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IDEAS ACTION RESULTS

HOW LABOR MARKET TESTS AND PROTECTIONS ARE OUT OF STEP WITH THE UNITED STATES IMMIGRATION SYSTEM

October 2020 AUTHOR Sadikshya Nepal Immigration Fellow, Immigration Project Bipartisan Policy Center

EDITOR Theresa Cardinal Brown Director, Immigration and Cross-Border Policy Bipartisan Policy Center

ACKNOWLEDGEMENTS BPC would like to thank the following for their contributions on this report: Ruth Wasem, Professor of Policy and Practice, Lyndon B. Johnson School of Public Affairs, The University of Texas at Austin, Cristobal Ramón, BPC Immigration Senior Policy Analyst, and Rachel lacono, BPC Immigration Project Associate.

DISCLAIMER The findings and conclusions expressed herein do not necessarily reflect the views or opinions of BPC, its founders, its funders, or its board of directors.

2 Introduction

The process of conducting labor market tests for temporary work visas or permanent residence via individual labor certification by the sponsoring employer is often convoluted, arbitrary, and outdated. It is not clear that the process actually protects job opportunities for American workers. Temporary guest worker programs require varying levels of labor market tests or attestations for different visas. But the compartmentalized nature of these certifications for different programs makes the process difficult and arduous to manage for employers and employees alike, while also being vulnerable to abuse. Since the implementation of the labor certification program in 1965, many aspects of certification requirements and labor market tests to hire a foreign worker to participate in the U.S. economy have remained the same. However, the nature of labor and employment itself—such as work culture, tenure, and corporate structure—has undergone a tremendous amount of transformation. Accordingly, the current iteration of the foreign labor certification program and its enforcement mechanisms must undergo changes to meet present-day labor trends while achieving the goal of protecting both foreign and American workers.

Temporary Employment- Based Visas

The origins of a large-scale temporary foreign worker program can be charted back to the Bracero Program during World War II. This program between the United States and Mexico allowed agricultural guest workers to temporarily reside and work in the United States for a limited time during periods of labor shortages due to the ongoing war.1 Currently, the United States has many categories of temporary work visas available to foreign workers (Figure 1). Among them, the H-1B, H-2A, H-2B, and J-1 visas are some of the most popular visa categories and bring the highest number of foreign employees to the United States each year. Each of these visa categories, with some exceptions,a require employers to file a petition with U.S. Citizenship and Immigration Services, or USCIS, on behalf of the nonimmigrant worker before the visa can be issued. However, not all temporary work visas trigger a labor certification process. A labor application is only necessary to bring temporary guest workers under the H-1B, H-2A, and H-2B categoriesb and is managed by the

a The J-1 visa is issued by the Department of State. b Consultation letters from a relevant labor organization or professional association are required for O and P visa categories.

3 Labor Department. Individuals with these visas must undergo various labor market evaluations to ensure that employers are not displacing U.S. workers or adversely affecting wages by employing foreign workers.

Figure 1: Temporary Employment-Based Visas and Labor Market Requirement

Labor Market Visa Category Description Requirement

To work in a specialty occupation. Requires a bachelor’s degree or its H-1B: Person in Specialty equivalent. To work as a fashion model of distinguished merit or ability. Required Occupation Research and development projects administered by the Department of Defense.

H-2A: Temporary For seasonal or temporary agricultural work. Required Agricultural Worker

H-2B: Temporary Non- For seasonal or temporary non-agricultural work. Required Agricultural Worker

To receive practical training programs not available in the trainee’s H-3: Trainee or Special home country, including training programs in the education of children Not Required Education Visitor with mental or physical disabilities

To work at a branch, parent, affiliate, or subsidiary of the current employer in a managerial or executive capacity, or in a position L: Intracompany Transfer requiring specialized knowledge. Individuals must have been employed Not Required by the same employer abroad continuously for one year within the three preceding years.

For foreign national who want to participate in an international cultural exchange program managed by Department of State and J-1: Exchange Visitor includes professors and research professors and research scholars, Not Required students, foreign medical graduates, teachers, resort workers, camp counselors, and au pairs.

O: Individuals with Persons with extraordinary ability or achievement in the sciences, arts, Extraordinary Ability of education, business, athletics, or extraordinary recognized achievement Required* Achievement demonstrated by international acclaim in their field of expertise.

Available to outstanding athletes or athletic teams as well as for P: Artist or Entertainer Required* artistic performance or presentations.

Q: International Cultural For people who are part of an international cultural Not Required Exchange Program exchange program.

For service as a minister or religious occupation for a registered non- R: Religious Workers Not Required profit organization in the United States.

Source: Department of State2 *Note: Employers petitioning for O and P visas require a consultation letter from a U.S. peer group, relevant labor organization and/or management organization before sponsoring an employee. These letters act in lieu of labor certifications and provide a type of labor market test.

4 Origin of the Labor Certification Process

The Foran Act of 1885, also known as the Alien Contract Labor Law, made it unlawful to import foreign workers to the United States for any kind of unskilled labor. That legal provision was in place until the Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act.c The 1952 INA made importing skilled and unskilled labor into the United States permissible only as long as the Secretary of State and the Attorney General had certified the following to the Secretary of Labor: There were not sufficient workers who were able, willing, or qualified, and that employment of such individual will not affect the wages and working conditions of workers similarly employed in the United States.3 This provision of the INA created the process of labor certifications and continues to serve as the language the Labor Department uses when certifying applications. A reform to the Immigration and Nationality Act in 1965 included a legal provision that required employers to file labor certification applications to hire foreign-born employees.

The Bureau of Employment Security, a wing of the Labor Department, first administered the labor certification process in 1952. When Employment Security was dissolved in 1969, the Manpower Administration took over the labor certification process. In 1975, the Manpower Administration evolved into the Employment and Training Administration, or ETA. The ETA continues to manage the permanent foreign labor certification process as one of its “national activities” and also oversees the labor certification process for nonimmigrant workers.4

Evolution of Employment- Based Visas

Since the mid-20th century, the H-1 and H-2 temporary visa classifications have undergone the most alterations compared to other employment-based visas.

The Immigration Reform and Control Act of 1986 amended the INA and divided the H-2 visa category into H-2A for seasonal agricultural workers and H-2B for seasonal non-agricultural workers. The H-2A visa for farm workers is an

c The Immigration Act of 1924 established the E-1 visa category that permitted treaty traders to come to the United States. It was later expanded in 1952 to include E-2 visa for treaty investors to attract foreign investment.

5 employer-sponsored temporary worker program designed to help U.S. farmers find temporary foreign workers when they are unable to recruit U.S. citizens or permanent residents for the job. The H-2A visa program does not have any numerical caps and farmers are allowed to sponsor workers for seasonal jobs lasting less than a year.5 The H-2B visa provides admission to temporary workers in seasonal non-agricultural employment in the event no U.S. workers can be found. H-2B workers are allowed to perform a variety of jobs such as housekeeping, landscaping, forest conservation, restaurant service, and meat and poultry processing. To qualify as temporary work, employers must establish that their need for temporary workers will end in the “near definable future.” The duties of the desired position must be of a seasonal, peak load, intermittent, or of a one-time need generally lasting less than one year.d Unlike the H-2A visa, the H-2B visa has an annual numerical cap of 66,000.6

The Immigration Act of 1990 split the H-1 visa category for professionals of “distinguished merit and ability,” which also included entertainers and athletes. The 1990 act separated entertainers and athletes into O and P visa categories and split the H-1 visa into two: H-1A for nurses, which was later repealed, and H-1B for specialty occupations.7 The law further codified that “specialty occupations” meant occupations requiring a bachelor’s or higher degree of attainment in a “body of highly specialized knowledge.”8

That act was also the last major piece of legislation to amend provisions of the Immigration and Nationality Act that related to employment-based permanent immigration. Prior to 1990, employment-based immigration in the United States was capped at 54,000 annual visas that were equally divided between those of a professional class or persons with exceptional ability and skilled or unskilled nonimmigrant workers in a profession where there was a short supply of similarly employed U.S. workers.9 After the 1990 act’s passage, employment- based permanent immigration increased to over 143,000 annually and expanded the two categories into five distinct preferences. While subsequent legislation intended to alter the EB-based immigration, the preference categories have remained the same. The first category includes “priority workers,” the second category constitutes of professionals holding “advanced degrees,” the third category includes skilled workers, and the remaining two categories comprises of certain special immigrants and investors.10

d In some cases, a need for H-2B worker can be of a one-time occurrence lasting up to three years.

6 Labor Requirements for Temporary Visas

Certification vs Attestation

The legislation of the early 1990s added the labor condition application, or LCA, requirement along with annual caps to the H-1B category.11 The LCA is a streamlined and flexible version of the longer labor certification process used during the permanent immigration phase that employers utilize to hire temporary professional workers on an H-1B visa.12 Employers must attest that they will pay nonimmigrant employees at or above the “prevailing wage”e for similarly situated workers in the same occupation and with similar qualifications in the area of employment, that hiring foreign workers will not displace similarly employed U.S. workers, and there is no strike or lockout.13 Employers are encouraged—but not required—to use the wage rate from the National Prevailing Wage Center for determining the prevailing wage. The LCA is an “attestation” in that the employer is filing a statement of intent attesting to the truthfulness and accuracy of the statements without a formalized “test” to prove it.14 The employer must file the attestation with the Labor Department’s Foreign Labor Application Gateway no less than six months before the employee’s projected start date.15 Unlike the full labor certification application, however, the LCA does not specify any action to be taken by the employer. Employers do not need to file a proof of recruitment or statement of wages paid with the attestation, but they must maintain documentation regarding wages and recruitment, which may be required by the Labor Department for audit or investigative purposes.16

Additionally, employers also are required to submit a notice of the LCA filing to a union bargaining representative if there is one. In the absence of a bargaining representative, the employer must post the LCA in a conspicuous location at the place of employment. The LCA filing announcement can also be posted via electronic notification to employees in the occupational classification for which an employer seeks nonimmigrant H-1B workers.17 Once the Labor Department approves the LCA, stating that the employer and employee meet the attestation requirements, employers can file a petition with USCIS to approve the particular worker in the H-1B category for that job. If the petition is approved by USCIS, a worker can apply for an H-1B visa at a consulate abroad or change status if they are within the United States on a different temporary visa.18

e In October 2020, the Labor Department released an Interim Final Rule called Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States that alters the computation of prevailing wage levels. Comments are due on the IFR until December 7, 2020 after which the rule goes into effect.

7 Employers are considered H-1B dependent if they have 25 or fewer full-time employees, of which at least eight are on H-1B nonimmigrant visas; 26 to 50 full-time employees, of which 13 are on H-1B status; or 51 or more full-time employees with 15% or more on H-1B nonimmigrant visas. According to a law passed in 1998, employers who are H-1B dependent have additional labor attestation requirements to ensure that no U.S. worker is displaced by their recruitment practices. They must further attest in good faith of trying to recruit U.S. workers for that position. However, if an H-1B employee is an exempt worker, classified as receiving wages of at least $60,000 per year or receiving a master’s degree in a specialty occupation, employers can avoid additional labor certification requirements.19

USCIS allows dependents, spouses, and children who are under the age of 21 to have H visas—including H-1B, H-2A, H-2B—to accompany the principle visa holder and lawfully stay in the United States under the H-4 visa category.20 Since 2015, however, DHS has regulated the eligibility for employment authorization and has only offered it to dependent spouses of some H-1B visa holders.f The H-4 visa holder’s status is solely dependent on the employment of the principle H-1B worker. If an employee on H-1B loses their status due to job loss, dependents will also become out-of-status.21

Employers of H-2A temporary workers undergo a more stringent labor market test than those of professional workers on H-1B visas. Prior to the employer submitting a labor certification application, the employer must first submit a job order outlining the employment terms and conditions to the state workforce agency funded by the Labor Department that deals with employment and labor issues in each state and serves the areas of planned employment.22 Since employers are required to conduct domestic recruitment to attempt to find U.S. workers before hiring foreign workers for seasonal agricultural employment, the state workforce agency job order becomes a tool for recruiting U.S. workers through an interstate clearance system. Employers are required to submit the job order and the labor certification to ETA. If the certification application is approved, ETA authorizes access to the interstate clearance system and posts the job on its registry. ETA also directs employers to carry out other recruitment strategies, including contacting past U.S. workers from prior years.23

The labor certification for H-2A workers protects employees by requiring employers to provide foreign workers with the Adverse Effect Wage Rate (AEWR), the federal or state minimum wage rate, or the prevailing hourly wage—whichever is the highest.24 For example, the AEWR in California in 2016 was $11.89 per hour whereas the state minimum wage was $10 per hour.25 The H-2A labor certification process also requires employers to do more for workers than the H-1B LCA in that employers must certify they will guarantee guest

f Spouses of H-1B nonimmigrant visa holders who are in the process of obtaining EB based permanent residency are the only ones eligible for employment authorization.

8 workers employment for no less than three-fourths of the contract period, as well as housing, transportation, and workers compensation insurance.26

The labor certification requirement for H-2B seasonal nonagricultural workers does not appear in any statute. However, some related language that exists in the INA defines H-2B workers as someone entering the United States to perform temporary service where other unemployed capable persons cannot be found within the United States for that job. Rather, the H-2B labor certification requirement appears in the Department of Homeland Security regulations, which directs the employer to file for a labor certification with the Secretary of Labor. The labor certification for H-2B visa program is a two-part process—registration and application27—and has more regulations than the H-1B LCA filing. According to the ETA, 8,297 H-2A and 5,933 H-2B labor certification applications were certified for H-2A and H-2B visa programs in fiscal year 2016 (Figure 2).28

Figure 2: H-2A and H-2B Applications Certified (2008-2016)

12,000

10,000

8,000

6,000

4,000

2,000

0 2008 2009 2010 2011 2012 2013 2014 2015 2016

H-2A H-2B

Source: Department of Labor29 Note: Certified applications may be for multiple positions.

9 In the registration phase, the Labor Department assesses the employer’s temporary need for H-2B workers. Employers must submit an H-2B registration 120 to 150 days before the date of when the workers are needed. The registration must also be approved before an employer can file for a labor certification application.g In the certification application phase, an employer must submit a labor certification application to ETA and a job order to the SWA for the area of intended employment. ETA will determine if there are U.S. workers available to fill the employment by directing SWA to place the job order in the intrastate and interstate clearance system. ETA will then post the job order in its electronic job registry to recruit U.S. workers. ETA will also require employers to conduct other recruitment of U.S. workers, including contacting former U.S. workers. The employers are required to continue to accept referrals and application of U.S. workers from ETA until 21 days prior to the date of employment.30

Similar to the H-2A visa program, the labor certification for H-2B workers protects employees by requiring employers to provide temporary workers with prevailing wage rate or the federal, state, or local minimum wage.31 Unlike H-2A employers, H-2B employers are not subject to the AEWR rule but must comply with the “three-fourths guarantee” and pay for the employees’ visa-related, lodging, and transportation expenses.h If the services of the employee are no longer required, the employer can only terminate the job offer with approval of the certifying officer from the Labor Department and must provide the worker with transportation to the worker’s last place of residence or make an effort to transfer the employee to a comparable employment.32

Figure 3: Temporary Worker Labor Market Tests and Protections

H-1B H-1B H-2A Requirements H-2B Professional Dependent Agricultural

Effort to recruit U.S. workers x ✓ ✓ ✓

Offering comparable or prevailing wages ✓ ✓ ✓ ✓

Offering Comparable Benefits x ✓ x x

U.S. working conditions not adversely affected ✓ ✓ ✓ ✓

No strikes or lockout of U.S. workers ✓ ✓ ✓ x

Protection from retaliation ✓ ✓ ✓ x

Lay-off protection for U.S. workers x ✓ ✓ x

Worksite posting of intent to hire foreign workers ✓ ✓ x x

Housing, insurance, and transportation x x ✓ x

Source: Congressional Research Service33

g A registration application can be valid for three years. h Expenses can be paid in advance to the H-2B worker, paid directly, or reimbursed to the employee.

10 Labor Certification for Permanent Employment- Based Immigration

The Permanent Labor Certification Program, known as PERM, allows employers to hire foreign workers to permanently work in the United States as immigrants on green cards. Employers must receive an approved labor certification from the Labor Department to hire a foreign worker permanently before submitting an immigrant visa petition to USCIS on behalf of the foreign employee.34 Since an employment-based permanent visa petition allows foreign employees to permanently reside in the United States by applying for a green card, the labor certification process in this phase is more stringent than the LCA for temporary workers on H-1B.

For permanent visa categories based on employer sponsorship, workers are required to obtain a job offer from a U.S. employer, and the employer must obtain an approved labor certification from the Labor Department before initiating a petition with USCIS. The certification authenticates that there were not enough qualified or willing U.S. workers for the position at the prevailing wage and hiring a foreign worker permanently will not affect wages and working conditions of other workers who are similarly employed.35 The employer must also certify that the job opportunity has been and is open to any U.S. worker and is not available because a former employee is on a strike or lockout. Finally, as in the LCA process for temporary employment, the employers must submit a notice of the filing of the Application of Permanent Employment Certification to their bargaining representative or send it to employees at the place of employment.36

The labor market tests for employment-based permanent visa in the EB-2 and EB-3 preferences is adjudicated by the foreign labor certification program (Figure 4).37 Under the provisions of the INA, employers are required to offer the foreign employee a prevailing wage rate for the occupation according to the area of employment. Employers can request a prevailing wage determination from the National Prevailing Wage Center or obtain it through a different legitimate source—similar to the H-2B and H-1B visa category in the temporary phase. Requesting a prevailing wage from the NPWC protects employers from future investigations from the Wage and Hour Division of the Labor Department as to the accuracy of the wage determination.38

11 Figure 4: Employment-Based (EB) Preference Categories

Preference Category Description

Foreign workers with extraordinary abilities in the arts, sciences, business, or First Preference (EB-1) athletics; outstanding professors or researchers; managers and executives of certain multinational firms

Foreign workers in a profession that requires advanced degree; or have exceptional Second Preference (EB-2) abilities in the sciences, arts, or business

Skilled workers with a minimum of two years of training experience; or a professional Third Preference (EB-3) with a bachelor’s degree or a foreign equivalent; unskilled workers

Special immigrant, including religious workers, employees of the U.S. government Fourth Preference (EB-4) working abroad, and others

Immigrant Investors who invest at least $1 million (or $500,000 in rural areas with Fifth Preference (EB-5) high unemployment) in a new enterprise that creates 10 new jobs

Source: Congressional Research Service39

LABOR MARKET INFORMATION PILOT PROGRAM FOR THE LABOR CERTIFICATION OF PERMANENT EMPLOYMENT-BASED VISAS

The Immigration Act of 1990 directed the Secretary of Labor to establish a Labor Market Information Pilot Program for the labor certification process for the permanent employment of foreign workers. The program would determine labor shortages and surpluses in up to 10 defined occupations and classifications. These determinations would consider previously approved occupations under the certification program and other labor market tests or related information. If a labor shortage regarding an occupation was determined, the Labor Department would issue a labor certification for that occupation without requiring additional individual recruitment by an employer. If the occupation had a labor surplus, however, the Labor Department would only issue a labor certification if evidence was submitted—including showing recruiting efforts and the result no U.S. worker was found for the position. The Labor Department was instructed to conduct an evaluation of the pilot program and provide a report to Congress. The evaluation looked at how the pilot program’s potential implementation would affect the time and resources of the INS and ETA as well as participants in the affected labor markets. The evaluation would also examine how the pilot program would affect the wages and working conditions of U.S. workers. This pilot program was to go into effect in October 1991; the Labor Department published proposed regulations in 1993 that were never finalized. The pilot authorization expired in September 1994 and was never renewed.

Sources: Department of Labor40 Federal Register Vol 60, No. 8841

12 Temporary foreign workers on H-1B visas who adjust their status to a legal permanent residency need to undergo a second, more stringent labor market test in the EB-2 and EB-3 preference categories than the LCA for their H-1B status. To sponsor a worker for a permanent visa, an employer must file an Application for Permanent Employment Certification with the Labor Department. Employers must demonstrate that new domestic recruitment strategies in the permanent labor certification phase failed to recruit U.S. workers for the position, even if the position is currently held by a foreign worker on a temporary visa.42 In cases where the certifying officer from the Labor Department deems necessary, employers may be required to conduct supervised recruitment for pending and future applications.

Supervised recruitment requires employers to advertise the job opening in a newspaper, a professional trade or ethnic publication, and any other source approved by the certifying officer. If the job opening is placed in a newspaper, the advertisement must appear for three consecutive days, including a Sunday. The job announcement also requires prior approval from the certifying officer, who can direct where to place the advertisement. The certifying officer must also review and approve the draft announcement before posting, and the advertisement must direct applicants to send resumes to the certifying officer for referral to the employer.43

Even without a supervised recruitment process, the labor certification process must include certain recruitment steps for individualsi in professional occupations that employers must attest to following before filing the certification application. Two mandatory recruitment steps include placing a job order with the SWA for 30 days and two print advertisements for two Sundays in a newspaper of general circulation for the intended area of employment.j Additional recruitment steps can include job announcement on the employer’s website, job fairs, job search websites, local newspapers, trade and professional organizations, on-campus recruiting, campus placement offices, among others. The employer must also prepare a list of the number of applicants who were U.S. citizens or permanent residents and lawful reasons for rejecting each application.44

According to the ETA, filings of labor condition applications have been increasing since the end of the last economic recession in 2009, signifying an increase in demand for foreign-born workers in the United States.45 In fiscal year 2016, the Labor Department adjudicated 775,979 labor certification determinations of which 579,450 were H-1B labor condition and 115,933 were permanent labor certification applications. Since 2013, labor certifications for permanent employment-based visas have drastically increased, signifying a surge in demand for permanent employment-based immigration to the United States (Figure 5).

i College or university teachers following a rigorous recruitment process, Schedule A applicants, and sheepherders are exempt from this rule. j For employment in rural areas, employers must use the newspaper with the widest circulation.

13 Figure 5: H-1B Labor Condition Application and Permanent Labor Certification Filings for Employment-Based Visas (2008-2016)

600,000 550,000 500,000 450,000 400,000 350,000 300,000 250,000 200,000 150,000 100,000 50,000 0 2008 2009 2010 2011 2012 2013 2014 2015 2016

H-1B PERM

Source: Department of Labor46

EXCEPTIONS TO LABOR CERTIFICATION IN THE PERMANENT EMPLOYMENT-BASED VISA SYSTEM

If the Labor Department determines that the hiring of a foreign worker does not adversely affect U.S. workers due to labor shortages in a particular occupation, those occupations are listed in a “shortage occupation list” or Schedule A.47 Schedule A job classifications are divided into two groups: Group I for physical therapists and professional nurses and Group II for “aliens of exceptional ability.”48 Employers looking to hire foreign workers in a Schedule A category must apply for a Schedule A occupation with DHS and provide necessary documentary evidence.k Qualifying individuals in the EB-1, EB-5 preference, certain EB-4, and certain EB-2 preference workers who qualify for a “national interest waiver” are allowed to self-petition for employment-based green cards without employer sponsorship and are not required to undergo with any labor market tests.49

k Regular Labor Certification filing is submitted to the Employment and Training Administration.

14 Varying Levels of Labor Market Tests for Temporary and Permanent Employment- Based Immigration

The varying levels of labor market tests required for both temporary and permanent employment-based visa sponsorship at different stages are of interest. For example, employees applying for L-1 temporary employment-based visas are not required to undergo labor certifications in the temporary visa sponsorship phase, but adjusting their status from L-1 to a green card may trigger a labor certification application if the employee is sponsored under the EB-2 or EB-3 visa category. However, managers and executives on the L-1 visa adjusting status under the EB-1 visa category are exempt from labor market tests.50

In comparison, adjusting status from H-1B temporary visa to permanent residency demonstrates low levels of integration between the temporary and permanent employment sponsorship processes. H-1B to permanent residency triggers two independent labor evaluations—a labor condition application in the temporary phase and a labor certification in the permanent phase51— with no integration between the two. America’s temporary to permanent employment-based immigration system does not have a direct pathway between the two streams of immigration. The labor certification process is also designed to facilitate parallel channels of temporary and permanent labor certifications that are not streamlined to assist with a foreign worker’s transition from temporary to permanent immigration.52

The process of labor market testing is fragmented for foreign workers who are on an H-1B temporary visa applying for permanent residency in the EB-2 and EB-3 category. This process assumes temporary H-1B workers are in the United States for a limited period, and their labor market test does not require labor certifications to protect U.S. workers. However, according to DHS, 86% of all employment-based legal permanent residencies were adjustments of status from other temporary visa categories in FY 2018.53 According to USCIS, H-1B visas accounted for the majority of temporary-to-permanent adjustments from the 21 employment-based temporary visa categories in FY 2014 (Figure 6),54 separating labor market evaluations at different steps of what is essentially one continuous process. USCIS statistics show most immigrants who receive permanent residency through EB sponsorship have been in the United States on temporary work visas prior, and a significant portion are transitioning H-1B visas.55

15 Figure 6. Employment-Based Temporary Visa to LPR Adjustment Status

Rank Visa 2010 2011 2012 2013 2014 Five-Year Total

Number Percent

1 H-1B 40,727 47,764 42,318 49,221 42,167 222,197 36%

36% 2 L 8,837 6,193 9,251 9,596 9,104 42,981 7% H-1B 36% 3 Unk 6,354 4,633 4,962 4,902 4,437 25,288 4% Dependents 4 F 3,888 4,132 4,072 5,197 4,282 21,571 4%

5 EWI 7,820 3,077 1,859 1,393 1,164 15,313 3%

6 E2 2,498 2,762 2,904 3,523 3,481 15,168 2%

7 B2 4,294 2,462 2,243 2,107 1,743 12,849 2%

8 O1 1,561 887 1,185 1,373 1,278 6,284 1% 10% 9 J 578 498 467 849 692 3,084 1% 3% Others 4% 10 E1 635 485 545 587 441 2,693 <1% 4% 7% L Dependents 42,873 41,253 44,298 50,583 43,911 222,918 36% EWI of Above F Other Visas 6,152 4,446 4,010 4,070 2,917 21,595 4% Unk

Source: BPC evaluation of USCIS data obtained via Freedom of Information Act Request

Furthermore, the employer attestation in the temporary nonimmigrant visa sponsorship only relies on random post-admission site visits for fraud prevention.56 The labor certification in the permanent EB sponsorship requires employers to actively recruit U.S. workers—defined as a U.S. citizen or green card holder—even if the stated position is held by the sponsored foreign worker on a temporary visa who may have already gained up to six years of experience in that position.l Therefore, finding a U.S. worker for the same role with the same amount of understanding as a temporary worker with six years of robust experience can be challenging—and in many ways could be seen as deceitful—since the employer is essentially trying to conduct an unsuccessful recruitment.57

Guest worker visas in the H-2A and H-2B categories are not dual intentm and do not have provisions under which they normally can adjust status to a green card. Some who are sponsored by employers under the EB-3 employment-based visa category for non-professional or unskilled labor do undergo a second labor market test to continue participating in the United States labor force. Unlike the skilled worker attestation program, H-2A and H-2B visa categories require

l H-1B visas are valid for six years, renewed in three-year increments. m Dual intent is a provision under the Immigration Act of 1990 that allows those who have a dual intent visa, such as the H-1B, to take steps toward adjusting their status to become lawful permanent residents while still maintaining their current nonimmigrant visa. People with visas that do not fall under the dual intent category, such as the H-2A and H-2B visas, must prove that they intend to voluntarily return to their foreign residence at the end of their authorized stay; taking steps toward a green card can be used to cancel or deny their current nonimmigrant status.

16 employers to undergo a stringent labor certification process to demonstrate they were not able to find any U.S. worker for the job, among other requirements.58

However, even when labor market tests establish there is a shortage of U.S. workers for agricultural or non-agricultural employment, a lack of dual intent means employers cannot sponsor foreign workers on H-2A and H-2B visas for a green card in order to maintain the workers’ nonimmigrant status. If an employer begins the green card sponsorship process for employees on H-2A and H-2B visas, it could result in denial of the nonimmigrant visa or rejection of a new temporary visa. H-2A and H-2B visa holders may only remain in the country up to three years, after which they must leave the United States for 90 days before being eligible to reapply.59 Even though there is increased use and demand of these temporary worker categories, employers must conduct labor certifications for the same occupation frequently, and those prior certifications bear no impact on the requirement to recruit again should an employer seek to sponsor a worker for a green card.

The Controversy Over the Labor Certificate Process and Enforcement

The labor certification process in its current form tends to be controversial and yields arguments from experts that the system is either too rigid or not rigid enough. In recent years, companies such as the now-defunct Toys ‘R’ Us, Southern California Edison, and the Walt Disney Company have received widespread criticism for laying off U.S. workers by hiring H-1B dependent outsourcing companies and requiring U.S. workers to train their replacements.60 Thus, emphasizing the U.S. labor certification process and questioning if it is an effective protection mechanism for U.S. workers. Critics of the current certification process often claim that the labor certification process for both high-skilled and other workers in its current form may not be adequate to protect U.S. workers and will require reforms. However, many businesses argue that the current process is overly rigorous but ensures only those foreign workers who are the best qualified are allowed to work in the United States.

Several bills in both the House and the Senate have been introduced to address concerns critics have of the current labor certification system for high skilled immigrants, which they argue does not provide adequate tools to protect U.S. workers. If passed, these bills aim to restrict employers from hiring H-1B workers without first advertising the position to employees already in the U.S.

17 while also setting new application fees for LCA. Critics of the current labor certification system also propose eliminating the legal provisions that exempt employers hiring foreign workers with a master’s degree or those who are paid $60,000 or more from the prevailing wage rule, which they claim would end the loophole employers use to hire foreign workers for a lesser rate than employees already in the United States.61

Employers and businesses that rely on foreign talent, however, claim bureaucratic and rigorous rules would restrict employers from filling labor shortages in a timely manner, which they argue would stifle United States economic productivity and innovation. The low annual limit on H-1B visas already restricts U.S. businesses from hiring needed high-skilled foreign employees in competitive sectors.62 Employers state that an arduous and lengthy labor certification program to hire temporary workers may limit companies’ ability to attract global talent and could drive workers to migrate to other competing economies such as Canada and Australia.63

Entrepreneurial and start-up companies also assert they find hiring foreign labor difficult to navigate and the sponsorship process overly rigorous and expensive, which they argue is not guaranteed due to the lottery system. Entrepreneurial foreign talents who want to start their own businesses also often find the bureaucratic labor certification process stifling, as it requires them to demonstrate that they can be hired and supervised by a U.S. employer, even in cases when they have started the company and are at the helm of it.64 Businesses and employers propose easing the labor attestation program as it would benefit entrepreneurial and economic gains in the United States.

Some critics of the current labor certification process suggest the certification application ties the foreign worker to their sponsoring employer in a specific job opportunity and location, and these strict certification regulations could lead to work-related abuse of some foreign workers. Employees sponsored under the H-1B visa are not allowed to switch employers without starting a new sponsorship process, which is a challenge for many. Despite restrictions on employers to protect workers, occasional reports of wage and labor abuses continue to be an issue. In FY 2019, the Office of Foreign Labor Certification certified 613,745 LCA applications of which 138 cases were found with violations by Wage and Hour Division.n A total of 1,076 employees received back wages totaling approximately $7 million.65

n The percentage of WHD violations compared to total certification per employee is approximately 0.17%

18 Testimony released by the Government Accountability Office in 2006 highlighted the Labor Department’s lack of oversight over the LCA as well as challenges various organizations face in information sharing that could improve the H-1B visa program and prevent labor violations. According to GAO, the Labor Department reviewed 960,000 LCA applications and certified almost all of them from January 2002 to September 2005. However, GAO’s analysis discovered that around 3,000 certified applications had discrepancies where the wage rate on the LCA was lower than the prevailing wage rate—a major violation of the wages provision under the LCA.o These figures do indicate most employers are not engaging in problematic practices,p but the cases that are adjudicated often yield high compensation as back wages. Still, without further data from the Labor Department, it is difficult to assess the average amount that was paid out to each employee. Furthermore, foreign employees whose immigration status and visa sponsorship are attached to their employers may not feel comfortable voicing complaints against their sponsoring employer for a fear of jeopardizing their immigration status, reducing overall enforcement actions.

GAO has also contended that guest workers under the H-2A and H-2B program are vulnerable to abuse by employers who may charge workers excessive fees for recruitment and provide inaccurate information about wages paid and job information, which violate major provisions outlined in the labor certification process meant to protect workers.66 However, the Cato Institute’s work on this issue suggests a vast majority of H-2A and H-2B employers are not violating provisions of the labor certification process. Cato found in 2018 Labor Department audits; most H-2B labor violations were minor infractions that warranted nothing more than a warning letter. Similarly, 96% of employers were in complete compliance with the program, according to Cato. Furthermore, Cato suggests with more than 6,000 employers participating in the H-2A program, some are likely have violated the law but are in no means a major infraction of the labor certification system.67

While these controversies demonstrate the issues with the current labor certification programs, they also highlight the competing priorities at play in the system. These priorities—protecting the domestic labor force; safeguarding labor rights of foreign workers; and ensuring access to needed skills, entrepreneurship, and innovation—all converge. Reassessing the labor certification process in immigration will require all of these issues be assessed, as well as looking at the future of the nature of work itself.

o The percentage of prevailing wage discrepancy is low at 0.003%. p GAO admits that the Labor Department may be certifying H-1B applications that contain more errors than were found in the report since the agency only checked for a small combination of invalid data and discrepancy.

19 Future of Labor and Labor Certifications

The labor certification process, albeit with minor adjustments under the Immigration Act of 1990, has remained relatively the same since 1965. However, employment practices and the nature of work have drastically changed since the early 1990s when major immigration reform was last legislated.68 Employment- based temporary visa holders are entering a U.S. labor market that is moving away from the traditional employment structure based on the corporate hierarchy.69 However, our labor certification practices—especially for high skilled labor—are still based on the traditional model of employment: matching one employee to a single employer in a specific location for years. Within the existing labor certification system, employer sponsorship for temporary visa holders specifies that foreign workers are only allowed to work for the petitioning U.S. employer. The government allows the employer to place the foreign worker at different worksite only if they do not displace similarly employed U.S. workers at the secondary location.70 This one-to-one employer to employee match and the regulated job-specification outlined in the LCA, including wage requirements and work location, cannot be altered until a new amended H-1B petition with a corresponding LCA application is approved by USCIS.71 However, the practice of tying foreign employees to their worksite has become contrary to how alternative work arrangements have evolved in the past 30 years.72

The Bureau of Labor Statistics estimates that in January 2018, employees spent approximately 4.2 years on average with their current employers and that only 30% of men and 28% of women with wage and salary jobs had tenure lasting 10 years or longer. The statistics also show that younger employees generally have shorter job tenure than those from the older generation. For example, the median tenure for workers ages 55 to 64 was around 10.1 years, which was significantly higher than that for workers ages 25 to 34 years at 2.8 years.73 A survey by the Associated Press and the NORC Center for Public Affairs Research reported that 40% of baby boomers remained with the same employer for more than 20 years and 18% stayed with one employer for more than 30 years. The report suggests it is unlikely that younger generations will enjoy the same type of job tenure, a statement supported by the BLS estimates.74

This evolution of shorter job tenure makes the employer to employee one-to- one tethering of H-1B visa holders antiquated as it restricts the vertical and lateral growth foreign employees may seek in the workplace or while changing jobs. Furthermore, the process of transitioning from H-1B to green card in the

20 employment-based stream can tie a worker to a specific employer and job for more than a decade—a situation that is increasingly rare in the open labor market. This tethering also creates an imbalance between worker and employer that can dissuade a foreign worker, whose status is tied to that employer, from exercising workplace rights.

The evolution of U.S. labor markets are not only confined to employee tenure, but also the types of jobs in which people are currently engaged.75 While our labor certifications are intended to serve employment with a single employer at a designated location, the rise of technology and automation could usher in a new wave of jobs that upends the traditional 9-to-5 permanent employment structure.76 For example, studies suggest that there has been a significant rise in contract and freelance labor in recent years—a trend that is expected to grow in the future.77 Research commissioned by Upworkq and Freelancers Union indicates more companies are looking to hire freelancers and gig workers to fill their job requirements and by 2027 the majority of the United States labor force may be supplied by freelancers and gig workers.78 However, this type of work arrangement would largely preclude sponsoring foreign workers to fill workforce needs since the labor certification requirements indicate that foreign workers are only allowed to perform specific tasks outlined in the certification application at a designated location. While the nature of labor in the United States continues to change, labor certification laws for nonimmigrant employees may bind them to a particular and obsolete working situation.

Recent research suggests that a rise in global trade and the growth of transnational firms could also result in a more diverse cultural workforce.79 A 2017 report by the Bipartisan Policy Center on America’s demographic challenge and the role of immigration showed that the population of United States is rapidly aging.80 With the increase of the older generation and a decline of youthful workers, many multinational firms based in the United States may look towards foreign talent to fill labor gaps, which could change the dynamics of the United States labor force in the future.81 Currently, many employers use the dual intent L-1 and H-1B visas to sponsor foreign employees to immigrate and work in the United States. However, foreign workers on L1 visas are not required to undergo any labor market tests and are specified for sponsorship by multinational employers. Aside from benefiting from this arrangement to build business in the United States, these firms have the ability to move this work and the hired workforce abroad. Traditional labor market tests are not sufficient to address the impact of this type of global labor mobility on a domestic labor market.82

q Upwork Global Inc. is a freelancing platform based in San Francisco, California.

21 Conclusion

America’s employment-based immigration program has not undergone a major reform since the early 1990s. However, the country’s labor practices have undergone significant shift in work style, corporate structure, remote work, employment tenure, and gig economy—making the U.S. visa and certification program increasingly antiquated. The varying levels of labor market tests and labor certification programs for different temporary guest worker programs make the bureaucratic system convoluted and hard to navigate for employers and foreign workers. The different and compartmentalized labor market evaluations for various visas such as H-1B, H-2A, H-2B, and permanent employment make the U.S. labor market test vulnerable to abuse and subordinates foreign workers to their employers in the process, leaving them more exploitable. Our different visa programs require varying degrees of labor market tests and the system is not designed to facilitate smooth movement of people from temporary to permanent visas, especially for those who want to contribute to our labor markets when it has been previously established there is an existing labor shortage—demonstrated by the difficult process experienced by essential workers during the current coronavirus pandemic. A system that is streamlined may help facilitate better communications between various agencies that process and help adjudicate the visas, such as the Labor Department and Department of Homeland Security, and it may better reflect the current nature of work and the labor force as well as protect foreign and native workers, which is the ultimate intention of our labor certification program.

22 Endnotes

1 Claire Felter, “U.S. Temporary Foreign Worker Visa Programs,” Council on Foreign Relations, July 7, 2020. Available at: https://www.cfr.org/backgrounder/us-temporary- foreign-worker-visa-programs. U.S. Department of State- Bureau of Consular Affairs, “Temporary Worker Visas Overview.” Available at: https://travel.state.gov/content/travel/en/us-visas/ employment/temporary-worker-visas.html.

2 U.S. Department of State- Bureau of Consular Affairs, “Temporary Worker Visas Overview.” Available at: https://travel.state.gov/content/travel/en/us-visas/ employment/temporary-worker-visas.html.

3 INA 212 (a) 5.

4 Ruth Wasem, Immigration for Foreign Workers: Labor Market Tests and Protections, Congressional Research Service, December 20, 2010. Available at: https://fas.org/sgp/ crs/misc/RL33977.pdf.

5 David J. Bier, “H-2A Visas for Agriculture: The Complex Process of Farmers to Hire Agricultural Guest Workers,” Cato Institute, March 10, 2020. Available at: https:// www.cato.org/publications/immigration-research-policy-brief/h-2a-visas-agriculture- complex-process-farmers-hire.

6 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

7 Sadikshya Nepal, “The Convoluted Path from H-1B to Permanent Residency: A Primer,” Bipartisan Policy Center, July 7, 2020. Available at: https://bipartisanpolicy.org/blog/ the-convoluted-path-from-h-1b-to-permanent-residency-a-primer/.

8 Robert C. Devine, Immigration Practice (Huntington, NY: Juris Publishing, 2014), 17-4 – 17-5.

9 Michael Greenwood and Fred A. Ziel, The Impact of the Immigration Act of 1990 on U.S. Immigration, University of Boulder, January 1997. Available at: https://migration.ucdavis.edu/mn/cir/greenwood/combined.htm.

10 [1] Congressional Research Service, Labor Certification for Permanent Immigrant Admissions, May 15, 2003. Available at: https://www.everycrsreport.com/reports/RS21520.html. [2] Warren R. Leiden and David L. Neal, “Highlights of the U.S. Immigration Act of 1990,” Fordham International Law Journal, 14(1), 1990. Available at: https://ir.lawnet. fordham.edu/cgi/viewcontent.cgi?article=1270&context=ilj.

11 U.S. Department of Labor, “Labor Condition Application (LCA) Specialty Occupations with H-1B, H-1B1, and E-3 Programs.” Available at: https://flag.dol.gov/programs/lca.

12 U.S. Department of Labor, “Labor Condition Application (LCA) Specialty Occupations with H-1B, H-1B1, and E-3 Programs.” Available at: https://flag.dol.gov/programs/lca.

23 13 Congressional Research Service, Immigration: Nonimmigrant (Temporary) Admissions to the United States, September 10, 2019. Available at: https://fas.org/sgp/crs/homesec/R45040.pdf.

14 Ruth Wasem, Immigration for Foreign Workers: Labor Market Tests and Protections, Congressional Research Service, December 20, 2010. Available at: https://fas.org/sgp/crs/misc/RL33977.pdf.

15 U.S. Department of Labor, “Labor Condition Application (LCA) Specialty Occupations with H-1B, H-1B1, and E-3 Programs.” Available at: https://flag.dol.gov/programs/lca.

16 U.S. Department of Labor Wage and Hour Division, “H-1B Labor Condition Application.” Available at: https://www.dol.gov/agencies/whd/laws-and-regulations/laws/ina/h1b.

17 U.S. Department of Labor Wage and Hour Division, “H-1B Labor Condition Application.” Available at: https://www.dol.gov/agencies/whd/laws-and-regulations/laws/ina/h1b.

18 Cristobal Ramón, Assessing Employment-Based Temporary-to-Permanent Immigration Systems in Europe and North America, Bipartisan Policy Center, March 25, 2020. Available at: https://bipartisanpolicy.org/report/works-in-progress/.

19 Sarah Pierce and Julia Gelatt, Evolution of the H-1B: Latest Trends in a Program on the Brink of Reform, Migration Policy Institute, March 2018. Available at: https://www. migrationpolicy.org/research/evolution-h-1b-latest-trends-program-brink-reform.

20 U.S. Citizenship and Immigration Services, “FAQs: Employment Authorization for Certain H-4 Dependent Spouses,” February 2, 2017. Available at: https://www.uscis. gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and- fashion-models/faqs-employment-authorization-for-certain-h-4-dependent-spouses.

21 David Bier, “The Facts about H-4 Visas for Spouse of H-1B Workers,” Cato Institute, June 16, 2020. Available at: https://www.cato.org/blog/facts-about-h-4-visas-spouses-h-1b-workers.

22 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

23 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

24 Congressional Research Service, The Adverse Effect Wage Rate, January 21, 2005. Available at: https://digitalcommons.ilr.cornell.edu/cgi/viewcontent. cgi?article=1219&context=key_workplace.

25 Philip Martin, Immigration and Farm Labor: From Unauthorized to H-2A for Some? Migration Policy Institute, April 2017. Available at: https://www.migrationpolicy.org/ research/immigration-and-farm-labor-unauthorized-h-2a-some.

26 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

27 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

28 Office of Foreign Labor Certification, “Annual Report,” 2016. Available at:https://www. dol.gov/sites/dolgov/files/ETA/oflc/pdfs/OFLC_Annual_Report_FY2016.pdf.

24 29 Employment and Training Administration, U.S. Department of Labor, “Performance Data- Annual Reports.” Available at: https://www.dol.gov/agencies/eta/foreign-labor/performance.

30 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

31 U.S. Department of Labor Wage and Hour Division, “Fact Sheet #78: General Requirement for Employers Participating in the H-2B Program,” April 2015. Available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs78.pdf.

32 U.S. Department of Labor Wage and Hour Division, “Fact Sheet #78: General Requirement for Employers Participating in the H-2B Program,” April 2015. Available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs78.pdf.

33 Ruth Wasem, Immigration for Foreign Workers: Labor Market Tests and Protections, Congressional Research Service, December 20, 2010. Available at: https://fas.org/sgp/crs/misc/RL33977.pdf.

34 Employment and Training Administration, Department of Labor, “Permanent Labor Certification,” Available at: https://www.dol.gov/agencies/eta/foreign-labor/programs/permanent.

35 U.S. Citizenship and Immigration Services, “Permanent Workers,” January 09, 2020. Available at: https://www.uscis.gov/working-in-the-united-states/permanent-workers.

36 E- CFR, “Electronic Code of Federal Regulations,” August 24, 2020. Available at: https:// www.ecfr.gov/cgi-bin/text-idx?SID=8d4b3b0f92c0c8bc8015993582b332da&mc=true&n ode=se20.3.656_110&rgn=div8.

37 Employment and Training Administration, Department of Labor, “Permanent Labor Certification,” Available at: https://www.dol.gov/agencies/eta/foreign-labor/programs/permanent.

38 Employment and Training Administration, Department of Labor, “Prevailing Wages (PERM, H-2B, H-1B, H-1B1 and E-3).” Available at: https://www.dol.gov/agencies/eta/foreign-labor/wages/prevailing-wage.

39 Congressional Research Service, Permanent Employment-Based Immigration and the Per- country ceiling, 2018. Available at: https://fas.org/sgp/crs/homesec/R45447.pdf.

40 Employment and Training Administration, “Notice of Proposed Rulemaking: Labor Market Information Pilot Program for Labor Certification Process,” Available at: https://wdr.doleta.gov/directives/corr_doc.cfm?docn=25.

41 Department of Labor, “Semiannual Regulatory Agenda,” May 8, 1995. Available at: https://www.govinfo.gov/content/pkg/GPO-UA-1995-05-08/pdf/GPO- UA-1995-05-08-11.pdf.

42 Sadikshya Nepal, “The Convoluted Path from H-1B to Permanent Residency: A Primer,” Bipartisan Policy Center, July 7, 2020. Available at: https://bipartisanpolicy.org/blog/ the-convoluted-path-from-h-1b-to-permanent-residency-a-primer/.

43 E-CFR 656.21, “Labor Certification Process Supervised Recruitment,” August 24, 2020. Available at: https://www.ecfr.gov/cgi-bin/text-idx?SID=8d4b3b0f92c0c8bc8015993582 b332da&mc=true&node=se20.3.656_121&rgn=div8.

25 44 Employment and Training Administration, Department of Labor, “Permanent Labor Certification Details,” January 6, 2020. Available at: https://ecfr.federalregister.gov/current/title-20/chapter-V/part-656.

45 Employment and Training Administration, U.S. Department of Labor, “Performance Data- Annual Reports.” Available at: https://www.dol.gov/agencies/eta/foreign-labor/performance.

46 Employment and Training Administration, U.S. Department of Labor, “Performance Data- Annual Reports.” Available at: https://www.dol.gov/agencies/eta/foreign-labor/performance.

47 U.S. Citizenship and Immigration Services, “Employment-Based Immigration: First Preference EB-1,” April 2, 2020. Available at: https://www.uscis.gov/working-in-the- united-states/permanent-workers/employment-based-immigration-first-preference- eb-1.

48 Cornell Law School Legal Information Institute, “20 CFR 656.15- Applications for Labor Certification for Schedule A Occupations,” December 19, 2008. Available at: https://www.law.cornell.edu/cfr/text/20/656.15.

49 U.S. Citizenship and Immigration Services, “Employment-Based Immigration: Second Preference EB-2,” April 2, 2020. Available at: https://www.uscis.gov/working- in-the-united-states/permanent-workers/employment-based-immigration-second- preference-eb-2. Cristobal Ramón, Assessing Employment-Based Temporary-to-Permanent Immigration Systems in Europe and North America, Bipartisan Policy Center, March 25, 2020. Available at: https://bipartisanpolicy.org/report/works-in-progress/.

50 U.S. Citizenship and Immigration Services, “Employment-Based Immigration: First Preference EB-1,” April 2, 2020. Available at: https://www.uscis.gov/working-in-the- united-states/permanent-workers/employment-based-immigration-first-preference- eb-1.

51 Congressional Research Service, Immigration for Foreign Workers: Labor Market Tests and Protections, December 20, 2010. Available at: https://fas.org/sgp/crs/misc/RL33977.pdf.

52 Cristobal Ramón, Assessing Employment-Based Temporary-to-Permanent Immigration Systems in Europe and North America, Bipartisan Policy Center, March 25, 2020. Available at: https://bipartisanpolicy.org/report/works-in-progress/.

53 Department of Homeland Security, “Legal Immigration and Adjustment of Status Report Fiscal Year 2019, Quarter 4,” March 4, 2020. Available at: https://www.dhs.gov/ immigration-statistics/special-reports/legal-immigration.

54 U.S. Citizenship and Immigration Services, “Temporary Nonimmigrant Workers,” September 7, 2011. Available at: https://www.uscis.gov/working-in-the-united-states/ temporary-nonimmigrant-workers.

55 Lazaro Zamora, “Are “Temporary Workers” Really Temporary? Turning Temporary Status into Green Cards,” Bipartisan Policy Center, May 31, 2016. Available at: https:// bipartisanpolicy.org/blog/are-temporary-workers-really-temporary-turning-temporary- status-into-green-cards/.

26 56 Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhary, The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas, Brookings Institution, July 2012. Available at: https://www.brookings.edu/wp-content/uploads/2016/06/18-h1b-visas- labor-immigration.pdf.

57 Sadikshya Nepal, “The Convoluted Path from H-1B to Permanent Residency: A Primer,” Bipartisan Policy Center, July 7, 2020. Available at: https://bipartisanpolicy.org/blog/ the-convoluted-path-from-h-1b-to-permanent-residency-a-primer/.

58 Congressional Research Service, H-2A and H-2B Temporary Worker Visas: Policy and Related Issues, June 9, 2020. Available at: https://fas.org/sgp/crs/homesec/R44849.pdf.

59 U.S. Citizenship and Immigration Services, “2010 National Congressional Conference.” Available at: https://www.uscis.gov/sites/default/files/document/presentations/H- 2A%20and%20H-2B%20Nonimmigrant%20Worker%20Classifications.pdf.

60 [1] Julia Preston, “Pink Slips at Disney. But First, Training Foreign Replacements,” The New York Times, June 3, 2015. Available at: https://www.nytimes.com/2015/06/04/us/ last-task-after-layoff-at-disney-train-foreign-replacements.html. [2] Julia Preston, “Toys ‘R’ Us Brings Temporary Foreign Workers to U.S. to Move Jobs Overseas,” The New York Times, September 29, 2015. Available at: https://www.nytimes. com/2015/09/30/us/toys-r-us-brings-temporary-foreign-workers-to-us-to-move-jobs- overseas.html?_r=0.

61 Deborah D’Souza, “The H-1B Visa Issue Explained,” Investopedia, June 23, 2020. Available at: https://www.investopedia.com/news/h1b-visa-issue-explained-msft-goog/.

62 Stuart Anderson, “Immigration Review Could Lead to New H-1B Visa Restrictions,” Forbes, May 7, 2020. Available at: https://www.forbes.com/sites/ stuartanderson/2020/05/07/immigration-review-could-lead-to-new-h-1b-visa- restrictions/#21bee1934513.

63 Samir Karla, “Leave No H-1B Behind,” The Hill, March 14, 2018. Available at: https:// thehill.com/opinion/immigration/377886-congress-leave-no-h-1bs-behind.

64 Sara Ashley O’Brien, “Tech’s Beloved H-1B Visa is Flawed. Here’s Why?” CNN Business, February 21, 2017. Available at: https://money.cnn.com/2017/02/21/technology/h1b- visa-program-flawed/.

65 Wage and Hour Division, “Fiscal Year Data for WHD H-1B.” Available at : https://www.dol.gov/agencies/whd/data/charts/h-1b.

66 U.S. Government Accountability Office, H-2A and H-2B Visa Programs. Increased Protections Needed for Foreign Workers, GAO-15-154, March 2015. Available at: https://www.gao.gov/assets/690/684985.pdf.

67 David J. Bier, Problems and Insight within NBC’s Report on H-2A Abuses, July 31, 2020. Available at: https://www.cato.org/blog/problems-insights-within-nbcs-report-h-2a-ab uses?queryID=8578a334d722563fa621586b6dc210f8.

68 Josh Bersin, “Catch the Wave: The 21st Century Career,” Deloitte Insights, July 31, 2017. Available at: https://www2.deloitte.com/us/en/insights/deloitte-review/issue-21/ changing-nature-of-careers-in-21st-century.html.

27 69 Mahlon Apgar, IV, “The Alternative Workplace: Changing Where and How People Work,” Harvard Business Review, May-June 1998. Available at: https://hbr.org/1998/05/ the-alternative-workplace-changing-where-and-how-people-work.

70 United States Department of Labor, “Work Authorizations for non-U.S. Citizens: Workers in Professional and Specialty Occupations (H-1B, H-1B1, and E-3 Visas), December 2016. Available at: https://webapps.dol.gov/elaws/elg/h1b. htm#:~:text=Foreign%20workers%20such%20as%20engineers,and%20E%2D3%20 nonimmigrant%20workers.

71 U.S. Citizenship and Immigration Services, “USCIS Draft Guidance on When to File an Amended H-1B Petition after the Simeio Solutions Decision,” October 2017. Available at: https://www.uscis.gov/archive/uscis-draft-guidance-on-when-to-file-an-amended-h- 1b-petition-after-the-simeio-solutions-decision.

72 Lawrence F. Katz, Alan B. Kreuger, “The Rise and Nature of Alternative Work Arrangements in the United States, 1995-2015,” ILR Review, vol 72(2), pages 382-416, 2016. Available at: https://www.nber.org/papers/w22667.

73 U.S. Bureau of Labor Statistics, “Economic News Release,” September 20, 2018. Available at: https://www.bls.gov/news.release/tenure.nr0.htm.

74 Associated Press, “Poll Reveals Age, Income Influence People’s Loyalty to Employer,” PBS News Hour, May 11, 2016. Available at: https://www.pbs.org/newshour/nation/poll- reveals-age-income-influence-peoples-loyalty-to-employer.

75 Karen Gilchrist, “How Millennials and Gen Z are Reshaping the Future of the Workplace,” CNBC, March 5, 2019. Available at: https://www.cnbc.com/2019/03/05/ how-millennials-and-gen-z-are-reshaping-the-future-of-the-workforce.html.

76 Saheli Roy Choudhary, “A.I. and Robotics Will Create Almost 60 Million More Jobs than they Destroy by 2022,” CNBC Markets, September 17, 2018. Available at: https:// www.cnbc.com/2018/09/17/wef-machines-are-going-to-perform-more-tasks-than- humans-by-2025.html.

77 Yuki Noguchi, “Freenlanced: The Rise of the Contract Workforce,” NPR, January 22, 2018. Available at: https://www.npr.org/2018/01/22/578825135/rise-of-the-contract- workers-work-is-different-now.

78 Edelman Intelligence, “Freelancing in America: 2017,” September 28, 2017. Available at: https://www.slideshare.net/upwork/freelancing-in-america-2017/1.

79 SHRM Foundation, Global Trends Impacting Future of HR and Management Engaging and Integrating a Global Workforce, The Economist Intelligence Unit, February 2015. Available at: https://www.shrm.org/hr-today/news/hr-magazine/documents/3-15%20 eiu%20theme%202%20report-final.pdf.

80 Kenneth Megan and Theresa Cardinal Brown, America’s Demographic Challenge: Understanding the Role of Immigration, Bipartisan Policy Center, August 2017. Available at: https://bipartisanpolicy.org/report/americas-demographic-challenge- understanding-the-role-of-immigration/.

28 81 SHRM Foundation, Global Trends Impacting Future of HR and Management Engaging and Integrating a Global Workforce, The Economist Intelligence Unit, February 2015. Available at: https://www.shrm.org/hr-today/news/hr-magazine/documents/3-15%20 eiu%20theme%202%20report-final.pdf.

82 Susan Ladika, “The Use and Abuse of L-1 Visas,” SHRM, July 1, 2006. Available at: https://www.shrm.org/hr-today/news/hr-magazine/pages/0706ladika.aspx.

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