Wall Street Journal Front Page: One Solution to Illegal Workers Takes Form: H-2b

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Visa Admits Foreigners to Do Jobs Americans Won't; Worries of Exploitation (Part i)

McKINNEY, Texas -- The Mexicans came across the border after midnight. A man down in Monterrey had fixed everything. They hopped a bus in Laredo, and by noon they were on the interstate north of Dallas, shooting past the On the Run convenience store and the On the Border Mexican Cantina, heading for Eldorado Parkway.

First thing next morning, the men had jobs. RPB Services, a local landscaper, put them to work on a windy field off the Eldorado Parkway junction. They were building a wire-mesh fence.

Francisco Escamilla, 47 years old, stopped driving a post to talk of the night's adventure. "We had a good trip," he said. "I'm happy to be here." Agustin Gutierrez, 55 and a veteran border crosser, straightened his back. "No questions asked," he said. "They didn't say, 'Welcome to America.' Just, 'Give us your $6.' "

It was, after all, a routine fee for crossing into America. At the U.S. consulate in Monterrey, both men had legally obtained visas. Their employer had satisfied the government that the Mexicans weren't taking jobs Americans wanted. The visas gave them permission to work here legally for 10 months.


In the hope of ending illegal immigration, President Bush floated an idea in January for giving temporary visas to low-wage workers. But a visa of that kind already exists. It is called the H-2B. Though it isn't easy to get, the Mexicans at RPB Services were granted H-2Bs. Maids and janitors with H-2B visas work in the U.S. now. So do truckers and welders, roofers and horse groomers.

The number of H-2B workers has quintupled since 1997. Last year, the State Department admitted 79,000. Demand has been so great since this fiscal year began in October that the immigration service stopped accepting petitions on March 9. Officially, the annual cap on applications is 66,000. It's not clear how admissions overshot it last year, but employers worrying about a short-staffed summer are asking Congress for an emergency increase in the cap now.

The H-2B operation looks to some like a working model for Mr. Bush's vision of legalizing the flow of illegal immigrants, which immigration experts place at roughly 350,000 people each year. The president would speed the processing and allow longer stays, while still restricting visas only to jobs Americans refuse.

That doesn't appear to be enough to push a full immigration reform through Congress this election year. The problem is that 9.3 million foreigners, by the Urban Institute's most recent estimate, already live in the country illegally. Mr. Bush proposes giving temporary visas to those with jobs. Immigrant-rights activists want them to get a shot at citizenship, too. Social conservatives, largely responsible for the hold-up in Congress, call that an amnesty for outlaws.

Other issues also remain -- about shielding foreigners from abuse while here, and about making sure they go home when they're supposed to. But a reformed system for dealing with future low-wage workers might yet take the basic shape of the H-2B. For many of those who use it, the visa has lived up to the task set out when Congress created it in 1986: connecting foreigners who need work with Americans who have work to offer.

Greg Maphet, 45 now, wasn't pondering immigration law in 1997 when he first heard of the H-2B. He owns The Grass Patch, an Austin lawn service. Back then, he needed 50 or 60 men to lay sod. He would hire Mexicans, sometimes on street corners. Like thousands of employers, he glanced at their photo IDs and Social Security cards without verifying whether they were real.

"It wasn't up to us to prove they were legal or not," Mr. Maphet said in his wood-frame office with sod stacked outside. "Then all of a sudden we get raided."

 

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Part II

Part II:

That was long before the government started a big campaign to notify employers of Social Security numbers that don't match employee names, or last year's news that illegals were washing floors at Wal-Mart. But Mr. Maphet got caught anyway: Some of his men didn't check a box on a form to confirm that they could work legally. A U.S. inspector noticed. Mr. Maphet had to pay a fine, and 30 of his workers were hustled away.

"That's a lot when you have commitments to builders," he says. It was around then that a customer passed on some gossip about a legal way to hire Mexicans. Mr. Maphet says, "The first thing I thought was: How can I do that?"

He phoned Robert Kershaw, a lawyer who knew from church. Mr. Kershaw, who had once pastored an Assemblies of God church in Mexico, was handling divorces in Austin. "I knew he was sick of divorces," Mr. Maphet says. He talked his friend into taking up the cause of Texas landscapers and Mexican sod cutters.

In the H-2B visa, Mr. Kershaw found a calling. Since coming to Mr. Maphet's aid, he has dedicated his practice to it. He has 120 clients now -- landscapers, builders, quarries, nursing homes and restaurants. He has brought in 20,000 Mexicans to work for them.

"I believe in legal immigration, and we have the legal means to go about it," says Mr. Kershaw, who is 46 and given to black suits and starched collars. "My clients have legal workers, and most of those workers are pinching themselves on the bus. They can't believe it -- they're coming up legally to do a legal job in the U.S."

The H-2B's flowering after years of disuse is a sign of how risky illegal entry has become in this era of border controls and security alerts. Employers are anxious about raids; Mexicans are dying in the desert. The visa was put in place as a path to legal entry after an amnesty 18 years ago. Yet many employers who tried using it gave up. To ensure that it would put no American out of a job, the H-2B was deliberately made maddeningly hard to get.

Not only the job itself but the employer's need must be temporary. State officials research each occupation and set wages based on local norms. Employers must advertise every job, interview every American applicant and justify every rejection. The Labor Department in Washington reviews the file. It's passed on to the immigration service, in the Homeland Security Department, for a check of the foreign hires against lists of suspicious characters. Then the whole chain is double-checked by the State Department.

President Bush imagines a slicker system, a kind of eBay for drudge jobs. If no Americans showed interest in Web-posted openings, employers would be free to hire abroad. Visas would be renewable and good for three years. When today's 10-month H-2Bs expire, workers are supposed to go home. To bring them back, employers must petition all over again. They don't have to go to Mexico when the workers are screened, but it helps.


That's why, early on a Wednesday morning, Jeff Haas was in Monterrey, Mexico, standing among a few hundred patient Mexicans in a scruffy park beside the U.S. consulate. Mr. Haas, 35, is a partner in RPB Services. He had driven 500 miles from his job site off the Eldorado Parkway to collect a crew of landscapers.

"Back home, I couldn't find 24 American workers in a whole year," he said. "Here, I get 24 Mexicans in one day."

Like Greg Maphet, Mr. Haas says he used to fill vacancies by not looking too closely at employees' papers. Then, among the lawnmowers and tractors at a 1999 trade show, he found Robert Kershaw pushing H-2B visas.

Mr. Haas went for it. "What we spend up front we get back in workers we know, workers who know us," he says. Many employers find their workers through recruiting agents, but the men Mr. Haas is sponsoring are all relatives and friends linked to one man he hired in the mid-'90s. Because a single employer application covers any number of visas, his outlay totals just $5,000: $3,000 for Mr. Kershaw, a $1,000 official fee, and $25 per worker -- plus their hotel bills and bus fare north.

He pays the official Texas rate for his field: $6.75 an hour, plus Social Security. He deducts taxes. One able American answered his ad this year. Mr. Haas hired him.

He might pay more for labor than other landscapers, but Mr. Haas says he sleeps better at night. "I don't compete with the dark side of the industry, the ones who abuse people," he says.

Yet there is also a dark side to the H-2B, one that echoes doubts about all temporary work visas. Most specialists consider the labor rights of these workers to be second-rate.

Millions of Mexican braceros worked legally in the U.S. from 1942 until 1964, when their poor housing and working conditions became a national scandal. Sugar growers who hired legal foreign farm workers were accused in the 1990s of cheating them on pay; in 2001, timber giants, including International Paper Co., faced similar charges. A federal judge, however, said labor contractors, not the companies themselves, should have been sued.

The legal-aid lawyers who brought that case claim that temporary workers, by definition, are captives of their employer sponsors. If mistreated, they can't simply find work elsewhere. The penalty for quitting is deportation.

Mr. Bush would give temporary workers the freedom to switch jobs without necessarily going home -- "a far greater ability to vote with your feet than is currently the case," his domestic-policy assistant, Margaret Spellings, said at a recent Cato Institute conference. To Bill Beardall, a civil-rights lawyer in Austin who took part in the timber case, that argument isn't convincing.

"The H-2B is emblematic of what's wrong with the Bush proposal," he says. "No matter how much you tinker, it will always lead to exploitation."

Over the visa's life, government has rarely stepped in to stop workers from being abused. At the consulate in Monterrey, a concrete slab on a roaring highway, the daily focus instead is on stopping workers, employers, recruiters and crooks from abusing the visa.

That screening process is what brought Agustin Gutierrez and Francisco Escamilla to Monterrey before their journey north. While Jeff Haas hovered outside, his landscape crew -- Messrs. Gutierrez and Escamilla and 22 others -- joined hundreds of men lined up against the back wall of the consulate's bare public hall.

Bulletproof glass separates applicants from rows of State Department interviewers. In a back office, Mexican staffers spend their days feeding passport details into a database much enlarged since Sept. 11. The consulate knows in minutes who has gotten so much as a U.S. traffic ticket -- and interviewers will want to know what their immigration status was at the time. Those who admit to illegal stays might or might not be sent away; those who make up stories will be barred for good.

"If you lie, you lose," said Thomas Canahuate, the U.S. consular officer who runs the process. He stood watching several men being fingerprinted; their security checks had returned hits.

Mr. Canahuate has seen worse. The visa's rules let employers pay recruiters but but don't let recruiters charge workers as well. The intent is to discourage exploitation of workers. Some workers don't know about the rules, but ignorance is no defense: If they confess to paying a recruiter, their applications will be denied.

"People admit to paying because they honestly think that's the way it's done," Mr. Canahuate says. "We've had people pay $2,000. Unfortunately, they are refused."

At its peak, from March to May, the Monterrey consulate grinds out 1,000 H-2B visas a day; it topped the charts in 2003, with 41,000 for the year. Mr. Canahuate isn't fazed by the thought of expansion. "It's doable," he says. "The program works. You could make it more efficient. If I could, I'd let more people know it exists."

But for all its databases and double checks, the consulate can never be sure about the one great unknown at the heart of any temporary-worker policy: When a visa expires, will a worker willingly go home?

Behind the consulate is a restaurant called La Confianza -- it means "trust" -- where workers, employers and their agents go to sit at bare tables, drink Cokes and fill out forms. After their interviews, Mr. Gutierrez and Mr. Escamilla were there with Mr. Haas, waiting for their passports to come out. Two workers had just been denied. They had promised to return to Mexico; a consul didn't believe them.

"This visa is good for me," Mr. Gutierrez said, swirling his drink and looking anxious. "It lets me get inside the U.S. with no problems." He is separated from his wife. Two of his four children are grown. But this is his fourth year with Mr. Haas, and he has gone home for two months every Christmas.

"That's what the government asks you to do," said Mr. Gutierrez. "I'll do it as long as I can."

"I have two sons," Mr. Escamilla said. "My whole purpose is to send money home. I'll never stay in the U.S. For families in Mexico, this is the way. God bless the Americans who give us work."

In a few hours, his crew -- with only two exceptions -- had their visas and were on a Mexican bus to Laredo. Nineteen hours later, they got off an American bus near Dallas.

Mr. Gutierrez took Mr. Escamilla directly to a government office to apply for his first Social Security card. The clerks had to check his immigration status first. By the time he got done putting in the wire-mesh fence at the Eldorado interchange, they told him, his card would be in the mail.

Write to Barry Newman at barry.newman@wsj.com