LegiStorm

Summary:

The United States has two main programs for temporarily importing low-skilled workers, or guest workers. Agricultural guest workers enter through the H-2A visa program, and other guest workers enter through the H-2B visa program. Before an employer can file a petition with the U.S. Department of Homeland Security (DHS) to import workers under either program, the employer must apply to the U.S. Department of Labor (DOL) for a certification that U.S. workers capable of performing the work are not available and that the employment of alien workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Other requirements of the programs differ. In December 2008, DHS and DOL published final rules to significantly amend their H-2A and H-2B regulations. The new rules became effective on January 17, 2009. Under the Obama Administration, DOL proposed a new H-2A rule to replace the 2008 rule. This rule was published in final form in February 2010 and went into effect on March 15, 2010. The Administration left intact the 2008 H-2A rule issued by DHS and the 2008 H-2B rules issued by DHS and DOL. The DHS 2008 H-2A and H-2B rules modify previous limitations on H-2A and H-2B workers' periods of stay in the United States. The rules also establish new requirements under both visas. They prohibit payments by prospective H-2A or H-2B workers to employers, recruiters, or other employment service providers where the payments are a condition of obtaining H-2A or H-2B employment, and provide for the denial or revocation of petitions in the event of petitioner violations. Among the other new requirements applicable to both programs, the DHS rules limit participation in the H-2A and H-2B programs to nationals of designated countries. DOL's 2008 H-2B rule replaces the labor certification process with an attestation-based process, in which employers attest in their applications, under threat of penalties, that they have complied with program requirements. Among other changes to DOL's H-2B regulations, the new rule establishes a system of post-certification audits of H-2B employer applications. DOL's 2010 H-2A rule reverses some major changes to the H-2A program that were included in its 2008 rule. Under the new rule, prospective H-2A employers must go through the traditional labor certification process and are subject to the adverse effect wages rate, as calculated prior to the 2008 rule. In addition, the 2010 rule calls for the creation of a new electronic registry for H-2A job opportunities, and retains a system of post-certification audits of H-2A employer applications that was included in the 2008 rule. Various bills have been introduced in recent years to make changes to the H-2A and H-2B programs and to establish new temporary worker visas. In the 111th Congress, AgJOBS bills (H.R. 2414, S. 1038) propose to reform the H-2A program and establish a legalization program for agricultural workers, and H-2B bills variously seek to reform the H-2B program (H.R. 4381, S. 2910) and to reenact, in different forms, an expired provision to exempt certain returning workers from the H-2B cap of 66,000 (H.R. 1136, H.R. 1934, S. 388). The current discussion of guest worker programs takes place against a backdrop of high levels of unauthorized migration to the United States, leading to various questions, such as whether new guest worker proposals would enable participants to obtain legal permanent resident (LPR) status. This report will be updated as legislative developments occur.