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 NEED THE FOLLOWING QUESTIONS ANSWERED BASED ON THE FOLLOWING READING  1) discuss what Gordon means by transnational labor citizenship, and 2) discuss how the various experiments in creating a system of “mobile labor citizenship” her article documents provide examples of how to both recognize the contributions migrant workers make to national economies and safeguard their rights. 

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Electronic copy available at: http://ssrn.com/abstract=1348064

Towards Transnational Labor Citizenship:

Restructuring Labor Migration
to Reinforce Workers’ Rights

A Preliminary Report on Emerging Experiments

Jennifer Gordon

Fordham Law School

January 2009

Electronic copy available at: http://ssrn.com/abstract=1348064

GORDON RESTRUCTURING LABOR MIGRATION

Towards Transnational Labor Citizenship:
Restructuring Labor Migration
to Reinforce Workers’ Rights

A Preliminary Report on Emerging Experiments

Jennifer Gordon
Fordham Law School

January 2009

The author thanks the Ford Foundation for the primary funding for the research

and writing of this report, and also gratefully acknowledges the support of the Dean’s

Office at Fordham Law School and the Chief Justice Earl Warren Institute on Race,

Ethnicity, and Diversity at the University of California-Berkeley Law School.

GORDON RESTRUCTURING LABOR MIGRATION

TOWARDS TRANSNATIONAL LABOR CITIZENSHIP:
RESTRUCTURING LABOR MIGRATION

TO REINFORCE WORKERS’ RIGHTS
A Preliminary Report on Emerging Experiments

Contents

PROLOGUE….………………………………………………………………………………………………………………………..1

I. INTRODUCING TRANSNATIONAL LABOR CITIZENSHIP…………….………………………3

A. Low-Wage Labor Migration in the Context of the

United States……..………………………………………………………………………………………3

B. A Response: Transnational Labor Citizenship……………….………………..5

C. Central Principles of Transnational Labor Citizenship………………..7

D. Emerging Experiments……………………………………………………………….……………9

II. ORIGIN COUNTRY ENFORCEMENT OF MIGRANT RIGHTS………………….…………..9

A. Bi-lateral Accords on Low-Wage Labor Migration………………………10

B. Unilateral Efforts by Origin Countries to Protect

Migrant Rights…………………………………………………………………………………………15

C. Contrasting Approaches: Mexico and the Philippines..………………18

D. Challenges and Lessons Learned………………………………………………………..25

III. EMERGING EXPERIMENTS WITH MOBILE LABOR CITIZENSHIP….……………..…27

A. Understanding Mobile Labor Citizenship……………………………………..27

B. The Experiments……………………………………………………………………………..………31

1. Construction: Two Approaches…………………………………………….….31
a. Union-to-Union Worker Referrals…………………………………..………33

b. Partnerships between Origin and Destination

Country Unions……………………………………….…………………………………35

2. Two Industries at the Bottom of the Wage Ladder………………39
a. Agriculture: A Destination Country Union

Builds a Base in an Origin Country…………………………………………..39

b. Domestic Work: An Origin Country Union

Builds a Base in a Destination Country …………………………………..41

C. Challenges and Lessons Learned….……………………………………………………43

1. Cross-Border Collaboration: Obstacles and Incentives ……..44

2. Insights for Transnational Labor Citizenship……………………….49

CONCLUSION……………………………………………………………………………………………………………………….58

GORDON RESTRUCTURING LABOR MIGRATION

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TOWARDS TRANSNATIONAL LABOR CITIZENSHIP:
RESTRUCTURING LABOR MIGRATION

TO REINFORCE WORKERS’ RIGHTS
A Preliminary Report on Emerging Experiments

Prologue

Any effort to address the challenges of global labor migration demands
tremendous humility. Migration for work is a powerful and complex force,
propelled by staggering inequalities between countries.1 An estimated 86 million
people today labor outside their nations of origin,2 in search of opportunities to
achieve a better life for themselves and their families. The flow of migrants is
drawn by the hunger of employers in destination countries for a ready low-wage
workforce; facilitated by a teeming pool of legitimate and corrupt labor recruiters,
private immigration “experts,” and government officials; and channeled through
informal migrant networks linking countries and communities. This complexity
spells trouble for labor migration policies. The globe is littered with attempts to

1 The risk of discussing labor migration as if it is a distinct phenomenon, as I do here, is
that it implies far too neat a division between those who leave home in search of work and those
who migrate for other reasons, including to reunite with family members and to escape war,
persecution, or natural disaster. Migrants, like all human beings, have complex and changing
motivations, interests, and connections to other people, all of which (in combination with the
opportunities and legal regimes they encounter) influence their decisions about where to live and
work, and for how long to stay. At the same time, a significant number of migrants identify the
quest for better economic prospects as a primary motivation in their decision to leave their home
country. My exploration of labor migration in this report is intended to address the role work
plays in so many migrants’ lives, rather than to imply that “temporary labor migrants” are
intrinsically different than others who live and work outside their countries of origin.
2 INT’L LABOUR OFFICE, TOWARDS A FAIR DEAL FOR MIGRANT WORKERS IN THE GLOBAL
ECONOMY 7 (2004). A note on vocabulary. I use the term “origin country” to refer to a state
whose nationals leave in search of work abroad, and “destination country” to refer to a state that is
primarily a destination for such migrants. It should be noted that many countries both send and
receive migrants—for example, Mexico is an origin country with reference to the United States
but a destination country for many Central Americans.

I describe the migrants I am chiefly concerned with in this paper, and the work they do,
as “low-wage.” I use this label with trepidation. There is nothing inherently low-wage in either
the migrants or their labor. Despite my concerns, however, I prefer the term “low-wage” to the
pejorative “unskilled.” As Samuel Gompers pointed out many decades ago, “‘There is no such
thing as unskilled work per se . . . the distinction between wage-earners is one of degree only.’”
Dorothy Sue Cobble, Reviving the Federation’s Historic Role in Organizing 23-24 (Inst. for the Study of
Labor Org.; Working Papers, 1996). See also ROGER WALDINGER & MICHAEL I. LICHTER, HOW THE
OTHER HALF WORKS: IMMIGRATION AND THE SOCIAL ORGANIZATION OF LABOR 10 (2003) (“While
there may well be some jobs for which the label of ‘unskilled’ means what it says, this number is
small.” (footnote omitted)).

GORDON RESTRUCTURING LABOR MIGRATION

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reshape migration patterns that not only failed to achieve their goals but created a
host of new problems along the way.

Humility, then, is required. But humility cannot become an excuse for walking
away from the obligation to consider alternatives. Our current patchwork of a
labor migration regime has significant benefits—for origin country governments,
which currently receive remittances on the scale of $300 billion per year;3 for many
employers and consumers in destination countries, who benefit from the lower
prices generated by a wealth of cheap labor; for labor recruiters; and, in
complicated ways, for many migrants themselves. But its detriments are
enormous. Corruption is endemic. Illegal immigration is becoming the norm.
Migrants are abused on the job with sickening regularity. Native workers with
the lowest educational levels, those who can least afford it, appear to pay the
highest price for the influx of newcomers.4

Can we do better? Labor migration is a massive force, but it is not (with few
exceptions) a force of nature. Laws and policies may not be driving the migration
train, but neither are they irrelevant to its direction. International and domestic
legal regimes either directly or obliquely help to shape the decisions that
employees, migrants, and others make. At the same time, to work, a new policy
must reflect the internal logic of labor migration, and must serve most
participants’ needs as well or better than the old policy.

This paper is part of an effort to imagine how we might reconfigure global labor
migration—with particular attention to the low-wage end of the migrant
continuum—so that it improves the lot of workers, both migrant and native born.
It is deeply sympathetic to efforts by the International Labor Organization (ILO),
non-governmental organizations, and unions to create a global rights-based
framework for labor migration, with particular emphasis on international
instruments to protect migrants as they move from state to state. Yet no major
destination country has ratified the United Nations Convention on the Protection
of the Rights of All Migrant Workers and Members of their Families in the 18
years since its adoption by the UN,5 and although the ILO does essential work to
advance acceptance of labor standards around the world, it has no enforcement
capacity. In the absence of broadly accepted and enforceable international labor

3 Int’l Fund for Agric. Dev. (IFAD), Sending Money Home: Worldwide Remittance Flows
to Developing Countries, http://www.ifad.org/events/remittances/maps/.
4 Julie Murray, Jeanne Batalova, & Michael Fix, The Impact of Immigration on Native Workers: A
Fresh Look at the Evidence, MPI INSIGHT (Migration Pol’y Inst.), July 2006, at 5.
5 For a list of countries that have signed and/or ratified the Convention, see United Nations
Education, Science and Cultural Organization (UNESCO), Present State of Ratifications and
Signatures of the UN Migration Convention, http://portal.unesco.org/shs/en/ev.php-
URL_ID=3693&URL_DO=DO_TOPIC&URL_SECTION=201.html

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standards, this paper examines what governments, civil society organizations, and
migrants themselves are doing, and what more they might do, to enhance worker
protections.

It begins with a proposal for a new regime, Transnational Labor Citizenship,
whose explicit goal is to redistribute some of the gains of labor migration away
from the recruiters and employers who currently enjoy them, toward the native
workers and migrants whose sacrifices and hard work make those gains possible.
Of fundamental importance, Transnational Labor Citizenship seeks to dismantle
the wall frequently built between two categories of newcomers: those who are
admitted to a country as temporary workers, who have historically been treated as
a solution for destination country short-term labor needs, without receiving any
rights to social benefits or political participation; and those admitted as
permanent immigrants, through programs that provide for family reunification,
social benefits, and a path to citizenship. Transnational Labor Citizenship insists
that all migrants are full human beings, and deserve to be treated as such. In this
sense, beyond being a proposal to improve working conditions for all low-wage
laborers, Transnational Labor Citizenship is an effort to demonstrate that it is
possible to respond to the reality of temporary labor migration while refusing to
treat temporary migrants as commodities to be traded on a global market.

In what follows, I set out the Transnational Labor Citizenship idea, which I
developed in the context of the United States. I then offer preliminary notes on
emerging experiments around the globe that echo two of Transnational Labor
Citizenship’s central elements: origin country efforts to enforce labor rights for
their migrants, and civil society and trade union initiatives to provide continuous
support to migrants by linking origin and destination country labor organizations.
I reflect on the early lessons these experiments offer with regard to some of the
challenges a Transnational Labor Citizenship regime will face, and suggest
questions for further study.

I INTRODUCING TRANSNATIONAL LABOR CITIZENSHIP6

A. LOW-WAGE LABOR MIGRATION IN THE CONTEXT OF THE UNITED STATES

Over a million new immigrants arrive in the United States each year.7 Most come
to work. For those who see both the free movement of people and the

6 Parts A and B of this section are adapted in part from Jennifer Gordon, Transnational Labor
Citizenship, 80 S. CAL. L. REV. 503 (2007).
7 Jeffrey S. Passel & D’Vera Cohn, Trends in Unauthorized Immigration: Undocumented Inflow Now
Trails Legal Inflow (Pew Hispanic Ctr.), Oct. 2, 2008, at 2, available at
http://pewhispanic.org/files/reports/94.pdf. The figure includes legal immigrants and
undocumented arrivals, but not legal temporary migrants.

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preservation of decent working conditions as essential to social and economic
justice, the ongoing flow of immigrant workers presents a seemingly unsolvable
dilemma. To prevent people from moving in search of work is to curtail their
chance to build a decent life for themselves and their families. But in the popular
view of native workers in the country that receives them, the more immigrants, the
more competition, the worse work becomes.

In response, many politicians in the United States have demanded a reduction in
immigration. Yet in the face of enormous inequality between countries and
globally integrated labor markets, it is deeply unrealistic to think that immigration
controls will stop people from moving South to North. The flow of migrants may
rise and fall, but one way or another, those who want to migrate will find a way, in
numbers generated not only by our formal policies but by decades upon decades of
economic and social pressures in both origin and destination countries. To
imagine that we can roll back the century or more of migration history between
the United States and Mexico (and other countries as well), eradicate the
entrenched migrant networks that bind the two countries to each other, and undo
the complex web of economic interdependence that characterizes our thoroughly
integrated labor markets, is pure fantasy.

In the long term, a genuine solution to the dilemmas of immigration must focus on
addressing the underlying factors that bring so many who strive to do better for
themselves and their families to leave. When there is sustainable development in
nations of origin, the decision not to migrate will become a more viable economic
option. Until then, the struggle to make “staying put” a choice that more want to
make, must go hand in hand with the struggle for migration on fair terms. But as
Alejandro Portes and Rubén Rumbaut remind us in their classic Immigrant America:
A Portrait, “Manual labor migration is . . . not a one-way flow away from poverty
and want, but rather a two-way process fueled by the changing needs and
interests of those who come and those who profit from their labor.”8 No approach
will be effective unless it also addresses work and the conditions of labor in the
United States.

It is particularly disturbing, then, that the migration of workers to low-wage
industries in the United States today is structured in ways that actively
undermine minimum workplace standards. Undocumented immigrants account
for a large proportion of the immigrant manual laborers in this country.9

8 ALEJANDRO PORTES AND RUBÉN G. RUMBAUT, IMMIGRANT AMERICA: A PORTRAIT 18 (2d
ed. 1996).
9 An estimated 27% of food processing workers and 29% of roofers and drywall installers
are undocumented. Jeffrey S. Passel, The Size and Characteristics of the Unauthorized Migrant Population in
the U.S. (Pew Hispanic Ctr.), Mar. 7, 2006, at ii-iii, available at
http://pewhispanic.org/files/reports/61.pdf. Undocumented immigrants make up at least half of

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Immigrants without legal working papers are often loath to report employers who
pay wages below the legal minimum or create unsafe working conditions, for fear
that deportation will be the result. A number of other low-wage laborers are guest
workers, brought in on temporary visas for seasonal and agricultural jobs.10 Guest
worker programs in the United States, as around the world, admit migrants to
carry out a particular job for a specific employer. A guest worker is a captive
employee who cannot leave a bad job for a better one, and who by complaining of
abusive treatment risks not only the termination of her visa but her inclusion on
an unofficial blacklist that would effectively bar her return.11

The incentives our current labor migration program creates are exactly the
opposite of what they should be. Labor migration itself must be reconfigured so
that it reinforces, rather than undercutting, the possibility of decent treatment for
new migrants and for workers already in the United States.

B. A RESPONSE: TRANSNATIONAL LABOR CITIZENSHIP

This project proposes a comprehensive reform of our labor migration system. In a
recent article, I suggest a “thought experiment” about a new immigration regime
that I call Transnational Labor Citizenship.12

Transnational Labor Citizenship is based on the theory that the only way to create
a genuine floor on working conditions in a context of heavy immigration is to link
worker self-organization with the enforcement of basic workplace rights in a way
that crosses borders just as workers do. It draws on the insights of migration
scholars such as Douglas Massey and Jorge Durand, who have noted that
restrictive immigration policies and increased border control in the United States
since the 1980s have impeded what would otherwise be a much more fluid back-
and-forth movement of Latin American labor migrants.13 The goal of
Transnational Labor Citizenship is to facilitate the ability of migrants to choose to
migrate on a temporary basis for as long as they want or need to, while including
them in efforts to establish baseline working conditions.

the agricultural workers in the United States. U.S. DEP’T OF LABOR, FINDINGS FROM THE NATIONAL
AGRICULTURAL WORKERS SURVEY 2001–2002: A DEMOGRAPHIC AND EMPLOYMENT PROFILE OF
UNITED STATES FARMWORKERS 6 (2005), available at
http://www.doleta.gov/agworker/report9/naws_rpt9.pdf.
10 The United States has two non-immigrant visa categories for low-wage workers: the H-
2A program for agricultural workers and the H-2B program for other seasonal workers. 8 U.S.C. §
1101(a)(15)(H) (2000).
11 For descriptions of the abuses endemic to the guest worker program, see SOUTHERN
POVERTY LAW CTR., CLOSE TO SLAVERY: GUESTWORKER PROGRAMS IN THE UNITED STATES (2007),
available at http://www.splcenter.org/pdf/static/SPLCguestworker.pdf.
12 Gordon, supra note 6.
13 DOUGLAS S. MASSEY, JORGE DURAND & NOLAN J. MALONE, BEYOND SMOKE AND MIRRORS:
MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION 128-33 (2002).

GORDON RESTRUCTURING LABOR MIGRATION

In practical terms, under the Transnational Labor Citizenship regime, a migrant
would become eligible to work in the United States on a “TLC visa” after joining
an organization of transnational workers, rather than through a link to a
particular employer as temporary worker schemes currently require. TLC visa
holders would be able to work for any employer in the United States with full
labor rights and eventual conversion to permanent residence and citizenship if the
migrant so desired. The migrant, and his or her family, could come and go at will
between the U.S. and the country of origin, remaining here when jobs were
plentiful and returning home at slow times, for the harvest on their own farm, or
for holidays.

The benefits of the program from the migrant’s perspective need little elaboration.
But the obligations participants incur would be serious ones as well. In order to
be certified as eligible for a TLC visa by the origin country government, interested
migrants would have to join a transnational workers’ organization in or near their
home community. To remain in the United States more than a month beyond
entry, migrants would also have to join a transnational workers’ organization
active in the geographic area of the U.S. where they settled and the industry in
which they worked. Equally important, each migrant would be asked to take a
“solidarity oath” as a condition of membership. In exchange for employment
authorization, TLC visa holders would commit to report employers who violate
U.S. workplace laws or labor agreements. Failure to adhere to these requirements
would be grounds for removal from the membership in the transnational labor
organization and withdrawal of the visa.

To make the solidarity oath real, the U.S.- and origin-country-based transnational
labor organizations would work intensively with migrants on the ground,
collaborating across borders to defend the rights of their members through a
combination of government enforcement, lawsuits, and collective pressure. These
organizations would also offer migrants a variety of other services, from English
classes to facilitation of remittances to health care accessible in both countries.
The groups would be linked to create a network with a strong presence both in
origin and destination countries, with a mission of raising the floor on wages and
working conditions for all workers within the United States. The network would
be managed through a coordinating body, which I call the Transnational Worker
Justice Collaborative, that would oversee and accredit the member organizations,
support their work with each other, monitor the migration process, and generate
policy reform efforts. The Collaborative would be free-standing, not a
governmental agency or part of an already-existing labor union or worker center
either in the United States or in countries of origin. But it would have strong ties
to and support from such groups in both countries.

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Transnational Labor Citizenship would enhance the enforcement of baseline labor
rights and allow migrants to carry benefits and services with them as they moved.
Its goal, heretofore elusive, is to facilitate the free movement of people while
preventing the erosion of conditions of work in the country that receives them.
There is an ongoing debate among scholars of migration about whether today’s
immigrants are more “transnational” than those in the past, or indeed whether
they are transnational at all.14 Without taking a position in that dispute, it seems
clear that U.S. immigration policy and border enforcement operate to make
migrants less transnational than they would be if they were permitted to respond
to changes in U.S. labor markets and to their own needs and opportunities in their
countries of origin. Transnational Labor Citizenship would restore this fluidity,
making a back-and-forth pattern of migration an option for as long as a migrant
wishes or needs to sustain it, while also addressing the implications of migration
for low-wage workers in the United States.15

I offer Transnational Labor Citizenship as an intervention that readers may take
on a number of levels. At its most abstract, Transnational Labor Citizenship
stands for the idea that mechanisms to enhance workers rights cannot be seen as
an add-on to temporary labor migration schemes. Temporary labor migration
programs will continue to degrade workers rights unless they are explicitly and
fundamentally designed to reinforce them. In more explicit terms, the central
principles of Transnational Labor Citizenship, set out below, suggest routes to the
integration of workers rights and migration that can be implemented in a number
of ways. Finally, at the most concrete level, the outlines of the Transnational
Labor Citizenship proposal offer a specific approach to putting rights at the center
of labor migration.

C. CENTRAL PRINCIPLES OF TRANSNATIONAL LABOR CITIZENSHIP

Comprehensive implementation of the Transnational Labor Citizenship proposal
in the United States would require a number of changes that are difficult to

14 For a collection of foundational works advancing the argument for a new
transnationalism, see TOWARDS A TRANSNATIONAL PERSPECTIVE ON MIGRATION: RACE, CLASS,
ETHNICITY, AND NATIONALISM RECONSIDERED (Nina Glick Schiller et al. eds., 1992). Roger
Waldinger, David Fitzgerald, Nancy Foner, and Jonathan Fox, among others, have offered
critiques of the argument that today’s immigrants are “transnational” in ways that significantly
distinguish them from past immigrant generations. See generally Nancy Foner, What’s New About
Transnationalism? New York Immigrants Today and at the Turn of the Century, 6 DIASPORA 355 (1997);
Jonathan Fox, Unpacking “Transnational Citizenship,” 8 ANN. REV. POL. SCI. 171 (2005); Roger D.
Waldinger & David Fitzgerald, Transnationalism in Question, 109 AM. J. SOC. 1177 (2004).
15 Unlike guest worker programs that seek to …