of several key domestic con-
stituency groups.

Still, on the whole, the'proposal to expand the temporary worker
programme recommends itself primarily in terms of its legal advantage of
reducing violation of American law followedby economic and foreign policy
considerations, in that order. Would such an initiative actually solve
the problem of illegal aliens violating immigration law?

(b) General disadvantages

Perhaps the most serious drawback to an expanded temporary worker
policy is the strong possibility that it would compound the problem of
illegal immigration rather than solve it. To issue temporary worker permits
is no guarantee against illegal immigration. As in the case of the Bracero
programme, a new and much larger temporary worker programme might serve
as a magnet to illegal aliens. A proven technique to assure repatriation
simply has not been developed. Even the cash bonuses offered by France
have met with mixed results in securing foreign worker repatriation.
Unless the temporary workers are placed under geographical restrictions
(which would leave the illegal alien problem unresolved in the areas from
which temporary workers were barred) they would locate throughout the country
and make enforcement of rotation very difficult and costly. To set up an
effective monitoring system for permit violators would mean developing
an unprecedented national system of labour or other identification docu-
mentation. Also, effective sanctions would have to be enforced against
employers of illegal aliens.

Another consideration is the possibility that the labour-sending
nations would only minimally be able to give effect to treaty provisions
concerning repatriation. As the unemployment problems they currently
experience are likely to persist for the foreseeable future, it would not

- 39 -

be in their interests to encourage wholesale repatriation.54 However well
intentioned the clauses of treaties, temporary workers become the responsi-
bility of the country of employment once they leave their country of origin.
If there were to be massive violation of temporary work permits, as is
not unlikely, it would be the United States which would come under pres-
sure to resolve this new kind of illegal alien problem in a humane fashion.
The labour-supplying countries would probably exert pressure for special
consideration rather than actively to co-operate in encouraging repatri-
ation. Consequently, there are ample grounds to question the assumption
that an expanded temporary worker programme will attenuate the on-going
illegal immigration problem and thereby rectify massive violation of the
law. Such a programme might serve to encourage even more massive illegal
immigration, besides creating a new category of law-breakers, i.e. the
temporary work permit violators. The enforcement apparatus required to
monitor repatriation under the programme might also infringe upon American
civil liberty traditions.

The second major drawback to a temporary worker programme involves the
asumption that such a programme would improve bilateral relations and
American international prestige. A temporary worker programme would legally
introduce a large disadvantaged population group into a democratic society
on a discriminatory basis. The restrictions placed upon temporary workers
would become the source of resentment. Barred from citizenship, temporary
workers would create socio-economically and culturally distinct micro-
cosoms wkhrever they worked in large numbers. Unlike the immigrant
enclaves in American history, temporary worker neighborhoods would not be
way-stations on the road to assimilation into the American way of life.
Instead, it would be public policy to hinder any assimilation of temporary
workers. Temporary workers would run up against hostility to their inte-
gration into the mainstream of America. Thus, an expanded programme could
well give rise to a novel problem of socio-political integration for the
United States that could poison bilateral relations with the labour source
countries, blacken the American image worldwide and, over time, create an
additional American minority problem.

Advocates of a temporary worker programme assume that all elements of
the American population would come to accept temporary workers and that
these labourers themselves would be quiescent as social and political
beings. This is contrary to the Western European experience; and, it

- 40 -

sadly must be recalled, American history has been marred by periodic
xenophobic reactions. It is likely that some of the advocates of
temporary worker policy at present quickly would grow dissatisfied with it
when implemented. They would be likely to see in temporary worker policy
a de facto immigration policy. Secondly, as witnessed in France and
Switzerland, temporary workers might become the object of xenophobia and
racism. Development of right-wing political extremism aimed at temporary
workers would probably encourage concomitant development of left-wing
political extremism. Attacks against temporary workers by uncontrollable
extremist groups, as have occurred in Western Europe, could cause bilateral
relations to deteriorate. Similarly, intergovernmental relations could be
complicated by the emergence of opposition political movements among
temporary workers on American soil.

An expanded American temporary worker programme would lessen govern-
mental control over the nature of its bilateral relations by exposing them
to disruption from the broad scope of intersocietal contacts that are fos-
tered by such a programme. Temporary workers programmes require a degree of
bilateral co-operation that, realistically speaking, is difficult to main-
tain. There is a strong likelihood that interests diverge in the course
of time, especially if the United States would move to reduce the quota
of temporary workers from a particular country of origin. This would con-
strict the inflow of remittances upon which labour-supplying countries
quickly become dependent both economically and politically.

It is also likely that a temporary worker programme would give the
governments of countries of origin, and international organizations concerned
with migrant workers, legitimate voice in the formulation of American do-
mestic policies that affect temporary workers. Foreign officials possibly
would inspect living and working conditions on American soil, which could
lead to public resentment against perceived foreign interference in
American domestic affairs. Expansion of the temporary worker programme might be-
come seen as a constraint limiting the control exercised by the American
citizenry over public affairs in their own country, and could exacerbate
the already serious problems of perceived participatory inefficiency and
remoteness that citizens already feel from government.

A major drawback to any expanded temporary worker programme is the
heavy cost of regulation that it would entail. Not only would the
Government and employers be required to keep, make, and maintain records

- 41 -

of a highly mobile workforce, but records might also have to be kept
of temporary worker dependents. The paperwork required of such a pro-
gramme would make widespread violation of its provisions due to frustration
of individual employers a possibility. An important consideration with
respect to tmporary worker dependents is that American law gives children
born of alien parents on American soil the right to citizenship. Such
births would open up new avenues of immigration in the future and would
strengthen the tendency not to enforce rotation of temporary workers who
have brought their families to live with them.

Implicit in much of the advocacy of an expanded temporary worker
programme also has been the assumption that large-scale alien worker
employment is a structural aspect of the American economy that cannot
be altered through governmental remedial action. This assumption puts
the proberbial cart before the horse. Indeed, an expanded programme might
create an ever-growing, self-feeding dependence on temporary workers as
apparently happened in Western Europe. Advocacy ofa temporary worker
programme largely has ignored the enormous socio-economic and political
problems of indigenous unemployment. Such a programme might condemn an
important number of American workers to welfare and preclude their social
promotion. The likely opposition of organised American labour and Black
interest groups to an expanded temporary worker programme will be difficult
to overcome. They will argue that, in a land where so many are unemployed,
it is incongruous, especially in light of the general prohibition against
non-immigrant labour, that an expanded temporary worker programme even be
contemplated. It is noteworthy that the Mexican-American led United Farm
Workers Union has already denounced any expanded temporary worker pro-
gramme as being exploitive of them as well as the temporary workers.

(c) Ranking of options

The general advantages and disadvantages of an expanded temporary
worker policy summarised above would be more or less important, pertain
or not pertain, according to the size and nature of the expansion actu-
ally undertaken. Since there are five general options open to American
policy-makers concerning this issue the costs and benefits of each option
if adopted as public policy can now be discerned in outline form. One
should recall at this point that it is assumed that expansion of the tempo-
rary workforce would not involve the illegal alien population already in

- 42 -

the United States. In other words, it has been assumed that the granting
of temporary worker status would not be used to "regularise" the situation
of illegal aliens retroactively. The five models hypothesised are addres-
sed in ascending order, from the least to the most attractive option.

(i) Model I

The least attractive policy alternative for the United States would
be large-scale expansion (500,000-800,000 with yearly rotation) of the
temporary workforce on a non-treaty basis. Admittedly, this policy would
have the advantage of legalizing much of the on-going influx of illegal
aliens. However, it might also serve as a magnet to illegal aliens as
putatively happened in the Bracero programme. Due to the size and spatial
dispersion of the temporary workforce, repatriation upon permit expiration
would be difficult to enforce.

To the extent that it did "regularise" the on-going influx of illegal
aliens, this option would have the benefit of significantly curbing violation
of American law. However, to the extent that it gave rise to a subsequent
and eventually parallel inflow of illegal aliens or resulted in widespread
permit violation, this benefit would be nullified. Due to the disadvantaged
legal status of temporary workers envisaged in the option, it is likely
that the denial to them of many fundamental social and economic rights
would result in considerable litigation. In all likelihood, the temporary
workers and their domestic allies would challenge the legality of all aspects
of their status that deviate from what is accepted as normal for American
citizens. They might be expected to argue that the denial of many basic
rights to temporary workers would be a threat to the individual liberties
of American citizens and that the restrictions on temporary workers violate
the equal protection and due process of law guaranteed to all "persons"
by the Constitution.

The economic impact of aAtarge-scale, non-treaty temporary workforce
would be mixed. To the extent that there would be a surplus of indigenous
job seekers over employment offers, such a large-scale expansion would tend
to aggravate unemployment. However, to the extent that job offers exceeded
labour supply, even in terms of sectoral shortages of low-skilled man-
power, the programme might not directly aggravate unemployment. Rather,
it could provide valuable manpower elasticity that would prevent pro-
duction bottlenecks due to manpower shortages. Of special importance in

- 45 -

this respect would be the nationwide scope of the programme. Employers
throughout the nation would be assured of a steady supply of low-skilled,
inexpensive manpower. Such a ready supply of low-skilled labour, however,
could cause what can be termed an addictive dependence upon temporary
workers over the long run. As in Western Europe, recourse to temporary
workers might create a self-feeding demand for temporary workers which,
given the labour market structures of the United States, eventually would
depress wages and working conditions in manual labour professions if they
were increasingly abandoned by indigenous workers.

Another major economic advantage of a large-scale non-treaty programme
would be that it would not disrupt economic patterns based upon employment
of illegal aliens. Clearly, American business would be spared socially
agonising and economically costly restructuring. Many marginal industries
would be able to survive only because of the availability of inexpensive,
low-skilled labour. In the short run, this would help, not hurt, indigenous
unemployment. Further, such a programme could be expected to attenuate
inflation somewhat. A large-scale temporary worker programme would tend
to reduce pressure for higher wages and it would reduce consumer demand
because of the high rate of saving characteristic of temporary workers.
The outflow of temporary worker remittances would not significantly exacer-
bate the American balance of payments problem as much of this money would
likely be spent upon American consumer good exports. In terms of the inter-
national competitiveness of American industry, such a large-scale programme
would probably enhance the ability to export, at least over the short run.
Over the long run, a large-scale temporary worker programme can become a
disincentive to economic moderisation, a process which vitally influences
international competitiveness.

Since temporary workers in model I would not benefit from many rights
and safeguards, such as social security and unemployment compensation,
the burden of additional employer paperwork would not be large. Indeed,
the implementation of blanket certification could be expected to lighten
the load of paperwork relative to that demanded under the present H-2
system. However, the paperwork associated with any temporary worker
programme always will be considerable because such a programme implies
increased regulation of economic life. This is an inescapable drawback
to a temporary worker policy. Temporary workers cannot simply be armed with
a work permit at the border and allowed to fend for themselves. This would

- 44 -

abdicate hope of enforcing restrictions and would eventuate in a high rate
of permit violation.

Politically, a large-scale, non-treaty programme certainly would satisfy
employer interests and probably would persuade them to consent to sanctions
against employers of illegal aliens. However, the satisfaction of employer
interests would have to be weighed against the alienation of organized
labour's sympathies. Some Hispanic-American, Roman Catholid and civil
rights groups would also look with favour upon the adoption of such a
policy. However, their satisfaction with the policy is unlikely to last
for long, as they might try to transform temporary worker policy into a
de facto immigration policy. Other Hispanic-American groups, especially
the largely Hispanic United Farmworkers Organization, would feel that their
civil rights would be threatened by the temporary worker identification
system that would accompany an expanded temporary worker programme.
Although Black interest groups probably would not be immediately opposed
to such a policy initiative, they might soon come to oppose it on the
grounds that it aggravates the plight of the indigenous unemployed and

Xenophobic incidents involving temporary workers might occur as a
result of a large-scale programme, and this would be detrimental to
American stature worldwide. However, such a problem would be minor in
comparison with other international drawbacks to the first option. A
large-scale, non-treaty programme would ignore international guidelines
calling for migrant worker programmes to be established upon a treaty
basis. The paucity of temporary worker rights and governmental programmes
in their favour would be incompatible with international standards. The
United States could expect to have itaespolicy challenged on human rights

In terms of Mexican-American bilateral relations, the multilateral
programme (model I) would be less solicitous of specifically Mexican
desires than solely bilateral programmes (models III, IV and V). In
view of its multilateral nature, there would be little reason to expect
that Mexico would make concessions on its energy policy in return for a
contingent of Mexican workers being allowed to work in the United States,
unless comparable concessions were involved in the case of other labour-
supplying countries. The American offer of such a labour programme might

- 45 -

not seem sufficiently attractive to Mexico to justify special consideration
of the United States in its energy policy.

The Mexican Government probably would welcome such a large-scale
programme, though, even if it is difficult to imagine it acquiescing to a
policy that makes such little provision for temporary worker rights as
does model I. Presumably, the pragmatic desire of the Government to
ease unemployment and receive remittances would win the day. Thus, Mexican-
American relations would benefit from a non-treaty arrangement, at least
over the short run. The United States could expect Mexico to consent to
reinforced barriers against illegal immigration in return for expansion of
temporary work opportunities for Mexicans in the United States. Over the
long run, though, the prospects of such an agreement complicating good
bilateral relations would be considerable. In order to quieten domestic
critics, Mexico would be constantly pressed to demand that American tempo-
rary worker policy be in conformity with international standards. The
condition of Mexican temporary workers in this option would be likely to
become a point of bilateral contention in time even if the option might
seem to be mutually beneficial at first.

The germ of future troubled bilateral relations and tarnished American
international prestige is most apparent in the likely social impact of this
policy option. Such a policy would create a permanent (if individually
rotating) underclass of aliens condemned by legal discrimination to a
stay in this country without hope of socio-economic promotion or inte-
gration. Without many rights and deprived of most governmental services,
temporary worker living conditions might become ghetto-like. Temporary
workers would be likely to be inadequately housed and to suffer from
inadequate safeguards. The combination of the disadvantaged status of
temporary workers plus the lack of governmental programmes to facilitate
their integration could give rise to a serious socio-political integration

A model I type programme would introduce a large number of aliens into
a democratic society on an extremely discriminatory basis. It would
sharply contradict the principle of equal opportunity for all while under-
mining the democratic ideal that economic participation should lead to
citizenship. Hence, this policy option would seem to include little that
would recommend its adoption as public policy aside from economic con-
siderations. These same economic considerations could be fulfilled by a
treaty-based, large-scale programme which would run far fewer risks of

- 46 -

becoming an impediment to American foreign policy and domestic tranquility.

(ii) Model IV

Small-scale expansion of the temporary workforce (100,000+ on a yearly
rotation) as a result of an unofficial "understanding" made with Mexico
is preferable to Model I mainly because its small size would diminish the
dangers of a programme not sanctioned by a treaty. In other words, most
of the same difficulties associated with the first option reoccur here
but on a smaller sale. Of course, a small-scaie, non-treaty programme
would also boast fewer benefits.

First, it would only legalise the status of illegal aliens going
to the Southwest region. While this is the most politically sensitive
region, and certainly the region where most illegal entry occurs, the
policy initiative would do little to ameliorate the illegal alien problem
in other parts of the country. It is possible, though, that even a regional
programme if accompanied by agreement and resolve to tighten border
control might reduce illegal alien "penetration" into areas of the United
States outside of the Southwest.

Second, many of the economic benefits of model I would be lost in a
small-scale, regional programme. It would not provide low-skill manpower
to employers outside of the Southwest and it would have little or no
impact upon inflation and the international competitiveness of American

Due to its specifically Mexican nature, the model IV would represent
a sort of American diplomatic overture to Mexico. Consequently, the
United States could still expect to secure Mexican consent to reinforced
barriers to illegal immigration in return. Furthermore, because employer
opposition to sanctions against employers of illegal aliens is the most
vociferous in the Southwest, this smaller programme might still secure
the consent of employers to such sanctions since a labour supply for South-
western growers would be assured.

While such a programme would certainly serve to improve Mexican-American
relations over the short-run, there again looms the strong possibility that
the H-2-like status of temporary workers envisaged in model IV eventually
would lead to a deterioration of Mexican-American relations. However,
due to the small size of the programme, it would be much easier to manage
problems arising from the programme. It is unlikely, for example, that

- 47 -

such a small programme would spark a xenophobic, grassroots reaction as
might the first option. Thus, there would be a lesser danger that
Mexican-American relations would deteriorate as the result of violence
against and abuse of Mexican nationals working in the United States. Also,
its small-scale would greatly reduce its social impact. In the South-
western region, heavily populated by Americans with cultural and ethnic
ties to Mexico, the infusion of a relatively small contingent of Mexican
workers would not give rise to a serious integration problem. It would
only accentuate the bi-cultural nature of society in that region.

The regional and small-scale nature of the temporary workforce envisagd
in model IV would make it much less susceptible to international criticism.
The programme would be interpreted as a pragmatic, mutually beneficial
measure designed to deal with a problem stemming from one rich and one
relatively poor nation sharing a 2,000 mile border. As long as the
programme were seen as being agreed to by Mexico, criticism of the United
States for failing to own up to international guidelines for migrant workers
might not be severe. The small workforce envisaged in model IV would only
be an occasional source of embarrassment regarding American human rights
policy. Similarly, its deviation from American ideals would be much less
salient and less likely to become the source of domestic controversy.
Otherwise, the domestic political reactions to model IV would be identical
to those of model I except attenuated by the modest size of the former.

(iii) Model II

The treaty-based options are preferable to models I and III primarily
because they would conform to international guidelines and expectations.
In model II, such a multilateral policy would not give succour to Mexico
at the cost of alienating other countries with significant illegal alien
populations in the United States. It could be expected that Mexico might
still agree to increased barriers to illegal immigration in this option.
The likelihood of employer consent to sanctions against employment of
illegal aliens would also be heightened because employers across the
country would be assured of a steady supply of low-skilled labour.

A major relative advantage of this programme is that temporary
workers would enjoy considerable rights. This would make it less likely
that the living and working conditions of temporary workers would compli-
cate American bilateral relations and compromise American prestige abroad.
Such a treaty-based policy would be consistent with the human rights stan-

- 48 -

dards we espouse. Herein lies a major threat, however. The Western
European, Bracero and H-2 experiences warn that it is difficult to prevent
abuses of temporary workers despite the principles enunciated in treaties.
The United States will be judged on the concrete practice of its temporary
worker policy rather than on the theoretical safeguards of such policy -
the successful implementation of which are unlikely.

Model II, like its non-treaty counterpart, is designed significantly
to decrease violation of American law by sanctioning the temporary migration
of those who would otherwise very likely migrate illegally. However, it
also could result in a high frequency of permit violation, especially if
large numbers of dependents accompany temporary workers.

Similarly, model II will reproduce the estimated economic benefits of
its non-treaty homologue. But, these benefits will be attenuated by the
increased costs to employers for such services (presumably agreed to by
treaty) as English language instruction, vocational training, etc. With
temporary workers enjoying trade union rights and being free from the arbit-
rary control of employers, the latter are likely to find temporary workers
less docile than in the previous options.

Still, it is likely that temporary worker employment will lead to
ever greater demand for more of the highly motivated and productive tempo-
rary workers. Thus, any large-scale temporary worker programme threatens
to aggravate the unemployment of indigenous low-skilled workers who are
less mobile and inclined to work long hours at manual labour jobs than
foreign workers. This realisation, in turn, warns against the domestic
socio-political consequences of the policy if it aggravates the already
desperate plight of America's poor and minority groups. The model II
option would only attenuate the adverse political repercussions of a large-
scale, non-treaty policy in the international arena.

(iv) Model V

A small-scale, treaty-based programme allowing a hundred thousand or
more additional Mexicans to work in the United States would not appear
to be an entirely ill-considered course of action for the United States
to take. The programme would conform to international guidelines, strengthen
Mexican-American relations, attenuate the influx of illegal aliens, serve
as a bargaining chip for Mexican concessions on border controls and employer
concessions on sanctions against the hiring of illegal aliens, bear little

- 49 -

risk of giving rise to a socio-political integration problem and provide
a steady supply of low-skilled labour to the Southwest. Still, model V
has drawbacks which by now should be obvious.

It would not put an end to the illegal alien phenomenon. At its worst,
a programme such as model V could become a complementary problem to the
essentially unresolved illegal alien problem. It would only be a regional
or partial public policy response which would leave the illegal alien
problem elsewhere essentially unchanged. Moreover, other countries from
which illegal aliens come would be likely to take umbrage at the preferential
treatment accorded Mexico and demand equivalent solicitude.

(v) Model III

At first sight, model III would seem to be the least troublesome and
offensive American temporary worker policy. Of a size capable of making a
major dent in illegal immigration, specifically in the Southwestern area
where most of the irregular inflow occurs, this option might be assumed
to be in conformity with Mexican wishes and this, in turn, would ameliorate
all aspects of American-Mexican bilateral relations. If the programme details
were worked out in close co-operation with Mexican officials, a rewarding
degree of co-operation on such questions as border enforcement, repatriation
and definition of worker righs probably could be attained. However, a
Mexican programme of this size would seem to be politically unfeasible
(certainly much more so than the smaller model V) in terms of American
domestic politics. It would have adverse impacts upon Black and Hispanic
workers in the Southwest and would likely be strongly opposed by American
organised labour. In comparison with the smaller 100,000+ Mexican pro-
gramme, model III would represent much less of a compromise or trade-off
between foreign policy considerations favouring expansion of the temporary
workforce and domestic political considerations opposing it.

While this option is envisaged only for the Southwest, it might have
an ameliorative impact on illegal Mexican migration to other parts of the
United States as Mexicans currently migrating to Chicago, for example,
would be encouraged to remain in the Southwest. Due to the bi-cultural
background of the Southwest, even such a large programme reasonably could
be expected not to cause major integration problems.


This study has considered a number of administrative, economic, political
and philosophical advantages and problems associated with foreign worker

- 50 -

policy. On balance, it seems that the more responsive a prospective foreign
worker programme would be to foreign policy concerns and humanitarian con-
siderations pertaining to foreign workers, the less feasible it would be
in terms of domestic political constraints prompted, in part, by legitimate
concern for the well-being of the most disfavoured segments of the American
population. Conversely, the more politically feasible a prospective foreign
worker policy, the more likely tat it would become a complementary problem
rather than a solution to the illegal alien problem. It is not clear
whether any foreign worker policy is fully acceptable in the light of
democratic ideals and the notion of equal opportunity for all. Perhaps
it would be better to conceive of a solution to the current illegal alien
problem strictly in terms of immigration policy, for example expanded im-
migration quotas for Mexico and selected other countries coupled with better
border enforcement and a massive commitment to economic development that
would reduce the disparities giving rise to much labour migration in the
first place. However, proposals to increase officially sanctioned immi-
gration, if more consistent with American traditions, are equally proble-
matical in terms of current domestic political constraints and opinion.
As stressed at the outset, the illegal alien problem is a pressing
problem requiring ameliorative governmental action. The question is not
whether to act or not but how to act in a manner that behooves a responsi-
ble democratic Government.

- 51 -


(a) H-2: nature of sojourn and position to be
filled must be temporary

101a(H)ii of the Immigration and Nationality Act sets forth the
requirements for H-2 workers and requires that the alien be "coming
temporarily to the United States to perform temporary services of labor,
if unemployed persons capable of performing such services or labor cannot
be found in this country" (our emphasis). The repetition of the
"temporary" criterion led the administrative authorities to conclude that
nonimmigrant status could not be approved for a person coming to perform
a job of permanent character, even though the period of his service is
limited.* This language was unchanged in the 1970 amendment of the
statute, and the legislative materials indicate that Congress explicitly
endorsed the administrative reading.** Therefore, a person coming to
a job of a permanent character cannot qualify as a nonimmigrant in this
H-2 category.***

Matter of Gontopoulos, 10 IN 654 (1954).

See H. Rep. 91-851, 91st Cong., 2nd Sess., 25-26, and Notes
13 and 14, supra, with relating text.

This is the conclusion of the leading treatise in this field:
Gordon and Rosenfeld, Immigration Law and Procedure (Mathew
Bender, 1977), 2.14.


I=Non-Treaty type II=Treaty type


Yearly quota
Residence duration


Farm and non-farm manual labour jobs
(blanket certification)
Tied to one employer initially/full
Geographical restrictions
Renewable/access to citizenship

New documentation system (ID card)
Government administered contracting
Government supervised transportation
Government monitored wages and



Social security
Unemployment compensation
Trade union/strike authority
Accompanyment by dependents
Special services for dependents
U.S. Bill of Rights
Due process and equal protection of law

Expanded consular service and
administration of governmental
services on American soil
Creation of bilateral commissions
Inspection rights


1 year

new legislation



2-3 years
1-3 million

III=Treaty type


2-3 years
1-3 million

bilateral treaties bilateral treaty

















IV=Non-Treaty type


6-12 months

existing H-2 legisla-
tion if upheld in court







V=Treaty type


6-12 months

bilateral treaty








r ronn nn~nn Nn u~nnr n



53 -


I=Large, Multinational II=Large, Multinational III=Large, Mexican IV=Small, Mexican V=Small,Mexican
Non-Treaty type Treaty type Treaty type Non-Treaty Treaty type

Substantial regularisation
Attract other illegal aliens
Repatriation problem
End illegal alien phenomenon
short/long term
Influx of dependents

Novel problems of law and enforcement
Significant increase in litigation
Burden American civil liberties

Assured steady supply of low-skilled
Attenuation of inflation over short run
Enhance international competitiveness
of U.S. industry
Increase regulation of the economy
Increase employer paperwork
Long-term depression of low-skilled
wages and working conditions
Aggravate unemployment
Disincentive to modernisation

Win employer consent to increased
sanctions against illegal
alien employment
Satisfaction of employer interests
Satisfaction of ideological proponents
of an expanded programme over short
and long term
Alienate non-hispanic minorities over
short/long term
Increased federal power at the expense
of states

Enhancement of U.S. stature over
short/long term
Responsive to international guidelines
Contradiction of human rights policies
short/long term

Improve Mexican/American relations
short/long term
Secure consent to reinforced barriers
against illegal immigration
Secure concession on energy policy
Relieve Mexican unemployment problem

Exacerbate problems of minorities
and poor
Creation of new integration problem
Increase tendency toward bilingual




entire U.S.
















yes no
likely likely
unlikely unlikely

unlikely/unlikely no/no
likely unlikely


entire U.S.











i. 0



Southwest only




yes (Southwest)











Southwest only




yes (Southwest)













Southwest only




yes (Southwest)










- 54 -


The term "illegal aliens" has been found objectionable on several
grounds, not the least because of its negative connotation. While the
term undocumented foreign workers might be preferable, the authors will
utilise the most frequently used American term throughout this paper.

U.S. estimates of the illegal alien population vary between two
and twelve million. The figure of four to six million reflects the 1976
estimate of district directors of the Immigration and Naturalization
Service (INS) and the 1977 estimate of Scheuren and Lancaster. See
Interagency Task Force on Immigration Policy, Staff report, (Washington,
D.C., Departments of Justice, Labor and State, 1979), p. 383.

The Carter administration's legislative proposals of 1977 made
little headway in Congress. Bills S.2252 and H.R.9531 died when Congress
adjourned in October 1978.
The quota system implemented in 1924 favoured northern European
immigration and discouraged the continuing development of immigration
from southern and eastern Europe considered undesirable on cultural (and
sometimes ethnic or racial) grounds.

5Mark Reisler, By the sweat of their brow (Westport, Conn.,
Greenwood Press, 1976), p. 24.

6 Ibid., pp. 24-42.
Jorge A. Bustamente, "Commodity-migrants: structural analysis
of Mexican immigration to the United States", in S. Ross (ed.), Views
across the border: the United States and Mexico (Albuquerque, University
of Mexico Press, 1978), p. 188.

8Ibid., p. 189.

Interagency Task Force on Immigration, op. cit., p. 376.
J. Bustamente, op. cit., pp. 190-191.
F. Ray Marshall, "Economic factors influencing the international
migration of workers", in S. Ross. op. cit., p. 168; and Vernon M. Briggs,
"Labor market aspects of Mexican migration to the United States in the
1970s", in S. Ross, op. cit., p. 206.

12 If we disregard for purpose of simplicity the easing of the 1885
Contract Labor Act to allow Mexican non-immigrants to satisfy manpower
emergencies due to the First World War.

13 V. Briggs, op. cit., p. 206.

14 Ibid., pp. 206-207.

15 J. Bustamente, op. cit., pp. 193-195 and V. Briggs, op. cit.,
pp. ?06-207.

1J. Bustamente, op. cit., p. 196.

17 Ibid., p. 194-195.
Ibid., p. 194-195.

- 55 -

Tad Szulc, "Foreign policy aspects of the border", in S. Ross,
op. cit., pp. 236-238. Also see The New York Times, 11, 12 and 19
February 1979.
J. Bustamente, op. cit., p. 198.

The one million figure is believed to include some multiple
apprehensions of the same aliens. See Interagency Task Force on Immigra-
tion Policy, op. cit., pp. 377-378.
Interagency Task Force on Immigration Policy, p. 378.

T. Szulc, op. cit., p. 234.

See Edwin P. Reubens, Temporary admission of foreign workers:
dimensions and policies, (Washington, Special Report of the National
Commission for Employment Policy, 1979).
2Ibid., p. 15.

2An excellent description and analysis of the H-2 programme can be
found in David S. North and Allen Lebel, Manpower and immigration policies
in the United States, (Washington, Special Report of the National Commission
for Manpower Policy, 1978).
This information was provided by David S. North.
2William Boyer and Mark Miller, "An expanded American foreign worker
policy: the lessons of the U.S. Virgin Islands" (unpublished manuscript,
Department of Political Science, University of Delaware, 1979).
E. Reubens, op. cit., p. 11.

29 Ibid., p. 21.

30 This would follow from J. Bustamente's concept of "magnet effect".
See J. Bustamente, op. cit., p. 198.

31 It should be noted from the outset that Western Europe's foreign
workers benefit from far more rights than H-2s or braceros in the American
context (except for seasonal workers in France and Switzerland). Aside
from fundamental contextual similarities (the U.S., France, the Federal
Republic of Germany and Switzerland are all advanced industrial,pluralistic
democracies characterized by high levels of technology) comparison is
appropriate if limited by differences in national institutions. The U.S.
is contemplating a large-scale foreign worker policy which, as distinct
from immigration policy, would bring in foreign workers under the assump-
tion that they will not become citizens (immigrants). European scholars
frequently refer to Western Europe's foreign workers as immigrants in spite
of governmental policies (including those of labour-sending countries) pre-
dicated upon the notion of foreign worker return or nonacquisition of
citizenship in the countries of employment. The Federal Republic of Germany
and Switzerland traditionally have not regarded themselves as immigration
countries, although their foreign worker policies have de facto resulted

- 56

in immigration and settlement, which the Governments may come to recognize
de jure. The French case is less clear-cut. France traditionally welcomed
immigration. However, it can be argued that there is the reality of
foreign worker or guest worker policy underneath the French immigration
policy. This is attested to, for example, by the French distinction
between assimilablee" and "non-assimilable" migrants; the current aide au
retour providing cash incentives for migrant repatriation; and French
reluctance to renew several hundred thousands of Algerian work and residence
permits. See Phil Martin and Mark.Miller, "Guest workers: lessons from
Europe", Journal of Industrial and Labor Relations (forthcoming); and
chapter XV, Interagency Task Force on Immigration Policy, op. cit.,
pp. 481-527.
The major comparative difference between foreign workers in Western
Europe and the U.S. lies in the legal status of the former as opposed to
the predominantly illegal status of the latter. However, it should be
emphasised that in Western Europe the existence of large-scale legal employ-
ment opportunities for foreign workers did not preclude illegal immigration.
Indeed, in France, in 1968, fully eighty-two per cent of incoming foreign
workers had their status legalised after entry. See Georges Tapinos,
L'immigration 4trangBre en France (Paris, Presses Universitaires de France,
1975), p. 87. Throughout Western Europe, illegal aliens are conservatively
estimated to represent about ten per cent of the total foreign populations.
See Jacques Houdaille et Alfred Sauvy, "Les migrations clandestines dans
le monde", Population, Vol. 29, No. 4-5 (July-Oct. 1974), pp. 725-742.
See Stephen Castles and Godula Kosack, Immigrant workers and class
structure in Western Europe (London, Oxford University Press, 1973).
See Eckart Hildebrandt and Werner Olle, Ihr Kampf ist unser Kampf
(Verlag 2000, Oplbden), Streik bei Ford-K'ln (Kiln, Rosa Luxemburg Verlag,
1973) and Cedetim, Les immigrds (Paris, Editions Stock, 1975).
See Hommes et Migrations, Document 919, 15 January 1977. The most
striking example of how foreign working policy adversely affected bilateral
relations was the deterioration of Franco-Algerian relations as a result
of racist attacks against Algerians in France in 1973.
Migrants Nouvelles, September 1979.

See W.R. Bbhning, "International migration in Western Europe:
reflections on the last five years", International Labour Review, Vol. 118,
No. 4, July-August 1979, pp. 401-414.
See The German Tribune, 11 March and 31 July 1979.

See W.R. Bbhning, Compensating countries of origin for the out-
migration of their people (Geneva, ILO, December 1977; mimeographed World
Employment Programme research working paper; restricted); and idem,
Elements of a theory of international migration and compensation (Geneva,
ILO, November 1978; mimeographed World Employment Programme research working
paper; restricted).
In Western Europe a distinct trend toward uniformity of the statuses
of different nationality groups is evident. Slowly, status disparities
between EEC and non-EEC workers have been lessened,although EEC workers
still are priveleged vis-h-vis non-EEC workers in terms of access to employ-
ment in member countries.

- 57

In France, particularly, diverse statuses have resulted in
administrative confusion. The Government has proposed legislation
to harmonise various categories of permits. See Le Monde, 15 June
Based upon recent INS estimates. See Interagency Task Force on
Immigration, op. cit., p. 255.
In Western Europe, foreign workers (excepting EEC workers and
Algerians in France) initially receive one-year permits. These permits
can be renewed for up to three years depending on the country. After
five years of continuous residence, foreign workers are less apt to be
denied permit renewal. After ten years, they generally are granted
resident alien status.
The text of the two most important ILO Conventions concerning
migrant workers is appended to W.R. B'hning, Regularising indocumentados
(Geneva, ILO, April 1979; mimeographed World Employment Programme research
working paper; restricted).
See Interagency Task Force on Immigration Policy, op. cit.,
pp. 221-227.
It seems that Rudolph Braun coined the term Heimkehrillusion
when he discussed a disparity between the expectations of migrants in
Switzerland to stay for short periods and their actual prolonged stays.
R. Braun, Sozial-kulturelle Probleme der Eingliederung italienischer
Arbeitskrdfte in der Schweiz, (Zurich, Eugen Rentsch, Erlenbach, 1970),
pp. 448 and 473.
The disparity between migrant plans and their actual lengths of stay
once again was found in a recent German survey. See Probleme der
Ausl'nderbeschUftigung, (Bundesminister fur Forschung und Technologie, 1979).
The French and Swiss seasonal worker programmes closely resemble
the H-2 and Bracero programmes. Seasonal workers have fewer rights than
other foreign workers. Swiss saisonniers, for example, are not permitted
to bring in their families (although family members have special visitors
rights). The disfavoured status of seasonal workers has sparked public
indignation, especially in Switzerland and its major supplying country of
saisonniers, Italy.

49 Sec. 101 (a) (15) (H), Act of 1952, 8 U.S.C. 1101 (a) (15) (H),
as amended (see also Appendix).

5Several experts on immigration policy, most notably Edwin Reubens,
do not agree with this interpretation. See The New York Times, 22 April
and 8 May, 1979.
Information kindly provided by the Mexican Embassy, Washington,
It is beyond the scope of this paper to determine whether an
executive agreement, which, unlike a treaty, need not be ratified, would
be a more desirable course.

58 -

Witness the recent judicial controversy prompted by Iranian
student demonstrations and President Carter's order that Iranians
report to the INS.

5In this respect, it is important to note Algerian resistance
to French measures designed to repatriate Algerians. Algeria welcomes
the return of skilled workers and foresees the return of unskilled
workers at a later stage. See Mark J. Miller, "Reluctant partnership:
foreign labor in Franco-Algerian relations", Journal of International
Affairs, (forthcoming).

- 59


WEP Research Working Papers are preliminary documents circulated informally
in a limited number of copies solely to stimulate discussion and critical comment.
They are restricted and should not be cited without permission. A set of selected
WEP Research Working Papers, completed by annual supplements, is available in
microfiche form for sale to the public; orders should be sent to ILO Publications,
International Labour Office, CH 1211 Geneva 22, Switzerland.

In the following list the papers from this project of the WEP which are
already available in microfiche form are identified by the letter "H" following the
serial number.

WP 1 6aiEs._ set, F. i rEigraation_ ndiretUED mirarati2n AR$S Era EurO
by W.R. BOhning, July 1965 (out of print)
"Determinants of labour immigration in industrialized countries of
Western Europe", pp. 5-23;
"Return migrants' contribution to the development process The issues
involved", pp. 24-38.

WP 2 Mediterranean worker_ in Western Europe; Effects on home countries and
countries of employment*
by W.R. B8hning, September 1975 (out of print)
= published in German: "Arbeitnehmer aus Mittelmeerlandern in
Westeuropa: Wirkungen auf Heimat- und Empfangslander", in R. Regul
(ed.): DPi Europdischen Gemeinschaften und die MittelmeerlApJde
(Baden-Baden, Nomos Verlagsgesellschaft, 1977), pp. 195-223.
= also available in Serbo-Croat, in "Inostrana Iskustva i Prevodi",
Biltel, Vol. 19, No. 44, 1976, pp. 25-71.

WP 3 International migration in Southern Africa
by Francis Wilson, November 1975 (out of print)
= published in International Migration review, Vol. X, No. 4, Winter
1976, pp. 451-488;
= also available as SALDRU Working Paper No. 1 (Cape Town, Southern
Africa Labour and Development Research Unit, May 1976).

WP 4 n Future demand for migrant workers in Western Europe
by W.R. Bhhning, January 1976 (out of print)
= also available in Serbo-Croat, in "Inostrana Iskustva i Prevodi",
Bilten, Vol. 19, No. 44, 1976, pp. 1-24.

WP 5 n Transfdert d'mplois verJsJ lsaSa ui dis posent d'up sur'lusasdge ain-
dioeuvrecomme _altetrnatiVq aau ig=at;iLQs intekrnationa&l&S:-Le cas d la

par D. Maillat, C. Jeanrenaud et J.-Ph. Widmer, mai 1976 (out of print)
= shortened version published in Studi Emiqrazione/Etudes Miqrations,
Vol. XV, No. 51, September 1978, pp. 361-381.

WP 6 Basic aspects of migration from poor to rich countries: Facts, problems,
by W.R. Bohning, July 1976 (out of print)
"Determinants of labour immigration in industrialized countries of
Western Europe", pp. 5-23 (reprint of WP 1);
"Return migrants' contribution to the development process The issues

*Much of this Working Paper has been worked into W.R. B8hning. "Migration
from Developing to High-Income Countries", in ILO: Tripartite World Conference on
Employment, Income Distribution and Social Progress and the international Division
of Labour, background papers. Vol. II: International strategies or employment
(Geneva, 1976).


- 60

involved", pp. 23-38 (reprint of WP 1);
"igration and policy: A rejoinder to Keith Griffin", pp. 39-50;
S "The Migration of workers from poor to rich countries: Facts, problems,
policies", pp. 51-70.
The latter paper has been published in IUSSP (ed.): International
Population Conference, Nexico. 1977, Vol. 2 (Liege, 1977), pp. 307-318.

WP 7 lrnsfer of employment opportunities as an alternative to the international
migration of works; The case of the Federal Republic of Germany ()**
by U. Hiemenz and K.-W. Schatz, August 1976
= parts published in German: "Internationale Arbeitsteilung als
Alternative zur Auslanderbeschaftigung Der Fall der BUndesrepublik
Deutschland", pie Weltvirtsghaft, No. 1, 1977, pp. 35-58.

WP 8 B Transfert d'emplois vrs le s a ui disposent d'un surplus de main-
dieuvre come alternative aux migratins internationales: Le cas de la
Suisse (III
par D. Maillat, C. Jeanrenaud, J.-Ph. Wider, January 1977 (out of print)
= shortened version published under the title: "Transfert d'emplois et
d6s6quilibr6s r6gionaux", in P. Caroni, B. Dafflon and G. Enderle
(eds.): Nur Oekqngmie ist kegne 0ekonomie (Bern, Haupt, 1978), pp.

HP 9 Transfr of employment opportunities as an alternative to the international
m'i nrtin nf urolrIr r the sra nof rnain and Turkey vis-A-vis the Federal

WP 10

wP 11

Ee_1ali2 of Germany 1IL**
by U. Hiemenz and K.-W. Schatz, April 1977.

Black migration to South Africa What are theissues?
by W.R. Bohning, June 1977 (out of print).

Labour export in Southern L Afica __ome welfarapnd policy implications
Mwithrgard to a_1oint Policy n recruitment fees

by Charles W. Stahl, July 1977.

WP 12 Seazilad labouLrmi2ration some implications for a national development

by M.H. Doran, August 1977 (out of print).

WP 13 iaraton and agricultural development in swaziland: A micro-economic
by A.R.C. Low, August 1977 (out of print).

WP 14 M Transfet d'emplois vers les ps ys qui disposent d'un surplus de main-
deuvre cmme alternative ux migrations internationales: Le cas de la
SIsse II~L) e copporteent de entrepreneur face & la p6nurie de main-
.ceuvre: RSsultats d'une enqu~te par questionnaire
par C. Jeanrenaud, D. Maillat et J.-Ph. Wider, September 1977 (out of
= shortened version published under the title: "Reactions of Swiss
employers to the immigration freeze", in International Labour Review,
Vol. 117, No. 6, November-December 1978, pp. 733-745;
= version abr6gee publibe sous le titre: "Les entrepreneurs suisses face
A 1'arr6t de immigrationo, Revue international du Travail, Vol. 117,
No. 6, novembre-d4cembre 1978, pp. 791-804 (reprinted in Hoames et
igHEations _Documents, No. 972, 15 juin 1979, pp. 9-22).

**The two Working Papers Nos. 7 and 9 have been published in shortened form
as an ILO book. U. Hiemenz and K.W. Schatz: Trade in place of migration (Geneva,
1979); also in Spanish: Intercambio en vez de miqraci6n (Ginebra, 1979).


- 61

WP 15 M A_ preliminary assessment of labour movement in the Arab region:
Background, perspectives and prospects
by J.S. Birks and C.A. Sinclair, October 1977 (out of print).

WP 16 M Foreign miqrant labour in Southern Africa; Studies on accumulation in the
labour reserves, demand determinants and supply relationships
by D.G. Clarke, November 1977 (out of print)
"Accumulation and migrant labour supply in the labour reserve economies
of Southern Africa", pp. 1-40;
"Some determinants of demand for foreign African labour in South
Africa", pp. 41-78;
"Foreign African labour and the internalisation of labour reserves in
South Africa, 1970-77", pp. 79-130.

WP 17 Bureaucracy and labour migration: The Lesotho case
by Malcolm Wallis, November 1977.

WP 18E M Compensating countries of origin for the out-airation of their pepl
by W.R. Behning, December 1977 (out of print)
= also available in Serbo-Croat, in Centar Za Intrazivanje Migracia,
Zagreb (ed.): Rasprave o MigraciJana, Svezak 48 (Zagreb, 1978), pp. 7-

WP 18F A Comment d6dommager les Pays dorigine es migrants?
par W.R. B8hning, dec6mbre 1977.

WP 19 The teand labour migration in the South African political economy, with
particular respect to gold mining
by John Bardill, Roger Southall and Charles Perrings, December 1977.

WP 20 Internationallabour _sipl trends and economic structurein Southern
RhodesiaZibabwe in the 1970s
by D.G. Clarke, January 1978 (out of print).

WP 21 Begulating _iMernat onal migration-in the interest _of the dvelopin
cutriges,_wh particula reference to Mediteranean countries
by Klaus H. Hopfner and Maria Huber, February 1978 (out of print).

WP 22 irant__labour__in__aziland:_Characteristics, attitudes -ad police
by Fion de Vletter, February 1978 (out of print).

WP 23 Return migration from West European to Mediterranean countries
by Han Entzinger, March 1978 (out of print).

WP 24 QPossiili"ts de transfert d'emplois vers les pays d'6miqration en tant
qu'alternative ax miqrations internatignales des travailleurs: Le cas
ftancajsi_{IiS3safles intalrodudi st
par G. Tapinos, et al., mars 1978 (out of print).

WP 25 Possibilits de tranefart _d emplois vers ls es ays d'4migratioa fn tan
u'lalternaitive aux _migrations internationales des travail16urs: Le cas
franEgAjis_II: Etudes sectorielles)
par G. Tapinos, et al., avril 1978.

WP 26 Possibilit6s de transfer d'emplois vers les pays d'6migration en tant
quLaiternative aux migrations ifternationales des travailleurs: Le cas
francais (III: Les pays de depart et syntbhse)
par G. Tapinos, et al., mai 1978.


- 62 -

WP 27 Human capital on the Nile: Development and emigration in the Arab Republic
o Eypt and the Democratic Republic of the Sudan
by J.S. Birks and C.A. Sinclair, May 1978.

WP 28 The Sultanate of Oman: Economic development, the domestic labour market
and international migration
by J.S. Birks and C.A. Sinclair, June 1978.

WP 29 Miqration and reintegration: Transferability of the Turkish model of
retunp migration and self-help organizations to other mediterranean labour-
exportninq c9fl9ries
by n. Werth and N. Yalcintas, June 1978 (out of print).

WP 30 Nature and process of labour importin: The rabian Gulf States of Kuwait,
BahrainL Qatar and the United Arab Emirates
by J.S. Birks and C.A. Sinclair, August 1978.

WP 31 Migrant_ labour and rural homesteads; An investigation into the
socio12 ical dimensions of the migrant labour system in Swaziland
by Beth D. Rosen-Prinz and Frederick A. Prinz, September 1978.

UP 32 LR-12: A preliminary simulation model of the effects of declining
miration t2 South Africa on households in Botswana
by William M. Woods, September 1978.

WP 33G Befraqung jugoslawischer Haushalte in der Bundesrepublik -eutschland
by C. Bock and F. Tiedt, September 1978 (out of print).

WP 33E Survey of YugoslLv households in the Fderal Republic of Germany
by C. Bock and F. Tiedt, June 1979.

WP 34 Elements of a theory of international migration and compensation
by W.R. Bahning, November 1978.

WP 35 The women left behind: A study of the wives of the migrant workers of
by Elizabeth Gordon, December 1978.

WP 36 geqularisinq indocumentados
by W.R.'B6hning, April 1979.

WP 37 Reducing miration ddepe nce in Southern Africa
by C.. Stahl and W.R. Bohning, April 1979.

WP 38 Mining employment in South Africa. 1946-2000
by N. Bromberger, May 1979.
= also available as SALDRU Working Paper No. 15 (Cape Town, Southern
Africa Labour and Development Research Unit).

WP 39 TheKinqdom of Saudi Arabia and the Libyan Arab Jamahiriva: The key
countries of employment
by J.S. Birks and C.A. Sinclair, May 1979.

WP 40 Legal aspects of labour migration from Lesotho to the South African mines
by Sam Rugege, July 1979.


- 63 -

WP 41 Southern African migrant labour supplies in the_ ast, the present and the
future withsecial reference to the gold-minin industry
by C.V. Stahl, August 1979.

WP 42 An empirical study of the attitudes and perceptions of migrant wISrkr.L i
the case of Lesotho
by E. Nolapi Sebatane, September 1979.

HP 43 The Canadian experience with amnesty for aliens: what the United States can
by David S. North, October 1979.

WP 44 A massive temporary worker program for the U.s: Solution or miragel
by Mark Miller and David J. Yeres, November 1979.


University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs