April 11, 2008

Arizona in the Headlines Once Again- Is a State Guest Worker Possible?

Since the passage of HB 2779 the “Legal Arizona Workers Act” on July 2, 2007, immigration in the state of Arizona has been in the headlines. The State is now poised to embark on another cutting-edge immigration proposal- the creation of a state guest worker program. If enacted the program would streamline the process for Arizona employers to hire temporary workers from Mexico by circumventing the backlogs and numerical limitations of a federal immigration programs.

Arizona Governor Janet Napolitano is attempting to assure state employers particularly in the agricultural sector that they will have enough workers. One of the reasons the Governor is intent on this action may be because Arizona employers who currently have the toughest employer sanctions laws in effect have had difficulty in finding workers that have left the State as a result of HB 2779. HB 2779 and the departure of workers from Arizona appears to have aggravated the chronic lack of workers in the state- and highlighted the failure of Congress to create a fix to our broken immigration system.

Currently, the Department of Labor (DOL) oversees the H-2 guest worker programs which issues H-2A visas for farm workers and H-2B visas for workers in other industries. Recently the DOL proposed changes to make the H-2A program more efficient. In a statement announcing the changes, the DOL acknowledged that "only a little more than 75,000 workers participate in the H-2A program, while there are an estimated 600,000 to 800,000 illegal immigrant workers on America's farms." The proposed changes to the program include a procedure to more fairly calculate wages for foreign workers and ways to speed up processing times.

The Arizona proposal requires that an employer send an application to the Industrial Commission of Arizona explaining the need for the foreign worker. Then, the commission would determine if such a need for foreign workers exists and certifies the application. Upon certification the Arizona employer can recruit temporary workers in Mexico. The U.S. Embassy or Consulate in Mexico would perform a background check on all applicants and if the workers were approved they would be issued employment cards to work in the state of Arizona for two years. Critics of the proposal state that this raises preemption issues, as it seeks to regulate an area of law exclusively reserved for the federal government. It also raises the question of enforcement- would the state or the federal government be responsible for tracking workers who overstay their visas and removing them back to Mexico?

GT will continue to report on the status of the proposed Arizona guest worker program.