Order Code RL32044
CRS Report for Congress
Received through the CRS Web
Immigration: Policy Considerations
Related to Guest Worker Programs
Updated January 26, 2006
Andorra Bruno
Specialist in Social Legislation
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 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.
The 109th Congress has enacted language as part the FY2005 Emergency
Supplemental Appropriations Act (P.L. 109-13) to revise the H-2B program. Other
bills before the 109th Congress propose to make changes to the H-2A program (S.
359/H.R. 884, H.R. 3857), the H-2B program (S. 278, H.R. 1587, S. 1438, S. 1918),
and the “H” visa category generally (H.R. 3333), and to establish new temporary
worker visas (S. 1033/H.R. 2330, S. 1438, S. 1918, H.R. 4065). S. 359/H.R. 884, S.
1033/H.R. 2330, and S. 1918 also would establish mechanisms for certain foreign
workers to become U.S. legal permanent residents (LPRs). Other legislation
regarding guest workers is expected to be introduced later in this Congress. Various
guest worker measures were introduced in the 108th Congress, but they saw no action
beyond committee referrals. President George W. Bush proposed a new, expanded
guest worker program in January 2004 when he announced his principles for
immigration reform. The President featured his proposal in his 2004 and 2005 State
of the Union addresses.
The current discussion of guest worker programs takes place against a backdrop
of historically high levels of unauthorized migration 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 migration.
The consideration of any proposed guest worker program raises various issues,
including the following: how new program requirements would compare with those
of the H-2A and H-2B programs; program eligibility; inclusion of a program
mechanism for participants to obtain LPR status; how family members of eligible
individuals would be treated; what labor market test, if any, the program would
employ; whether the program would be numerically limited; how the rules and
requirements of the program would be enforced; and what security-related
provisions, if any, would be included.

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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 . . . . . . . . . . . . . . . . . . . . . . . 5
Unauthorized Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Unauthorized Workers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legislation in the 105th - 107th Congresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
S. 1645/H.R. 3142 and S. 2823 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 3604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. 2185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
S. 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
S. 2381/H.R. 4262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
H.R. 3534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
S. 1387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
S. 1461/H.R. 2899 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
H.R. 3651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
S. 352/H.R. 793 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
S. 359/H.R. 884 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
H.R. 3857 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
S. 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
H.R. 1587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
S. 1918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
H.R. 3333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
S. 1033/H.R. 2330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
S. 1438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
H.R. 4065 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Bush Administration Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Policy Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Comparison of Program Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Eligible Population . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Legalization of Program Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Treatment of Family Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Labor Market Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Numerical Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Homeland Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
List of Figures
Figure 1. H-2A Visas Issued, FY1992-FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Figure 2. H-2B Visas Issued, FY1992-FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
List of Tables
Table 1. Estimates of Unauthorized Employment in Selected Industries, 2004 . . 8

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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.
Although 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. Various bills to reform existing programs for
foreign temporary workers and to create new temporary worker programs have been
introduced in recent Congresses. Several such bills are before the 109th Congress.
In January 2004, the Bush Administration outlined a proposal for a new temporary
worker program. The new programs under discussion 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 or other seasonal employment. 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
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, codified at 8 U.S.C.§1101 et seq. The INA is the basis of
current immigration law.

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CRS-2
admitted to the United States for a temporary period of time and a specific purpose
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
3 P.L. 99-603, November 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, November 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. 2, pp. 86-87.

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CRS-3
agencies (also known as state workforce agencies) in local, intrastate, and interstate
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-FY2004
Source: CRS Presentation of data from U.S. Department of State, Bureau of Consular Affairs.
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 2004, the AEWR
ranges from $7.38 for Arkansas, Louisiana, and Mississippi to $9.60 for Hawaii. See CRS
Report RL32861, Farm Labor: The Adverse Effect Wage Rate (AEWR), 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 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 FY2004, DOS issued 31,774 H-2A visas. According
to preliminary data, 31,892 H-2A visas were issued in FY2005. 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.
USCIS recently proposed regulations aimed at streamlining the H-2B petitioning
process, which would significantly alter procedures.15 Among other changes, the
proposed rule, published in the Federal Register on January 27, 2005, would
eliminate the requirement that prospective H-2B employers file for a labor
certification from DOL in most cases. Instead, employers seeking H-2B workers in
areas other than logging, the entertainment industry, and professional athletics would
include certain labor attestations as part of the H-2B petition they file with USCIS.
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 The proposed USCIS rule is available at [http://a257.g.akamaitech.net/7/257/2422/
01jan20051800/edocket.access.gpo.gov/2005/05-1240.htm]. DOL has published a
companion proposal, which is available at [http://a257.g.akamaitech.net/7/257/2422/
01jan20051800/edocket.access.gpo.gov/2005/05-1222.htm].

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CRS-5
According to the proposed rule, this H-2B attestation process would be similar to the
process currently used for H-1B professional specialty workers.16
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.17
According to DOL data on H-2B labor certifications, the top five H-2B occupations
in FY2004, in terms of the number of workers certified, were: (1) landscape laborer,
(2) forestry worker, (3) maids and housekeeping cleaners, (4) construction worker,
and (5) stable attendant.
Figure 2. H-2B Visas Issued, FY1992-FY2004
Source: CRS Presentation of data from U.S. Department of State, Bureau of Consular Affairs.
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
fiscal year may not exceed 66,000.18 This cap does not apply to all H-2B petitions.
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 then began to increase steadily.
16 For information on the H-1B nonimmigrant classification, see CRS Report RL30498,
Immigration: Legislative Issues on Nonimmigrant Professional Specialty (H-1B) Workers,
by Ruth Ellen Wasem.
17 For definitions of these types of need, see 8 C.F.R. §214.2(h)(6)(ii).
18 See INA §214(g)(1)(B).

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CRS-6
In FY2003, DOS issued 78,955 H-2B visas, and in FY2004, it issued 76,169 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
acknowledged that the H-2B 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. On January 4, 2005, it announced that
the FY2005 cap had been reached. It indicated that it would process all petitions
received by January 3, 2005, but would not accept any new H-2B petitions subject
to the FY2005 cap after that date.19
Following the enactment of new H-2B provisions as part of the FY2005
Emergency Supplemental Appropriations Act for Defense, the Global War on Terror,
and Tsunami Relief (P.L. 109-13) (see discussion below of S. 352/H.R. 793 in the
109th Congress), USCIS announced that on May 25, 2005, it would start accepting
additional petitions for H-2B workers for FY2005.20 Under P.L. 109-13, for FY2005
and FY2006, returning H-2B workers counted against the annual 66,000 cap during
any one of the three prior fiscal years cannot be counted again. USCIS determined
that approximately 35,000 previously approved H-2B workers for FY2005 qualified
as returning workers who, under P.L. 109-13, were exempt from that year’s cap,
opening up 35,000 slots for other H-2B workers. Employers were able to file
FY2005 petitions for new H-2B workers to fill those slots, as well as for cap-exempt
returning H-2B workers. According to preliminary data, 87,492 H-2B visas were
issued in FY2005.
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. Analyses based on data from the
Current Population Survey (CPS) and other sources estimate that the unauthorized
resident alien population totaled 9.3 million in March 2002 and 10.3 million in
March 2004, and that between 2000 and 2004, this population grew at an average
annual rate of about 485,000 per year.21 DHS has not published a recent estimate of
the unauthorized alien population. The former INS estimated that in January 2000
19 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services,
“USCIS Reaches H-2B Cap,” press release, Jan. 4, 2005.
20 U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services,
“USCIS to Accept Additional H-2B Filings for FY2005 and FY2006,” public notice, May
23, 2005.
21 Jeffrey S. Passel, Randy Capps, and Michael Fix, “Undocumented Immigrants: Facts and
Figures,” Urban Institute, Jan. 12, 2004; Jeffrey S. Passel, “Estimates of the Size and
Characteristics of the Undocumented Population,” Pew Hispanic Center, Mar. 21, 2005.
Also see CRS Report RS21938, Unauthorized Aliens in the United States: Estimates Since
1986, by Ruth Ellen Wasem.

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CRS-7
there were about 7.0 million unauthorized aliens residing in the United States based
on data from the 2000 census of the U.S. population and other sources.22
Mexico remains the largest source country for unauthorized immigration.
According to the recent estimates, the unauthorized Mexican population was about
5.3 million in 2002 and about 5.9 million in 2004, in both cases comprising 57% of
the corresponding total unauthorized population. With respect to migrant deaths,
data from the DHS indicate that more than 300 migrants died at the U.S.-Mexican
border each year from FY2000 through FY2004.23
Unauthorized Workers
Unauthorized workers are a subpopulation of the total unauthorized alien
population. In a June 2005 report, the Pew Hispanic Center estimated that there were
about 6.3 million unauthorized workers in the U.S. labor force in March 2004.24
These workers represented about 4% of the civilian labor force. In some occupations
and industries, however, their share of the labor force was considerably higher.
According to the report:
[U]nauthorized migrants are much more likely [than native workers] to be in
broad occupation groups that require little education or do not have licensing
requirements. The share of unauthorized [sic] who work in agricultural
occupations and construction and extractive occupations is about three times the
share of native workers in these types of jobs.25
Table 1 presents data from the Pew Hispanic Center report on industries with high
concentrations of unauthorized workers. Unauthorized aliens accounted for between
10% and 14% of the work force in the industries shown.
22 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]. 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.
23 For further information on migrant deaths, see CRS Report RL32562, Border Security:
The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.
24 Jeffrey S. Passel, “Unauthorized Migrants: Numbers and Characteristics,” Pew Hispanic
Center, June 14, 2005, at [http://pewhispanic.org/reports/report.php?ReportID=46].
According to the report, no adjustments were made in the analysis for persons omitted from
the CPS and thus the 6.3 million figure is likely an underestimate.
25 Ibid., p. 26.

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CRS-8
Table 1. Estimates of Unauthorized Employment in Selected
Industries, 2004
Industry Group
Unauthorized Workers
Construction
10%
Textile, Apparel, and Leather Manufacturing
10%
Food Services and Drinking Places
10%
Agriculture
11%
Administrative and Support Services
11%
Food Manufacturing
13%
Accommodation
13%
Private Households
14%
Source: Jeffrey S. Passel, “Unauthorized Migrants: Numbers and Characteristics,” Pew
Hispanic Center, June 14, 2005.
In a separate Pew Hispanic Center study, Philip Martin, an agricultural labor
economist, estimated that there were 1.2 million unauthorized agricultural workers
in crop and livestock production in 2002. This figure represented 47% of an
estimated total hired farm work force of 2.5 million.26
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.
Legislation in the 105th - 107th Congresses
Major guest worker legislation introduced in the 105th, 106th, and 107th
Congresses was limited to the H-2A program.27 No major H-2B reform bills were
offered.28 In the 105th Congress, for example, a Senate-approved amendment to S.
2260, an FY1999 Departments of Commerce, Justice, and State Appropriations bill,
26 Philip Martin, Guest Workers: New Solution, New Problem? Pew Hispanic Center Study, Mar.
21, 2002.
27 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.
28 During the 107th Congress, former Senator Phil 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.

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CRS-9
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. 405629 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
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, the H-2B program, and the “H” visa category
generally, as well as bills to establish new guest worker programs, were introduced
in the 108th Congress. Some of these bills would have enabled certain workers to
obtain LPR status. No action beyond committee referral occurred on any of the bills.
29 Although 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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Congressional committees held related hearings during the 108th Congress. The
House Agriculture Committee held a hearing on the potential impact of recent guest
worker proposals on the agricultural sector, and 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 hearings on
evaluating a guest worker proposal and on border security under a guest worker
program.
S. 1645/H.R. 3142 and S. 2823
The “Agricultural Job Opportunity, Benefits, and Security Act of 2003”
(AgJOBS bill; S. 1645/H.R. 3142) would have overhauled the H-2A agricultural
worker program. It was introduced, respectively, by Senator Craig for himself and
a bipartisan group of cosponsors 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 have streamlined the process of importing H-2A workers,
particularly for jobs covered by collective bargaining agreements. Under S.
1645/H.R. 3142, prospective H-2A employers would have had to file applications
with DOL containing certain assurances. In the case of a job covered by a collective
bargaining agreement, the employer would have had to assure, among other things,
that there was an applicable union contract and that the bargaining representatives of
the employer’s employees had 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 have been subject to a longer list of required assurances.
Among these, the employer would have had to assure that he or she would take
specified steps to recruit U.S. workers and would provide workers with required
benefits, wages, and working conditions. Both groups of employers would have had
to assure that the job was temporary or seasonal and that the employer would offer
the job to any equally qualified, available U.S. worker who applied. Unless an
employer’s application was incomplete or obviously inaccurate, DOL would have
certified within seven days of the filing date that the employer had filed the required
application.
S. 1645/H.R. 3142 further proposed 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 have
remained at the January 2003 level for three years after the date of enactment, and
employers would have been permitted to provide housing allowances, in lieu of
housing, to their workers if the governor of the relevant state certified that adequate
housing was available.
Under S. 1645/H.R. 3142, an H-2A worker’s initial period of employment could
not have exceeded 10 months. The worker’s stay could have been extended in
increments of up to 10 months each, but the worker’s total continuous period of stay,
including any extensions, could not have exceeded three years.
In addition to these H-2A reform provisions, S. 1645/H.R. 3142 would have
established a two-stage legalization program for agricultural workers. To obtain
temporary resident status, the alien worker would have had to establish that he or she

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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 had 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 have applied to adjustments of status under the bill.30
On September 21, 2004, Senator Craig introduced a modified version of S. 1645
for himself and Senator Kennedy. The revised bill, S. 2823, was very similar to S.
1645, but there were substantive differences in the two bills’ legalization provisions.
Among these differences, S. 2823 contained a new provision stating that aliens
acquiring temporary resident status under the bill would not be eligible for certain
federal public benefits until five years after they obtained permanent resident status.31
H.R. 3604
Like S. 1645/H.R. 3142, the “Temporary Agricultural Labor Reform Act of
2003” (H.R. 3604) proposed 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 have streamlined the process of importing H-2A
workers. Prospective H-2A employers would have had to file applications with DOL
containing certain assurances, including that the job was temporary or seasonal; the
employer would provide workers with required benefits, wages, and working
conditions; the employer had made positive efforts to recruit U.S. workers; and the
employer would offer the job to any equally qualified, available U.S. worker who
applies. Unless an employer’s application was incomplete or obviously inaccurate,
DOL would have certified within seven days of the filing date that the employer had
filed the required application.
H.R. 3604 would have made changes to current H-2A requirements regarding
minimum benefits, wages, and working conditions. Under H.R. 3604, H-2A
employers would have had to pay workers the higher of the prevailing wage rate or
the applicable state minimum wage; they would not have been subject to the adverse
effect wage rate (discussed above). With respect to housing, employers could have
provided housing allowances, in lieu of housing, to their workers if the governor of
the relevant state certified that adequate housing was available.
Under H.R. 3604, an H-2A worker’s initial period of employment could not
have exceeded 10 months. The worker’s stay could have been extended in
increments of up to 10 months each, but the worker’s total continuous period of stay,
30 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.
31 For information on noncitizen eligibility for federal public benefits, see CRS Report
RL31114, Noncitizen Eligibility for Major Federal Public Assistance Programs: Policies
and Legislation, by Ruth Ellen Wasem.

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CRS-12
including any extensions, could not have exceeded two years. H.R. 3604 would not
have established a mechanism for agricultural workers to obtain LPR status.
S. 2185
Another H-2A reform bill, introduced by Senator Chambliss, was the
“Temporary Agricultural Work Reform Act of 2004” (S. 2185). It was similar, but
not identical, to H.R. 3604. S. 2185 would have streamlined the process of importing
H-2A workers. Prospective H-2A employers would have had to file applications
with DOL containing certain assurances, including that the job was temporary or
seasonal; the employer would provide workers with required benefits, wages, and
working conditions; the employer had attempted to recruit U.S. workers using the
state workforce agency; and the employer would offer the job to any equally
qualified, available U.S. worker who applied. Unless an employer’s application was
incomplete or obviously inaccurate, DOL would have certified within 15 days of the
filing date that the employer had filed the required application.
S. 2185 proposed to change current H-2A requirements concerning minimum
benefits, wages, and working conditions. Under S. 2185, H-2A employers would
have had to pay workers the higher of the prevailing wage rate or the applicable state
minimum wage. In lieu of offering housing, they could have provided housing
allowances if the governor of the relevant state certified that adequate housing was
available.
S. 2185 did not contain provisions regarding the period of admission, extension
of stay, or maximum period of stay of H-2A workers. It also would not have
established 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 have reformed the H-2B nonimmigrant visa. The bill
would have eliminated the current restriction that H-2B workers can perform only
temporary service or labor, and instead would have required that they perform “short-
term service or labor, lasting not more than 9 months.” S. 2010 also proposed 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.
Both the H-2B and H-2C categories would have been numerically limited. In
each of the five fiscal years following issuance of final implementing regulations, the
H-2B program would have been capped at 100,000. The cap would have then
reverted back to the current 66,000 level. The H-2C program would have been
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 have
terminated.

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S. 2010 would have subjected 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 had 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 had to offer the job to any qualified, available
U.S. worker who applies. In the application to DOL, the employer would have had
to attest to various items. Among these are that the employer was 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
would abide by all applicable laws and regulations relating to the rights of workers
to organize. DOL would have reviewed the application and required documentation
for completeness and accuracy, and issued a determination not later than 21 days
after the filing date.
The initial period of admission for an H-2B worker could not have exceeded
nine months in a one-year period. An H-2B worker’s total period of admission could
not have exceeded 36 months in a four-year period. The initial period of admission
for an H-2C worker could not have exceeded two years and could have been
extended for an additional period of up to two years. An H-2C worker’s total period
of admission could not have exceeded four years.
S. 2010 would have enabled H-2B and H-2C nonimmigrants to obtain LPR
status. Employment-based immigrant visas would have been made available to these
nonimmigrants without regard to existing numerical limits under the INA. An
employment-based petition could have been filed by an employer or any collective
bargaining agent of the alien, or after the alien had been employed in H-2B or H-2C
status for at least three years, by the alien. In addition, S. 2010 would have
established 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 have reformed the
H-2B nonimmigrant visa. It would have eliminated the current restriction that H-2B
workers can perform only temporary service or labor, and instead would have
required that they perform “short-term service or labor, lasting not more than 9
months.” S. 2381/H.R. 4262 also proposed 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.
Both the H-2B and H-1D categories would have been numerically limited. The
H-2B program would have been capped at 100,000 annually, an increase from the
current annual limit of 66,000. The H-1D program would have been capped at
250,000 annually.

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CRS-14
S. 2381/H.R. 4262 would have subjected 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 had 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 had to offer the job to any qualified, available
U.S. worker who applied. In the application to DOL, the employer would have had
to attest to various items. Among these are that the employer was offering to H-2B
or H-1D workers the prevailing wage, to be determined as specified in the bill. The
employer also would have had to abide by all applicable laws and regulations relating
to the rights of workers to organize. DOL would have reviewed the application and
required documentation for completeness and accuracy, and issued a determination
not later than 10 working days after the filing date.
The initial period of admission for an H-2B worker could not have exceeded
nine months in a one-year period. An H-2B worker’s total period of admission could
not have exceeded 40 months in the aggregate. The initial period of admission for
an H-1D worker could not have exceeded 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 have exceeded six years.
S. 2381/H.R. 4262 would have enabled H-2B and H-1D nonimmigrants to
obtain LPR status. Employment-based immigrant visas would have been made
available to these nonimmigrants without numerical limitation. An employment-
based petition could have been 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 have established 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, proposed to amend the INA’s “H” visa category generally. It would have
eliminated the current subcategories, including the H-2A and H-2B visas, and
replaced them with a single category covering aliens coming temporarily to the
United States to perform skilled or unskilled work if qualified U.S. workers were not
available.
An employer interested in importing “H” workers would have filed an
application with DOL. Prior to doing so, the employer would have been required to
post a job announcement on an Internet-based job bank the bill would have directed
DOL to create. Among other requirements of the program, the employer would have
had to offer wages at least equal to the prevailing wage rate and would have had to
provide “H” workers with health insurance.
H nonmimmigrants could have only been admitted from abroad. They would
have applied to be added to a database of workers and would have remained in their
home countries until an approved employer wanted to hire them. Their period of
authorized admission could not have exceeded 365 days in a two-year period. After

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CRS-15
the two-year period, H nonimmigrant visas could have been renewed. H
nonimmigrants would not have been permitted to change or adjust to any other
nonimmigrant or immigrant status.
Under H.R. 3534, however, the proposed guest worker program would not have
been implemented until the Secretary of Homeland Security, in consultation with the
Attorney General and the Secretary of State, made certain certifications to Congress.
These included that all noncitizens legally in the United States and all aliens
authorized to enter the country had been issued biometric, machine-readable travel
or entry documents, and that the number of aliens who overstay nonimmigrant visas,
but were not removed from the United States, was less than 5,000.
S. 1387
The “Border Security and Immigration Reform Act of 2003” (S. 1387),
introduced by Senator Cornyn, would have authorized new temporary worker
programs under the INA for seasonal and nonseasonal workers. S. 1387 would have
established a new “W” nonimmigrant visa category for these workers, which would
not have been subject to numerical limits. The W-1 visa would have covered
seasonal workers, and the W-2 visa would have covered nonseasonal workers. Under
the proposal, the Secretary of Homeland Security and the Secretary of State would
have jointly established and administered guest worker programs with foreign
countries that enter into agreements with the United States. The bill would have
directed 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
had to file an application with DOL. As part of the application, the employer would
have had to request an attestation from DOL that there were not sufficient U.S.
workers who were qualified and available to perform the work, and that the hiring of
alien workers would not adversely affect the wages and working conditions of
similarly employed U.S. workers. The employer also would have needed to provide
various assurances in the application, including that the employer would offer the job
to any equally qualified, available U.S. worker who applied; would advertise the job
opening in a local publication; and would pay workers at least the higher of the
federal or applicable state minimum wage. Unless an employer’s application was
incomplete or obviously inaccurate, DOL would have certified within 14 days of the
filing date that the application had been filed. Beginning 12 months after enactment,
employers would have been subject to increased penalties for knowingly employing
unauthorized aliens.
The authorized period of stay for a W-1 seasonal worker could not have
exceeded 270 days per year. Such a worker could have reapplied for admission to
the United States each year. The initial authorized period of stay for a W-2
nonseasonal worker could not have exceeded one year, but could have been extended
in increments of up to one year each; a W-2 worker’s total period of stay could not
have exceeded three consecutive years. Unauthorized workers in the United States
would have had 12 months from enactment to apply for the program.

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Among the other provisions, the bill would have created investment accounts
for the guest workers, into which the Social Security taxes paid by them and by their
employers on their behalf would have been deposited. The investment accounts
would have been the sole property of the guest workers. In most cases, however,
distributions of account funds could have been made only after the workers
permanently left the guest worker program and returned to their home countries.
Under S. 1387, guest workers could have applied for U.S. legal permanent
residency only once they returned to their home countries. Their applications would
have been evaluated based on a point system to be established by the Secretary of
Homeland Security. The bill did not propose a legalization mechanism for guest
workers outside of existing channels, and according to Senator Cornyn’s office, guest
workers would have had to meet all the relevant requirements under current law.32
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 have established two new temporary worker visas
under the INA — the H-4A and H-4B visas. It would have placed no limit on the
number of H-4A or H-4B visas that could have been issued.
The H-4A visa would have covered aliens coming to the United States to
perform temporary full-time employment. An employer interested in importing H-
4A workers would have had to file a petition with DHS. DHS could only have
approved the petition once it determined that the employer had 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 applied through the registry. The employer also would
have had to attest in the petition that he or she would use the employment eligibility
confirmation system established by the bill to verify the alien workers’ identity and
employment authorization; would provide the alien workers with the same benefits,
wages, and working conditions as other similarly employed workers; and did not and
would not displace U.S. workers during a specified 180-day period. Aliens granted
H-4A status would have been issued machine-readable, tamper-resistant visas and
other documents containing biometric identifiers.
An H-4A worker’s initial authorized period of stay would have been three years,
and could have been extended for an additional three years. S. 1461/H.R. 2899 also
would have enabled H-4A nonimmigrants to adjust to LPR status. Petitions for
employment-based immigrant visas could have been 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 have been made available to
H-4A workers adjusting status without numerical limitation.
32 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 have covered aliens unlawfully
present and employed in the United States since before August 1, 2003. An H-4B
alien’s authorized period of stay would have been three years. The alien could have
applied to change to H-4A status or another nonimmigrant or immigrant category, but
such a change of status could not have taken place until the end of the three years.
H-4B employers would have been 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 have authorized a new “W” nonimmigrant visa category under the INA for
unauthorized aliens. The category would have covered 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 have been
eligible for W status, the alien would first have had to register with DHS.
Employment would not have been a strict requirement for W status, but the alien
would have had to demonstrate an adequate means of financial support. The new
category would have sunset six years after the first alien was granted W status.
The initial period of authorized admission of a W nonimmigrant would have
been one year and could have been renewed up to five times in one-year increments.
H.R. 3651 would not have established a special mechanism for W nonimmigrants to
adjust to LPR status. It, however, would not have precluded them from doing so if
they satisfied the applicable requirements under current law.
Legislation in the 109th Congress
Bills have been introduced in the 109th Congress to reform the H-2A and H-2B
programs, to reform the “H” visa category, and to establish new temporary worker
visas. An amendment based on one of the H-2B bills (S. 352/H.R. 793) was enacted
as part of the FY2005 Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief (P.L. 109-13). The 109th Congress has
held a number of hearings on immigration issues relevant to a guest worker program.
The House Judiciary Committee’s Subcommittee on Immigration, Border Security,
and Claims has held hearings on employment eligibility verification and work site
enforcement. The Senate Judiciary Committee’s Subcommittee on Immigration,
Border Security, and Citizenship has held hearings on immigration reform issues,
including the establishment of a new guest worker program. The full Senate
Judiciary Committee has held two hearings on comprehensive immigration reform,
at which two major reform proposals (S. 1033/H.R. 2330 and S. 1438) were
discussed. During consideration of the “Border Protection, Antiterrorism, and Illegal
Immigration Control Act of 2005” (H.R. 4437) by the House Judiciary Committee
and on the House floor, efforts were made to add guest worker programs and

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language expressing support for a guest worker program, but they were unsuccessful.
H.R. 4437, as passed by the House, does not contain any guest worker provisions.
S. 352/H.R. 793
The “Save Our Small and Seasonal Businesses Act” (S. 352/H.R. 793),33
introduced respectively by Senator Mikulski and Representative Gilchrest for
themselves and bipartisan groups of cosponsors, proposed to revise the H-2B
program. During Senate consideration of the FY2005 Emergency Supplemental
Appropriations bill (H.R. 1268) in April 2005, Senator Mikulski offered a floor
amendment based on S. 352/H.R. 793. On April 19, the Senate adopted the Mikulski
Amendment, as modified, by a vote of 94 to 6, and the amendment was included in
the enacted measure (P.L. 109-13) as Division B, Title IV.
The H-2B title of P.L. 109-13 contains a provision that keeps aliens who have
been counted toward the H-2B cap in any of the past three years from being counted
again. This provision expires at the end of FY2006. The title also caps at 33,000 the
number of H-2B slots available during the first six months of a fiscal year. In
addition, it requires DHS to submit specified information to Congress on the H-2B
program on a regular basis, imposes a new fraud-prevention and detection fee on H-
2B employers, and authorizes DHS to impose additional penalties on H-2B
employers in certain circumstances.
S. 359/H.R. 884
The “Agricultural Job Opportunities, Benefits, and Security Act of 2005” (S.
359/H.R. 884) proposes to overhaul the H-2A agricultural worker program. The bills
were introduced, respectively, by Senator Craig and Representative Cannon for
themselves and bipartisan groups of cosponsors. S. 359/H.R. 884 is very similar to
the AgJOBs bills before the 108th Congress (S. 1645/H.R. 3142, S. 2823). Like these
bills, S. 359/H.R. 884 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 and 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,
33 Although S. 352 and H.R. 793 are not identical, they are treated as companion bills here
because they are nearly identical and none of their differences are substantive. The full
short title of S. 352 is “Save Our Small and Seasonal Businesses Act of 2005.”

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CRS-19
DOL would certify within seven days of the filing date that the employer has filed the
required application.
S. 359/H.R. 884 would 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. 359/H.R. 884, 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. 359/H.R. 884 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 December 31, 2004,
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 during the six years following the date of enactment, and meet other
requirements. Existing numerical limits under the INA would not apply to
adjustments of status under the bills.34 Like S. 2823 in the 108th Congress, S.
359/H.R. 884 contains a provision concerning eligibility of legalization beneficiaries
for certain federal public benefits. The current bills would delay eligibility for such
benefits until five years after an alien acquires temporary resident status. S. 2823 in
the 108th Congress would have delayed eligibility until five years after an alien
acquired LPR status.
H.R. 3857
The “Temporary Agricultural Labor Reform Act of 2005” (H.R. 3857), an H-2A
reform bill introduced by Representative Goodlatte on behalf of himself and a group
of cosponsors, revises a bill that he introduced by the same name in the 108th
Congress. H.R. 3857 would streamline the process of importing H-2A workers.
Prospective H-2A employers would have to file petitions with DHS containing
certain attestations; they would not file applications with DOL. They also would
have to attest that the job is temporary or seasonal; that the employer will provide
workers with required benefits, wages, and working conditions; that the employer has
made efforts to recruit U.S. workers; 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, DHS would have to adjudicate the
petition within seven days of the filing date.
34 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-20
H.R. 3857 would change current H-2A requirements regarding minimum
benefits, wages, and working conditions. Under the bill, H-2A employers would
have to pay workers the higher of the prevailing wage rate or the applicable state
minimum wage; employers would not be subject to the adverse effect wage rate
(discussed above). With respect to housing, employers could provide allowances, in
lieu of housing, to their workers if the governor of the relevant state certifies that
adequate housing is available.
Under H.R. 3857, an H-2A worker’s initial period of admission 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 20 months. H.R. 3857 would not establish a
mechanism for agricultural workers to obtain LPR status.
S. 278
The “Summer Operations and Seasonal Equity Act of 2005” (S. 278),
introduced by Senator Collins, would make changes to the numerical limits under the
H-2B program. It would require that at least 12,000 of the total number of H-2B
slots available annually (currently, 66,000) be made available in each quarter of each
fiscal year. It would exempt an alien who has been counted toward the annual H-2B
numerical limit within the past three years from being counted again. Both of these
provisions would expire at the end of FY2007. S. 278 also would require DHS to
submit specified information to Congress on the H-2B program on a regular basis.
H.R. 1587
H.R. 1587, introduced by Representative Tancredo for himself and several
cosponsors, would raise the H-2B cap and place new requirements on the H-2B
program. It would increase to 131,000 the number of aliens who could be issued H-
2B visas or otherwise provided H-2B status annually. Not more than half of these
slots, or 65,500, would be available during the first six months of a fiscal year. H.R.
1587 would add new recruitment-related requirements for prospective H-2B
employers, and would mandate H-2B employer participation in the Basic Pilot
program, an electronic employment eligibility verification system. H.R. 1587 also
would impose new requirements on H-2B nonimmigrants. Among them, these aliens
could no longer be accompanied by family members.
S. 1918
The “Strengthening America’s Workforce Act of 2005” (S. 1918), introduced
by Senator Hagel, contains guest worker provisions similar to those in the bill he
introduced in the 108th Congress. S. 1918 would revise the H-2B visa and eliminate
the current restriction that H-2B workers can perform only temporary service or
labor. Instead, the bill would require workers to perform “short-term service or labor,
lasting not more than nine months.” S. 1918 also would establish 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

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CRS-21
visa categories. The H-2B visa would be capped at 100,000 annually, and the H-2C
visa would be capped at 250,000 annually.
S. 1918 would subject the H-2B and H-2C programs to a broad set of
requirements concerning 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 a national online job registry called America’s
Job Bank and on local job banks. Employers also 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 that the employer would abide by all applicable laws and
regulations relating to the rights of workers to organize. DOL would review the
application 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 made available to nonimmigrants
without regard to existing numerical limits under the INA. An employment-based
petition could be filed by an alien’s employer or collective bargaining agent or by the
alien, after the alien has been employed in H-2B or H-2C status for at least three
years.
H.R. 3333
The “Rewarding Employers that Abide by the Law and Guaranteeing Uniform
Enforcement to Stop Terrorism Act of 2005” (H.R. 3333), introduced by
Representative Tancredo, contains temporary worker provisions similar to those in
the bill he introduced in the 108th Congress. H.R. 3333 would eliminate all the
current “H” visa subcategories, including the H-2A and H-2B visas, and replace them
with a single “H” visa covering aliens coming temporarily to the United States to
perform skilled or unskilled work. There would be no cap on the H visa.
An employer interested in employing H nonimmigrants would have to recruit
U.S. workers by posting the job opportunity on America’s Job Bank and would have
to offer the job to any equally qualified U.S. worker who applies. The employer
would have to file an application with DOL containing certain assurances, including
that he or she has complied with the recruitment requirements.
Prospective H nonimmigrants, who could only be admitted from abroad, would
apply to be included in a database of workers, which DOL would be tasked with

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CRS-22
establishing and maintaining. Once an employer’s application was approved, DOL
would provide the employer with a list of aliens from the database who may be able
to fill the position. Aliens admitted on H visas could not change to another
nonimmigrant status or adjust to LPR status in the United States.
Under H.R. 3333, the new H visa program could not be implemented until the
Secretary of Homeland Security makes certain certifications to Congress, including
that a congressionally mandated automated entry-exit system is fully operational35
and that at least 80% of aliens who overstay their nonimmigrants visas are removed
within one year of overstaying.
S. 1033/H.R. 2330
The “Secure America and Orderly Immigration Act” (S. 1033/H.R. 2330) was
introduced, respectively, by Senator McCain and Representative Kolbe for
themselves and bipartisan groups of cosponsors. It was discussed at the Senate
Judiciary Committee hearings on comprehensive immigration reform held in July
2005 and October 2005. Its guest worker and legalization provisions are similar in
some respects to provisions in bills from the 108th Congress, including S. 1461/H.R.
2899, S. 2010, and S. 2381/H.R. 4262. S. 1033/H.R. 2330 would establish two new
temporary worker visas under the INA — the H-5A and H-5B visas. It would cap the
H-5A visa initially at 400,000, and would establish a process for adjusting the cap in
subsequent fiscal years based on demand for the visas. It would place no cap on the
H-5B visa.
The H-5A visa would cover aliens coming temporarily to the United States
initially to perform labor or services “other than those occupational classifications”
covered under the H-2A or specified high-skilled visa categories. Prospective H-5A
nonimmigrants would file visa applications on their own behalf. Employers would
not file petitions with DHS for them, as they currently do to employ other
nonimmigrant workers. Under S. 1033/H.R. 2330, the Secretary of State may grant
an H-5A visa to an alien who demonstrates an intent to perform work covered by the
visa. To be eligible for H-5A status, the alien would need to have evidence of
employment, among other requirements. Before hiring a prospective H-5A worker,
an employer would have to post the job opportunity on a DOL electronic job registry
to recruit U.S. workers. H-5A employers also would be required to comply with all
applicable federal, state, and local laws, and to use an employment eligibility
confirmation system, to be established by the Social Security Administration, to
verify the employment eligibility of newly hired H-5A workers.
An H-5A worker’s initial authorized period of stay would be three years, and
could be extended for an additional three years. Under S. 1033/H.R. 2330, H-5A
nonimmigrants in the United States could adjust to LPR status. Petitions for
employment-based immigrant visas could be filed by an H-5A worker’s employer or,
if the H-5A worker had maintained H-5A status for a total of four years, by the
worker.
35 For information on the entry-exit system issue, see CRS Report RL32234, U.S. Visitor and
Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa M. Seghetti and
Stephen R. Viña.

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CRS-23
The H-5B visa established by the bill would cover aliens present and employed
in the United States since before May 12, 2005. Aliens lawfully present in the United
States as nonimmigrants on that date would not be eligible for H-5B status. An H-5B
alien’s authorized period of stay would be six years. At the end of that six-year
period, the alien could apply to adjust to LPR status, subject to various requirements.
Such adjustments of status would not be subject to numerical limitations.
S. 1438
The “Comprehensive Enforcement and Immigration Reform Act of 2005” (S.
1438) was introduced by Senator Cornyn for himself and Senator Kyl. Like S.
1033/H.R. 2330, it was discussed at the Senate Judiciary Committee hearings on
comprehensive immigration reform held in July 2005 and October 2005. It would
establish a new “W” temporary worker visa under the INA. S. 1438 would not place
a cap on the W visa, but would authorize DOL to do so in the future based on the
recommendations of a task force the bill would establish. In addition, S. 1438 would
amend the INA to authorize DHS to grant a new status — Deferred Mandatory
Departure (DMD) status — to certain unauthorized aliens in the United States. It
would place no limit on the number of aliens who could receive that status.
The W visa would cover aliens coming temporarily to the United States to
perform temporary labor or service other than that covered under the H-2A or
specified high-skilled visa categories. S. 1438 would repeal the H-2B visa category.
Prospective W nonimmigrants would file applications on their own behalf.
Employers would not file petitions with DHS on behalf of W workers, as they
currently do to employ other nonimmigrant workers. Under S. 1438, the Secretary
of State may grant a W visa to an alien who demonstrates an intent to perform
eligible work. To be eligible for W status, the alien would need to have evidence of
employment, among other requirements. An employer interested in hiring a W
nonimmigrant would have to apply for authorization to do so through an Alien
Employment Management System to be established by DHS. Before an employer
could be granted such authorization, he or she would have to post the position on a
DOL electronic job registry and offer the position to any equally qualified U.S.
worker who applied. S. 1438 would make it mandatory for all employers, including
W employers, to verify the employment eligibility of new hires through an electronic
system. Current electronic employment eligibility verification is conducted through
the largely voluntary basic pilot program.
A W nonimmigrant’s authorized period of stay would be two years, and could
not be extended. After residing in his or her home country for one year, however, an
alien could be readmitted to the United States in W status. An alien’s total period of
admission as a W nonimmigrant could not exceed six years. These stay limitations
would not apply to aliens who spend less than six months a year in W status, or who
commute to the United States to work in W status but reside outside the country. S.
1438 would make W nonimmigrants ineligible to change to another nonimmigrant
status and would not provide them with any special mechanism to obtain LPR status.
Furthermore, a W nonimmigrant who did not depart the United States when required
to do so would be ineligible for any immigration benefit or relief, except for specified
forms of humanitarian relief.

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CRS-24
Aliens present in the United States since July 20, 2004, and employed since
before July 20, 2005, could apply to DHS for Deferred Mandatory Departure (DMD)
status. Aliens lawfully present in the United States as nonimmigrants would not be
eligible. DHS could grant an alien DMD status for a period of up to five years.
Employers interested in employing aliens granted DMD status would have to apply
for authorization through the Alien Employment Management System mentioned
above. Aliens in DMD status could not apply to change to a nonimmigrant status or,
unless otherwise eligible under INA §245(i), to adjust to LPR status.36 Aliens who
comply with the terms of DMD status and depart prior to its expiration date would
not be subject to the INA provision that bars previously unlawfully present aliens
from being admitted to the United States for 3 or 10 years, depending on the length
of their unlawful stay.37 If otherwise eligible, these aliens could immediately seek
admission as nonimmigrants or immigrants. However, they would not receive any
special consideration for admission. Aliens granted DMD status who failed to depart
prior to the expiration of that status would be ineligible for any immigration benefit
or relief, except for specified forms of humanitarian relief, for 10 years.
H.R. 4065
The “Temporary Worker Registration and Visa Act of 2005” (H.R. 4065),
introduced by Representative Osborne, would establish a process for registering
aliens who have been continuously unlawfully present and employed in the United
States since January 1, 2005. Eligible aliens would apply for this registration, which
would be valid for six months. Registered aliens would be given work authorization
and would be eligible for a new “W” temporary worker visa established by the bill.
To obtain a W visa, a registered alien would have to apply at a consular office in his
or her home country during a six-month registration period. H.R. 4065 would place
no numerical limit on the W visa.
The initial period of authorized admission for a W nonimmigrant would be three
years and could be extended in three year increments without limit. H.R. 4065 would
require that W nonimmigrants be continuously employed but would place no
restriction on the type of work they could perform.
W nonimmigrants would not be prohibited from changing to another
nonimmigrant classification or adjusting to LPR status. H.R. 4065, however, would
make no special provision enabling them to do so.
36 For an explanation of INA §245(i), see CRS Report RL31373, Immigration: Adjustment
to Permanent Resident Status Under Section 245(i), by Andorra Bruno.
37 INA §212(a)(9)(B). This ground of inadmissibility, known as the “3 and 10 year bars,”
applies to aliens who have been unlawfully present in the United States for more than 180
days and who then depart or are removed.

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CRS-25
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.38 The President featured
his proposal in the 2004 and 2005 State of the Union addresses. 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
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.
38 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-26
At the October 2005 Senate Judiciary Committee hearing on comprehensive
immigration reform, Labor Secretary Elaine Chao reiterated the Administration’s
support for the immigration reform ideas that President Bush outlined in January
2004.39 She did not offer a detailed legislative proposal and did not take a position
on any of the pending immigration reform bills. Secretary Chao described the
Administration’s plan as having three components — border security, interior
enforcement, and a temporary worker program — and not allowing “amnesty.” She
maintained that “an improved temporary worker program will enhance border
security and interior enforcement by providing a workable and enforceable process
for hiring foreign workers.”
Both in her written testimony and in responses to Senators’ questions, Secretary
Chao made some general statements about the type of temporary worker program the
Administration favors. She made reference to “streamlining the process so that
willing workers can efficiently be matched with employers ... [when] there are no
willing U.S. workers.” Although she did not describe this streamlined process, she
did state that private for-profit or nonprofit organizations could play a role in
matching employers and workers. She also explained that under the President’s
temporary worker program, prospective employers would be subject to labor
certification, as they currently are under the H-2A and H-2B programs. In describing
how the President’s program would overcome problems in existing guest worker
programs, Secretary Chao referred generally to “a technologically advanced new
system” through which “workers will have visa documentation that clearly
establishes their eligibility to work” and “employers will have access to a verification
system that enables them to quickly check the eligibility and verify the identity of
potential employees.”
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. It is widely reported that guest worker legislation will be introduced in the
109th Congress.
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.
39 Secretary Chao’s written testimony is available at [http://judiciary.senate.gov\hearing
.cfm?id=1634].

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CRS-27
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.”40 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.41
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
40 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.
41 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-28
an essential element of a guest worker proposal,42 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.43 Approximately
2.7 million individuals have adjusted to LPR status under these programs.44
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
42 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.”
43 P.L. 99-603, Nov. 6, 1986. The general legalization program is at INA §245A, and the
SAW program is at INA §210.
44 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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CRS-29
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.45 To
partially address the increased demand for visa numbers, the Immigration Act of
199046 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.
45 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.
46 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.47 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.48
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.49 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
47 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.
48 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.
49 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 ...50
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
workers’ home countries in the guest worker program. Another option is to create
50 INA §218(g)(2).

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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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