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CRS — Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues

January 29, 2013

Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues (PDF)

Source: Congressional Research Service (via Federation of American Scientists)

U.S. employers in various industries argue that they need to hire foreign workers to perform lower-skilled jobs, while others maintain that many of these positions could be filled by U.S. workers. Under current law, certain lower-skilled foreign workers, sometimes referred to as guest workers, may be admitted to the United States to perform temporary service or labor under two temporary worker visas: the H-2A visa for agricultural workers and the H-2B visa for nonagricultural workers. Both programs are administered by the Department of Homeland Security’s U.S. Citizenship and Immigration Services (DHS/USCIS) and the Department of Labor’s Employment and Training Administration (DOL/ETA).

The H-2A and H-2B programs—and guest worker programs broadly—strive both to be responsive to legitimate employer needs for labor and to provide adequate protections for U.S. and foreign temporary workers. There is much debate, however, about how to strike the appropriate balance between these twin goals. Under the George W. Bush Administration, both DHS and DOL issued regulations to streamline the H-2A and H-2B programs. The Obama Administration retained the DHS rules, but rewrote the DOL rules. Arguing that the latter provided inadequate protections for workers, it issued a new DOL final rule on H-2A employment, which became effective in March 2010. The Obama Administration also issued a new DOL final rule on H-2B employment in 2012 and a DOL final rule on H-2B wage rates in 2011, but neither of these rules is currently in effect.

Bringing workers into the United States under either the H-2A program or H-2B program is a multi-agency process involving DOL, DHS, and the Department of State. As an initial step in the process, employers must apply for DOL labor certification to ensure that U.S. workers are not available for the jobs in question and that the hiring of foreign workers will not adversely affect U.S. workers. The labor certification process has long been criticized as ineffective, with employers complaining that it is burdensome and unresponsive to their labor needs and labor advocates arguing that it provides too few protections for workers.

The H-2A program and foreign agricultural workers in general have been a focus of congressional attention in recent Congresses. Proposals have been introduced as recently as in the 112th Congress that would have amended current law on the H-2A visa, while others would have established new temporary agricultural worker programs as alternatives to the H-2A program. Still other proposals would have coupled a legalization program for agricultural workers with either H-2A or other agricultural labor-related reform. DOL’s recent rules on H-2B employment and wages also have been subjects of congressional interest.

Guest worker proposals may contain provisions on a range of component policy issues. Key policy considerations include the labor market test to determine whether U.S. workers are available for the positions, wages, and enforcement. The issue of adjustment of status, which means the change to legal permanent resident (LPR) status in the United States, may also arise in connection with guest worker programs.

While the discussion of current guest worker programs in this report focuses on the H-2A and H- 2B visas, it also covers the Summer Work Travel (SWT) program, the largest of several programs under the J-1 visa for participants in work- and study-based exchange visitor programs. The SWT program is particularly relevant because participants work largely in unskilled jobs, including H- 2B-like seasonal jobs at resorts and amusement parks.

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