Immigration Laws Deter Needed Workers from Entering the US to fill Blue Collar Work

Washington apple orchards reported a record growing year in 2011.  Unfortunately, due to a late harvest and reduced labor force, otherwise edible fruit was left on the trees to rot.  Growers explained to National Public Radio that migrants who tended the orchards during the growing months were unable to stay for the late harvest.  According to people interviewed by NPR, the migrants who would have replaced the tending workers were deterred from entering the United States, in part, due to immigration laws passed in states like Alabama and Arizona.

Apple growers attempted to recruit pickers from other sources.  Many posted “help wanted” signs, negotiated with neighbors to share the available labor, or paid the high cost of hiring prison inmates to bring in the harvest.  However, the effort was not enough for the orchards to harvest all the apples before the elements rendered the fruit inedible.

We previously witnessed this phenomenon in Colorado.  When Colorado enacted the Colorado Employment Verification Law (Colo. Rev. Stat. § 8-2-122), farmers in Colorado experienced a similar reduction in work force, because migrants were deterred from assisting with the 2007 harvest.  Colorado farmers resorted to the same recruitment tactics as the Washington orchards, with the same results: Not enough labor force to harvest crops leading to a less productive harvest.

Four years later, the country is experiencing an average unemployment rate of 8.5%, a reduction in the undocumented alien population, and people are still blaming “illegal” aliens for taking American jobs.  I am not suggesting that every unemployed American should suck it up and apply to pick apples in Washington State.  However, before blaming the “others” for our unemployment rate, we should consider what “American jobs” the others have really taken from us.  State or federal laws passed to deter employers from hiring undocumented aliens historically only affect the availability of blue collar or agricultural jobs – lower paying jobs that entail manual labor.  These are the positions most likely filled by undocumented aliens.  Undocumented aliens are less likely to be hired for higher end positions, which may require background checks, licenses, references, or academic credentials; which leaves the supply of higher paid or professional positions to the natural ebbs and flow of the United States economy.

The Immigration Act of 1990 imposed a cap of 65,000 annually for H-1B temporary workers.  Except for a temporary increase between fiscal years 1999 and 2003, the cap has remained the same while the US economy has continued to fluctuate to the extremes.  An H-1B visa requires that the worker have earned a bachelor’s degree or higher, or an acceptable equivalent, and the position usually requires a bachelor’s degree or higher.  During the tech boom of the 1990s, I worked for a software consulting company.  The company could not hire consultants fast enough.  The demand was so much higher than the supply that one year the company offered to train any administrative staff member, including accountants, human resources staff, receptionists, and legal staff, who wanted to become a consultant.  The company recruited from all over the world, starting in Europe, then Africa, South America, Asia, depleting resources and then moving on to the next continent.

The software consulting firms were driving forces behind the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the 21^st Century Act (AC21).  Each year during the tech boom, the government reached the 65,000 cap earlier and earlier.  ACWIA increased the H-1B cap to 115,000 for fiscal years 1999 and 2000 and AC21 gradually increased the H-1B cap to 195,000 in 2002 in response to the high demand.

The cap returned to 65,000 in fiscal year 2004.  The demand continued, but at a more stable pace.  Annually, the cap would continue to be reached before the new fiscal year began.

After only a short downturn in the early 2000s, the economy peaked in 2008, on the wave of the financial and housing bubbles.  On April 1, 2008, USCIS received over 120,000 petitions for the 2009 fiscal year H-1B cap.  The number of petitions sent to the Vermont Service Center jammed FedEx deliveries so much that FedEx was unable to issue individual receipts for filings.  Instead, FedEx could only assure petitioners that their H-1B petition had been delivered on April 1, 2008, in a bulk delivery.  It was the first time that not one petitioner could be guaranteed processing if she filed on April 1, 2008.  USCIS had to administer a lottery.  Ironically, the economic bubble burst in September 2008, just before these H-1B visas were valid on October 1, 2008.

Since the recession began in 2008, the government receives less and less H-1B petitions each year.  In 2009, the FY2010 cap was not reached until August 2009.  In 2010, the FY2011 cap was not reached until December.  And in 2011, H-1B visas for FY2012 were still available until November 2011.

Most US employers, in my experience, are about the bottom line.  If the same talent is available in the United States that is available outside of the United States, then an employer will hire the US worker which does not come with an additional $2000 price tag for hiring.  Employers, generally, will not hire outside of the United States if a supply of US workers is available on demand.  When US workers are not available, qualified, or willing to apply for the position, then employers start “exporting” American jobs.  When neither foreign nor domestic labor is available, then apples rot in the orchards.