Current Guest Worker Programs

Current Guest Worker Programs

Justice Center . (Spring 2007). "Current Guest Worker Programs." Alaska Justice Forum 24(1): 2–5. A major aspect of the current debate on U.S. immigration policy centers on the on-going need in some industries, businesses, and professions for professional, skilled, semi-skilled or unskilled workers. In Alaska, the demand is for workers in the fishing industry. This article discusses current visa programs which address the needs for guest workers.

A major aspect of the current debate on U.S. immigration policy centers on the on-going need in some industries, businesses, and professions for professional, skilled, semi-skilled or unskilled workers. In Alaska, the demand is for workers in the fishing industry.

A patchwork of visa programs currently addresses these needs (Table 1), but the demand for workers, particularly seasonal unskilled or semi-skilled laborers, seems to exceed the existing quotas. According to the Office of Immigration Statistics, in January 2005 there were an estimated 10.5 million undocumented immigrants in the U.S., many of whom find work as seasonal laborers.

There are two existing visa programs which are, essentially, seasonal guest-worker programs – the H-2A and H-2B programs. These programs provide for the temporary short-term residence of seasonal workers in the agricultural industry (H-2A) and in other seasonal work, such as the forestry and fishing industries (H-2B).

There is no cap to the H-2A program. The cap to the H-2B program is set at 66,000, but in recent years Congress has raised that limit because of the extreme demand for seasonal workers. According to preliminary data available on its website in May 2007, the Department of State issued 31,892 H-2A visas and 87,492 H-2B in 2005. For all categories of temporary worker visas (H), the total was 317,493. Department of Homeland Security figures show a total 2,127 actual temporary worker admissions to Alaska in 2005. (Due to DHS recording procedures, this figure may be somewhat low, and in addition to the H visa admissions, it also covers visa categories E, I, L, O, P, Q, R, TD and TN.)

The H2 programs are employer-driven. Employers who anticipate a shortage of domestic laborers may apply to bring foreign workers to the U.S. Several government agencies are involved. Before visas are issued, an employer must apply to the Department of Labor for certification for a requested number of positions. The employer must confirm that there are not enough U.S. resident workers willing, qualified and available for the work and that employment of the foreign workers will not affect the wages and working conditions of similarly employed U.S. workers. U.S. Citizenship and Immigration Services in the Department of Homeland Security authorizes the issuance of the visas through the Department of State.

Under the H-2A and H-2B programs, a foreign worker must be paid at the same rate as U.S. laborers performing similar work. The hourly rate must be at least as high as whichever of the following is highest: the applicable Adverse Effect Wage Rate, which is determined annually by the Department of Labor for all states except Alaska; the federal minimum wage; the state minimum wage; or the prevailing hourly rate.

Employers of H-2A workers must provide transportation, housing and meals under certain conditions. The employees are covered under workmen’s compensation regulations and are eligible for federally-funded legal services. The Department of Labor is responsible for overseeing enforcement of the regulations structuring the H-2A program.

The H-2B program is much less highly structured, with fewer regulations and no provision for enforcement or other specific legal protections. In neither program is the worker permitted to change jobs during the term of the visa.

A review of employee need certification numbers from the DOL shows that, as might be expected, there are relatively few foreign workers in Alaska under the H-2A visa program (agricultural workers). More are employed under the non-agricultural worker program (H-2B)—most in the fishing industry.

Table 1. Classes of Nonimmigrants Issued Visas (Including Crewlist Visas and Border Crossing Cards), Fiscal Years 2001-2006