U.S. Temporary Foreign Worker Programs

Hundreds of thousands of migrants come to the United States each year for work, but Washington has struggled to balance the shifting needs of industry with the concerns of the domestic labor force.

May 30, 2017

Workers pick strawberries on a farm in Rancho Santa Fe, California. Mike Blake/Reuters
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Introduction

Foreign workers have been an essential but contentious feature of the U.S. economic landscape for generations. Since the United States launched its first migrant labor program, during World War I, Washington has struggled to balance the shifting needs of industry with the concerns of the domestic labor force. Meanwhile, the temporary worker debate has been complicated by high levels of illegal immigration and deficiencies in the U.S. government’s visa tracking.

U.S. temporary foreign worker programs, sometimes referred to as guest worker programs, have more than doubled in size in recent decades: more than one million visas were granted in 2014, up from some four hundred thousand in 1994. The H1B, H2A, H2B, and H4 visas, the largest of these programs, have been the subject of some of the most heated debate. President Donald J. Trump has promised to make sweeping reforms of the temporary foreign worker programs and, as part of his “Buy American and Hire American” agenda, has directed federal agencies to review the H1B process.

What are the largest foreign worker visa programs?

The United States issued more than 530,000 visas for the H1B, H2A, H2B, and H4 visa programs in 2016, but the total number of workers participating in these programs at any one time is unknown because the various federal data systems that process visas are not linked. This includes H1B workers who have received visa extensions while awaiting permanent residency status, a process that can take more than a decade.

Temporary Foreign Worker

 

How did the temporary worker programs start?

The earliest U.S. temporary worker programs were established amid severe labor shortages during World War I and World War II to draw in agricultural laborers primarily from Mexico. It wasn’t until 1952, however, that lawmakers attempted to regulate these programs, consolidating them in the comprehensive Immigration and Nationality Act (INA) passed that year. The INA introduced both the H2 visa and the precursor to the H1B, which was formally established in 1990; a visa category for spouses and children was created in 1970 as an amendment to the INA.

How have they changed in recent administrations?

Changes to major aspects of the programs, like numerical caps and wage requirements, must receive congressional approval, but presidents have the authority to unilaterally change some regulations and can determine how federal officials implement them. “A lot of the latitude an administration has is in how carefully the requirements are enforced,” says Hiroshi Motomura, a law professor at the University of California, Los Angeles.

President Bill Clinton signed legislation significantly increasing the H1B cap for the years 1999–2001 in response to pressure from technology companies and strengthened enforcement of the program, placing additional requirements on employers with high proportions of H1B workers, known as H1B-dependent, and penalizing those who falsified information.

A lot of the latitude an administration has is in how carefully the requirements are enforced.
Hiroshi Motomura, University of California, Los Angeles

President George W. Bush reduced [PDF] the H1B program’s numerical cap in 2004 to today’s limit. In 2008, he loosened oversight of the H2A program’s labor certification process, which had formerly been supervised by federal and state officials, by allowing employers to merely attest to complying with the program’s requirements.

President Barack Obama reverted to a more supervised process in 2010, and in 2015 he began allowing some H4-visa holders to work to ease economic burdens on H1B families.

Credit: Claire Felter Sources: Bureau of Consular Affairs, U.S. Department of State

What is the process for getting a temporary work visa?

Several executive branch agencies are involved in reviewing and approving petitions for temporary work visas, including the Department of Homeland Security (DHS), the Department of Labor (DOL), and the Department of State. Employers must obtain certification from the DOL and are required to show that there are no qualified or available U.S. workers for the open positions (oversight of this process varies by program). They then file a nonimmigrant worker petition with U.S. Citizenship and Immigration Services, a branch of DHS, on behalf of prospective workers.

Once approved, workers apply to their local U.S. embassy or consulate for a visa. Consular officers interview visa applicants to determine whether they qualify. H2A and H2B recipients typically must provide evidence they plan to return to their country of origin. H1B visas have in recent years been distributed based on a lottery as the number of applications has overwhelmingly exceeded the numerical cap. DHS officials still have the ability to deny visa holders at ports of entry on grounds related to health, crime, or security.

What is the debate over these programs?

H1B. Criticisms of the program are many and varied. Depending on the critic, the H1B program is too large, too small, too inflexible, poorly monitored, or overly regulated. Many corporate executives say the H1B program is necessary to make up for a shortage of qualified domestic applicants, particularly for those with advanced technical degrees. They say the government should expand and streamline the program, doing away with the current lottery system. On the other hand, U.S. labor groups allege that some businesses take advantage of the H1B program because they can get away with paying foreign workers less. All companies must attest they will comply with rules regarding wages and working conditions, but only H1B-dependent employers, under certain circumstances, must attest to having first sought out qualified American workers.

H2A/B. Some experts claim the red tape involved in temporary worker immigration leads to an inefficient system that spurs employers to hire from a massive pool of unauthorized immigrants [PDF], many of whom are just as willing to avoid the required fees and paperwork. The agricultural worker program has no numerical cap, but it provided visas to only about 130,000 workers in 2016, a small portion of the estimated eight hundred thousand to 1.1 million hired farmworkers in the country. The U.S. Department of Agriculture estimates that in recent years around half of farmworkers were undocumented, binding this issue to the broader debate over immigration enforcement. “When it’s more difficult to come into the United States to work legally, all things being equal, more people enter to work illegally or overstay their visas,” says Alex Nowrasteh of the libertarian-leaning Cato Institute. Despite the problems plaguing these programs, cutting them entirely would increase undocumented immigration, he says.

The U.S. Department of Agriculture estimates that in recent years around half of farmworkers were undocumented.

Some lawmakers and advocacy groups say the government agencies managing these programs do not go far enough to ensure that foreign workers are not displacing domestic workers. Others stress they fail to protect foreign workers from exploitation. Current rules and fee requirements make it difficult for temporary workers to change employers, which, advocates say, prevents them from negotiating for fair wages and improved working conditions. “One of the biggest problems our system has” is that the legislation behind these programs is inflexible, says the Urban Institute’s Audrey Singer. “By the time we develop and pass these bills into law, they become outdated.”

What are the prospects for reform?

President Trump said during the 2016 campaign that he would seek to reduce both legal and illegal immigration and implement a “merit-based” immigration system. In early 2017, the Trump administration quit expediting H1B visas and announced plans to crack down on fraud in the program. In April Trump issued an executive order directing federal agencies to reevaluate the immigration system with the aim of protecting U.S. workers, specifically requesting that those agencies suggest reforms to the H1B program to ensure visas are awarded to the most skilled or highest paid applicants.

Recent H1B bills have included proposals to raise the numerical cap, prioritize foreigners who have completed U.S. degree programs on student visas, and reduce fraud and abuse [PDF]. A bipartisan bill introduced in January 2017 would impose additional requirements on companies requesting H1B visas for workers they plan to pay less than $100,000.

Proposed reforms to the H2 programs have focused on streamlining their administration to shorten the labor certification and application process from up to two months to just days. Some have proposed overhauling or entirely replacing the programs; Senator Dianne Feinstein (D-CA) has pushed for an agricultural worker program focused not only on admitting new workers but also on identifying undocumented workers who have been in the country and granting them legal status. A Republican-sponsored bill introduced in May 2017 would allow state governments to craft their own temporary worker programs. Some proposals for H2A reforms have sought to allow employers to hire temporary workers for year-round, rather than just seasonal, labor needs. Other proposals have sought to broaden the scope of the types of labor authorized under the H2B program and the groups exempted from its numerical cap.

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Resources Up

The Congressional Research Service provides background on the visa programs for low-skilled [PDF] and high-skilled [PDF] workers.

Deanne Fitzmaurice and Katie Benner look at the workers who would be affected by H1B reforms for the New York Times.

The Pew Research Center offers background on the H1B visa program.

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