Order Code RL32044
CRS Report for Congress
Received through the CRS Web
Immigration: Policy Considerations
Related to Guest Worker Programs
Updated June 8, 2004
Andorra Bruno
Analyst in American National Government
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

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Immigration: Policy Considerations
Related to Guest Worker Programs
Summary
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 program and other guest workers enter through the
H-2B program. Employers interested in importing workers under either program
must first apply to the U.S. Labor Department 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.
Legislation to overhaul the H-2A program (S. 1645/H.R. 3142, H.R. 3604, S.
2185), the H-2B program (S. 2010, S. 2381/H.R. 4262), and the “H” temporary
worker category generally (H.R. 3534) has been introduced in the 108th Congress.
Other bills (S. 1387, S. 1461/H.R. 2899, H.R. 3651, S. 2010, S. 2381/H.R. 4262) and
a Bush Administration immigration proposal would create new guest worker
programs. Presumably, these proposed programs would cover largely low-skilled
workers. In addition to their guest worker provisions, S. 1645/H.R. 3142, S.
1461/H.R. 2899, S. 2010, and S. 2381/H.R. 4262 would establish mechanisms for
certain foreign workers to become U.S. legal permanent residents (LPRs).
The current discussion of guest worker programs takes place against a backdrop
of historically high levels of unauthorized immigration to the United States.
Supporters of a large-scale temporary worker program argue that such a program
would help reduce unauthorized immigration by providing a legal alternative for
prospective foreign workers. Critics reject this reasoning and instead maintain that
a new guest worker program would likely exacerbate the problem of illegal
immigration.
The consideration of any proposed guest worker program would appear to raise
a variety of issues. Among them are the following: how would the requirements of
any new program compare to the requirements of the H-2A and H-2B programs; who
would be eligible for the program; would the program include a mechanism for
participants to obtain LPR status; how would family members of eligible individuals
be treated; what labor market test, if any, would the program employ; would the
program be numerically limited; how would the rules and requirements of the
program be enforced; and what security-related provisions, if any, would be included.
This report aims to provide an analytical framework for evaluating low-skilled
guest worker proposals. It is not intended to serve as a legislative tracking report.
If warranted by legislative developments, the tracking of relevant bills in the 108th
Congress will be handled in a separate product.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Current Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
H-2A Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
H-2A Visas Issued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
H-2B Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
H-2B Visas Issued and the Statutory Cap . . . . . . . . . . . . . . . . . . . . . . . 4
Unauthorized Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Unauthorized Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislation in Past Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
S. 1645/H.R. 3142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H.R. 3604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
S. 2185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. 2381/H.R. 4262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 3534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
S. 1387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
S. 1461/H.R. 2899 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
H.R. 3651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Bush Administration Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Policy Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Comparison of Program Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Eligible Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Legalization of Program Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Treatment of Family Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Labor Market Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Numerical Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Homeland Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

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List of Figures
Figure 1. H-2A Visas Issued, FY1992-FY2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Figure 2. H-2B Visas Issued, FY1992-FY2003 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Tables
Table 1. Estimates of Unauthorized Workers in the Labor Force, by Industry . . . 7

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Immigration: Policy Considerations
Related to Guest Worker Programs
Introduction
In 2001, the United States and Mexico began Cabinet-level talks on migration.
While the details of these discussions were not made public, two issues —
legalization and a temporary worker program — dominated media coverage. The
talks lost momentum after the terrorist attacks of September 11, 2001, as the Bush
Administration focused its attention on security-related matters. A temporary worker
program (not limited to Mexico), however, remains of interest to some Members of
Congress and Administration officials. Bills to reform existing programs for foreign
temporary workers and to create new temporary worker programs have been
introduced in the 108th Congress. In addition, the Bush Administration has outlined
a proposal for a new temporary worker program. The new programs presumably
would cover largely low-skilled workers.
Background
The term guest worker has typically been applied to foreign temporary low-
skilled laborers, often in agriculture. In the past, guest worker programs have been
established in the United States to address worker shortages during times of war.
During World War I, for example, tens of thousands of Mexican workers performed
mainly agricultural labor as part of a temporary worker program. The Bracero
program, which began during World War II and lasted until 1964, brought several
million Mexican agricultural workers into the United States. At its peak in the late
1950s, the Bracero program employed more than 400,000 Mexican workers
annually.1
The Immigration and Nationality Act (INA) of 1952, as originally enacted,2
authorized a temporary foreign worker program known as the H-2 program. It
covered both 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. Aliens who are
admitted to the United States for a temporary period of time and a specific purpose
1 For additional information on these historical programs, see U.S. Congress, Senate
Committee on the Judiciary, Temporary Worker Programs: Background and Issues,
committee print, 96th Cong., 2nd sess., Feb. 1980.
2 Act of June 27, 1952, ch. 477; 8 U.S.C. 1101 et seq. The INA is the basis of current
immigration law.

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CRS-2
are known as nonimmigrants. The 1986 Immigration Reform and Control Act
(IRCA)3 amended the INA to subdivide the H-2 program into the current H-2A and
H-2B programs and to detail the admissions process for H-2A workers. The H-2A
and H-2B visas are subcategories of the larger “H” nonimmigrant visa category for
temporary workers.4
Current Programs
The United States currently has two main programs for importing temporary
low-skilled workers. Agricultural workers enter through the H-2A program and other
temporary workers enter through the H-2B program.5 The programs take their names
from the sections of the INA that established them — Section 101(a)(15)(H)(ii)(a)
and Section 101(a)(15)(H)(ii)(b), respectively. Both programs are administered by
the Employment and Training Administration (ETA) of the U.S. Department of
Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) of the U.S.
Department of Homeland Security (DHS).6
H-2A Program
The H-2A program allows for the temporary admission of foreign workers to
the United States to perform agricultural work of a seasonal or temporary nature,
provided that U.S. workers are not available. An approved H-2A visa petition is
generally valid for an initial period of up to one year.7 An alien’s total period of stay
as an H-2A worker may not exceed three consecutive years.
Employers who want to import H-2A workers must first apply to DOL for a
certification that (1) there are not sufficient U.S. workers who are qualified and
available to perform the work; and (2) the employment of foreign workers will not
adversely affect the wages and working conditions of U.S. workers who are similarly
employed. As part of this labor certification process, employers must attempt to
recruit U.S. workers and must cooperate with DOL-funded state employment service
agencies (also known as state workforce agencies) in local, intrastate, and interstate
3 P.L. 99-603, Nov. 6, 1986.
4 For an overview of the INA’s nonimmigrant visa categories, see CRS Report RL31381,
U.S. Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem.
5 The H-2B program is not limited to workers of a particular skill level and has been used
to import a variety of workers, including entertainers and athletes.
6 Prior to Mar. 1, 2003, the H-2A and H-2B programs were administered by ETA and the
Immigration and Naturalization Service (INS) of the Department of Justice. The Homeland
Security Act of 2002 (P.L. 107-296, Nov. 25, 2002) abolished INS and transferred most of
its functions to DHS as of Mar. 1.
7 See 8 C.F.R. §214.2(h)(5)(iv)(A). According to Immigration & Nationality Law
Handbook, 2001-02 Edition, however, “both DOL and INS take a very restrictive approach
regarding the length of time for which a [H-2A or H-2B] petition can be approved.” See
Donna L. Lipinski, “The H-2s — A Class of Their Own,” Immigration & Nationality Law
Handbook, 2001-02 Edition, vol. II, pp. 86-87.

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CRS-3
recruitment efforts. Employers must pay their H-2A workers and similarly employed
U.S. workers the highest of the federal or applicable state minimum wage, the
prevailing wage rate,8 or the adverse effect wage rate (AEWR).9 They also must
provide workers with housing, transportation, and other benefits, including workers’
compensation insurance.10 No health insurance coverage is required.11
Both growers and labor advocates criticize the H-2A program in its current
form. Growers complain that the H-2A program is overly cumbersome and does not
meet their labor needs. Labor advocates argue that the program provides too few
protections for U.S. workers.
Figure 1. H-2A Visas Issued, FY1992-FY2003
8 The prevailing wage rate is the average wage paid to similarly employed workers in the
occupation in the area of intended employment. Additional information about prevailing
wages is available at [http://www.ows.doleta.gov/foreign/wages.asp].
9 The AEWR is an hourly wage rate set by DOL for each state or region, based upon data
gathered by the Department of Agriculture in quarterly wage surveys. For 2003, the AEWR
ranges from $7.13 for Arkansas, Louisiana, and Mississippi to $9.42 for Hawaii. See CRS
Report RS21015, The Adverse Effect Wage Rate, by William G. Whittaker.
10 Required wages and benefits under the H-2A program are set forth in 20 C.F.R. §655.102.
11 H-2A workers, like nonimmigrants generally, are not eligible for federally funded public
assistance, with the exception of Medicaid emergency services. For further information on
alien eligibility for federal benefits, see CRS Report RL31114, Noncitizen Eligibility for
Major Federal Public Assistance Programs: Policies and Legislation, by Ruth Ellen
Wasem and Joe Richardson; and CRS Report RL31630, Federal Funding for Unauthorized
Aliens’ Emergency Medical Expenses, by Alison M. Siskin.

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CRS-4
H-2A Visas Issued. The H-2A program, which is not subject to numerical
limits, has grown almost fivefold over the last decade. As illustrated in Figure 1, the
number of H-2A visas, which are issued abroad by the Department of State (DOS),
increased from 6,445 in FY1992 to 30,201 in FY2000, and has remained at about
30,000 annually since then. In FY2003, DOS issued 29,882 H-2A visas. The H-2A
program, however, remains quite small relative to total U.S. agricultural employment,
which stood at 3.2 million in 2002, according to DOL’s Bureau of Labor Statistics.
H-2B Program
The H-2B program provides for the temporary admission of foreign workers to
the United States to perform temporary non-agricultural work, if unemployed U.S.
workers cannot be found. Foreign medical graduates coming to perform medical
services are explicitly excluded from the program. An approved H-2B visa petition
is valid for an initial period of up to one year.12 An alien’s total period of stay as an
H-2B worker may not exceed three consecutive years.13
Like prospective H-2A employers, prospective H-2B employers must first apply
to 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. H-2B employers
must pay their workers at least the prevailing wage rate. Unlike H-2A employers,
they are not subject to the AEWR and do not have to provide housing,
transportation,14 and other benefits required under the H-2A program.
A key limitation of the H-2B visa concerns the requirement that the work be
temporary. Under the applicable immigration regulations, work is considered to be
temporary if the employer’s need for the duties to be performed by the worker is a
one-time occurrence, seasonal need, peakload need, or intermittent need.15
According to DOL data on H-2B labor certifications, the top five H-2B occupations
in FY2003, in terms of the number of workers certified, were: (1) landscape laborer,
(2) forestry worker, (3) maids and housekeeping cleaners, (4) stable attendant, and
(5) construction worker.
H-2B Visas Issued and the Statutory Cap. Unlike the H-2A visa, the H-
2B visa is subject to a statutory numerical limit. Under the INA, the total number of
aliens who may be issued H-2B visas or otherwise provided H-2B status during a
12 See 8 C.F.R. §214.2(h)(9)(iii)(B).
13 Included in this three-year period is any time an H-2B alien spent in the United States
under the “H” (temporary worker) or “L” (temporary intracompany transferee) visa
categories.
14 While not subject to the broader transportation requirements of the H-2A program, H-2B
employers are required by law to pay the reasonable costs of return transportation abroad
for an H-2B worker who is dismissed prior to the end of his or her authorized period of stay.
15 For definitions of these types of need, see 8 C.F.R. §214.2(h)(6)(ii).

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CRS-5
fiscal year may not exceed 66,000.16 This cap applies only to petitions for new H-2B
workers. Petitions for current H-2B workers to extend their stay, change their terms
of employment, or change or add employers do not count towards the cap. As shown
in Figure 2, the number of H-2B visas issued by DOS dipped from 12,552 in
FY1992 to 9,691 in FY1993 and has increased steadily since then. In FY2002, DOS
issued 62,591 H-2B visas, and in FY2003, it issued 78,955 H-2B visas. While for
various reasons not all visas issued during a fiscal year necessarily count against that
year’s cap or, in some cases, any year’s cap, USCIS, which has responsibility for
enforcing the H-2B cap, has acknowledged that the cap was exceeded in FY2003.
With respect to the FY2004 cap, USCIS announced on March 10, 2004, that it had
received a sufficient number of H-2B petitions to meet that cap. It indicated that it
would process all petitions received by March 9, 2004, but would not accept any
petitions subject to the FY2004 cap after that date.17
Figure 2. H-2B Visas Issued, FY1992-FY2003
16 See INA §214(g)(1)(B).
17 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services,
“USCIS Announces H-2B Procedures — Reaches Cap,” press release, Mar. 10, 2004;
Department of Homeland Security, Bureau of Citizenship and Immigration Services,
“Information Regarding the H-2B Numerical Limitation for Fiscal Year 2004,” 69 Federal
Register 12340-12341, Mar. 16, 2004.

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CRS-6
Unauthorized Immigration
The current discussion of guest worker programs has been prompted, in part, by
the continued high levels of illegal, or unauthorized, immigration to the United States
and related deaths along the U.S.-Mexican border. Using data from the 2000 Census
of the U.S. population and immigration data, the former INS estimated that in
January 2000 there were about 7.0 million unauthorized aliens residing in the United
States.18 This figure compares to a revised INS estimate of about 5.8 million for
October 1996. INS estimated that during the 1990s, unauthorized immigration grew
at an average rate of about 350,000 per year. INS’s previous estimate of average
annual growth during the decade was about 275,000. Mexico was the largest source
country for unauthorized immigration. According to the INS estimates, there were
about 4.8 million unauthorized Mexicans in the United States in January 2000,
comprising 69% of the total unauthorized population. INS’s estimate of the
unauthorized Mexican population in 1990 was about 2.0 million, or 58% of the total
unauthorized population at the time. With respect to migrant deaths, data from the
Department of Homeland Security indicate that more than 300 migrants died at the
U.S.-Mexican border each year from FY2000 through FY2002.
Unauthorized Workers
Unauthorized workers are a subpopulation of the total unauthorized alien
population. The Pew Hispanic Center estimates that there were about 5.3 million
unauthorized workers in the U.S. labor force, excluding agriculture, in 2001.19 Both
employed and unemployed persons are included in that figure. Table 1 presents Pew
Hispanic Center estimates disaggregating this total by industry. As indicated in the
table, unauthorized workers represented about 4% of the work force in 2001. In
some industries, however, their share of the labor force was considerably higher.
Notably, they accounted for about one in four workers in private household services
(e.g., in-home babysitting) and about one in six workers in business services (e.g.,
building cleaning and maintenance).
18 U.S. Department of Justice, Immigration and Naturalization Service, Office of Policy and
Planning, Estimates of the Unauthorized Immigrant Population Residing in the United
States: 1990 to 2000, Jan. 2003. Available at [http://www.uscis.gov/graphics/
shared/aboutus/statistics/illegals.htm], visited July 8, 2003. Note: Other estimates of the
unauthorized alien population in Jan. 2000 are higher. These disparities are accounted for,
in part, by INS’s narrower definition of unauthorized alien. For a discussion of these issues,
see pp. 13-14 of the INS report.
19 B. Lindsay Lowell and Roberto Suro, How Many Undocumented: The Numbers Behind
the U.S.-Mexico Migration Talks, Pew Hispanic Center Report, Mar. 21, 2002. (Hereafter
cited as Lowell and Suro, How Many Undocumented.) Note: This estimate of the
unauthorized work force is based on a total 2001 unauthorized population estimate of 7.8
million. For additional information on the unauthorized worker estimates, see B. Lindsay
Lowell and Richard Fry, Estimating the Distribution of Undocumented Workers in the
Urban Labor Force: Technical Memorandum to “How Many Undocumented: The Numbers
Behind the U.S.-Mexico Migration Talks,” Pew Hispanic Center Study, Mar. 21, 2002.

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CRS-7
Table 1. Estimates of Unauthorized Workers
in the Labor Force, by Industry
(in thousands)
Percentage
Unauthorized
unauthorized
Industry
workers
Total workers
workers
Construction
620
9,670
6.4%
Manufacturing
1,190
20,830
5.71%
— Durable
580
12,670
4.58%
— Non-durable
610
8,150
7.48%
Wholesale and Retail Trade
1,410
29,850
4.72%
— Restaurants
700
7,720
9.07%
— Other
720
22,130
3.25%
Services
1,320
41,960
3.15%
— Business
390
2,350
16.60%
— Private Household
250
1,050
23.81%
— Other
690
38,570
1.79%
Other Industries
350
37,990
0.92%
Totals
5,300
143,640
3.69%
Source: How Many Undocumented, p. 7; last column added by CRS.
In a separate Pew Hispanic Center study, Philip Martin, an agricultural labor
economist, estimates that there were 1.2 million unauthorized agricultural workers
in both crop and livestock production in 2002. This figure represents 47% of an
estimated total hired farm work force of 2.5 million.20
Supporters of a large-scale guest worker program contend that such a program
would help reduce unauthorized immigration by providing a legal alternative for
prospective foreign workers. Critics reject this reasoning and instead maintain that
a guest worker program would likely exacerbate the problem of illegal immigration;
they argue, for example, that many guest workers would fail to leave the country at
the end of their authorized period of stay.
20 Philip Martin, Guest Workers: New Solution, New Problem?, Pew Hispanic Center Study,
Mar. 21, 2002.

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CRS-8
Legislation in Past Congresses
Major guest worker legislation introduced in the 105th, 106th, and 107th
Congresses was limited to the H-2A program.21 No major H-2B reform bills were
offered.22 In the 105th Congress, for example, a Senate-approved amendment to S.
2260, an FY1999 Departments of Commerce, Justice, and State Appropriations bill,
would have replaced the existing labor certification process with a new set of
procedures for importing H-2A workers. It would have established a system of
agricultural worker registries containing the names of eligible U.S. agricultural
workers. Employers interested in importing H-2A workers would first have applied
to DOL for the referral of U.S. workers through a registry search. If a sufficient
number of workers were not found, the employer would have been allowed to import
H-2A workers to cover the shortfall. The Senate measure also would have changed
wage and other requirements. The provision was not enacted.
Provisions to establish a system of worker registries and to change existing H-
2A-related requirements were likewise included in two H-2A reform proposals
introduced in the 106th Congress (S. 1814/H.R. 405623 and H.R. 4548). In addition,
S. 1814/H.R. 4056 would have established a two-stage legalization program, under
which farm workers satisfying specified work requirements could have obtained
temporary resident status and then legal permanent resident (LPR) status. Although
formal congressional consideration was limited to a Senate Immigration
Subcommittee hearing on S. 1814, S. 1814/H.R. 4056 became the basis of a
bipartisan compromise on foreign agricultural workers. That agreement, however,
fell apart at the end of the 106th Congress. H.R. 4548, the other reform bill before the
106th Congress, differed from S. 1814/H.R. 4056 in that it sought to establish a pilot
H-2C alien agricultural worker program to supplement, rather than replace, the H-2A
program. H.R. 4548 also did not include a legalization program. H.R. 4548 was
reported by the House Judiciary Committee in October 2000, but saw no further
action.
Like S. 1814/H.R. 4056 in the 106th Congress, key bills before the 107th
Congress coupled significant H-2A reform with legalization. S. 1161 and S.
1313/H.R. 2736 would have streamlined the process of importing H-2A workers,
particularly for jobs covered by collective bargaining agreements. With respect to
legalization, both proposals would have allowed foreign agricultural workers who
met specified work requirements to adjust to LPR status through a two-stage process
like that in S. 1814/H.R. 4056. As detailed below, the requirements for adjustment
of status in S. 1313/H.R. 2736 differed from those in S. 1161, with the latter being
21 For additional information about recent legislative proposals on the H-2A program, see
CRS Report RL30852, Immigration of Agricultural Guest Workers: Policy, Trends, and
Legislative Issues, by Ruth Ellen Wasem and Geoffrey K. Collver.
22 During the 107th Congress, former Sen. Gramm released a preliminary proposal for a new
U.S.-Mexico guest worker program that would have covered both agricultural and
nonagricultural workers, but he did not introduce legislation.
23 Even though S. 1814 and H.R. 4056 are not identical, they are treated as companion bills
for the purposes of this discussion because they are highly similar.

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CRS-9
more stringent. Among the other major differences between the proposals, S. 1161
would have eased existing wage requirements, while S. 1313/H.R. 2736 would have
mandated a study of the wage issue. No action beyond committee referral occurred
on either proposal.
Legislation in the 108th Congress
Bills to reform the H-2A program (S. 1645/H.R. 3142, H.R. 3604, S. 2185), the
H-2B program (S. 2010, S. 2381/H.R. 4262), and the “H” visa category generally
(H.R. 3534), as well as bills to establish new guest worker programs (S. 1387, S.
1461/H.R. 2899, H.R. 3651, S. 2010, S. 2381/H.R. 4262), have been introduced in
the 108th Congress. S. 1645/H.R. 3142, S. 1461/H.R. 2899, S. 2010, and S.
2381/H.R. 4262 also would enable certain workers to obtain LPR status. The six
Senate bills have been referred to the Senate Judiciary Committee. H.R. 3142, H.R.
3651, and H.R. 4262 have been referred to the House Judiciary Committee. H.R.
2899 has been referred to the House Judiciary Committee and the House Education
and the Workforce Committee. H.R. 3604 has been referred to the House Judiciary
Committee and the House Agriculture Committee. H.R. 3534 has been referred to
the House Judiciary Committee, the House Ways and Means Committee, the House
Government Reform Committee, the House Education and the Workforce
Committee, and the House International Relations Committee. No action beyond
committee referral has occurred on any of the bills. Congressional committees,
however, have held related hearings. On January 28, 2004, the House Agriculture
Committee held a hearing on the potential impact of recent guest worker proposals
on the agricultural sector. On March 24, 2004, the House Judiciary Committee’s
Subcommittee on Immigration, Border Security and Claims held a hearing on the
impact of guest workers on U.S. workers. In the Senate, the Judiciary Committee’s
Subcommittee on Immigration, Border Security and Citizenship held a hearing on
evaluating a guest worker proposal on February 12, 2004, and a hearing on border
security under a guest worker program on April 1, 2004.
S. 1645/H.R. 3142
The “Agricultural Job Opportunity, Benefits, and Security Act of 2003" (S.
1645/H.R. 3142) would overhaul the H-2A agricultural worker program. It was
introduced, respectively, by Senator Craig for himself and a bipartisan group of co-
sponsors and by Representative Cannon for himself and Representative Berman.
Like the major H-2A reform bills before the 107th Congress, S. 1645/H.R. 3142
would streamline the process of importing H-2A workers, particularly for jobs
covered by collective bargaining agreements. Prospective H-2A employers would
have to file applications with DOL containing certain assurances. In the case of a job
covered by a collective bargaining agreement, the employer would have to assure,
among other things, that there is an applicable union contract and that the bargaining
representatives of the employer’s employees have been notified of the filing of the
application for H-2A workers. An employer interested in filling a job not covered
by a collective bargaining agreement would be subject to a longer list of required
assurances. Among these, the employer would have to assure that he or she will take
specified steps to recruit U.S. workers, including submitting a copy of the job offer

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CRS-10
to the local office of the state workforce agency and authorizing the posting of the job
on an electronic job registry, and that he or she will provide workers with required
benefits, wages, and working conditions. Both groups of employers would have to
assure that the job is temporary or seasonal and that the employer will offer the job
to any equally qualified, available U.S. worker who applies. Unless an employer’s
application is incomplete or obviously inaccurate, DOL would certify within seven
days of the filing date that the employer has filed the required application.
S. 1645/H.R. 3142 further proposes to make changes to the H-2A program’s
requirements regarding minimum benefits, wages, and working conditions. Among
these proposed changes, the adverse effect wage rate (discussed above) would remain
at the January 2003 level for three years after the date of enactment, and employers
would be permitted to provide housing allowances, in lieu of housing, to their
workers if the governor of the relevant state certifies that adequate housing is
available.
Under S. 1645/H.R. 3142, an H-2A worker’s initial period of employment could
not exceed 10 months. The worker’s stay could be extended in increments of up to
10 months each, but the worker’s total continuous period of stay, including any
extensions, could not exceed three years.
In addition to these H-2A reform provisions, S. 1645/H.R. 3142 would establish
a two-stage legalization program for agricultural workers. To obtain temporary
resident status, the alien worker would have to establish that he or she performed at
least 575 hours, or 100 work days, of agricultural employment in the United States
during 12 consecutive months in the 18-month period ending on August 31, 2003,
and meet other requirements. To be eligible to adjust to LPR status, the alien would
have to perform at least 2,060 hours, or 360 work days, of agricultural work in the
United States between September 1, 2003, and August 31, 2009, and meet other
requirements. Existing numerical limits under the INA would not apply to
adjustments of status under the bill.24
H.R. 3604
Like S. 1645/H.R. 3142, the “Temporary Agricultural Labor Reform Act of
2003" (H.R. 3604) proposes to overhaul the H-2A agricultural worker program. It
was introduced by Representative Goodlatte for himself and more than 30 co-
sponsors. H.R. 3604 would streamline the process of importing H-2A workers.
Prospective H-2A employers would have to file applications with DOL containing
certain assurances, including that the job is temporary or seasonal; the employer will
provide workers with required benefits, wages, and working conditions; the employer
has made positive efforts to recruit U.S. workers; and the employer will offer the job
to any equally qualified, available U.S. worker who applies. Unless an employer’s
application is incomplete or obviously inaccurate, DOL would certify within seven
days of the filing date that the employer has filed the required application.
24 For an introduction to the U.S. system of permanent admissions, including numerical
limits, see CRS Report RS20916, Immigration and Naturalization Fundamentals, by Ruth
Ellen Wasem.

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CRS-11
H.R. 3604 would make changes to current H-2A requirements regarding
minimum benefits, wages, and working conditions. Under H.R. 3604, H-2A
employers would have to pay workers the higher of the prevailing wage rate or the
applicable state minimum wage; they would not be subject to the adverse effect wage
rate (discussed above). With respect to housing, employers could provide housing
allowances, in lieu of housing, to their workers if the governor of the relevant state
certifies that adequate housing is available.
Under H.R. 3604, an H-2A worker’s initial period of employment could not
exceed 10 months. The worker’s stay could be extended in increments of up to 10
months each, but the worker’s total continuous period of stay, including any
extensions, could not exceed two years. H.R. 3604 would not establish a mechanism
for agricultural workers to obtain LPR status.
S. 2185
Another H-2A reform bill, introduced by Senator Saxby Chambliss, is the
“Temporary Agricultural Work Reform Act of 2004" (S. 2185). It is similar, but not
identical, to H.R. 3604. S. 2185 would streamline the process of importing H-2A
workers. Prospective H-2A employers would have to file applications with DOL
containing certain assurances, including that the job is temporary or seasonal; the
employer will provide workers with required benefits, wages, and working
conditions; the employer has attempted to recruit U.S. workers using the state
workforce agency; and the employer will offer the job to any equally qualified,
available U.S. worker who applies. Unless an employer’s application is incomplete
or obviously inaccurate, DOL would certify within 15 days of the filing date that the
employer has filed the required application.
S. 2185 proposes to change current H-2A requirements concerning minimum
benefits, wages, and working conditions. Under S. 2185, H-2A employers would
have to pay workers the higher of the prevailing wage rate or the applicable state
minimum wage. In lieu of offering housing, they could provide housing allowances
if the governor of the relevant state certifies that adequate housing is available.
S. 2185 does not contain provisions regarding the period of admission,
extension of stay, or maximum period of stay of H-2A workers. It also would not
establish a mechanism for agricultural workers to obtain LPR status.
S. 2010
The “Immigration Reform Act of 2004: Strengthening America’s National
Security, Economy, and Families” (S. 2010), introduced by Senator Hagel for himself
and Senator Daschle, would reform the H-2B nonimmigrant visa. The bill would
eliminate the current restriction that H-2B workers can perform only temporary
service or labor, and instead would require that they perform “short-term service or
labor, lasting not more than 9 months.” S. 2010 also proposes a new H-2C visa for
temporary workers coming to perform “labor or services, other than those occupation
classifications” covered under the H-2A, H-2B, or specified high-skilled visa
categories, if qualified U.S. workers cannot be found.

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Both the H-2B and H-2C categories would be numerically limited. In each of
the five fiscal years following issuance of final implementing regulations, the H-2B
program would be capped at 100,000. The cap would then revert back to the current
66,000 level. The H-2C program would be capped at 250,000 in each of the five
fiscal years following issuance of final implementing regulations. After these five
years, the H-2C program would terminate.
S. 2010 would subject both the H-2B and H-2C programs to a broad set of
requirements covering recruitment, application procedures, and worker protections,
among other issues. Prior to filing an application with DOL for H-2B or H-2C
workers, prospective employers would have to take specified steps to recruit U.S.
workers, including posting the job on DOL’s “America’s Job Bank” and with local
job banks, and would have to offer the job to any qualified, available U.S. worker
who applies. In the application to DOL, the employer would have to attest to various
items. Among these are that the employer is offering wages to H-2B or H-2C
workers that are the greater of the prevailing wage rate or the actual wage paid by the
employer to other similarly employed and qualified workers, and will abide by all
applicable laws and regulations relating to the rights of workers to organize. DOL
would review the application and required documentation for completeness and
accuracy, and issue a determination not later than 21 days after the filing date.
The initial period of admission for an H-2B worker could not exceed nine
months in a one-year period. An H-2B worker’s total period of admission could not
exceed 36 months in a four-year period. The initial period of admission for an H-2C
worker could not exceed two years and could be extended for an additional period
of up to two years. An H-2C worker’s total period of admission could not exceed
four years.
S. 2010 would enable H-2B and H-2C nonimmigrants to obtain LPR status.
Employment-based immigrant visas would be available to these nonimmigrants
without regard to existing numerical limits under the INA. An employment-based
petition could be filed by an employer or any collective bargaining agent of the alien,
or after the alien has been employed in H-2B or H-2C status for at least three years,
by the alien. In addition, S. 2010 would establish a legalization program for certain
unauthorized aliens in the United States.
S. 2381/H.R. 4262
The “Safe, Orderly, Legal Visas and Enforcement Act of 2004" (S. 2381/H.R.
4262) was introduced, respectively, by Senator Kennedy for himself and Senators
Feingold and Clinton and by Representative Gutierrez for himself and a group of
cosponsors. Known as the “S.O.L.V.E. Act,” the measure would reform the H-2B
nonimmigrant visa. It would eliminate the current restriction that H-2B workers can
perform only temporary service or labor, and instead would require that they perform
“short-term service or labor, lasting not more than 9 months.” S. 2381/H.R. 4262
also proposes a new H-ID visa for temporary workers coming to perform “labor or
services, other than those occupation classifications” covered under the H-2A or
specified high-skilled visa categories, if qualified U.S. workers cannot be found.

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CRS-13
Both the H-2B and H-1D categories would be numerically limited. The H-2B
program would be capped at 100,000 annually, an increase from the current annual
limit of 66,000. The H-1D program would be capped at 250,000 annually.
S. 2381/H.R. 4262 would subject both the H-2B and H-1D programs to a broad
set of requirements covering recruitment, application procedures, and worker
protections, among other issues. Prior to filing an application with DOL for H-2B
or H-1D workers, prospective employers would have to take specified steps to recruit
U.S. workers, including posting the job on DOL’s “America’s Job Bank” and with
local job banks, and would have to offer the job to any qualified, available U.S.
worker who applies. In the application to DOL, the employer would have to attest
to various items. Among these are that the employer is offering to H-2B or H-1D
workers the prevailing wage, to be determined as specified in the bill. The employer
also would have to abide by all applicable laws and regulations relating to the rights
of workers to organize. DOL would review the application and required
documentation for completeness and accuracy, and issue a determination not later
than 10 working days after the filing date.
The initial period of admission for an H-2B worker could not exceed nine
months in a one-year period. An H-2B worker’s total period of admission could not
exceed 40 months in the aggregate. The initial period of admission for an H-1D
worker could not exceed two years and could be extended for two additional periods
of up to two years each. An H-1D worker’s total period of admission could not
exceed six years.
S. 2381/H.R. 4262 would enable H-2B and H-1D nonimmigrants to obtain LPR
status. Employment-based immigrant visas would be available to these
nonimmigrants without numerical limitation. An employment-based petition could
be filed by an employer, or after the alien has been employed in H-2B or H-1D status
for at least two years, by the alien. In addition, S. 2381/H.R. 4262 would establish
a legalization program for certain unauthorized aliens in the United States.
H.R. 3534
The “Border Enforcement and Revolving Employment to Assist Laborers Act
of 2003" (H.R. 3534), introduced by Representative Tancredo for himself and several
cosponsors, proposes to amend the INA’s “H” visa category generally. It would
eliminate the current subcategories, including the H-2A and H-2B visas, and replace
them with a single category covering aliens coming temporarily to the United States
to perform skilled or unskilled work if qualified U.S. workers are not available.
An employer interested in importing “H” workers would file an application with
DOL. Prior to doing so, the employer would be required to post a job announcement
on an Internet-based job bank the bill would direct DOL to create. Among other
requirements of the program, the employer would have to offer wages at least equal
to the prevailing wage rate and would have to provide “H” workers with health
insurance.
H nonmimmigrants could only be admitted from abroad. They would apply to
be added to a database of workers and would remain in their home countries until an

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CRS-14
approved employer wanted to hire them. Their period of authorized admission could
not exceed 365 days in a two-year period. After the two-year period, H
nonimmigrant visas could be renewed. H nonimmigrants would not be permitted to
change or adjust to any other nonimmigrant or immigrant status.
Under H.R. 3534, however, the proposed guest worker program would not be
implemented until the Secretary of Homeland Security, in consultation with the
Attorney General and the Secretary of State, makes certain certifications to Congress.
These include that all noncitizens legally in the United States and all aliens
authorized to enter the country have been issued biometric, machine-readable travel
or entry documents, and that the number of aliens who overstay nonimmigrant visas,
but are not removed from the United States, is less than 5,000.
S. 1387
The “Border Security and Immigration Reform Act of 2003" (S. 1387),
introduced by Senator Cornyn, would authorize new temporary worker programs
under the INA for seasonal and nonseasonal workers. S. 1387 would establish a new
“W” nonimmigrant visa category for these workers, which would not be subject to
numerical limits. The W-1 visa would cover seasonal workers, and the W-2 visa
would cover nonseasonal workers. Under the proposal, the Secretary of Homeland
Security and the Secretary of State would jointly establish and administer guest
worker programs with foreign countries that enter into agreements with the United
States. The bill would direct the Secretary of Homeland Security, in cooperation
with the Secretary of State and the participating foreign governments, to establish a
database to monitor guest workers’ entry into and exit from the United States and to
track employer compliance.
In order to import workers through the new programs, employers would have
to file an application with DOL. As part of the application, the employer would have
to request an attestation from DOL that there are not sufficient U.S. workers who are
qualified and available to perform the work, and that the hiring of alien workers will
not adversely affect the wages and working conditions of similarly employed U.S.
workers. The employer also would need to provide various assurances in the
application, including that the employer will offer the job to any equally qualified,
available U.S. worker who applies; will advertise the job opening in a local
publication; and will pay workers at least the higher of the federal or applicable state
minimum wage. Unless an employer’s application is incomplete or obviously
inaccurate, DOL would certify within 14 days of the filing date that the application
has been filed. Beginning 12 months after enactment, employers would be subject
to increased penalties for knowingly employing unauthorized aliens.
The authorized period of stay for a W-1 seasonal worker could not exceed 270
days per year. Such a worker could reapply for admission to the United States each
year. The initial authorized period of stay for a W-2 nonseasonal worker could not
exceed one year, but could be extended in increments of up to one year each; a W-2
worker’s total period of stay could not exceed three consecutive years. Unauthorized
workers in the United States would have 12 months from enactment to apply for the
program.

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Among the other provisions, the bill would create investment accounts for the
guest workers, into which the Social Security taxes paid by them and by their
employers on their behalf would be deposited. The investment accounts would be
the sole property of the guest workers. In most cases, however, distributions of
account funds could be made only after the workers permanently leave the guest
worker program and return to their home countries.
Under S. 1837, guest workers could only apply for U.S. legal permanent
residency once they return to their home countries. Their applications would be
evaluated based on a point system to be established by the Secretary of Homeland
Security. The bill does not propose a legalization mechanism for guest workers
outside of existing channels, and according to Senator Cornyn’s office, guest workers
would need to meet all the relevant requirements under current law.25
S. 1461/H.R. 2899
The “Border Security and Immigration Improvement Act” (S. 1461/H.R. 2899),
introduced, respectively, by Senator McCain and by Representative Kolbe for himself
and Representative Flake, would establish two new temporary worker visas under the
INA — the H-4A and H-4B visas. It would place no limit on the number of H-4A
or H-4B visas that could be issued.
The H-4A visa would cover aliens coming to the United States to perform
temporary full-time employment. An employer interested in importing H-4A
workers would file a petition with DHS. DHS could only approve the petition once
it determines that the employer has satisfied recruitment requirements, including
advertising the job opportunity to U.S. workers on an electronic job registry
established by DOL and offering the job to any equally qualified U.S. worker who
applies through the registry. The employer also would have to attest in the petition
that he or she will use the employment eligibility confirmation system established by
the bill to verify the alien workers’ identity and employment authorization; will
provide the alien workers with the same benefits, wages, and working conditions as
other similarly employed workers; and did not and will not displace U.S. workers
during a specified 180-day period. Aliens granted H-4A status would be issued
machine-readable, tamper-resistant visas and other documents containing biometric
identifiers.
An H-4A worker’s initial authorized period of stay would be three years, and
could be extended for an additional three years. S. 1461/H.R. 2899 also would
enable H-4A nonimmigrants to adjust to LPR status. Petitions for employment-
based immigrant visas could be filed by an H-4A worker’s employer, or by the H-4A
worker, if he or she had maintained H-4A status for at least three years.
Employment-based immigrant visas would be available to H-4A workers adjusting
status without numerical limitation.
25 This description of S. 1837 is based on both the bill text and clarifications provided by
Sen. Cornyn’s office by telephone on July 22, 2003. Some clarifying language may need
to be added to the bill.

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The H-4B visa established by the bill would cover aliens unlawfully present and
employed in the United States since before August 1, 2003. An H-4B alien’s
authorized period of stay would be three years. The alien could apply to change to
H-4A status or another nonimmigrant or immigrant category, but such a change of
status could not take place until the end of the three years. H-4B employers would
be required to use the employment eligibility confirmation system mentioned above
and to comply with specified requirements applicable to H-4A employers, including
the provision of benefits, wages, and working conditions to H-4B workers equal to
those provided to other similarly employed workers.
H.R. 3651
The “Alien Accountability Act” (H.R. 3651), introduced by Representative Issa,
would authorize a new “W” nonimmigrant visa category under the INA for
unauthorized aliens. The category would cover aliens unlawfully present in the
United States on December 8, 2003, as well as aliens residing in foreign contiguous
territory who were habitually unlawfully present in the United States during the six-
month period ending on December 8, 2003. In order to be eligible for W status, the
alien would first have to register with DHS. Employment would not be a strict
requirement for W status, but the alien would have to demonstrate an adequate means
of financial support. The new category would sunset six years after the first alien is
granted W status.
The initial period of authorized admission of a W nonimmigrant would be one
year and could be renewed up to five times in one-year increments. H.R. 3651 would
not establish a special mechanism for W nonimmigrants to adjust to LPR status. It,
however, would not preclude them from doing so if they satisfied the applicable
requirements under current law.
Bush Administration Proposal
On January 7, 2004, President Bush outlined an immigration reform proposal,
at the center of which is a new temporary worker program.26 According to the White
House fact sheet on the proposal, the temporary worker program is intended “to
match willing foreign workers with willing U.S. employers when no Americans can
be found to fill the jobs.” The program, which would grant participants legal
temporary status, would initially be open to both foreign workers abroad and
26 The Administration did not offer a detailed legislative proposal. Some materials on the
Administration proposal, however, are available on the White House website. The
President’s Jan. 7, 2004 remarks on the proposal are available at
[http://www.whitehouse.gov/news/releases/2004/01/print/20040107-3.html], visited Jan. 8,
2004. A fact sheet on the proposal, entitled Fair and Secure Immigration Reform, is
available at [http://www.whitehouse.gov/news/releases/2004/01/print/20040107-3.html],
visited Jan. 8, 2004. The transcript of a Jan. 6, 2004 background briefing for reporters is
available at [http://www.whitehouse.gov/news/releases/2004/01/print/20040106-3.html],
visited Jan. 8, 2004.

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CRS-17
unauthorized aliens within the United States. At some future date, however, it would
be restricted to aliens outside the country. The temporary workers’ authorized period
of stay would be three years and would be renewable for an unspecified period of
time. Temporary workers would be able to travel back and forth between their home
countries and the United States, and, as stated in the background briefing for
reporters, would “enjoy the same protections that American workers have with
respect to wages and employment rights.” The proposal also calls for increased
workplace enforcement of immigration laws.
The proposal would not establish a special mechanism for participants in the
temporary worker program to obtain LPR status. According to the fact sheet, the
program “should not permit undocumented workers to gain an advantage over those
who have followed the rules.” Temporary workers would be expected to return to
their home countries at the end of their authorized period of stay, and the
Administration favors providing them with economic incentives to do so. As stated
in the fact sheet:
The U.S. will work with other countries to allow aliens working in the U.S. to
receive credit in their nations’ retirement systems and will support the creation
of tax-preferred savings accounts they can collect when they return to their native
countries.
Although it does not include a permanent legalization mechanism, the program
would not prohibit temporary workers from applying for legal permanent residency
under existing immigration law.
According to the Administration, the proposed temporary worker program
should support efforts to improve homeland security by controlling the U.S. borders.
The fact sheet states that “the program should link to efforts to control our border
through agreements with countries whose nationals participate in the program,” but
does not elaborate further on this issue.
Policy Considerations
Issues raised in connection with temporary worker programs — such as U.S.
economic development, Mexican economic development, law enforcement, and
worker protections — coupled with the U.S. experience with the H-2A and H-2B
programs, suggest policy issues likely to arise in the evaluation of guest worker
proposals.
Comparison of Program Requirements
A new guest worker program could include agricultural workers or
nonagricultural workers or both. It could replace or supplement one or both of the
existing H-2A and H-2B programs. The assessment of any proposed program would
likely include a comparison of the requirements of the proposed and existing
programs, especially in the case of a new program covering both agricultural and
nonagricultural workers since current H-2A and H-2B requirements vary
considerably.

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CRS-18
The area of wages provides an example. Under the H-2B program, employers
must pay their workers at least the prevailing wage rate. Employers importing
agricultural workers through the H-2A program are subject to potentially higher wage
requirements. As explained above, they must pay their workers the highest of the
minimum wage, the prevailing wage rate, or the AEWR. Therefore, a new guest
worker program that covered both agricultural and nonagricultural workers and
included a unified wage requirement would represent a change in existing wage
requirements for employers.
Eligible Population
A guest worker program could be limited to aliens within the country (many of
whom presumably would be unauthorized aliens) or to aliens outside the country or
could include both groups. The possible participation of illegal aliens in a guest
worker program is controversial. Some parties would likely see their inclusion as
rewarding lawbreakers and encouraging future unauthorized immigration, especially
if the program enabled some participants to obtain LPR status. The option of
excluding unauthorized aliens has raised another set of concerns. Some observers
maintain that a large guest worker program limited to new workers could leave
unauthorized aliens in the United States particularly vulnerable to exploitation by
unscrupulous employers. More generally, many who view a guest worker program
as a means of addressing the unauthorized alien problem see the inclusion of
unauthorized aliens as integral to any proposal.
Another eligibility question is whether the program would be limited to
nationals of certain countries. The Bush Administration began discussion of a guest
worker program with Mexico in 2001 as part of binational migration talks, and some
immigration experts maintain that “there are very good reasons for crafting a special
immigration relationship with Mexico, given its propinquity, its historical ties and
NAFTA.”27 Some immigrant advocacy groups, however, have argued that it would
be unfair to single out Mexicans for special treatment, especially if legalization were
part of the agreement.28
Legalization of Program Participants
The issue of whether to include a legalization or earned adjustment program as
part of a guest worker proposal is controversial. Earned adjustment is the term used
to describe legalization programs that require prospective beneficiaries to “earn” LPR
status through work and/or other contributions. Some see permanent legalization as
27 Comment of T. Alexander Aleinikoff, Migration Policy Institute. Quoted in Eric Schmitt,
“The Nation: Separate and Unequal; You Can Come In. You Stay Out,” New York Times,
July 29, 2001, Section 4, p. 5.
28 President Bush was asked in July 2001 whether an immigration proposal under
consideration at the time to legalize the status of some unauthorized Mexicans would be
expanded to cover immigrants from other countries. The President responded, “We’ll
consider all folks here,” but did not provide further details. See Edwin Chen and Jonathan
Peterson, “Bush Hints at Broader Amnesty,” Los Angeles Times, July 27, 2001, Part A, part
1, p. 1.

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CRS-19
an essential element of a guest worker proposal,29 while others oppose the inclusion
of any type of LPR adjustment program. In the current debate, reference is often
made to two legalization programs established by the Immigration Reform and
Control Act (IRCA) of 1986: (1) a general program for unauthorized aliens who had
been continually resident in the United States since before January 1, 1982; and (2)
a special agricultural worker (SAW) program for aliens who had worked at least 90
days in seasonal agriculture during a designated year-long period.30 Approximately
2.7 million individuals have adjusted to LPR status under these programs.31
Recent H-2A reform bills suggest a willingness on the part of some
policymakers to establish an earned adjustment program, at least for agricultural
workers. A key set of questions about any legalization mechanism proposed as part
of a guest worker program would concern the proposed legalization process and
associated requirements. Major H-2A reform proposals introduced in the 107th
Congress (S. 1313/H.R. 2736 and S. 1161), for example, would have established
similarly structured earned adjustment programs for agricultural workers. Under
both proposals, workers who had performed a requisite amount of agricultural work
could have applied for temporary resident status. After satisfying additional work
requirements in subsequent years, they could have applied for LPR status. The
applicable requirements in the proposals, however, differed significantly. For
temporary resident status, S. 1313/H.R. 2736 would have required the alien to have
performed at least 540 hours, or 90 work days, of agricultural work during a 12-
month period. S. 1161 would have required at least 900 hours, or 150 work days, of
agricultural work during a similar period. To qualify for adjustment to LPR status,
S. 1313/H.R. 2736 would have required at least 540 hours, or 90 work days, of
agricultural work in each of three years during a four-year period. S. 1161 would
have required at least 900 hours, or 150 work days, of agricultural work in each of
four years during a specified six-year period.
Various issues and concerns raised in connection with such earned adjustment
proposals for agricultural workers may be relevant in assessing other guest worker
legalization programs. Among these issues is the feasibility of program participants’
meeting the applicable requirements to obtain legal status. S. 1161, for example, was
criticized for incorporating work requirements for legalization that, some observers
said, many agricultural workers could not satisfy. It also has been argued that multi-
year work requirements could lead to exploitation, if workers were loathe to
complain about work-related matters for fear of being fired before they had worked
29 For example, in an Aug. 2001 letter to President Bush and Mexican President Vicente Fox
setting forth the Democrats’ immigration principles, then-Senate Majority Leader Thomas
Daschle and then-House Minority Leader Richard Gephardt stated that “no migration
proposal can be complete without an earned adjustment program.”
30 P.L. 99-603, Nov. 6, 1986. The general legalization program is at INA §245A, and the
SAW program is at INA §210.
31 Certain individuals who had not legalized under the general program and were participants
in specified class action lawsuits were given a new time-limited opportunity to adjust to
LPR status by the Legal Immigration Family Equity Act (LIFE; P.L. 106-553, Appendix B,
Title XI, Dec. 21, 2000) and the LIFE Act Amendments (P.L. 106-554, Appendix D, Title
XV, Dec. 21, 2000).

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the requisite number of years. A possible countervailing set of considerations
involves the continued availability of workers for low-skilled industries, such as
agriculture, meat packing, and services industries. Some parties have expressed a
general concern that a quick legalization process with light work requirements could
soon deprive employers of needed workers, if some newly legalized workers were to
leave certain industries to pursue more desirable job opportunities.
Treatment of Family Members
The treatment of family members under a guest worker proposal is likely to be
an issue. Currently, the INA allows for the admission of the spouses and minor
children of alien workers on H-2A, H-2B and other “H” visas who are accompanying
the worker or following to join the worker in the United States. In considering any
new program, one question would be whether guest workers coming from abroad
could be accompanied by their spouses and children.
If the guest worker program in question were open to unauthorized aliens in the
United States, the issue of family members would become much more complicated.
Relevant questions would include the following: Would the unauthorized spouse
and/or minor children of the prospective guest worker be granted some type of legal
temporary resident status under the program? If not, would they be expected to
leave, or be removed from, the country? If the program had a legalization
component, would the spouse and children be eligible for LPR status as derivatives
of the guest worker?
The treatment of family members became a significant issue in the 1986
legalization programs described above. As enacted, IRCA required all aliens to
qualify for legalization on their own behalf; it made no provision for granting
derivative LPR status to spouses and children. Legalized aliens, thus, needed to file
immigrant visa petitions on behalf of their family members. These filings were
primarily in the family preference category covering spouses and children of LPRs
(category 2A) and had the effect of lengthening waiting times in this category.32 To
partially address the increased demand for visa numbers, the Immigration Act of
199033 made a limited number of additional visa numbers available for spouses and
children of IRCA-legalized aliens for FY1992 through FY1994. It also provided for
temporary stays of deportation and work authorization for certain spouses and
children of IRCA-legalized aliens in the United States.
As suggested by the experience of the IRCA programs, the treatment of family
members in any guest worker program with a legalization component could have
broad implications for the U.S. immigration system. Even in the absence of a
legalization component, however, the treatment of family members in a guest worker
program could have important ramifications. With respect to the program itself, for
example, it could affect the willingness of aliens to apply to participate.
32 For an overview of the preference categories and the U.S. immigration system generally,
see CRS Report RS20916, Immigration and Naturalization Fundamentals, by Ruth Wasem.
33 P.L. 101-649, Nov. 29, 1990.

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Labor Market Test
A key question about any guest worker program is the type of labor market
conditions that would have to exist, if any, in order for an employer to import alien
workers.34 Under both the H-2A and H-2B programs, employers interested in hiring
foreign workers must first go through the process of labor certification. Intended to
protect job opportunities for U.S. workers, labor certification entails a determination
of whether qualified U.S. workers are available to perform the needed work and
whether the hiring of foreign workers will adversely affect the wages and working
conditions of similarly employed U.S. workers. As described above, recruitment is
the primary method used to determine U.S. worker availability. While there is
widespread agreement on the goals of labor certification, the process itself has been
criticized for being cumbersome, slow, and ineffective in protecting U.S. workers.35
A proposed guest worker program could retain some form of labor certification
or could establish a different process for determining if employers could bring in
foreign workers. As described above, past legislative proposals to reform the H-2A
program sought to overhaul current labor certification requirements by, for example,
establishing a system of worker registries. Another option suggested by some in H-
2A reform debates is to adopt the more streamlined labor market test used in the
temporary worker program for professional specialty workers (H-1B program). That
test, known as labor attestation, requires employers to attest to various conditions.
Some argue that labor attestation is inadequate for unskilled jobs without educational
requirements.36 Assuming that protecting U.S. workers remained a policy priority,
the labor market test incorporated in any guest worker program would need to be
evaluated to determine whether it would likely serve this purpose.
Numerical Limits
Related to the issues of labor market tests and U.S. worker protections is the
question of numerical limitations on a guest worker program. A numerical cap
provides a means, separate from the labor market test, of limiting the number of
foreign workers. Currently, as explained above, the H-2A program is not numerically
limited, while the H-2B program is capped at 66,000 visas per year. Like the H-2B
program, other capped temporary worker programs have fixed statutory numerical
limits. By contrast, a guest worker program that was outlined by former Senator Phil
Gramm during the 107th Congress, but never introduced as legislation, included a
different type of numerical cap — one that would have varied annually based on
34 Questions about the existence of industry-wide labor shortages are outside the scope of
this report. For a discussion of the shortage issue with respect to agriculture, see CRS
Report RL30395, Farm Labor Shortages and Immigration Policy, by Linda Levine. Also
see CRS Report 95-712, Immigration: The Labor Market Effects of a Guest Worker
Program for U.S. Farmers, by Linda Levine.
35 See U.S. Department of Labor, Office of Inspector General, Consolidation of Labor’s
Enforcement Responsibilities for the H-2A Program Could Better Protect U.S. Agricultural
Workers, Report Number 04-98-004-03-321, Mar. 31, 1998.
36 See CRS Report RL30852, Immigration of Agricultural Guest Workers: Policy, Trends,
and Legislative Issues, by Ruth Ellen Wasem and Geoffrey K. Collver.

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regional unemployment rates. According to the program prospectus released by
Senator Gramm:
Except for seasonal work, the number of guest workers permitted to enroll would
be adjusted annually in response to changes in U.S. economic conditions,
specifically unemployment rates, on a region-by-region basis.
Numerical limitations also are relevant in the context of unauthorized
immigration. Some view a temporary worker program as a way to begin reducing the
size of the current unauthorized alien population and/or future inflows. In light of
the estimated current size and annual growth rate of the unauthorized population, it
could be argued that a guest worker program would need to be sizeable to have any
significant impact. On the other hand, critics contend that a guest worker program,
especially a large one, would be a counterproductive means of controlling
unauthorized immigration. In their view, temporary worker programs serve to
increase, not reduce, the size of the unauthorized population.
Enforcement
Another important consideration is how the terms of a guest worker program
would be enforced. Relevant questions include what types of mechanisms would be
used to ensure that employers complied with program requirements. With respect to
the H-2A program, for example, the INA authorizes the Labor Secretary to —
take such actions, including imposing appropriate penalties and seeking
appropriate injunctive relief and specific performance of contractual obligations,
as may be necessary to assure employer compliance with terms and conditions
of employment ...37
A related question is whether the enforcement system would be complaint-driven or
whether the appropriate entity could take action in the absence of a specific
complaint.
Another enforcement-related question is what type of mechanism, if any, would
be used to ensure that guest workers departed the country at the end of their
authorized period of stay. Historically, the removal of aliens who have overstayed
their visas and thereby lapsed into unauthorized status, but have not committed
crimes, has not been a priority of the U.S. immigration system. Some have suggested
that a large scale guest worker program could help address the problem of visa
overstaying and unauthorized immigration generally by severely limiting job
opportunities for unauthorized aliens. Others doubt, however, that large numbers of
unauthorized residents would voluntarily leave the country; as explained above, they
argue instead that a new guest worker program would likely increase the size of the
unauthorized alien population as many guest workers opted to overstay their visas.
Other ideas have been put forth to facilitate the departure of temporary workers
at the end of their authorized period of stay. One suggestion is to involve the
37 INA §218(g)(2).

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workers’ home countries in the guest worker program. Another option is to create
an incentive for foreign workers to leave the United States by, for example,
withholding or otherwise setting aside a sum of money for each worker that would
only become available once the worker returned home. In evaluating any such
financially based incentive system, it may be useful to consider, among other
questions, how much money would be available to a typical worker and whether such
an amount would likely provide an adequate incentive to return home.
Homeland Security
A final consideration relates to border and homeland security, matters of
heightened concern since the terrorist attacks of September 11, 2001. Supporters of
new temporary worker programs argue that such programs would make the United
States more secure. They cite security-related benefits of knowing the identities of
currently unknown individuals in the country and of legalizing the inflow of alien
workers and thereby freeing border personnel to concentrate on potential criminal
and terrorist threats. Opponents reject the idea that guest worker programs improve
homeland security and generally focus on the dangers of rewarding immigration law
violators with temporary or permanent legal status. Security concerns may affect
various aspects of a temporary worker program. Possible security-related provisions
that may be considered as part of a new guest worker program include special
screening of participants, monitoring while in the United States, and issuance of
fraud-resistant documents.
Conclusion
The question of a new guest worker program is controversial. A key reason for
this is the interrelationship between the recent discussion of guest worker programs
and the issue of unauthorized immigration. The size of the current resident
unauthorized alien population in the United States, along with continued
unauthorized immigration and related deaths at the U.S.-Mexico border, are major
factors cited in support of a new temporary worker program. At the same time, the
importance of enforcing immigration law and not rewarding illegal aliens with any
type of legalized status are primary reasons cited in opposition to such a program.
It would seem that some bridging of this gap on the unauthorized alien question —
perhaps in some of the areas analyzed above — would be a prerequisite to gaining
broad support for a guest worker proposal.

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