Rachel Browning’s Legal Blog

Over the past several years, President Bush has encouraged, and Congress has unsuccessfully debated, then shelved, comprehensive reforms to our immigration system.  A central component of these proposals has been the suggestion of establishing a “guest worker program” or “essential worker” visa category. The new category would address labor shortages in the agricultural, construction, fishing, landscaping, meat-processing and other service industries where a lack of willing and able U.S. workers has led employers to hire undocumented aliens to meet their rising demand for labor. Critics of the proposed reform denounce it as “amnesty,” and a reward for the “illegal” behavior of undocumented workers and the employers who hire them, while pointing out that the U.S. already has visa categories that apply to workers from these industries – it’s just not regulated enough, or at all.   Although I agree with the proponents of comprehensive reform, I also agree to a certain extent with the critics—part of the problem with the system as it is now is that it seems to be poorly regulated, and as a result offers few protections to U.S. and to foreign workers.  But more importantly, the regulations themselves have become unworkable, in that they fail to take into consideration the actual demand for workers in these industries.  Likewise, the “Grand Bargain” immigration reform bill which failed to pass in 2007 would not have adequately addressed labor shortages in these markets.  A policy brief published by the Immigration Policy Center in 2007 reported that, according to the Bureau of Labor Statistics, nearly 6 million new jobs would be created between 2004 and 2014 requiring only short-term training, but that the available supply of native-born workers to perform this labor was shrinking, to the tune of about 2.5 million workers between 2000 and 2005 alone.  The complete report can be viewed here.  Any solution advocated by President-elect Obama and debated and implemented by Congress should take into account the current system and its pitfalls – particularly the shortcomings of the H-2A and H-2B visa categories.  Here’s a brief overview of these temporary work visas.

The H-2A temporary agricultural program allows agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a “temporary or seasonal nature.”  Before the USCIS can approve an employer’s petition for agricultural workers, the employer must file an application with the Department of Labor (DOL) stating that there are not sufficient workers who are able, willing, qualified, and available to work and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.  “Temporary or seasonal nature” means employment performed at certain times of the year, such as those during the production and/or harvesting of a crop, or for a limited time period of less than one year as long as the employer can show that the need for the foreign workers(s) is truly temporary.  An employer who files an application for temporary foreign labor certification pursuant to H-2A regulations must meet additional conditions regarding the attempted recruitment of U.S. workers, hour and wage regulations, housing, food and transportation benefits to workers, and workers compensation insurance.

The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak-load or intermittent basis.  The procedures by which employers hire these workers is similar to those governing the H-2A program, requiring the employer to apply first with the Department of Labor to attest that there are not sufficient U.S. workers to fill these positions and that the hiring of foreign workers will not adversely affect the wages of U.S. workers. In addition, there is currently a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30). 

Unlike the H-1B specialty occupation category (skilled workers) which contains provisions by which employees can transfer from one employer to another, H-2A and H-2B employees must maintain employment with the initial sponsoring employer in order to maintain valid status.  And while H-1B visa holders have the option of adjusting their status to permanent residency through either an employment-based or family-based immigrant petition, workers in these two categories have no such advantage.  This means that once their term of employment has ended, they must return to their country of origin with no pathway of reaching permanent residency and possibly a better life available to them.  These disparities are only a couple of the many inconsistencies present in our current employment-based immigration system.  Not only do these policies fail to address the demands of the marketplace, they also suggest an overall lack of respect for the very labor that has allowed this country to grow and prosper for the past two-hundred years.  Yes, of course, we want the best and brightest physicians, engineers, artists and entrepreneurs to contribute to our unique cultural fabric and make our nation competitive in the global economy.  But we also have an obligation to look with clear eyes and open minds at the contributions of those forgotten workers, hidden from our view, whose work may not be noteworthy, but is no doubt essential to helping our shrinking economy recover and grow.  

            If you have questions about these worker programs, or other types of employment-based immigrant and non-immigrant visas, Contact our office for a consultation.