Immigration: Policy Considerations Related to Guest Worker Programs

[Excerpt] At present, the United States has two main programs for temporarily importing low-skilled workers, sometimes referred to as guest workers. Agricultural guest workers enter through the H-2A visa program, and other guest workers enter through the H-2B visa program. Employers interested in importing workers under either program must first apply to the U.S. Department of Labor 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. A variety of bills have been introduced in recent Congresses to make changes to the H-2A and H-2B programs and the “H” visa category generally, and to establish new temporary worker visas. The 109th Congress revised the H-2B program in the FY2005 Emergency Supplemental Appropriations Act (P.L. 109-13). Among the changes, a temporary provision was added to the Immigration and Nationality Act (INA) to exempt certain returning H-2B workers from the H-2B annual numerical cap of 66,000. The FY2007 Department of Defense authorization bill (P.L. 109-364) extended this exemption through FY2007. The exemption expired on September 30, 2007. A number of bills before the 110th Congress (S. 988, S. 2839, H.R. 1843, H.R. 5233, H.R. 5495, H.R. 5849) would reenact an H-2B returning worker exemption. Other guest worker bills introduced in the 110th Congress include proposals to reform the H-2A program (S. 237/S. 340/H.R. 371, S. 1639, H.R. 1645, H.R. 1792) and the H-2B program (S. 1639, S. 2094), and to establish new temporary worker visas (S. 330, S. 1639, H.R. 1645, H.R. 2413). Some of these bills also would establish mechanisms for certain foreign workers to become legal permanent residents (LPRs). The Senate debated, but failed to invoke cloture on, S. 1639 in June 2007. President George W. Bush proposed a new, expanded temporary worker program in January 2004 when he announced his principles for immigration reform, and has since reiterated his support for such a program. In August 2007, following the unsuccessful cloture vote in the Senate on S. 1639, the Bush Administration announced that it would seek to streamline the existing H-2A and H-2B programs within current law. In February 2008, the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security (DHS) published proposed rules to significantly amend their respective H-2A regulations. The current discussion of guest worker programs takes place against a backdrop of historically high levels of unauthorized migration to the United States, and one question that often arises about proposals for new guest worker programs is whether they would enable participants to obtain LPR status. Other issues raised in connection with guest worker proposals include how new program requirements would compare with those of the H-2A and H-2B programs and how the eligible population would be defined. This report will be updated as legislative developments occur