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8 Regulating the Migration of Labor I have met many, many farm workers and friends who love justice and who are willing to sacrifice for what is right.They have a quality about them that reminds me of the beatitudes.They are living examples that Jesus’ promise is true: they have been hungry and thirsty for righteousness and they have been satisfied.They are determined, patient people who believe in life and who give strength to others.They have given me more love and hope and strength than they will ever know. —César Chávez I t is among the oldest of migration stories: one leaves home and family and moves to a new country in order to work. The labor market of the United States attracts many migrants. The regulation of migrant labor is an important part of American migration history. How does US law regulate the attraction of migrant labor? How does law integrate migrant laborers into the American economic, legal, and social community? This chapter begins by reviewing some demographic characteristics of the US workforce. We look at Latinas and Latinos generally in the workforce and then examine foreign-born US workers, with special attention paid to those born in Latin America and especially Mexico. We then review basic data about undocumented foreign nationals (UFNs) in the workforce. Next, we examine how US immigration law regulates labor migration to the United States, looking especially at the H-2A nonimmigrant visa program for agricultural workers and at the Immigration Reform and Control Act of 1986. Finally, we look at how bodies of law other than immigration law regulates migrants in the workplace. Demographics of the Laboring Migrant Population We are interested in the profiles of three different (but potentially interconnected ) groups in the US labor force: (1) the Latina/o worker (both Demographics of the Laboring Migrant Population 149 foreign born and native born); (2) the foreign-born worker; and (3) the undocumented foreign national worker. We are initially interested in the laboring Latina/o, whether native or foreign born. An overarching goal of this book is to explore the substantial continuity between the Mexican aspiring to migrate and the Mexican American who was born in the United States. As such, we are interested in data describing the characteristics of the Latina/o labor force in the United States. Table 8.1 shows the fourth-quarter changes from 2007 to 2008 in the native-born and foreign-born Latina/o workforce. There is a notable continuity among native-born and foreign-born Latinas/os in the services and retail sectors. Discontinuities are sharpest in hospitality and construction (more foreign born than native born) and education and public administration (more native born than foreign born). We turn next to natives and foreign born more generally, with secondary specification by ethnicity. Figure 8.1 shows the rate of participation in the workforce, by gender and education level of native-born US citizens,­ foreign-born workers from outside Mexico and Central America, and workers born in Mexico or Central America. Among men, we see substantial variations among those whose educational level is high school or less. At this educational level, foreign-born, especially Mexican- and Central American–born, participate more than natives in the workforce. The meaningful variations among the ethnic groups diminish as the educational level increases. Among women, the ethnic variation increases as the amount of education grows. We can also study the foreign-born participation in the labor force, relative to the native population. Table 8.2 shows that workers born in Mexico are more fully employed than workers from any other group, and that the jobs are largely in agriculture, construction, and services. Table 8.3 provides more information about foreign-born Latinas/os, showing labor force participation broken down by period of arrival. We see that Latinas/os who entered in the 1980s are participating in the labor force at a very high rate (around 76 percent); those who entered in the 1990s participate at 73 percent; and those who entered in the 2000s are participating at around 70 percent. We can turn now to UFN population. Continuing the focus on laborforce participation, we see from figure 8.2 (using slightly older data than the earlier figures) that the participation rate of UFN males is recorded at 150 Regulating the Migration of Labor Table 8.1  Employment of Latinas/os, by industry, fourth quarters 2007 and 2008 (nonseasonally adjusted, ages 16 and older, numbers in...

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