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Temporary worker programs: Introduction

In December the Congressional Research Service issued a report on two key temporary worker programs, H-2A and H-2B. This posting excerpts from the report's introductory overview of both programs. Later postings will address the programs in greater detail. These postings will bring you up to speed on the basics of temporary foreign worker programs in the U.S.

There are many temporary work visa programs. A comprehensive list of them in contain in a 2009 report by the Migration Policy Institute, "Aligning Temporary Immigration Visas with U.S. market needs." In 2008, some 262,000 temporary visas were issues for high skilled labor, and 158,000 such visas for low skilled labor, almost entirely H-2A and H-2B. In addition there were 168,000 "mixed skilled" temporary visas issued.

The report excerpted below and in later postings is: Congressional Research Service. Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues. 12/13/12.

The [Immigration and Nationality Act of 1952], as originally enacted, authorized an H-2 nonimmigrant visa category for foreign agricultural and nonagricultural workers who were coming temporarily to the United States to perform temporary services (other than services of an exceptional nature requiring distinguished merit and ability) or labor. The 1986 Immigration Reform and Control Act (IRCA) amended the INA to subdivide the H-2 program into the current H-2A agricultural worker program and H-2B nonagricultural worker program and to detail the admissions process for H-2A workers. The H2A and H-2B programs are administered by the Employment and Training Administration (ETA) of the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS).

The H-2A and H-2B programs are administered by DOL and DHS, with DOL making a determination on the labor certification application and DHS adjudicating the non-immigrant visa petition.

While there are many differences between the H-2A agricultural worker program and the H-2B nonagricultural worker program, the process of importing workers under either program entails the same steps. Employers who want to hire workers through either program must first apply to DOL for labor certification, as discussed in the next section. After receiving labor certification, a prospective H-2A or H-2B employer can submit an application, known as a petition, to DHS to bring in foreign workers. If the application is approved, foreign workers who are abroad can then
go to a U.S. embassy or consulate to apply for an H-2A or H-2B nonimmigrant visa from the Department of State (DOS). If the visa application is approved, the worker is issued a visa that he or she can use to apply for admission to the United States at a port of entry.

In both the H-2A and H-2B programs, there is a tension between providing protections to U.S. and foreign workers on the one hand and making the programs responsive to legitimate employer needs on the other. While these competing interests are longstanding, the current environment— with relatively high levels of U.S. unemployment; discussions about expanding the E-Verify electronic employment eligibility verification system (as discussed below); and concerns about
shortages of legal workers, especially in agriculture—has heightened the tensions.


Temporary Labor Certification

DOL’s ETA is responsible for administering the labor certification process under the H-2A and H2B programs. Under both programs, employers submit applications in which they request the certification of a particular number of positions.

INA provisions on the admission of H-2A workers state that an H-2A petition cannot be approved unless the petitioner has applied to DOL for certification that

(1) there are not sufficient workers who are able, willing, qualified … and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (2) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed. [INA §218(a)(1)(A), (B)]

There is no equivalent statutory labor certification requirement for the H-2B program. The INA, however, does contain some related language. For example, it defines an H-2B alien, in relevant part, as an alien “who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” [INA §101(a)(15)(H)(ii)(b)] The H-2B labor certification requirement instead appears in DHS regulations. These regulations state:

“The petitioner may not file an H-2B petition unless the United States petitioner has applied for a labor certification with the Secretary of Labor ... and has obtained a favorable labor certification determination ...[8 C.F.R. §214.2(h)(6)(iii)(C)].

The H-2A and H-2B labor certification requirements are intended to provide job, wage, and working conditions protections to U.S. workers. They are implemented in both programs through a multifaceted labor certification process that requires prospective H-2A and H-2B employers to conduct recruitment for U.S. workers and offer a minimum level of wages and benefits that varies by program.

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