January 2006 ■ No. 12

SUMMARY

The current debate regarding tempo- rary workers can be informed by past Temporary Worker experiences. The system of tempo- rary worker programs in the United Programs: States from the 1940s through the present can be summarized as a com- A Patchwork plex patchwork crafted in response to specific needs and exceptions. Admis- Policy Response sions in various categories range from hundreds to hundreds of thousands, duration of stay varies from a few Deborah Waller Meyers months to ten years, and educational requirements differ widely.

The volume of admissions to the Historical Programs in Fiscal Year (FY) 2004 for temporary workers, trainees, and The complex issues surrounding temporary worker pro- their dependents reached nearly 1.5 grams are neither new nor unique to the United States. million, far outweighing the 155,330 Therefore, lessons based on past experiences can help new immigrants who were admitted inform the present debate. under the permanent employment- based categories that same year. This Bracero large annual flow (as well as the stock) of temporary workers in the The United States began its temporary labor programs in United States have significant implica- response to domestic labor shortages in agriculture, railroads, and assembly operations that appeared during World War II. tions for immigration reform, yet they In 1942, the United States and Mexico negotiated a formal generally have been overlooked in the agreement, lasting until 1947, to regulate the flow and policy discussion. For many employ- employment conditions of Mexican farm workers (workers ers and workers, the temporary from the British West Indies, Bahamas, Barbados, Canada, worker system is acting as a transition and Jamaica arrived under a separate program described to permanent immigration. This below). Between 1948 and 1951, workers entered under Insight concludes by highlighting the Labor Department regulations; from then until 1964, they significant data needs and administra- entered under Public Law 78, which restricted the program to tive challenges in this arena and rais- Mexico and to agricultural workers. These imported workers ing policy questions that result from helped maintain food production in the wartime economy and the analysis. later worked for rail companies, as well. Demand for labor, however, The Bracero pro- worker exploitation, stating that workers who and the tradition of migrating grams brought almost were dependent on their employers for their north for employment, did not 4.5 million Mexicans status were unable to join unions or complain end with the formal termina- to the United States about unpaid wages, lack of medical care, or between 1942 and unsanitary housing. US government oversight tion of the Bracero programs. 1964. The programs of the program was lax, the recruitment system required the US became corrupt, and upon return home, most Department of Agriculture and US Employment workers never received their 10 percent of Service to work with the Mexican government withheld wages from the fund controlled by the in labor recruitment. Mexican citizens were to Mexican government.2 Although the goal of receive the same safety and health protections addressing agricultural labor shortages was as US agricultural laborers. To protect US farm accomplished, abuse by employers and poor workers, employers were required first to try to enforcement led to pressures that spelled the recruit domestic workers for positions, then to end of the Bracero programs by the mid-1960s. apply for certification of a domestic labor short- Demand for labor, however, and the tradition of age if none could be found. Employers were to migrating north for employment, did not end pay the prevailing wage1 in their sector in order with the formal termination of the Bracero pro- to protect domestic farm workers from any grams. Indeed, the long-lasting consequence adverse wage effects that the Mexican workers’ of the programs was the establishment of entry might cause. To further ensure that the social, family, and work-related ties between hiring of less-expensive foreign workers would the two countries that outlasted the programs not create disadvantages for domestic labor, themselves and perpetuated much of the un- employers were required to cover transportation authorized migration that continues through costs and living expenses for their temporary the present. workers in contracts guaranteed by the US gov- ernment. In reality, however, many of the British West Indies (BWI) Bracero workers were housed in camps former- ly occupied by prisoners of war, earned salaries There was a second temporary worker initiative of as little as $9 per week (well below the $30 for agriculture between 1943 and 1947, average weekly salary nationwide in 1940), and referred to as the British West Indies program. did not receive the same safety and health pro- This was used primarily by East Coast employ- tections as native-born workers. ers; most Western growers utilized the Bracero program. A total of approximately 66,000 The programs were a political compromise. workers were employed in this program during Farmers disliked the rights given to workers, this timeframe, most in the fruit, vegetable, and the intrusive role of the Department of sugar cane sectors. The US government was Agriculture, and the cumbersome paperwork. responsible for recruiting workers, though later, Organized labor believed temporary worker employers were allowed to recruit in the programs undermined labor standards, islands. The program specified that employ- depressed wages for both native and foreign ment of foreign workers should neither displace workers, and deprived domestic workers of nor reduce pay rates of domestic workers, and jobs. Furthermore, organized labor decried employers were supposed to pay the prevailing

2 Insight

wage, or a specified minimum amount. As in dependents. (This figure includes the E, H, L, the Bracero program, wages were deducted to O, P, Q, R, and TN visa categories described be claimed upon return home. below). Of these, just over two-thirds (998,865) were principals, one-fifth (297,607) The BWI program was created through a were dependents, and the remainder (182,934) Memorandum of Understanding drawn up by were E visas (not disaggregated in DHS statis- government representatives and formalized tics by principal applicants and their depend- under Public Law 45. Between 1947 and ents).6 Individuals admitted under other tem- 1952, it operated under the authority of the porary worker categories may in fact work Immigration Act of 1917 with only a few thou- legally in the United States, but that generally sand workers per year; it was absorbed into is not the primary purpose for their entry (for the newly created H-2 temporary worker pro- instance, J-1 exchange visitors or F-1 students). gram through the 1952 Immigration and Nationality Act (INA).3 In contrast, there were 155,330 new lawful per- manent residents (LPRs) from the employment- Existing Programs based categories in FY 2004. Of these, only 46.7 percent (72,571) were principal applicants In recent years, the United States has accepted and 53.2 percent (82,759) were dependents.7 growing numbers of temporary workers under its various agricultural, non-agricultural, and Some of the nonimmigrant visa employment high-skilled programs. It is difficult to know categories have caps on the number of the exact number of individuals entering the entrants per year, while others require labor United States on temporary work visas, as data market tests to determine whether a shortage often are incomplete, inconsistent, and not of domestic workers warrants bringing in for- comparable.4 For instance, as demonstrated in eign workers.8 Importation of foreign-born Table 1, Labor Department certification data temporary workers for a specified time period reflect the number of workers certified generally has been limited to remedying (employers do not necessary hire for all the micro-level shortages in certain industries, approved slots), State Department data detail and workers are often tied to a particular visas issued (not all of which are used or employer. Sectors in the United States that which may be used in the following fiscal have used this labor include: health care and year), and Department of Homeland Security other domestic services, construction, hotels (DHS) data reflect admissions, not people (an and restaurants, agriculture, and tobacco pick- individual may enter the United States multi- ing. Temporary jobs commonly are described ple times within one year and thus account for as dirty, demanding, and dangerous.9 multiple admissions).5 The sections below use admissions numbers, as they reflect actual E Visas entries. Visa issuance numbers are compared with admissions in Appendix B. E visas allow for the temporary entry of treaty traders (47,083) and treaty investors (135,851) In FY 2004, there were 1,479,406 admissions who enter under the provisions of treaties of temporary workers and trainees and their between the United States and other coun-

3 tries.10 As mentioned above, admissions under workers. Whereas previously, nurses had been the E visa totaled 182,934 in FY 2004, includ- admitted as H-2B temporary non-agricultural ing family members. Employers of E-1 and E-2 workers and H-1 temporary workers in special- visa holders are not subject to labor market cer- ty occupations, the H-1A visa was created tifications or attestations. Initial admission is specifically to fill a nursing shortage in the for up to two years with unlimited two-year United States. The initial period of admission extensions, and there is no cap. An E-3 visa could not exceed three years, with a maximum was created by Congress in spring 2005 for period of admission of five years; there was no Australians, with a limit of 10,500 principals per annual limit on the number that could be year. It is modeled on the H-1B1 visa that granted. Over 24,400 H-1A nurses were in the resulted from US Free Trade Agreements with United States by May 1989. Chile and Singapore (described below). Congress has since mandated that no immigra- Prior to receiving these workers, institutions tion provisions be negotiated as part of free trade were required to attest11 to the need for H-1A agreements in the future. nurses and outline measures to reduce health care institutions’ dependence on temporary for- H-1 Visas eign nurses. Domestic recruitment was not required, but employers did have to certify that The H-1 visa was created by the 1952 they paid foreign nurses the same wages as Immigration and Nationality Act (INA) to allow their US counterparts. The INRA attestation individuals of distinguished merit and ability procedures brought the Labor Department into to temporarily work in the United States in the process and maintained the existing roles occupations that required those qualifications. of the Department of State in visa issuance and It initially had no caps and no provisions for the Immigration and Naturalization Service the protection of US workers. At first, the visa (INS) in adjudication of the petition and required both the job and the worker to be tem- admission at the port of entry. Over 80 percent porary; the requirement that the job be tempo- of H-1A nurses were from the Philippines, with rary was eliminated in 1970 (unlike the H-2 the remainder from Ireland, the United programs where it remains), allowing workers Kingdom, New Zealand, and the Caribbean. to stay longer and/or adjust to a more perma- Most foreign-educated nurses earned above nent status if so qualified. Further, in 1990, prevailing wages and 90 percent worked full- legislative changes allowed by H-1 time. visa holders (as discussed later). The H-1 cat- egory was subdivided in 1989 into H-1A and Although specialty and locality nursing short- H-1B. Spouses and children of H-1, H-2, and ages continued to persist, especially in rural H-3 workers are admitted under the H-4 cate- areas, this temporary program was allowed to gory (130,847 in FY 2004). expire in 1995 because the national-level nurs- ing shortage no longer existed. In part, this H-1A. The 1989 Immigration Nursing Relief was the result of many of the foreign-born nurs- Act (INRA) established a five-year pilot pro- es having adjusted to lawful permanent resi- gram that governed the H-1A temporary visa dent status. Furthermore, foreign-educated process used by most foreign-educated nurses nurses had other avenues of entry available to who entered the United States as nonimmigrant them, including the H-1B, H-2B, and H-3 tem-

4 Insight

porary worker/trainee visas, the NAFTA visa if employer’s request. Over two-thirds of H-1B they were Canadian or Mexican, and the per- Over two-thirds of H- admissions in FY 2004 manent labor certification category. 1B admissions in FY were from Asia or Europe, 2004 were from Asia in particular India and the H-1B. The 1989 law that subdivided the H or Europe, in particu- category classified all nonimmigrant, non-nurs- lar India and the United Kingdom. ing skilled labor as H-1B. After significant United Kingdom. pressure due to concerns that the category was A cap on H-1B visa issuances was initially set being used by those without the high skills at 65,000 by IMMACT in 1990; the limit was envisioned, the first reached in 1997 (dependents were not (IMMACT) narrowed the definition to profes- subject to the cap). Passage of the American sionals, specifying that the job must be a “spe- Competitiveness and Workforce Improvement cialty occupation.” That meant prospective H- Act in 1998 raised the levels to 115,000 for 1Bs needed a Bachelor’s degree or higher in FY 1999 and 2000, and 107,500 in 2001, but their area of specialization and a full state available visa numbers ran out early in the fis- license, if required, in their field.12 Although cal year. Businesses again lobbied Congress there is no formal labor market test per se to for additional numbers, and Congress respond- protect domestic workers, employers must file a ed with the American Competitiveness in the labor condition application (LCA) with the Twenty-First Century Act (AC-21) in October Labor Department attesting to posting the appli- of 2000, raising the H-1B cap to 195,000 for cation at the job site, a lack of a strike or lock- FY 2001, 2002, and 2003. The cap returned out, payment of the prevailing wage, and provi- to 65,000 in October 2003 (FY 2004). sion of working conditions consistent with that of similarly employed workers. In addition, AC-21 also exempted nonprofit or government since the late 1990s, employers have been research organizations, institutions of higher required to pay a fee (first $500 then raised to , and other nonprofit entities from the $1,000 and now $1,50013) when petitioning US cap on H-1B visa issuances and from the filing Citizenship and Immigration Services (USCIS) fee. Moreover, the law allowed H-1B holders for H-1B workers. The fee funds the training of to switch employers (instituting some visa domestic workers to increase the supply in portability) as well as to extend their stay occupations with shortages, as well as scholar- beyond the six years if an application for LPR ships for low-income students in math, science, status had been filed but not yet adjudicated.15 engineering, or computer science degree pro- (Extension of stay holders are not counted grams. Nearly $270 million had been awarded against the cap.) An additional exemption from from these fees as of July 2002.14 the cap was created by the H-1B Visa Reform Act of 2004 (signed as part of a December H-1B temporary workers (386,821 new admis- 2004 spending bill and effective as of May sions in FY 2004) are most commonly 2005). The provision allows up to 20,000 employed in the information technology sec- additional individuals to receive H-1B visas if tors, but they also work in other fields such as they have earned a Master’s degree or higher medicine and education. The maximum initial from a US institution of higher education. stay on an H-1B visa is three years, but it can Again, these exemptions resulted from a ten- be extended for another three years at the dency for the cap to be reached prior to the

5 end of the fiscal year. For instance, in August H-1C. Admissions under the H-1C nonimmi- 2005, USCIS announced it already had suffi- grant visa began in January 2001, following the cient applications for FY 2006. Provisions in a Nursing Relief for Disadvantaged Areas Act of Senate budget reconciliation bill would have 1999. The bill aimed to address a specific need raised the cap to 95,000 for the next ten years in understaffed facilities in urban and rural by recapturing approximately 300,000 unused areas that served primarily poor patients. The H-1B visas dating back to FY 1991 and allow- Department of The Immigration Act of 1990 ing 30,000 of them to be used annually, but the Health and Human provisions were not included in the conference Services designated eliminated for H-1B visa committee bill that was passed by the House in the areas in which holders a key requirement December 2005.16 there was a shortage applicable to nearly all other of health profession- nonimmigrant visa categories However, the Immigration Act of 1990 elimi- als, and H-1C nurs- – that applicants for nonim- nated for H-1B visa holders a key requirement es were allowed to migrant visas have a foreign applicable to nearly all other nonimmigrant work for up to three residence which they have no visa categories — that applicants for nonimmi- years. As with the grant visas have a foreign residence which they other H-1 cate- intention of abandoning. have no intention of abandoning. This change gories, the employer — known as dual intent — allows applicants was required to file a labor attestation with the to simultaneously pursue a temporary and per- Labor Department, and the annual limit was manent visa, and it has encouraged and facili- 500 nurses for this category, with per-state caps, tated the adjustment of these workers to lawful as well. In FY 2004, there were seventy permanent resident status. In 2000, an esti- admissions in this category; the program mated 60 percent of H-1Bs were adjusting to expired in September 2004. permanent status. Thus, in effect, the program is used by employers and workers as a transi- H-2 Visas tion to permanent status.17 The H-2 programs evolved out of the British A new component of the H-1B program is the West Indies program in order to address the H-1B1 program for professionals who qualify agricultural sector’s need for seasonal assis- under the Chile or Singapore Free Trade tance upon expiration of the BWI and Bracero Agreements (signed September 3, 2003 and programs. In 1986, the Immigration Reform effective January 1, 2004). Up to 5,400 quali- and Control Act (IRCA) subdivided the visa fying individuals from Singapore and 1,400 into H-2A (agricultural) and H-2B (non-agri- from Chile may apply for temporary worker cultural) visas for temporary labor. As is the visas annually under the terms of those agree- case with many of the temporary worker cate- ments, numbers that are set aside within the gories, the process involves multiple agencies, overall H-1B cap. Only 326 were used in FY including components of the Labor 2004. These workers are subject to the same Department, the State Department, and the labor attestation requirements as other H-1B Department of Homeland Security. State workers, including working conditions, absence Employment Service Agencies have the princi- of a strike or lockout, payment of prevailing pal responsibility for administering the pro- wage, and posting of the notice. gram on the ground.

6 Insight

H-2A. Used primarily by East Coast employers, choose not to use it.18 Employers who wish to the H-2A nonimmigrant visa allows employers use the program must file an application for to import temporary workers for seasonal (up to labor certification with the Labor Department one year) agricultural jobs. Unlike for H-1 describing the terms and conditions of employ- visas, the double temporary requirement of a ment. The grower has to prove, and the Labor temporary worker and a temporary job continues Department has to certify, that (a) “there are to apply. The law specifies that the individual not sufficient [US] workers who are able, will- must be a resident of a “…foreign country ing, and qualified, and who will be available at which he has no intention of abandoning who is the time and place needed, to perform the coming temporarily to the United States to per- [agricultural] labor or services involved in the form agricultural labor or services…of a tempo- petition”; and (b) there will be no adverse rary or seasonal nature….” effect “on the wages and working conditions of workers in the United States similarly The H-2A program has no annual cap, and employed.”19 If insufficient workers are identi- over three-quarters of those now admitted on fied through domestic recruitment (which these visas are Mexican. FY 2004 statistics includes state employment service referrals to show that there were 22,141 H-2A admissions, the employer and employer recruitment), the up from only 14,094 one year earlier but still employer receives the labor certification.20 fewer than half the 33,292 in FY 2000. H-2As are used primarily for workers in “perishable- The wages, benefits, and working conditions crop” agricultural jobs, such as picking fruit, the employer intends to offer H-2A workers harvesting vegetables, and in the past, sugar- must also be offered to US workers. Workers cane processing, though it also covers workers must receive written contracts, a guarantee of who pick tobacco, herd sheep and cows, and work for at least three-quarters of the contract work in greenhouses or in forestry jobs. period, free housing, transportation, and meals (or cooking facilities), and prescribed wages The H-2A program is highly regulated, with and working conditions. The wage must be the requirements for the application process, the highest of the minimum wage, state minimum recruitment period, the certification, and the wage, prevailing wage for the occupation in the wage rate. Almost all H-2A certifications area, or the Adverse Effect Wage Rate (AEWR) applied for are issued, though not always in a for that state. The Labor Department is timely manner; therefore many employers responsible for enforcement.

Table 1. H-Visa Labor Certifications,Visas Issued, and Admissions: FY 2004

7 The Department of Agriculture conducts the foreign workers to fill non-agricultural tempo- wage surveys to help determine the AEWR, a rary jobs (less than one year). Again, both rate that is the regional weighted average the job and the worker are supposed to be hourly wage rate for field and livestock work- temporary for this category. The need for ers combined.21 Used in US agriculture since labor must be a one-time occurrence: a sea- the 1950s, it is based on the Department of sonal, peak load, or intermittent need; it can- Agriculture’s annual wage surveys of employ- not be ongoing. Examples of occupational ers’ reported wage rates to non-supervisory sectors using H-2B workers include landscap- workers. Basically, the AEWR is an ing, building maintenance, construction, enhanced minimum wage, designed to offset hotels, restaurants, stables, retailers, manu- the depressing effect on wages created by for- facturing, food production, health care, recre- eign farm workers. The rate can decline and ation, and transportation. does not include cost of living increases; it has not kept pace with inflation. A cap of 66,000 visas was imposed on this category by IMMACT. The program was light- Many of the H-2A workers are recruited ly used until the economic expansion and low through intermediaries in Mexico, such as unemployment rate of the late 1990s. Admis- farm labor contractors. Their role in the sions increased by nearly 35 percent between process has been controversial, with reports FY 1998 and FY 2004, from 24,895 to of bribes, exploitation, and blacklisting. 86,958; nearly two-thirds are from Mexico.22 Moreover, in doing the hiring, the intermedi- In FY 2005, the H-2B category was oversub- aries shield the employer from enforcement scribed for the first time; the cap was reached actions related to hiring of unauthorized approximately three months into the fiscal workers. Employer use of the program seems year.23 To address this issue, Congress seems to be tied to previous experience with Latino to have drawn from the H-1B experience. The workers and problems (real or perceived) with Emergency Supplemental Appropriations Act domestic workers. Some employers use the for Defense, the Global War on Terror, and program to legally hire workers who previous- Tsunami Relief of May 2005 exempted return- ly worked for them in an unauthorized status. ing workers (those who had worked in the Many of these temporary workers have at United States any one of the last three years) least one family member who has already from the cap. The law further specified that migrated to the United States, and many find only half the visas should be issued in the first their jobs through networks of relatives or half of the year, so as not to harm employers friends, with others hearing about them whose seasonal businesses needs occur later through labor contractors. Research in- in the fiscal year.24 terviews have indicated that workers would prefer the involvement of the Mexican govern- The H-2B program is less regulated than the ment in the recruiting process and as a source H-2A, as H-2B employers are not required to to lodge complaints. provide free housing or transportation. Nevertheless, the Labor Department must still H-2B. Also created in 1986, the H-2B non- certify that qualified domestic workers are not immigrant visa allows employers to request available and that the terms of employment

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will not adversely affect the wages and working States. As is the case with the H-2 category, conditions of similarly employed US workers. this is not a dual-intent visa, so the benefici- The Labor Department reviews the employers’ ary cannot simultaneously be pursuing recruiting attempts, as well as the wages and avenues toward permanent residency. working conditions offered, but unlike in the H-2A program, it has no enforcement responsi- L Visas bilities for this. In fact, because of its advisory role, DHS can grant an H-2B petition despite a The L visa, created in 1970 to address delays negative recommendation from the Labor in employment-based visas experienced by Department. There is currently a proposed international businesses, allows multinational rule that would make changes to the H-2B pro- companies with US operations (and those look- gram, such as requiring electronic filing. This ing to establish US operations) to temporarily would eliminate the need for a Labor transfer top personnel from abroad to the Department certification and establish a one- United States. In FY 1994, there were just step petition process. over 98,000 admissions in this category. By FY 2004, there were 314,484 L-1 admissions, H-3 Visas 44 percent of which were from European coun- tries such as the UK and Germany. Japan, The H-3 nonimmigrant visa category is designed India, Canada, and Mexico also are significant to allow foreign nationals to come to the United users of this category. In addition, in FY 2004 States to participate in training programs. The there were an additional 142,099 admissions of regulation allows for training in “any field of spouses and children of these intracompany endeavor,” including agriculture, communica- transferees (L-2s). tions, and finance. There are two H-3 cate- gories: general and those coming for specific An individual may qualify for an L-1 intracom- training in special education (this does not pany transferee visa as a multinational manager include graduate education or medical training). or executive (admission is for up to seven years) or as an employee with specialized There is no annual limit on H-3 admissions, knowledge of the firm’s products (admission is but there have been fewer than 3,000 H-3 for up to five years). Neither a labor market admissions in each of the last three fiscal test nor an attestation is required for this cate- years. Most H-3 admissions are from Asia gory. As occurred with H-1s, IMMACT elimi- and Europe. The petitioning employer or nated the requirement that L-1 applicants sponsor must demonstrate that the training is demonstrate that they have no intention of per- not available in the foreign national’s home manently abandoning their home country. country, that the foreign national will not be Furthermore, it modified the requirement of one placed in a position that is part of the normal continuous year of employment by the foreign operation of business ordinarily filled by a US affiliate for one of the past three years. Recent worker, that the foreign national will not be concerns about abuse of the L-1 visa led to productively employed unless such employ- clarification that L-1s could not be outsourced ment is essential to the training, and that the to other firms, and to the imposition of a $500 training will benefit the foreign national in fraud prevention and detection fee (imposed on pursuit of employment outside the United certain H visas, as well).

9 O, P, Q, and R Visas teen months, holders for up to three years with one-year extensions allowed, and Another set of temporary worker categories religious workers for three years (renewable was created by the Immigration Act of 1990 up to five years total). Some of the categories (admissions began in April 1992). allow individuals to reapply after a year out- Admissions in these categories totaled over side the United States. 100,000 in FY 2004 (not including spouses and children). They are less relevant to the TN (Trade NAFTA) Visas current US policy debate regarding a new temporary worker program, so they simply are The TN visa currently allows North American summarized here, along with the admission professionals in sixty-three occupational cate- numbers for FY 2004. These highly skilled gories to work in the United States for one categories include: year at a time with an unlimited number of extensions. It was created by the North • O visas for aliens of extraordinary ability in American Free Trade Agreement (NAFTA), science, art, business, or athletics (33,459); which became effective in January 1994 and • P visas for athletes and entertainers (54,314); extended most of the mobility terms of the • Q visas for cultural exchange (2,481); and 1988 Canada-US Free Trade Agreement to • R visas for religious workers (21,571). Mexico. NAFTA also guaranteed to intracom- pany transferees and business travelers the Approximately 58 percent of O-1 and Q existing privilege of traveling between the admissions are from Europe. P and three countries. Mexican professionals were holders hail from a broader range of regions. subject to a numerical ceiling of 5,500 for the Approximately 34 percent of admissions on a first ten years (this cap expired in January are from Europe, nearly 12 percent are 2004) and the prospective employer was from Asia, almost 39 percent are from North required to file a labor condition application America (including Central America and the with the Labor Department as well as a Caribbean), and approximately 10 percent “Petition For Non-Immigrant Workers” with are from South America. About 33 percent of INS/DHS. In FY 2004, there were 66,207 admissions under the R visa are from Asia, total TN admissions, with 96 percent with an additional 20 percent each from (64,062) coming from Canada.25 Europe and North America, and nearly 7 per- cent from Africa. Admissions for Mexican TNs have remained steady but low over time, as eligible None of these categories requires labor mar- Mexicans were more likely to use the H-1B ket testing, but O visas are the only ones in visa, which allows access for three years, this group to allow dual intent. Limitations renewable once, rather than the TN visa on the duration of stay vary from twelve which is renewed annually. In general, the months for P-1 entertainment groups and ath- TN visa requires neither a labor certification letic teams to five years for P-1 individual nor attestation, instead requiring applicants athletes (renewable once for up to five more to show they possess the proper credentials years). Q-1 visa holders may stay up to fif- and a job offer from a US employer. It has no

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annual cap, but applicants must prove they do mechanism that Countering concerns that a not intend to abandon their country of resi- allows potential work- new temporary worker pro- dence, as the TN visa does not allow dual ers to be tested and to gram would be administra- intent. Canadian TN admissions to the United demonstrate their tively unmanageable, the total States initially skyrocketed from 5,000 in 1989 ability to contribute to to 89,864 in 2000, but they declined between the US economy and volume of the various existing FY 2001 and 2002 and have yet to rebound. integrate linguistically temporary worker categories and socially. Second, demonstrates that the United Conclusions and Policy Questions it is reflecting an States already is implement- adaptation by employ- ing large-scale temporary High Volume of Admissions ers and businesses to worker programs. and Adjustments the failures of the per- manent immigration system (particularly insuf- There are two equally striking conclusions ficient employment-based numbers and pro- that can be derived from this analysis. First, cessing delays that can take years), and in temporary admissions for labor far outweigh fact, acts as a substitute for it in terms of pro- permanent admissions for labor. This large viding more immediate employer access to annual flow (and stock) of temporary workers these workers.27 Third, the volume of tempo- in the United States has significant implica- rary workers, and the role they play in feeding tions for immigration reform and generally has into permanent admissions, is a reality that been overlooked in the policy discussion. needs to be understood properly and Furthermore, countering concerns that a new addressed explicitly. temporary worker program would be adminis- tratively unmanageable, the total volume of The key policy question raised by these con- the various existing temporary worker cate- clusions is whether the goals of the temporary gories demonstrates that the United States worker program writ large (as well as particular already is implementing large-scale temporary categories) need to be revisited and clarified. worker programs. There may well be a mismatch between the temporary worker and permanent employment- Second, a significant portion of these so-called based categories from both the perspective of temporary workers adjust to lawful permanent workers and employers, and it is important to resident (LPR) status.26 This demonstrates that define what the relationship should be between in many ways, the temporary worker system is the permanent and temporary systems.28 not truly temporary; rather, for many employers and workers it is acting as a transition to per- Varied Definitions and a Complex System manent immigration. The word “temporary” has a wide variety of Views are mixed as to whether this transitional meanings in the context of temporary worker use of the temporary worker system is a desir- programs. In many ways, the system is a able or undesirable phenomenon. Regardless, patchwork that has been crafted in response three things seem clear. First, this use of the to specific needs and exceptions. Yet tension temporary system is reflecting a market-based between proactively recruiting workers and

11 imposing labor market protections or numerical gram, and use of unauthorized workers, as well restrictions exists both at the upper and lower as other factors. ends of the labor market. Temporary workers have dramatic variations of stay that range It seems clear that US laws are sending mixed from three months to ten years and numerical messages to workers and employers about the variations in category admissions that range intentions of temporary work programs.30 In from a few hundred to hundreds of thousands. FY 2004, more than 60 percent of LPRs Even in categories with specified caps, it is not adjusted their status (rather than being new uncommon for caps to be raised or for defined arrivals), and at least 10 percent of LPRs were groups of applicants to be exempted. Though former temporary workers. Furthermore, nearly all these temporary worker categories permit half of all temporary worker admissions (H-1, the entry of dependents, there also are varia- L-1 and O-1s) are in categories that explicitly tions as to whether the dependents are counted allow adjustment. against the category limits. Finally, there are inconsistencies in the fact that only a few visa Therefore, the most salient policy questions categories explicitly allow dual intent. raised here are: whether the visa categories can be simplified; whether the presumption To some extent, the United States places fewer that they are “intending immigrants” should restrictions upon higher skilled workers and is continue to be something most temporary work- more amenable to their adjustment. However, er visa applicants need to overcome; and what, this is not true across the board, as there is no if any, mechanisms are appropriate to protect cap on H-2A temporary agricultural workers, domestic workers and/or reduce dependence and as Canadian and Mexican TN profession- on foreign labor. als must reapply annually and are ineligible to adjust to LPR status under the terms of the Significant Data Needs NAFTA treaty. Additionally, the information simply is not Usage of the visa categories also varies, as some available to perform the desirable and nec- industries are far essary analysis that would better inform policy Tension between proactively more dependent on decisions in this area. Data are incomplete recruiting workers and impos- temporary foreign (for instance, there have been no new data labor than others. ing labor market protections or about the status from which new LPRs adjust- Demand in certain ed since FY 2002) and as discussed earlier, numerical restrictions exists categories has there are discrepancies in data from the rele- both at the upper and lower remained steady over vant agencies.31 The policy responsibility, ends of the labor market. time while others therefore, is to determine what data would be have experienced most useful to inform the policy debate and sharp rises or declines.29 Widely varying then determine whether and how that informa- demand could be based on the relative strength tion might be gathered. For instance, complete of the economy, the availability of numbers, effi- data on how many former temporary workers in ciency of process in the permanent employ- various categories adjusted to permanent resi- ment-based system, experience with the pro- dence and what mechanisms they used to do so

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would be extremely valuable, as would know- responsibilities. Nor is it clear what role, if ing what happens to the temporary workers any, sending governments would play in such who do not adjust. (Do they return home? a program. Return on another visa? Overstay?) In addi- tion, despite the labor certification process, Ironically, the Bracero programs between the little solid information is available on the United States and Mexico incorporated most impacts of temporary workers on native-born of the components that analysts who have workers, the effectiveness of training domes- studied temporary worker programs on a com- tic workers in the specialized skills of tempo- parative basis consider as minimum require- rary workers, or the degree to which these ments for success.32 The agreement was temporary worker programs are meeting bilateral, the foreign workers were provided employer needs. with health and safety protections equivalent to similarly employed domestic workers, and Multifaceted Administrative Components worker contracts were guaranteed. Further- more, employers had to first make reasonable Finally, it is clear that existing temporary efforts to attract domestic workers and were worker programs, particularly those that required to pay specified wages. And, as dis- include measures to protect domestic workers, cussed earlier, the temporary labor need was involve a complicated process that engages met and most workers returned home and/or three separate cabinet agencies: the Labor engaged in circular migration. Department (labor certification or attestation); the State Department (visa issuance); and the Despite all of these elements, the program is Department of Homeland Security (adjudica- considered to have been a relative failure. tion of petition and determination of admissi- Why? Among other reasons, because of bility). Each component of the process takes a exploitative conditions, inaccurate record- certain amount of time and requires the trans- keeping and payment, inadequate resources fer of data between agencies. Temporary and limited interest in enforcement, and the worker programs in most countries have been creation of migration networks that long out- ineffectively implemented and poorly lasted the program.33 Devising a policy is not enforced; the United States has not been an the same as implementing it. Detailed criteria exception to the rule. and regulations matter little without clear goals, sufficient infrastructure, dedicated The crucial policy question is which agency enforcement efforts, and realistic expectations would be in charge of creating, administering, regarding outcomes based on past experiences. and overseeing a new temporary worker pro- gram. Particularly if there were a new tempo- rary worker program of the size currently Acknowledgements under discussion, it is not clear that the United States has the necessary infrastructure The author appreciates the research assis- and resources to manage such a program in a tance of Julia Gelatt. timely and effective manner on top of existing

13 Appendix A: Selected Temporary Worker Visas

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Appendix B:Work-Based Nonimmigrant Visas and Admissions, FY 2004

15 ENDNOTES

1 Prevailing wage is defined as “the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.” For additional information, see US Department of Labor, Employment and Training Administration, “Foreign Labor Certification Prevailing Wages,” August 1, 2005, http://workforcesecu- rity.doleta.gov/foreign/wages.asp. 2 In the December 2004 budget, the Mexican Congress allocated $26.5 million to partially compensate former Braceros for the deducted wages they never received. Hiram Soto, “Mexico takes step to pay former bracero workers,” The San Diego Union Tribune, January 29, 2005, http://www.signonsandiego.com/union- trib/20050129/news_1n29bracero.html. A similar sum was allocated in the 2005 budget. 3 Commission on Agricultural Workers, Report of the Commission on Agricultural Workers (Washington, DC: Government Printing Office), 1992. 4 For additional explanation see Appendix 2 in Jeanne Batalova, “From Temporary to Permanent Immigration: Policy and Data Considerations,” Background Paper Prepared for the Independent Task Force on Immigration and America’s Future, Migration Policy Institute, November 2005. 5 DHS’s Office of Immigration Statistics has begun trying to estimate how many workers might account for the admissions numbers. DHS statistics indicate that 22.5 million of the 30.8 million NIV admissions in FY 2004 were for individuals with a single arrival — 3.2 million individuals had more than one arrival. 6 US Department of Homeland Security, Office of Immigration Statistics, 2004 Yearbook of Immigration Statistics (Washington, DC: Department of Homeland Security), 2004, http://uscis.gov/graphics/shared/statistics/year- book/index.htm. 7 Ibid. 8 For instance, a position must actually be advertised in a newspaper, journal, or other outlet and a lack of domes- tic applicants must be demonstrated before the position can be offered to a foreign worker. 9 In Japanese, these are referred to as “3K” jobs – kitanai (dirty), kitsui (demanding/difficult), and kiken (dan- gerous). Demetrios G. Papademetriou and Kimberly A. Hamilton, Reinventing Japan: Immigration’s Role in Shaping Japan’s Future (Washington, DC: Carnegie Endowment for International Peace), 2000. 10 Treaty traders must have at least half of the international trade of that business between the two countries, while treaty investors must create, or make a substantial investment in, a business. The individual must pos- sess the nationality of the treaty country and at least 50 percent of the business must be owned by nationals of the treaty country. 11 Prospective employers had to attest to items including: no dismissal of staff RNs during the previous year; a need to avoid disruption of health care services; and avoidance of adverse impacts on the employment of domestic nurses. Labor shortages were determined by the employer demand for nurses as well as an institu- tional vacancy rate of 7 percent. 12 Individuals who were initially included in this category but were non-degreed, such as entertainers and fashion models, were shifted into the newly created O and P categories. Prior to IMMACT, the National Science Foundation had predicted a shortage of technical professionals (such as engineers and scientists). Similarly, a 1987 study by the Hudson Institute had noted a likely gap between job skills that would be required for the future and those possessed by new workers entering the labor market. 13 The fee is $750 for those employers with twenty-five or fewer full time employees who are employed in the United States. 14 US General Accounting Office, High-Skill Training: Grants from H-1B Visa Fees Meet Specific Workforce Needs, but at Varying Skill Levels, September 2002, http://www.gao.gov/new.items/d02881.pdf. In spring 2002, President Bush proposed canceling that training and redirecting the funds toward reducing backlogs for perma- nent foreign workers. By law, the training fee sunset on October 1, 2003, but it was reinstated by the H-1B Visa Reform Act of 2004 (included in the FY 2005 Consolidated Appropriations Act). 15 Those who have had labor certification applications of I-140 (adjustment of status) petitions pending for more than a year at the end of their sixth H-1B year may be granted year-by-year H-1B extensions until the perma- nent residence process is concluded.

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16 While this category has often been oversubscribed, the unused slots primarily originated from the years in which the cap was 195,000 and all the visas were not used. 17 This is not particularly surprising given that expanded use of the temporary visa system in the late 1980s and early 1990s was viewed as a way around the long processing delays and limited visas of the permanent employment-based immigration system. 18 Many Western farmers do not use the H-2A program, at least in part because of these requirements and also because their access to unauthorized workers has not dissipated. It is estimated that well over half the perish- able-crop agricultural labor force in the United States is unauthorized. 19 Certification may not be issued under various conditions, including if there is a strike, a previous violation of H-2A conditions, an insufficient employer recruitment effort, a failure to provide insurance, or the offering of better conditions to H-2As than domestic workers. 20 The employer must nevertheless hire any referred domestic workers for up to 50 percent of the contract period, even if the certification has been granted. 21 Most regions include more than one state, and wages are based on salaries one year earlier (e.g., the 2001 AEWR was based on wages during 2000). 22 The second largest nationality is Jamaicans, numbering around 8,685, followed by Guatemalans at 3,077. 23 One of the challenges with data for this category has been a lack of regulations specifying how to count H-2Bs (e.g., by number of workers? Jobs?); the government has acknowledged that it issued more than were allowed. 24 In the H-2A program, employers are advised to file at least 45 days (and no more than 120 days) before the work begins while H-2B employers are advised to file at least 60 days (but no more than 120 days) before the worker is needed. 25 Canadians entering the United States for short stays as tourists or other designated purposes are allowed to enter without . Mexicans are required to have a visa to enter the United States, though Mexicans resid- ing in border communities are eligible for a special “laser” visa/border crossing card which allows travel with- in twenty-five miles of the border for up to thirty days. The card is valid for ten years. 26 This fails to include individuals in non employment-based temporary visitor categories (such as F-1 foreign students and J-1 exchange visitors) who also are allowed to work and later may end up adjusting. 27 A permanent employment-based visa could take well over one year, whereas an H-1B visa could take only a few weeks (using premium processing) to a few months depending on whether the individual is adjusting from another status in the United States or is abroad and requires a visa. 28 There may also be potential technical fixes such as making the permanent employment-based process more efficient to preclude unnecessary use of temporary visas by applicants awaiting a permanent visa. 29 For instance, in FY 1985, L-1 visa admissions totaled 65,349, rising to 112,124 in FY 1995, and 314,484 in FY 2004. H-2B admissions have ranged from under 20,000 to over 100,000. 30 Jeanne Batalova, “From Temporary to Permanent Immigration: Policy and Data Considerations,” (see n. 4) and US Department of Homeland Security, 2004 Yearbook of Immigration Statistics (see n. 6). 31 Ibid. 32 One missing component was a mechanism for adjustment for those who “unexpectedly” stayed. 33 For these and many other reasons including doubts regarding labor shortages, the Select Commission on Immigration and Refugee Policy (1979-1981), the Commission on Agricultural Workers (1989-1993), and the US Commission on Immigration Reform (1992-1997) all recommended against new temporary worker programs.

17 RESOURCES

Bruno, Andorra. “Immigration: Policy —-. “Program Design Considerations for Considerations Related to Guest Worker Mexican Temporary Worker Program.” Programs.” Congressional Research Service, Unpublished paper prepared for Booz Allen 2005. Hamilton on Department of State Contract, 2002. Commission on Agricultural Workers. Report of the Commission on Agricultural Workers. Papademetriou, Demetrios G., Kevin O’ Neil, Washington, DC: Government Printing Office, and Deborah W. Meyers. “Reflections on 1992. Mexico-US Temporary Migration for Work: A Look Back, A Look Ahead.” In Trabajo tempo- Cornelius, Wayne, Thomas Espenshade, and ral y migración internacional a partir de la Idean Salehyan. The International Migration experiencia Mexico-Canada, edited by Jorge of the Highly Skilled: Demand, Supply, and Santibáñez. El Colegio de la Frontera Norte Development Consequences in Sending and (forthcoming). Receiving Countries. San Diego, CA: Center for Comparative Immigration Studies, UC San Papademetriou, Demetrios G. and Kevin Diego, 2001. O’Neil. “Efficient Practices for the Selection of Economic Migrants.” Prepared for the Grieco, Elizabeth M. “Temporary Admissions European Commission, DG Employment and of Nonimmigrants to the United States.” Social Affairs, July 2004. Annual Flow Report. DHS Office of Immigration Statistics, May 2005. Papademetriou, Demetrios G. “Reflections on Temporary Worker Programs or Realities, Lowell, B. Lindsay, ed. Temporary Migrants in Fantasies, and Consequences of Temporary the United States. US Commission on Worker Programs.” Unpublished paper pre- Immigration Reform, 1996. pared for Booz Allen Hamilton on Department of State Contract, 2002. Meyers, Deborah W. “Here We Go Again: U.S. Temporary Worker Programs.” Volume 4: Papademetriou, Demetrios G. and Kimberly A. Immigration Law and Policy. Illinois Hamilton. Reinventing Japan: Immigration’s Immigrant Policy Project, Illinois Department Role in Shaping Japan’s Future. Washington, of Human Services, January 2003. DC: Carnegie Endowment for International Peace, 2000. —-. “Learning from Experience: Temporary Worker Programs.” Unpublished paper pre- pared for Booz Allen Hamilton on Department of State Contract, 2002.

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US Department of Homeland Security, Office of http://workforcesecurity.doleta.gov/foreign. Immigration Statistics. 2004 Yearbook of US Department of State, Bureau of Consular Affairs. Immigration Statistics. http://uscis.gov/graphics/ Report of the Visa Office. http://travel.state.gov/ shared/statistics/yearbook/index.htm. visa/about/report/report1476.html.

US Department of Labor, Employment and Training Wasem, Ruth Ellen. “Immigration Policy for Intra- Administration, Division of Foreign Labor company Transfers (L Visa): Issues and Legislation.” Certification. Congressional Research Service, 2005. http://www.flcdatacenter.com/CaseData.aspx and

About the Author

Deborah Waller Meyers Deborah Waller Meyers is a Senior Policy Analyst at the Migration Policy Institute, where she also directs MPI’s internship program. Her most recent work has focused on US immigration reform, North American migration and border management, and post-9/11 immigra- tion and border control institutional and policy changes. Prior to helping launch MPI, Ms. Meyers was an Associate in the International Migration Policy Program at the Carnegie Endowment for International Peace. She also served as a Policy Analyst at the US Commission on Immigration Reform (the Jordan Commission) and as a Project Associate for the US-Mexico Binational Study on Migration. In addition, Ms. Meyers has done consulting work with the Chicago Council on Foreign Relations, the Inter-American Dialogue, and RAND, and she has nearly thirty publications to her credit. Ms. Meyers earned her MA from the Elliott School of International Affairs at The George Washington University and her BA from Brandeis University (Phi Beta Kappa).

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