Circular or temporary labor migration programs (TLMPs), also referred to as “guestworker” programs, aim to add workers temporarily to a country’s labor force without adding permanent immigrants to the population. Many industrial countries and major countries of destination for migrant workers operate TLMPs. This report makes the case that TLMPs—even if carefully managed by governments—have left too many migrant workers vulnerable to exploitation and abuse and too many employers reliant on temporary, low-wage migrant labor and therefore without the incentive to develop a sustainable local workforce and improve salaries and working conditions.
The report seeks to inform United Nations (U.N.) member states as they prepare to adopt the Global Compact for Safe, Orderly, and Regular Migration (GCM) in December 2018 at the U.N. Intergovernmental Conference in Marrakesh, Morocco. The process of preparing the GCM began with the September 19, 2016, New York Declaration, a resolution of the U.N. General Assembly, calling on member states to improve global governance and coordination on migration by developing a Global Compact for Safe, Orderly, and Regular Migration. Annex II of the New York Declaration lists 24 migration-related “elements” that could be included in the GCM, including the “promotion of labor mobility, including circular migration” (UNGA 2016).
During the intergovernmental negotiations that took place in 2017 and 2018 to draft and finalize the GCM text, U.N. member states debated how to create a new framework for cooperation on a variety of urgent global migration issues, including labor migration. On July 13, 2018, the GCM’s final text was released. It includes Objective 5, “Enhance availability and flexibility of pathways for regular migration,” and calls on states to consider a number of options, including “temporary, seasonal, circular, and fast-track programmes in areas of labour shortages…” (U.N. 2018). As U.N. member states shift to the implementation phase of the GCM after its formal adoption in December 2018, new bilateral and multilateral efforts to facilitate and increase labor migration may be launched. Given their prevalence around the world, governments engaging in such efforts are likely to consider creating new TLMPs or expanding existing ones.
However, governments seeking to facilitate labor migration, create new legal pathways for migration, or remedy alleged labor shortages by starting or expanding TLMPs should beware of significant pitfalls. Our review of TLMPs in the United States and other industrial countries reveals that poorly paid and exploitable workers still bear nearly all of the risk when migrating abroad, and that workers in vulnerable situations are not an appropriate or effective vehicle to jumpstart development in countries of origin.
Instead of expanding flawed TLMP models, governments should instead consider labor migration models that foster authentic development while protecting the rights of migrant workers and the local workers in destination countries who labor alongside them. For countries that are considering TLMPs, as well as those that are currently operating TLMPs, we offer concrete steps to improve TLMP operation and transition toward models that promote decent work both in countries of origin and destination. A list of our recommendations appears at the end of this executive summary, and full descriptions of each, including rationales, can be found in the concluding section of the report.
We hope governments will use the adoption of the GCM as a moment to reflect and take a critical look at how TLMPs have failed to remedy labor shortages and protect the human rights of migrant workers seeking opportunities for decent work. Following are highlights of the main observations in this report:
Temporary labor migration program rules and structures are inconsistent with international human rights norms and labor standards enforcement is inadequate, leading to extreme vulnerabilities and exploitation of guestworkers.
Most migrant workers pay relatively large sums to labor recruiters to access temporary jobs in destination countries, leaving them indebted and therefore more vulnerable to workplace abuses, and in some cases human trafficking.
Guestworkers are usually tied to one job and employer by contracts and visas, which makes them inherently vulnerable. If guestworkers lose their jobs (because they complain of wage theft or abuse, for example), they lose the right to be in the destination country, along with any financial investment made to work abroad, including the payment of recruitment fees.
Many guestworkers—especially those employed in low-wage jobs—have no path to permanent immigrant status or naturalization in destination countries. As a result, their temporary status denies them the chance to remain in the destination country or integrate, and can deprive employers of a stable workforce.
Many guestworkers in low-wage jobs cannot bring family members to destination countries, depriving them of the right to family unity.
Freedom of association is a fundamental right under international law, but many guestworkers face major challenges to join unions and worker organizations and engage in protected concerted activities like organizing, because the structures of TLMPs and the nature of the employment relationship in TLMPs make guestworkers inherently vulnerable to retaliation.
Labor standards enforcement is inadequate in TLMPs, and as a result few employers are punished for unpaid wages and other legal violations.
The structures of TLMPs and the temporary visa statuses that guestworkers have when employed through TLMPs can make it difficult for them to access legal services or representation, or avail themselves of the protections that labor standards enforcement agencies could provide.
As a result of all these factors, guestworker abuses are common across the wage and skill spectrum. Migrants traveling to and from every region of the world too often face fraud, discrimination, economic coercion, retaliation, blacklisting, and, in some cases, forced labor, indentured servitude, debt bondage, and human trafficking.
Temporary labor migration programs have failed to achieve the goal of remedying real or perceived labor shortages, and these programs may keep wages artificially low for guestworkers in destination countries.
Labor shortage is the major rationale for the creation and operation of temporary labor migration programs; however, the need for guestworkers is generally determined by employers rather than governments.
While wages for workers have been largely stagnant in major countries of destination around the world, many employers are not required to prove that labor shortages exist before hiring guestworkers, or to pay their guestworker employees prevailing wage rates in destination countries, which allows employers to hire guestworkers even when local workers are available.
Even when TLMPs include prevailing wage rules, they sometimes operate to keep wages artificially low for guestworkers, as a result of manipulation and lobbying by employers.
Nearly all temporary labor migration programs in industrial countries grow larger and last longer than anticipated as employers and migrant workers become dependent on them.
Employers may make investment decisions that assume guestworkers will be available, and then resist migration policy changes that would raise labor costs (i.e., raise workers’ wages) and reduce profits. This phenomenon is known as “distortion.”
Such distortion can create structural labor shortages, as when farmers plant apple trees in remote areas with few available workers and expect governments to allow them to employ guestworkers to harvest them.
Migrant workers and families who chronically lack decent work opportunities at home may become accustomed to foreign jobs and remittances, a phenomenon, known as “dependence,” which can extend to entire nations and regions
As a result of distortion and dependence, the creation of guestworker programs is a one-way street: there are few examples of employers reverting to local workers after years or decades of employing guestworkers absent a major structural change, such as mechanization in agriculture that replaced hand pickers with machine operators for some crops.
There is little reliable and consistent data on temporary labor migration programs.
Lack of transparency in TLMPs and on labor recruiters increases the vulnerability of guestworkers to abuse, as they generally have no means to independently verify the veracity of job opportunities and work contracts in destination countries that are promised by for-profit recruiters.
Data gaps and differences in variables tracked make it difficult to analyze and compare TLMPs of different countries and measure their impact on workers’ rights and labor standards in countries of origin and destination.
The lack of reliable data about TLMPs also impedes effective enforcement by national labor standards enforcement agencies of labor and employment laws that can protect guestworkers.
The information deficit caused by data gaps can lead to ill-informed public debates about the impacts of TLMPs in countries of origin and destination and on how to structure TLMPs in ways that adequately protect all workers.
Recommendations for improving governance and labor standards in temporary labor migration programs
1) Replace temporary labor migration programs with programs that, after a short provisional period, allow migrant workers to petition for permanent immigrant status, and allow family members to join guestworkers.
2) Establish expert groups or commissions to determine whether migrant workers are truly needed by analyzing labor market data and weighing the trade-offs that are inevitable in labor migration.
3) Experiment with job or visa portability, allowing guestworkers to at least change employers within an industry or when labor disputes arise.
4) Take actions that allow workers in temporary labor migration programs to exercise their freedom of association without fear of retaliation and removal.
5) Implement clearly defined and strictly enforced “firewalls” between labor standards enforcement agencies and immigration enforcement agencies.
6) Help guestworkers access justice by providing legal services and postponing removal and other immigration enforcement actions for guestworkers involved in labor disputes.
7) Implement mandatory registration systems to better regulate labor recruiters, ensure transparency in the migrant worker recruitment process, and prevent worker-paid fees.
8) Cooperate with governments in countries of origin by publicly sharing information about labor recruiters and employers, and take measures to hold recruiters and employers jointly liable for legal violations.
9) Integrate unions and worker organizations into the governance processes of temporary labor migration programs.
10) Collect and publish more data on temporary labor migration programs and cooperate with other governments to develop new international standards for measuring program impacts and effectiveness.