Immigration of Temporary Lower-Skilled
Workers: Current Policy and Related Issues
Andorra Bruno
Specialist in Immigration Policy
March 20, 2012
Congressional Research Service
7-5700
www.crs.gov
R42434
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues
Summary
U.S. employers in various industries argue that they need to hire foreign workers to perform
lower-skilled jobs, while others maintain that many of these positions could be filled by U.S.
workers. Under current law, certain lower-skilled foreign workers, sometimes referred to as guest
workers, may be admitted to the United States to perform temporary service or labor under two
temporary worker visas: the H-2A visa for agricultural workers and the H-2B visa for
nonagricultural workers. Both programs are administered by the Department of Homeland
Security’s U.S. Citizenship and Immigration Services (DHS/USCIS) and the Department of
Labor’s Employment and Training Administration (DOL/ETA).
The H-2A and H-2B programs—and guest worker programs broadly—strive to be both
responsive to legitimate employer needs for labor and to provide adequate protections for U.S.
and foreign temporary workers. There is much debate, however, about how to strike the
appropriate balance between these twin goals. Under the George W. Bush Administration, both
DHS and DOL issued regulations to streamline the H-2A and H-2B programs. The Obama
Administration retained the DHS rules, but rewrote the DOL rules. Arguing that the latter
provided inadequate protections for workers, it issued a new DOL final rule on H-2A employment
in 2010 and a new DOL final rule on H-2B employment in 2012. The Obama Administration also
issued a DOL final rule on H-2B wage rates in 2011.
Bringing workers into the United States under either the H-2A program or H-2B program is a
multi-agency process involving DOL, DHS, and the Department of State. As an initial step in the
process, employers must apply for DOL labor certification to ensure that U.S. workers are not
available for the jobs in question and that the hiring of foreign workers will not adversely affect
U.S. workers. The labor certification process has long been criticized as ineffective, with
agricultural employers complaining that it is burdensome and unresponsive to their labor needs
and labor advocates arguing that it provides too few protections for workers.
The H-2A program and foreign agricultural workers in general are a focus of congressional
attention in the 112th Congress. Among the related legislative measures, some bills would amend
current law on the H-2A visa, while others would establish new temporary agricultural worker
programs as alternatives to the H-2A program. Still other proposals would couple a legalization
program for agricultural workers with either H-2A or other agricultural labor-related reform.
DOL’s 2011 rules on H-2B employment and wages also have been subjects of congressional
interest.
Guest worker proposals may contain provisions on a range of component policy issues. Key
policy considerations include the labor market test to determine whether U.S. workers are
available for the positions, wages, and enforcement. The issue of adjustment of status, which
means the change to legal permanent resident (LPR) status in the United States, may also arise in
connection with guest worker programs.
While the discussion of current guest worker programs in this report focuses on the H-2A and H-
2B visas, it also covers the Summer Work Travel (SWT) program, the largest of several programs
under the J-1 visa for participants in work- and study-based exchange visitor programs. The SWT
program is particularly relevant because participants work largely in unskilled jobs, including H-
2B-like seasonal jobs at resorts and amusement parks.
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Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues
Contents
Does the United States Need to Import Foreign Lower-Skilled Workers? ...................................... 1
Current Guest Worker Visas ............................................................................................................ 2
Overview of H-2A and H-2B Visas........................................................................................... 2
Temporary Labor Certification............................................................................................ 3
H-2A Program ........................................................................................................................... 4
H-2A Visa Issuances............................................................................................................ 5
Recent Regulatory Changes ................................................................................................ 6
H-2B Program ........................................................................................................................... 8
H-2B Visa Issuances and the Statutory Cap ........................................................................ 9
Recent Regulatory Changes .............................................................................................. 10
Other Guest Worker-Related Visas.......................................................................................... 13
J-1 Summer Work Travel Program.................................................................................... 13
Unauthorized Employment ............................................................................................................ 16
Employment Eligibility Verification........................................................................................ 16
Legislative Reform Efforts ............................................................................................................ 17
Temporary Agricultural Workers ............................................................................................. 17
Temporary Nonagricultural Workers ....................................................................................... 18
Policy Considerations .................................................................................................................... 19
Program Administration .......................................................................................................... 19
Labor Market Test ................................................................................................................... 20
Wages ...................................................................................................................................... 21
Seasonal or Temporary Nature of Work .................................................................................. 22
Numerical Limits..................................................................................................................... 23
Treatment of Family Members ................................................................................................ 24
Adjustment of Status of Guest Workers .................................................................................. 24
Enforcement ............................................................................................................................ 25
Conclusion ..................................................................................................................................... 27
Figures
Figure 1. H-2A Visas Issued, FY1992-FY2011 ............................................................................... 5
Figure 2. H-2B Visas Issued, FY1992-FY2011 ............................................................................. 10
Figure 3. Participation in the J-1 Summer Work Travel Program.................................................. 16
Tables
Table 1. DOL H-2A and H-2B Labor Certification Determinations................................................ 4
Table A-1. Top States Granted H-2A Labor Certifications: FY2009 and FY2010 ........................ 28
Table A-2. Top States Granted H-2B Labor Certifications: FY2009............................................. 28
Table B-1. Number of H-2B Workers Certified by the U.S. Department of Labor, FY2010 ........ 29
Table C-1. Number of H-2A and H-2B Visas Issued, FY1992-FY2011........................................ 30
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Table E-1. Current and New Regulations for Determining the Prevailing Wage for H-2B
Workers....................................................................................................................................... 37
Appendixes
Appendix A. DOL H-2A and H-2B Labor Certifications by State ................................................ 28
Appendix B. DOL H-2B Labor Certifications by Occupation ...................................................... 29
Appendix C. H-2A and H-2B Visa Issuances ................................................................................ 30
Appendix D. DHS and DOL Regulations on H-2A and H-2B Nonimmigrants and their
Employment in the United States ............................................................................................... 31
Appendix E. H-2B Wage Requirements ........................................................................................ 35
Contacts
Author Contact Information........................................................................................................... 38
Acknowledgments ......................................................................................................................... 38
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Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues
Does the United States Need to Import Foreign
Lower-Skilled Workers?
U.S. employers in various industries argue that they need to hire foreign workers to perform low-
skilled jobs. A threshold question about importing temporary lower-skilled workers, sometimes
referred to as guest workers, is whether U.S. employers need foreign workers for lower-skilled
positions or whether there is a sufficient number of available U.S. workers who could fill these
jobs. This question gains salience in times of high U.S. unemployment. The issue of whether U.S.
employers need foreign workers is often stated in terms of whether there are domestic labor
shortages in particular industries and occupations. Questions about the existence of labor
shortages are difficult to answer definitively because of various factors.
The issue of labor shortages in seasonal agriculture, in particular, has been a longstanding
concern and is receiving renewed attention. The farm labor shortage issue, however, is
surrounded by many unanswered questions, including: Would more U.S. workers be willing to
become farm workers if wages were raised and the terms of work were changed? If so, would
such wage and other changes make the U.S. agricultural industry uncompetitive in the world
marketplace? Alternatively, would there be an adequate supply of authorized U.S. farm workers if
new technologies were developed and implemented?1
In the past, guest workers have been imported to address U.S. 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 controversial 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.2 Today, the United States imports guest
workers in much smaller numbers to perform temporary agricultural and nonagricultural labor. In
current guest worker programs, issues of need for foreign workers are addressed on an individual
basis through a process of labor certification.
Guest worker programs remain controversial. Some view them as a necessary source of legal
workers and call for their reform and expansion. Others view them, in their current form, as
“inherently abusive” and argue that if they are to be allowed to continue operating, they must be
thoroughly overhauled.3
This report discusses existing visa programs for temporary lower-skilled workers, including
regulatory changes since 2008. It covers legislative efforts to reform current programs and to
create new guest worker visas. It further identifies and explores key policy considerations to help
inform congressional action on guest worker programs.
1 See archived CRS Report RL30395, Farm Labor Shortages and Immigration Policy, by Linda Levine.
2 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., February 1980.
3 See Southern Poverty Law Center, “Close to Slavery: Guestworker Programs in the United States,” 2007.
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Current Guest Worker Visas
The Immigration and Nationality Act (INA) of 1952, as amended,4 enumerates categories of
aliens, known as nonimmigrants, who are admitted to the United States for a temporary period of
time and a specific purpose. Nonimmigrant visa categories are identified by letters and numbers,
based on the sections of the INA that established them.5 Among the major nonimmigrant visa
categories is the “H” category for temporary workers. The H category includes H-2A and H-2B
visas for guest workers, as well as visas for higher-skilled temporary workers. Foreign nationals
can also perform lower-skilled temporary work on certain other nonimmigrant visas.
Overview of H-2A and H-2B Visas
The INA, as originally enacted, authorized an H-2 nonimmigrant visa category for foreign
agricultural and nonagricultural workers who were coming temporarily to the United States to
perform temporary services (other than services of an exceptional nature requiring distinguished
merit and ability) or labor. The 1986 Immigration Reform and Control Act (IRCA)6 amended the
INA to subdivide the H-2 program into the current H-2A agricultural worker program and H-2B
nonagricultural worker program and to detail the admissions process for H-2A workers. The H-
2A and H-2B programs are administered by the Employment and Training Administration (ETA)
of the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) of
the Department of Homeland Security (DHS).
While there are many differences between the H-2A agricultural worker program and the H-2B
nonagricultural worker program, the process of importing workers under either program entails
the same steps. Employers who want to hire workers through either program must first apply to
DOL for labor certification, as discussed in the next section. After receiving labor certification, a
prospective H-2A or H-2B employer can submit an application, known as a petition, to DHS to
bring in foreign workers. If the application is approved, foreign workers who are abroad can then
go to a U.S. embassy or consulate to apply for an H-2A or H-2B nonimmigrant visa from the
Department of State (DOS). If the visa application is approved, the worker is issued a visa that he
or she can use to apply for admission to the United States at a port of entry.7
In both the H-2A and H-2B programs, there is a tension between providing protections to U.S.
and foreign workers on the one hand and making the programs responsive to legitimate employer
needs on the other. While these competing interests are longstanding, the current environment—
with relatively high levels of U.S. unemployment; discussions about expanding the E-Verify
electronic employment eligibility verification system (as discussed below); and concerns about
shortages of legal workers, especially in agriculture—has heightened the tensions.
4 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.
5 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.
6 P.L. 99-603, November 6, 1986.
7 If the worker is already in the United States, there is no visa application step.
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Temporary Labor Certification
DOL’s Employment and Training Administration (ETA) is responsible for administering the labor
certification process under the H-2A and H-2B programs. Under both programs, employers
submit applications in which they request the certification of a particular number of positions.
INA provisions on the admission of H-2A workers state that an H-2A petition cannot be approved
unless the petitioner has applied to DOL for certification that
(1) there are not sufficient workers who are able, willing, qualified … and available at the
time of application for a visa and admission to the United States and at the place where the
alien is to perform such skilled or unskilled labor, and
(2) the employment of such alien will not adversely affect the wages and working conditions
of workers in the United States similarly employed.8
There is no equivalent statutory labor certification requirement for the H-2B program. The INA,
however, does contain some related language. It defines an H-2B alien, in relevant part, as an
alien “who is coming temporarily to the United States to perform other temporary service or labor
if unemployed persons capable of performing such service or labor cannot be found in this
country.”9 The H-2B labor certification requirement instead appears in DHS regulations. These
regulations state: “The petitioner may not file an H-2B petition unless the United States petitioner
has applied for a labor certification with the Secretary of Labor.”10
The H-2A and H-2B labor certification requirements are intended to provide job, wage, and
working conditions protections to U.S. workers. They are implemented in both programs through
a multifaceted labor certification process that requires prospective H-2A and H-2B employers to
conduct recruitment for U.S. workers and offer a minimum level of wages and benefits that varies
by program.
Table 1 provides summary information on H-2A and H-2B labor certification applications. The
position certified number represents the number of positions for which employers can apply to
DHS to fill with foreign workers. Typically, however, employers petition for a smaller number
of workers.
8 INA §218(a)(1)(A), (B).
9 INA §101(a)(15)(H)(ii)(b).
10 8 C.F.R. §214.2 (h)(6)(iii)(a).
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Table 1. DOL H-2A and H-2B Labor Certification Determinations
Number of positions requested and certified
Actions
FY2006 FY2007 FY2008 FY2009 FY2010
Positions requested
64,146
80,413
86,134
91,739
89,177
H-2A
Positions certified
59,110
76,814
82,099
86,014
79,011
Percentage
certified 92.1% 95.5% 95.3% 93.8% 88.6%
Positions requested
247,287
360,147
292,645
218,274
113,031
H-2B
Positions certified
199,734
254,615
250,343
154,489
86,596a
Percentage
certified 80.8% 70.7% 85.5% 70.8% 76.6%
Source: CRS presentation of data from U.S. Department of Labor, Employment and Training Administration,
Office of Foreign Labor Certification.
Note: Positions requested refers to the number of workers that employers request certification for. Positions
certified refers to the number of workers that DOL issues certification for. DOL may certify all the positions
requested on an application or it may certify a smaller number.
a. This number is different than the comparable number in DOL’s FY2010 annual report on foreign labor
certification. The number in the DOL report is not limited to positions certified.
H-2A Program
The H-2A program allows for the temporary admission of foreign workers to the United States to
perform agricultural labor or services of a seasonal or temporary nature, provided that U.S.
workers are not available. In general, for purposes of the H-2A program, work is of a temporary
nature where the employer’s need for the worker will last no longer than one year. Thus, an
approved H-2A visa petition is generally valid for an initial period of up to one year. An employer
can apply to extend an H-2A worker’s stay in increments of up to one year, but an alien’s total
period of stay as an H-2A worker may not exceed three consecutive years. An alien who has spent
three years in the United States in H-2A status may not seek an extension of stay or be readmitted
to the United States as an H-2A worker until he or she has been outside the country for
three months.
As discussed above, an employer who wants 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. Prospective H-2A
employers must attempt to recruit U.S. workers and must cooperate with DOL-funded state
employment service agencies (also known as state workforce agencies) in local, intrastate, and
interstate recruitment efforts. Under the H-2A program’s fifty percent rule, employers are required
to hire any qualified U.S. worker who applies for a position during the first half of the work
contract under which the H-2A workers who are in the job are employed.
Among the other H-2A labor certification requirements, employers must provide a “three-fourths
guarantee”; that is, they must guarantee to offer workers employment for at least three-fourths of
the contract period. As discussed below, H-2A employers must pay their H-2A workers and
similarly employed U.S. workers the highest of several wage rates and must also provide workers
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with housing, transportation, and other benefits, including workers’ compensation insurance. No
health insurance coverage is required.11
As indicated in Table 1 above, 86,014 H-2A positions were certified for FY2009 and 79,011 were
certified for FY2010. Employers in North Carolina received more H-2A certifications than
employers in any other state in both years. Other top states, in terms of number of H-2A positions
certified, were Florida, Georgia, Kentucky, and Louisiana.12
H-2A Visa Issuances
Figure 1. H-2A Visas Issued, FY1992-FY2011
Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
Note: FY2011 data are preliminary. See Appendix C for underlying data.
The H-2A program is not subject to a statutory numerical limit and has grown significantly over
the last 20 years. One way to measure the H-2A program’s growth is to consider changes in the
number of H-2A visas issued annually by DOS.13 As explained above, the visa application and
issuance process occurs after DOL has granted labor certification and DHS has approved the visa
petition. As illustrated in Figure 1, the number of H-2A visas issued increased more than fourfold
between FY1992 and FY2000, when about 30,000 visas were issued. H-2A visa issuances
remained at about 30,000 annually until FY2005 and then started to increase, peaking at more
11 H-2A workers, like nonimmigrants generally, are not eligible for federally funded public assistance, with the
exception of Medicaid emergency services.
12 See Appendix A for data on FY2010 H-2A DOL labor certifications by state.
13 There is no precise measure available of the number of aliens granted H-2A status in any given year. While visa data
provide an approximation, these data are subject to limitations, among them that not all H-2A workers are necessarily
issued visas and not all aliens who are issued visas necessarily use them to enter the United States.
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than 64,000 FY2008.14 The number of H-2A visas issued subsequently declined, totaling some
55,000 in FY2011, according to preliminary DOS data.
Despite its growth since the early 1990s, the H-2A program remains quite small relative to total
hired farm employment.15 This relatively small size has become an issue in the debate about the
program. Critics of the H-2A program cite the low levels of participation as evidence of the
program’s inadequacy to meet the needs of U.S. agricultural employers.16 Others, however,
attribute the program’s low utilization to the availability of unauthorized workers, who are willing
to work for lower wages than legal workers.17
Recent Regulatory Changes
In August 2007, in the aftermath of unsuccessful congressional efforts to enact comprehensive
immigration legislation with guest worker provisions, the George W. Bush Administration
announced that it would streamline existing guest worker programs within current law. In
December 2008, DHS and DOL published final rules to significantly amend their respective H-
2A regulations,18 which went into effect on January 17, 2009. The Obama Administration retained
the 2008 DHS rule on the H-2A visa. The Obama Administration sought to review the 2008 DOL
rule, however, and unsuccessfully attempted to suspend it in 2009.19 DOL subsequently issued a
new final H-2A rule, which became effective on March 15, 2010,20 to replace the 2008 final rule.
DHS H-2A Regulations
The 2008 DHS final rule on the H-2A visa described its purpose as being “to provide agricultural
employers with an orderly and timely flow of legal workers, thereby decreasing their reliance on
14 See Appendix C for annual H-2A visa issuance data.
15 In 2011, the average annual number of hired farm workers (excluding agricultural service workers, who work on a
contract or “fee for service” basis) in the United States (excluding Alaska) was 748,800. U.S. Department of
Agriculture, National Agricultural Statistics Service, Farm Labor, November 17, 2011,
http://usda01.library.cornell.edu/usda/current/FarmLabo/FarmLabo-11-17-2011.pdf.
16 See, for example, testimony of Tom Nassif, at U.S. Congress, Senate Committee on the Judiciary, Subcommittee on
Immigration, Citizenship, Refugees, and Border Security, America’s Agricultural Labor Crisis: Enacting a Practical
Solution, hearing, 112th Cong., 1st sess., October 4, 2011 (hereinafter cited as Senate hearing on America’s Agricultural
Labor Crisis, October 4, 2011).
17 See, for example, testimony of Eric A. Ruark, Federation for American Immigration Reform, at Senate hearing on
America’s Agricultural Labor Crisis, October 4, 2011.
18 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and
Enforcement,” 73 Federal Register 77110-77262, December 18, 2008 (hereinafter cited as 2008 DOL H-2A rule); U.S.
Department of Homeland Security, “Changes to Requirements Affecting H-2A Nonimmigrants,” 73 Federal Register
76891-76914, December 18, 2008 (hereafter cited as 2008 DHS H-2A rule).
19 See U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Employment of H-2A Aliens in the United States,” 74 Federal Register 25972-26015, May 29, 2009, and U.S.
Department of Labor, Employment and Training Administration, “U.S. Department of Labor Proposes to Suspend H-
2A Rule,” news release, March 13, 2009. On June 29, 2009, the scheduled effective date of the rule suspension, the
U.S. District Court for the Middle District of North Carolina issued a preliminary injunction against DOL’s suspension
of its December 2008 final H-2A Rule, http://www.foreignlaborcert.doleta.gov.
20 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Agricultural Employment of H-2A Aliens in the United States,” 75 Federal Register 6884-6995, February 12, 2010
(hereinafter cited as 2010 DOL H-2A rule).
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unauthorized workers, while protecting the rights of laborers.”21 The rule made various changes
to prior regulations to facilitate continued H-2A employment. Among these changes, it modified
previous limitations on an H-2A worker’s period of stay in the United States. It also extended the
period of time that an H-2A worker could remain in the United States after the H-2A petition
expired in order to prepare to depart or to seek an extension of stay. In addition, the DHS rule
limited participation in the H-2A program to designated countries.22
DOL H-2A Regulations
The 2010 DOL final rule on H-A employment issued under the Obama Administration included
as its centerpiece regulations by the Employment and Training Administration concerning H-2A
labor certification.23 It also included regulations by the Wage and Hour Division (WHD)
concerning enforcement of contractual obligations under the H-2A program.
The 2010 rule reversed changes made by the 2008 DOL rule to the H-2A labor certification
process. Prior to the 2008 rule, the labor certification process was a fully supervised certification-
based process, in which federal or state officials reviewed an employer’s actual efforts or
documentation to enure compliance with program requirements. The 2008 rule replaced this
supervised process with an attestation-based process, in which prospective H-2A employers had
to attest in their applications, under threat of penalties, that they complied with H-2A program
requirements.
In the supplementary information accompanying the proposed rule to replace the 2008 rule, DOL
explained the need for new rulemaking, in part, as follows:
The Department, upon due consideration, believes that the policy underpinnings of the 2008
Final Rule, e.g. streamlining the H–2A regulatory process to defer many determinations of
program compliance until after an Application has been fully adjudicated, do not provide an
adequate level of protection for either U.S. or foreign workers.24
The ETA regulations in the 2010 DOL final rule reestablished the type of H-2A labor certification
process that had been in effect prior to the 2008 rule. At the same time, these regulations retained
some of the changes to the labor certification process included in the 2008 rule. For example, the
2010 regulations retained the earlier rule’s expansion of the definition of agricultural labor or
services for the H-2A program to include logging employment.
Under the 2010 DOL H-2A rule, prospective H-2A employers are required to submit a job order
to the state workforce agency (SWA) serving the area of intended employment before filing a
labor certification application. Once reviewed and cleared by the SWA, the job order becomes the
basis for recruiting U.S. workers to fill the employer’s job openings. The employer can then file
the labor certification application with DOL.
21 2008 DHS H-2A rule, p. 76891. For a more detailed discussion of the DHS H-2A regulations, see Appendix D.
22 The 2012 list of designated countries is included in Appendix D.
23 For a more detailed discussion of the DOL ETA 2010 H-2A regulations, see Appendix D.
24 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Agricultural Employment of H-2A Aliens in the United States,” 74 Federal Register 45908, September 4, 2009
(hereinafter cited as 2009 DOL proposed H-2A rule).
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As part of the labor certification process, H-2A employers have to offer and pay wages that meet
specified requirements. The 2010 DOL rule amended existing regulations to require H-2A
employers to pay their workers the highest of four wage rates: the federal or applicable state
minimum wage, the prevailing wage rate, the adverse effect wage rate (AEWR), or the agreed-
upon collective bargaining wage.25 In addition, the ETA regulations in the 2010 DOL rule
included a system of post-certification audits of H-2A employer applications, a revised version of
the system in the 2008 rule, and expanded DOL’s authority to bar employers from participating in
the program (known as debarment authority).
Wage and Hour Division regulations in the 2010 DOL H-2A final rule addressed enforcement of
contractual obligations under the H-2A program. These regulations revised provisions in the 2008
final rule. Among the changes, the 2010 rule provided WHD with independent authority to debar
employers for “substantial violations” and increased civil money penalties for specified
violations.
H-2B Program
The H-2B program provides for the temporary admission of foreign workers to the United States
to perform temporary nonagricultural service or labor, if unemployed U.S. workers cannot be
found. Foreign medical graduates coming to perform medical services are explicitly excluded
from the program. In order for work to qualify as temporary under the H-2B visa, the employer’s
need for the duties to be performed by the worker must be a one-time occurrence, seasonal need,
peak load need, or intermittent need.26 The employer’s need for workers under the H-2B program
must generally be for a period of one year or less, but, as explained in the discussion of recent
regulatory changes below, it could be longer in the case of a one-time occurrence. An alien’s total
period of stay as an H-2B worker may not exceed three consecutive years.27 An H-2B alien who
has spent three years in the United States may not seek an extension of stay or be readmitted to
the United States as an H-2B worker until he or she has been outside the country for three
months.
Like prospective H-2A employers, prospective H-2B employers must first apply to DOL for
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 the highest of the
prevailing wage rate or the federal, state, or local minimum wage. Unlike H-2A employers, they
are not subject to the AEWR. Traditionally, H-2B employers have been subject to many fewer
worker benefit requirements than H-2A employers, but DOL regulations published in February
2012 added new requirements to the H-2B labor certification process.
H-2B workers are largely low skilled, but the H-2B program is not limited to workers of a
particular skill level and over the years the H-2B visa has been used to import a variety of
workers. According to DOL labor certification data, the top H-2B occupation in recent years, in
25 For definitions and further discussion of the H-2A wage rates, see Appendix D.
26 For definitions of these types of need, see 8 C.F.R. §214.2(h)(6)(ii)(B).
27 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.
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terms of the number of workers certified, has been landscape laborer. Other top occupations
include forest worker, housekeeping cleaner, and amusement park worker. 28
As shown in Table 1 above, 154,489 H-2B positions were certified for FY2009. Employers in
Texas received more than 21,000 of these certifications. Other top states in FY2009, in terms of
number of H-2B positions certified, were Florida, Colorado, and Virginia.29
H-2B Visa Issuances 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 66,000.30 This cap does not apply to petitions for current H-2B
workers to extend their stay, change their terms of employment, or change or add employers.
As shown in Figure 2, the number of H-2B visas issued by DOS31 dipped between FY1992 and
FY1993 and then began to increase fairly steadily until FY2007.32 As discussed below, a
temporary provision exempted certain H-2B workers from the statutory 66,000 cap for three years
beginning in FY2005. In both FY2003 and FY2004, however, H-2B visa issuances exceeded
the cap.33
28 See Appendix B for data on FY2010 H-2B labor certifications by occupation.
29 Comparable data on H-2B positions certified by state are not available for FY2010. See Appendix A for data on
FY2009 DOL H-2B labor certifications by state.
30 INA §214(g)(1)(B). It should be noted that 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.
31 There is no precise measure available of the number of aliens granted H-2B status in any given year. While visa data
provide an approximation, these data are subject to limitations, among them that not all H-2B workers are necessarily
issued visas and not all aliens who are issued visas necessarily use them to enter the United States.
32 See Appendix C for annual H-2B visa issuance data.
33 The cap is implemented by USCIS, which adjudicates H-2B petitions. USCIS approves petitions for more H-2B
workers than are allowed by the cap based on assumptions about percentages of workers that will ultimately obtain H-
2B visas. If more workers obtain H-2B visas than anticipated, the cap can be exceeded.
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Figure 2. H-2B Visas Issued, FY1992-FY2011
Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
Notes: In FY2005-FY2007, certain returning H-2B workers were exempt from the statutory cap on the H-2B
visa; FY2011 data are preliminary. See Appendix C for underlying data.
Recent Regulatory Changes
Mirroring regulatory actions taken on the H-2A program, DHS and DOL under the George W.
Bush Administration published final rules to significantly amend their respective H-2B
regulations in December 2008.34 The final rules went into effect on January 18, 2009. The Obama
Administration initially retained both the 2008 DHS and DOL final rules on the H-2B visa. In
March 2011, however, DOL proposed new regulations to replace DOL’s 2008 H-2B rule.35 A new
final rule was published in February 2012, with an effective date of April 23, 2012.36 Earlier, in
January 2011, DOL published a separate final rule to revise the methodology for calculating
prevailing wage rates under the H-2B program.37 This wage rule is now scheduled to take effect
on October 1, 2012.
34 U.S. Department of Homeland Security, “Changes to Requirements Affecting H-2B Nonimmigrants and Their
Employers,” 73 Federal Register 78104-78130, December 19, 2008 (hereafter cited as 2008 DHS H-2B rule); U.S.
Department of Labor, Employment and Training Administration and Wage and Hour Division, “Labor Certification
Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in
the United States (H-2B Workers), and Other Technical Changes,” 73 Federal Register 78020-78069, December 19,
2008 (hereinafter cited as 2008 DOL H-2B rule).
35 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Non-Agricultural Employment of H-2B Aliens in the United States,” 76 Federal Register 15130-15207, March 18,
2011 (hereinafter cited as 2011 DOL proposed H-2B rule).
36 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Non-Agricultural Employment of H-2B Aliens in the United States,” 77 Federal Register 10038-10182, February 21,
2012 (hereinafter cited as 2012 DOL final H-2B rule).
37 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
(continued...)
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DHS Regulations
DHS’s 2008 rule on the H-2B visa made various changes to prior regulations.38 Among these
changes, it redefined “temporary employment” for H-2B purposes to require the prospective H-
2B employer to establish that his or her need for the worker would end in the “near, definable
future.” In the case of a one-time occurrence (one type of allowable need under the H-2B
program, as discussed above), the employer’s need could last up to three years. Other changes to
DHS’s H-2B regulations mirrored changes to its H-2A regulations. These included modification
of previous limitations on an H-2B worker’s period of stay in the United States and limitation of
participation in the H-2B program to nationals of designated countries. 39
DOL Regulations on H-2B Employment
In February 2012, DOL published a final rule to amend the 2008 H-2B regulations issued under
the George W. Bush Administration.40 The 2012 rule, which is scheduled to take effect in April
2012, included regulations by DOL’s ETA concerning H-2B labor certification, which are the
main focus of discussion here,41 and regulations by DOL’s WHD concerning H-2B program
enforcement.
Under DOL’s 2008 rule, the H-2B labor certification process became an attestation-based process,
in which employers had to attest in their applications, under threat of penalties, that they had
complied with program requirements. The 2012 rule reinstated a certification-based model, in
which employers had to show compliance with recruitment and other requirements in advance of
a determination on the labor certification application.
As in its explanation of the need for new H-2A rulemaking, DOL stated in the supplementary
information accompanying its proposed rule (the precursor to the 2012 final rule) that the existing
system of making determinations about program compliance after an application had been
adjudicated did not provide sufficient protections for U.S. or foreign workers. It further described
problems of noncompliance:
[I]n the first year of the operation of the attestation-based system our experience indicates
that employers are attesting to compliance with program obligations with which they have
not complied, and that employers do not appear to be recruiting, hiring and paying U.S.
workers, and in some cases the H-2B workers themselves, in accordance with established
program requirements.42
(...continued)
agricultural Employment H–2B Program,” 76 Federal Register 3452-3484, January 19, 2011.
38 For a more detailed discussion of the DHS 2008 H-2B regulations, see Appendix D.
39 The 2012 list of designated countries is included in Appendix D.
40 U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Temporary
Non-Agricultural Employment of H-2B Aliens in the United States,” 76 Federal Register 15130-15207, March 18,
2011 (hereafter cited as 2011 DOL proposed H-2B rule).
41 For a more detailed discussion of the DOL ETA 2012 H-2B regulations, see Appendix D.
42 2011 DOL proposed H-2B rule, p. 15132.
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In addition to returning to a certification-based model, the 2012 rule bifurcated the labor
certification application process into distinct registration and application phases and revised
application timetables.
The 2012 final rule made a variety of other changes to the H-2B labor certification process. In an
expansion of current employer obligations, the final rule requires employers to provide workers
engaged in corresponding employment with at least the same protections, wages, and benefits as
those provided to H-2B workers.43 The final rule also places new benefit requirements on
employers, such as requiring them to pay or reimburse workers for transportation and visa costs.
Additionally, the 2012 DOL rule revised ETA regulations on audits and debarment, mechanisms
intended to ensure employer compliance with labor certification requirements. It also added
provisions to allow ETA to revoke an H-2B labor certification after it has been approved in
specified circumstances.
While the ETA regulations discussed above comprised the main body of the 2012 DOL H-2B
final rule, the rule also included regulations by WHD to carry out certain H-2B-related
enforcement functions. These functions were delegated by DHS, effective January 18, 2009, to
the Secretary of Labor, who, in turn, delegated them to WHD. The final 2012 WHD regulations
described the agency’s enforcement responsibilities as follows:
In general, matters concerning the rights of H–2B workers and workers in corresponding
employment under this part and the employer’s obligations are enforced by the WHD .... The
WHD has the responsibility to carry out investigations, inspections, and law enforcement
functions and in appropriate instances to impose penalties, to debar from future
certifications, to recommend revocation of existing certifications, and to seek remedies for
violations44
Under the final rule, WHD, like ETA, has independent authority to debar employers for
violations.
DOL Regulations on H-2B Wages
As mentioned above, H-2B employers are required to pay workers the highest of the prevailing
wage rate or the federal, state, or local minimum wage. In January 2011, DOL issued a final rule
to change the methodology for determining prevailing wage rates for the H-2B program.45 Under
the rule, the prevailing wage rate is the highest of four rates: (1) the wage rate that applies to the
job under a collective bargaining agreement, (2) the wage rate that applies to the job under the
Davis-Bacon Act, (3) the wage rate that applies to the job under the Service Contract Act, or (4)
the average wage paid to workers employed in similar jobs in the area of intended employment,
as determined by DOL’s Occupational Employment Statistics (OES) Survey.46 Many interested
parties believe that this rule change would generally increase hourly wages for H-2B workers.47
43 See Appendix D for further information about corresponding employment.
44 2012 DOL final H-2B rule, p. 10170.
45 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program,” 76 Federal Register 3452-3484, January 19, 2011.
46 See Appendix E for further information about the wage requirements under the January 2011 rule.
47 See, for example, Amber McKinney, “H-2B Wage Rule Should Be Implemented To Protect Workers, Labor, Rights
(continued...)
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There is ongoing litigation concerning the wage rule and its effective date, which has been
changed several times.48 In response to related legislation enacted by the 112th Congress,49 the
Administration most recently postponed the effective date of the rule until October 1, 2012.50
Other Guest Worker-Related Visas
Beyond the “H” nonimmigrant category, there are other nonimmigrant visas that cover temporary
lower-skilled work. Notable among them is the J-1 visa under the “J” nonimmigrant category for
exchange visitors. The J-1 visa is for individuals participating in work- and study-based exchange
visitor programs and encompasses a variety of work-related programs. Among them are programs
for au pairs, camp counselors, and, as discussed below, students engaged in summer work and
travel. The J-1 visa is not numerically limited. DOS oversees the various J-1 programs and
designates sponsor organizations to conduct program activities.
Although many J-1 programs include work, they are not categorized as temporary work programs
under the INA and are not subject to standard temporary work program requirements or standard
nonimmigrant visa petitioning procedures. For example, the application process for the J-1
programs is different than for the H-2A, H-2B, and other temporary worker programs. Among the
differences, the J-1 programs do not require the submission of either a labor certification
application to DOL or a nonimmigrant visa petition to DHS. Instead, program administration is
handled by the designated sponsors, who are responsible for screening and selecting prospective
J-1 participants. An individual who is selected for participation in a J-1 program is issued a form
by a sponsor that he or she then uses to apply for a visa at a U.S. embassy or consulate.
J-1 Summer Work Travel Program
The largest J-1 program and the one most relevant to a discussion of guest workers is the Summer
Work Travel (SWT) program. DOS describes the SWT program as follows:
The Summer Work Travel program provides foreign students with an opportunity to live and
work in the United States during their summer vacation from college or university to
experience and to be exposed to the people and way of life in the United States.51
SWT participants perform a variety of jobs, but, according to DOS, “work in largely unskilled
positions.” 52 Among the positions they hold are H-2B-like seasonal jobs at resorts and
(...continued)
Groups Say,” Daily Labor Report, October 21, 2011.
48 For a chronology of changes to the effective date of the January 2011 H-2B wage rule, see Appendix E.
49 The Consolidated and Further Continuing Appropriations Act, 2012, (P.L. 112-55, Division B, §546, November 18,
2011) prohibits any funds made available by that act or another act for FY2012 to “be used to implement, administer,
or enforce” the H-2B wage rule before January 1, 2012 (which was the original effective date of the rule). The
Consolidated Appropriations Act, 2012 (P.L. 112-74, Division F, §110, December 23, 2011) prohibits any funds made
available under the act to be used to implement the rule.
50 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Delay of Effective Date,” 76 Federal Register 82115-82116, December 30,
2011.
51 U.S. Department of State, “J-1 Visa Exchange Visitor Program, Summer Work Travel Program,”
http://j1visa.state.gov/programs/summer-work-travel.
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amusement parks. By regulation, as discussed below, SWT participants are excluded from
performing certain types of work, including domestic help in private homes.
Recent Administrative Changes
In April 2011, DOS issued an interim final rule to amend its regulations on the SWT program.53
The rule became effective in July 2011. In the summary of the rule, DOS explained the need for
modifications as follows:
The Department has examined the potential risks and harms related to the Summer Work
Travel program and believe[s] that the current regulations do not sufficiently protect national
security interests; the Department’s reputation; and the health, safety, and welfare of
Summer Work Travel program participants.54
DOS cited an increase in the number of complaints about the SWT program during the summer of
2010 involving “fraudulent job offers, inappropriate jobs, job cancellations on arrival, insufficient
number of work hours, and housing and transportation problems,” as well as more general
concerns about the increased incidence of criminal activity, such as money laundering and
identity theft, in some unspecified nonimmigrant visa categories.55
The 2011 rule added new requirements under the SWT program and increased the responsibility
of designated sponsors to perform oversight. The program-wide rule built on a pilot program
implemented in 2011 that placed additional requirements on SWT participants from six
countries56 due to concerns about criminal activity. The rule established separate sets of job
placement procedures for participants from Visa Waiver countries57 and non-Visa Waiver
countries based on the idea that the former faced less risk of harm related to SWT program
participation. A main difference was that sponsors had to ensure that participants from non-Visa
Waiver countries had job placements when they entered the United States. Sponsors also had to
vet prospective U.S. host employers and job offers, and they had to ensure that the employers
fulfilled their obligations under the SWT program. These obligations included paying participants
at least the prevailing wage rate and providing them with the number of weekly hours listed on
the job offer. Sponsors also had to screen and vet foreign entities that assist them in conducting
core functions of the program, such as participant screening and selection. In addition, the rule
expanded the monitoring responsibilities of sponsors, requiring them to contact program
participants on a monthly basis.
(...continued)
52 U.S. Department of State, “Exchange Visitor Program—Cap on Current Participant Levels and Moratorium on New
Sponsor Applications for Summer Work Travel Program,” Notice, 76 Federal Register 68808-68809, November 7,
2011.
53 U.S. Department of State, “Exchange Visitor Program—Summer Work Travel,” 76 Federal Register 23177-23185,
April 26, 2011 (hereinafter cited as 2011 DOS SWT rule).
54 2011 DOS SWT rule, p. 23177.
55 Ibid., p. 23177.
56 The countries were Belarus, Bulgaria, Moldova, Romania, Russia, and the Ukraine.
57 The visa waiver program (VWP) allows nationals from certain countries to enter the United States for business or
pleasure as nonimmigrants without first obtaining a visa from a U.S. consulate abroad. For additional information, see
CRS Report RL32221, Visa Waiver Program, by Alison Siskin.
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The 2011 DOS rule expanded provisions in prior regulations regarding prohibited work activities
under the SWT program. Under the prior regulations, participants could not hold positions as
domestic employees in U.S. households or positions that required them to invest money in
inventory for door-to-door sales. The 2011 rule clarified the domestic help restriction by
providing examples of the types of positions that SWT participants cannot hold: they cannot
provide child care or elder care and cannot work as gardeners or chauffeurs. The rule retained the
restriction on sales positions that require the purchase of inventory and enumerated other types of
prohibited work, such as positions in the adult entertainment industry and positions in clinical
care that entail patient contact.
In November 2011, in the face of continuing complaints about the SWT program, DOS
announced additional limitations on the program in a public notice. It announced that it was
restricting the program to the number of participants in 2011 (approximately 103,000) and that it
would not designate any new SWT sponsor organizations. The notice indicated that these
restrictions would remain in effect until DOS completed an ongoing review of the SWT program
and its regulations and “implements the next steps.” 58
Participation in the SWT Program
According to USCIS’s Student and Exchange Visitor Information System (SEVIS), which
maintains information about nonimmigrant students and exchange visitors in the United States,
more than 100,000 foreign nationals have participated in the J-1 SWT program each year since
2005 (see Figure 3). It is not known, however, precisely how many of these participants held H-
2B-like jobs.
58 U.S. Department of State, “Exchange Visitor Program—Cap on Current Participant Levels and Moratorium on New
Sponsor Applications for Summer Work Travel Program,” Notice, 76 Federal Register 68808-68809, November 7,
2011.
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Figure 3. Participation in the J-1 Summer Work Travel Program
Number of participants
Source: CRS presentation of data from Department of Homeland Security’s Student and Exchange Visitor
Information System (SEVIS) database, provided by U.S. Department of State.
Unauthorized Employment
Policy discussions about guest worker programs necessarily involve consideration of
unauthorized workers, who have traditionally performed lower-skilled work in a variety of
industries. It is widely believed that most unauthorized aliens enter and remain in the United
States in order to work. The Pew Hispanic Center (Center), which regularly analyzes data and
issues reports on the unauthorized alien population in the United States, has estimated that there
were 8.0 million unauthorized workers in the U.S. civilian labor force in March 2010. These
unauthorized workers accounted for 5.2% of the civilian labor force.59
Employment Eligibility Verification
To prevent unauthorized immigrants from obtaining employment, policymakers have established
systems for verifying the employment eligibility of workers. Currently, all employers must
examine documents presented by new hires to verify identity and work authorization and must
59 Jeffrey S. Passel and D'Vera Cohn, Unauthorized Immigrant Population: National and State Trends, 2010, Pew
Hispanic Center, February 1, 2011, p. 17 (hereinafter cited as Passel and Cohn, Unauthorized Immigrant Population,
2010). The Pew Hispanic Center estimates that the unauthorized alien share of the civilian labor force was between
5.0% and 5.5% in each year from 2005 to 2010.
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complete and retain employment eligibility verification (I-9) forms. This document review
process has been largely undermined by the ready availability of fraudulent documents.60
Employers may also participate in the E-Verify electronic verification system administered by
USCIS. E-Verify is primarily a voluntary program, although there are some mandatory
participants.61 It is currently authorized until September 30, 2012. There are ongoing legislative
efforts to make E-Verify or a similar system mandatory for all employers.62 Some are concerned
that such a mandatory electronic employment eligibility verification system would result in labor
shortages in industries with large numbers of unauthorized workers, such as agriculture.
Legislative Reform Efforts
Since the 1990s, a variety of legislative proposals have been put forth concerning guest workers.
Some proposals would reform existing programs, while others would establish new guest worker
programs for agricultural and nonagricultural workers. Over the years, some proposals have been
introduced in Congress as stand-alone bills, while others have been part of larger comprehensive
immigration reform measures.
Recently, congressional interest in the area of guest worker programs has been focused mainly on
temporary agricultural workers. This focus stems, in part, from concerns of Members of Congress
that legislative efforts to make E-Verify or another electronic employment eligibility verification
system mandatory, as discussed above, would lead to agricultural worker shortages. DOL’s recent
rules on the H-2B visa have also been subjects of congressional interest in the 112th Congress.
Temporary Agricultural Workers
Over the years, both growers and labor advocates have criticized the H-2A program. Growers
complain that the program is administratively cumbersome, expensive, and ineffective in meeting
their labor needs. Labor advocates argue that the program provides too few protections
for workers.
In the late 1990s, representatives of growers and workers reached agreement on legislation to
address the foreign agricultural worker issue. The legislation became known as the Agricultural
Job Opportunities, Benefits, and Security Act, or AgJOBS. It combined provisions to reform the
H-2A program with a program to legalize the status of farm workers though a two-stage process.
During the 106th Congress, AgJOBs legislation63 became the basis of a bipartisan compromise on
foreign agricultural workers, but that compromise fell apart at the end of the 2000s. More
60 See, for example, Marc R. Rosenblum, E-Verify: Strengths, Weaknesses, and Proposals for Reform, Migration Policy
Institute, February 2011, http://www.migrationpolicy.org/pubs/E-Verify-Insight.pdf. The use of fraudulent documents
to satisfy I-9 requirements is a longstanding issue. See U.S. General Accounting Office, Illegal Aliens: Significant
Obstacles to Reducing Unauthorized Alien Employment Exist, GGD-99-33, April 2, 1999.
61 See CRS Report R40446, Electronic Employment Eligibility Verification, by Andorra Bruno.
62 See CRS Report R42036, Immigration Legislation and Issues in the 112th Congress, coordinated by Andorra Bruno.
63 Two similar AgJOBs bills (S. 1814 and H.R. 4056) were introduced in the 106th Congress. Formal congressional
consideration was limited to a Senate Immigration Subcommittee hearing on S. 1814.
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recently, AgJOBS titles were included in comprehensive immigration reform bills considered in
the 109th and 110th Congresses. None of these bills were enacted.64
Foreign agricultural workers have been a recent focus of attention in Congress, with the
immigration subcommittees of both the House and the Senate Judiciary Committees holding
related hearings in 2011 and 2012. A number of legislative proposals on agricultural guest
workers have likewise been put forward in the 112th Congress. Some bills would amend INA
provisions on the H-2A visa,65 while others would establish new temporary agricultural worker
programs as alternatives to the H-2A program.66 Still other proposals would couple a legalization
program for agricultural workers either with H-2A reform, as in the traditional AgJOBS
formulation, or with other changes to current law on agricultural labor.67
Temporary Nonagricultural Workers
Historically, the H-2B program has not been subject to the same level of employer criticism about
administrative burden and expense as the H-2A program. Instead, in years of high demand for H-
2B workers, employer criticism and related reform efforts have centered on the statutory annual
numerical cap of 66,000. In past Congresses, as discussed above, legislation was enacted to
establish a temporary exemption from the cap for certain returning H-2B workers. Following the
expiration of that temporary provision in 2007, there were unsuccessful legislative efforts to
reinstate some type of returning worker exemption.68
In addition to these legislative efforts targeted at the H-2B cap, comprehensive immigration
reform bills introduced in past Congresses have included provisions related to the H-2B visa and
temporary nonagricultural workers generally. Various bills over the years have proposed to make
changes to the H-2B visa and to establish new guest worker programs for temporary
nonagricultural workers.69 One feature common to many of the latter proposals for new programs
is that they would have enabled employers to hire workers to meet ongoing labor needs on a
temporary basis. They would not have been subject to the limitation under the H-2B program that
the employer demonstrate a seasonal or temporary need (see discussion of H-2B temporary need
requirements, above, and discussion of seasonal or temporary need issues, below).
Other H-2B bills in recent Congresses have proposed to reform the H-2B visa by increasing labor
protections under the program. These proposals have sought to strengthen protections in various
areas, including federal labor law enforcement, recruitment of U.S. workers, and wages. They
have likewise included provisions on labor recruiter accountability.70
64 Different versions of AgJOBS bills, all with legalization and H-2A reform components, have been introduced in
every Congress since the 106th Congress.
65 See, for example, S. 1384 in the 112th Congress.
66 See, for example, H.R. 2847 and H.R. 2895 in the 112th Congress.
67 See, for example, S. 1258 and H.R. 3017 in the 112th Congress.
68 See CRS Report RL34204, Immigration Legislation and Issues in the 110th Congress, coordinated by Andorra
Bruno. In the 112th Congress, H.R. 3686 would establish a new H-2B returning worker exemption from the statutory
cap.
69 See, for example, the discussion of guest worker legislation in archived CRS Report RL32169, Immigration
Legislation and Issues in the 108th Congress, by Andorra Bruno et al.; and archived CRS Report RL33125,
Immigration Legislation and Issues in the 109th Congress, coordinated by Andorra Bruno.
70 See, for example, S. 2910 and H.R. 4321 in the 111th Congress.
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As of this writing, H-2B-related legislation in the 112th Congress is focused mainly on DOL’s
rules on H-2B wages and H-2B employment, which are discussed above. A provision in the
enacted FY2012 Consolidated Appropriations Act prohibits any funds made available under the
act from being used to implement the wage rule.71 Other measures seek to prevent DOL from
implementing or enforcing either the H-2B wage rule or the H-2B employment rule or any
substantially similar rules.72
Policy Considerations
Generally speaking, as discussed above, guest worker programs try to achieve two goals
simultaneously: to be responsive to legitimate employer needs for labor and to provide adequate
protections for U.S. and foreign temporary workers. DOL explicitly addressed the idea of
balancing the needs of employers and workers in its 2011 proposed rule on the H-2B visa (the
precursor to the 2012 final rule), which sought to reverse key elements of the agency’s 2010 final
rule. Supplementary information accompanying the 2011 proposal stated:
Although the Department still seeks to maintain an efficient system, it has in this new rule
struck a balance between reducing processing times and protecting U.S. worker access to
these job opportunities.73
The balancing of broad guest worker program goals is reflected, in practice, in the particular
provisions that proposals include on a range of component policy considerations, such as program
administration, the labor market test, and wages, among others.
The following discussion focuses on the H-2A and H-2B programs and related legislative
proposals. It also references the J-1 SWT program, which provides participating employers with
seasonal labor but, as noted above, is not characterized as a temporary worker program under
immigration law.
Program Administration
As previously mentioned, the H-2A and H-2B programs are administered by DOL and DHS, with
DOL making a determination on the labor certification application and DHS adjudicating the
nonimmigrant visa petition. Under the INA, as explained above, prospective H-2A employers
must apply to DOL for labor certification. In the case of the H-2B visa, the INA does not require
DOL labor certification. Rather, it makes general reference to “consultation with appropriate
agencies of the Government” as part of the process of adjudicating petitions for “H” and other
specified nonimmigrants.74 The requirement for H-2B labor certification is established by
regulation. Under the J-1SWT program, as set forth in DOS regulations, designated sponsors are
responsible for program administration.
71 P.L. 112-74, Division F, §110, December 23, 2011.
72 See, for example, H.R. 3162 and H.J.Res. 104 in the 112th Congress.
73 2011 DOL proposed H-2B rule, p. 15133.
74 INA §214(c)(1).
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Regulatory and legislative proposals have sought to establish new agency roles in administering
guest worker programs. For example, H-2B rules proposed in 2005 by DHS and DOL would have
eliminated DOL’s labor certification role. Under this proposal, which was ultimately withdrawn
in the face of opposition, employers would have applied directly to DHS for H-2B workers and
would have included certain labor attestations with their application.75 In the supplementary
information accompanying its 2005 proposal, DHS explained the rationale for the change, as
follows:
DHS has determined that the H-2B process should be modified to reduce unnecessary
burdens that hinder petitioning employers’ ability to effectively use this visa category…. The
delays in processing applications for labor certification combined with the relatively short
period of time for which the worker will be available under current rules have discouraged
use of the program. This rule will remove existing regulatory barriers and thus likely lead to
more efficiency in the H-2B program.76
Other proposals would assign administrative responsibility elsewhere. For example, a
comprehensive immigration bill introduced in 2005 would have given the Secretary of State
primary administrative responsibility for a new nonagricultural guest worker program.77 A more
recent legislative proposal, discussed in the next section, would establish a new temporary
agricultural worker visa administered by the Department of Agriculture, in consultation
with DHS.
Labor Market Test
A key question about any guest worker program is if, and how, it tests the labor market to
determine whether U.S. workers are available for the job opportunities in question. 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 by DOL 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. 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.
A main difference between the DOL H-2A and H-2B rules issued by the George W. Bush
Administration in 2008 and the rules issued by the Obama Administration in 2010 and 2012
concerns implementation of the labor market test. As discussed above, the 2008 DOL rules for
both programs changed the traditionally supervised labor certification process into an attestation-
based certification process. In the supplementary information accompanying its 2008 proposed H-
2A rule, DOL cited criticism of the labor certification process as “complicated, time-consuming,
75 U.S. Department of Homeland Security, “Petitions for Aliens To Perform Temporary Nonagricultural Services or
Labor (H–2B),” 70 Federal Register 3984-3993, January 27, 2005 (hereafter cited as 2005 DHS proposed H-2B rule);
U.S. Department of Labor, Employment and Training Administration and Wage and Hour Division, “Post-
Adjudication Audits of H-2B Petitions in All Occupations Other Than Excepted Occupations in the United States,” 70
Federal Register 3993-3997, January 27, 2005. Under this proposal, DOL would have conducted post-certification
audits.
76 2005 DHS proposed H-2B rule, p. 3984.
77 See S. 1033 in the 109th Congress.
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and requiring the considerable expenditure of resources by employers.” It further stated that its
proposals “to re-engineer the H–2A program processing” will “simplify the process by which
employers obtain a labor certification while maintaining, and even enhancing, the Department’s
substantial role in ensuring that U.S. workers have access to agricultural job opportunities.”78
Legislative guest worker proposals in recent Congresses have also incorporated various forms of
labor attestation.
The 2010 DOL final H-2A rule and the 2012 DOL final H-2B rule return to a supervised,
certification-based model of labor certification. In the supplementary information accompanying
the 2010 final H-2A rule, DOL identified its “primary concern with respect to its statutory
mandate” as “restoring necessary protections to U.S. and foreign workers while maintaining a fair
and reliable process for addressing legitimate employer needs.”79 The 2011 DOL proposed H-2B
rule echoed these concerns about worker protections:
[T]here are insufficient worker protections in the current attestation-based model in which
employers merely assert, and do not demonstrate, that they have performed an adequate test
of the U.S. labor market and one which is in accordance with the regulations.80
As detailed above, the 2012 final H-2B rule included other changes to the labor certification
process, including an extension of the U.S. worker recruitment period.
Despite the differences between the George W. Bush and Obama Administrations’ DOL rules, the
underlying requirements for employers to recruit U.S. workers are similar. Under both sets of
rules, employers are required to cooperate with, and accept referrals of workers from, state
workforce agencies and to engage in independent recruitment efforts, such as placing print job
advertisements.
While U.S. worker recruitment is a standard feature of guest worker programs, such a
requirement can take different forms and does not necessarily have to be contained within a larger
DOL labor certification process. For example, one 2011 legislative proposal to establish a new
temporary agricultural worker visa would require employers to recruit U.S. workers by posting
the job opportunity on a DOL electronic job registry; the posting would include the work period,
wages, and other terms of employment.81 DOL would not perform any type of labor certification
function. The job posting would be a prerequisite for applying for enrollment in the new program,
which would be administered by the Department of Agriculture (USDA) in consultation with
DHS. Under the proposal, agricultural employers would submit information that USDA would
use to determine the number of agricultural workers required.
Wages
To prevent adverse effects on similarly employed U.S. workers, the H-2A and H-2B programs
require employers to offer wages at or above a specified level. As described above, under the H-
2A program, employers must pay their workers the highest of the federal or applicable state
minimum wage, the prevailing wage rate, the adverse effect wage rate (AEWR), or the agreed-
78 2009 DOL proposed H-2A rule, p. 8542.
79 2010 DOL H-2A rule, p. 6903.
80 2011 DOL proposed H-2B rule, p. 15132.
81 See H.R. 2995 in the 112th Congress.
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upon collective bargaining wage. Under the H-2B program, employers must pay their workers the
highest of the prevailing wage rate or the federal, state, or local minimum wage. Under the J-1
SWT program, SWT participants must be paid the highest of the prevailing local wage or the
federal or state minimum wage.
Wage requirements have been a key area of controversy about the H-2A program, which is the
only nonimmigrant program subject to the AEWR. Farm labor advocates argue that the AEWR is
necessary to protect U.S. agricultural workers from a possible depression of wages resulting from
the hiring of foreign workers. Employers have long maintained that the AEWR as traditionally
calculated using USDA’s Farm Labor Survey data results in inflated wage rates. Legislative
proposals to reform the H-2A program or establish new agricultural guest worker programs have
typically included provisions to eliminate the use of the AEWR,82 or, more recently, to redefine
the AEWR.83
The 2011 DOL rule on H-2B wage rates has been highly controversial, with some critics arguing
that the new wage requirements will make the H-2B program prohibitively expensive.84 As
mentioned above, in response to legislation enacted by the 112th Congress to prohibit use of
FY2012 funds to implement the new wage methodology, the Administration has postponed the
effective date of the rule until October 1, 2012. Other pending legislation would prohibit DOL
from implementing or enforcing the 2011 H-2B wage rule or a substantially similar rule.85
Seasonal or Temporary Nature of Work
The H-2A and H-2B programs are, by definition, limited to seasonal or temporary work.86 They
are intended to meet employers’ temporary—and not permanent—needs for labor when U.S.
workers cannot be found.
This “seasonal or temporary” requirement places restrictions on both programs. With respect to
the H-2A program, it means that the program cannot be used for year-round agricultural activities
absent a statutory provision. There are special provisions that apply to certain year-round
activities. For example, the INA definition of the H-2A nonimmigrant visa explicitly permits the
use of the H-2A program for the “pressing of apples for cider on a farm.” Special procedures also
are in place for sheepherders and goatherders to work through the H-2A program.87 Legislation in
82 See, for example, H.R. 2847 in the 112th Congress.
83 See, for example, S. 1384 in the 112th Congress. Under the bill, the AEWR would be defined as 115% of the greater
of the applicable state or federal minimum wage.
84 See Appendix E for further information about the wage requirements.
85 See H.R. 3162 in the 112th Congress.
86 The INA definition of the H-2A nonimmigrant category generally requires the agricultural work to be “of a
temporary or seasonal nature” (§101(a)(15)(H)(ii)(a)), and the INA definition of the H-2B nonimmigrant category
requires the performance of nonagricultural “temporary service or labor” (§101(a)(15)(H)(ii)(b)).
87 These activities are not mentioned in the INA definition of the H-2A nonimmigrant category. However, according to
DOL, these special procedures have a statutory basis. DOL addressed sheepherders in the supplementary information
accompanying its 2010 H-2A final rule: “Sheepherders … owe their inclusion in the program to a statutory provision
dating back to the 1950s. That legislative inclusion was implicitly ratified in [the Immigration Reform and Control Act
of 1986]”; 2010 DOL H-2A rule, p. 6891.
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recent Congresses has sought to include dairy industry activities—most of which are excluded
from the H-2A program as being year-round—in the H-2A program by amending current law.88
Under the H-2B program, as described above, the employer’s need for the duties to be performed
by the worker must be a one-time occurrence, seasonal need, peak load need, or intermittent need.
Some proposals in past Congresses would have broadened the H-2B visa from a category
restricted to temporary need to one covering “short-term” labor.89 This change, which was not
enacted, would have permitted H-2B workers to fill a wider range of job openings. Some past
comprehensive immigration reform proposals also would have established new nonagricultural
guest worker programs that would not have required a showing of temporary need and, in some
cases, would have allowed for the initial admission of workers for two years or more.90
Numerical Limits
A numerical cap provides a means, separate from program requirements, of limiting the number
of foreign workers who can be admitted annually in a visa category. Currently, the H-2A visa and
the J-1 visa are not numerically limited by law. As explained above, however, DOS announced in
November 2011 that it was restricting the J-1 SWT program to the number of participants in 2011
(approximately 103,000). The H-2B program, by contrast, is statutorily capped at 66,000
annually. Like the H-2B program, other capped temporary worker programs in current law have
fixed statutory numerical limits.
More flexible numerical caps, however, have been incorporated into guest worker proposals in
both past Congresses and in the current Congress. For example, a guest worker program that was
outlined by former Senator Phil Gramm during the 107th Congress, but never introduced as
legislation, included a numerical cap—one that would have varied annually based on 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.
A comprehensive immigration bill proposed in the 110th Congress would have established a new
nonimmigrant visa with a numerical cap that would have varied based on demand for the visa.91 A
bill introduced in 2011 would establish a new agricultural worker visa with monthly and annual
numerical limitations. These caps would be based on data and information provided by
agricultural employers and would “tak(e) into consideration the historical employment needs of
agricultural employers and the reports of United States workers applying for agricultural
employment.”92
88 See, for example, H.R. 3232 and S. 1697 in the 112th Congress.
89 See, for example, S. 2010 and S. 2381/H.R. 4262 in the 108th Congress and S. 1918 in the 109th Congress. Also see
discussion of these bills in archived CRS Report RL32044, Immigration: Policy Considerations Related to Guest
Worker Programs, by Andorra Bruno.
90 See, for example, S. 1461/H.R. 2899 and S. 2381/H.R. 4262 in the 108th Congress.
91 See, for example, S. 1639 in the 110th Congress.
92 See, for example, H.R. 2895 in the 112th Congress.
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Treatment of Family Members
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 or following to join the worker in the
United States.93 While making provision for the admission of guest workers’ spouses and minor
children enables families to stay together, this practice has been faulted for decreasing incentives
for guest workers to return home after their authorized period of stay. Some legislative proposals
to establish new guest worker programs would explicitly prohibit family members from
accompanying or following to join principal aliens.94
Adjustment of Status of Guest Workers
The issue of adjustment of status, or the change of immigration status to legal permanent resident
(LPR) status in the United States,95 arises in connection with guest worker programs. Legal
lower-skilled guest workers have very limited opportunities under current law to obtain legal
permanent residence.96 For those who enter legally but remain beyond their authorized period of
stay and lapse into illegal status, the opportunities are even more limited.
Various proposals have been put forth in recent years to enable guest workers to adjust status.
AgJOBS legislation, as discussed above, combines reform of the H-2A guest worker program
with a separate program to legalize the status of agricultural workers. Under AgJOBS, farm
workers who satisfy a set of requirements would first apply for a legal temporary resident status
and then, after meeting additional work and other requirements, could apply to adjust to LPR
status. Some comprehensive immigration reform bills in past Congresses have similarly proposed
to change the status of eligible unauthorized workers to a new nonimmigrant worker status, and
then, subject to additional requirements, to adjust the status of these nonimmigrants to
LPR status.97
Some immigration proposals would establish special mechanisms for guest workers who enter the
United States legally to adjust to LPR status. Proposals that would enable guest workers to seek
LPR status take different forms. For example, some past comprehensive immigration reform bills
93 Like the principal alien, these family members must be admissible under immigration law. The INA sets forth
various grounds of inadmissibility, which include health-related grounds, security-related grounds, public charge (i.e.,
indigence), and lack of proper documentation. For additional information on inadmissibility under immigration law, see
CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by Ruth Ellen
Wasem.
94 See, for example, H.R. 2847 in the 112th Congress.
95 The term adjustment of status is also commonly used to refer to the change of status to a legal temporary resident
status.
96 In terms of employment-based avenues, there is one permanent visa category for workers capable of “performing
unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United
States,” which is capped at 10,000 visas annually (INA §203(b)(3)(A)(iii)). A greater number of visas are available for
workers capable of performing “skilled labor (requiring at least 2 years training or experience)” (INA
§203(b)(3)(A)(i)). In addition, guest workers, like foreign nationals generally, can obtain LPR status through a
legitimate marriage to a U.S. citizen. For additional information on the permanent immigration system, CRS Report
RL32235, U.S. Immigration Policy on Permanent Admissions, by Ruth Ellen Wasem.
97 See, for example, S. 1033/H.R. 2330 in the 109th Congress.
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would have established new guest worker visas, together with special mechanisms for
participants to adjust status.98
A policy proposal to replace existing nonimmigrant visas for nonagricultural, nonseasonal work
(including some H-2B work) with provisional visas offers another model for facilitating
adjustment of status. As described in a 2009 Migration Policy Institute report, provisional visas
would provide for the transition from temporary to permanent status for interested and eligible
workers.99 According to the report, the adoption of provisional visas would be most effective as
part of a larger reform of temporary worker categories but such a system could also be “overlaid
on existing visa categories” with visa holders receiving “the new ‘terms and conditions’ of visa
portability100 and a predictable path to earning permanent residence.”101 The Obama
Administration’s 2011 blueprint for immigration reform proposed the creation of a new
temporary worker program for lower-skilled workers that seemed to embody these principles. The
program would be limited to nonagricultural, nonseasonal workers, who would be given
“important labor protections, portability, and the ability to seek permanent residence.” 102
Enforcement
Another set of considerations relates to enforcement of the terms of a guest worker program. With
respect to the H-2A program, the INA broadly authorizes the Secretary of Labor 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. 103
With respect to the H-2B program, more limited language added to the INA in 2005 authorizes
the Secretary of Homeland Security to impose administrative remedies and to deny certain
petitions filed by an employer if the Secretary finds “a substantial failure to meet any of the
conditions of the [H-2B] petition” or “a willful misrepresentation of a material fact in such
petition.” The Secretary of Homeland Security is further authorized to delegate any of this
enforcement authority to the Secretary of Labor in accordance with an agreement between the
two agencies.104 The Secretary of Homeland Security subsequently made this delegation of
authority and now DOL’s Wage and Hour Division is responsible for the enforcement of the terms
and conditions of H–2B labor certifications.
The 2008 DOL final rules on H-2A employment and H-2B employment put in place a compliance
model that combined a streamlined labor certification process with post-certification enforcement
mechanisms, including audits, civil money penalties, and debarment. In proposing to rewrite
98 See, for example, S. 1033/H.R. 2330 and S. 2611 in the 109th Congress.
99 Demetrios Papademetriou, Doris Meissner, Marc Rosenblum, and Madeleine Sumption, Aligning Temporary
Immigration Visas with US Labor Market Needs: The Case for a New System of Provisional Visas, Migration Policy
Institute, July 2009, http://www.migrationpolicy.org/pubs/Provisional_visas.pdf.
100 Visa portability refers to the ability of a worker to change employers freely without applying for a new visa.
101 Ibid., p. 15.
102 The White House (Obama), Building a 21st Century Immigration System, May 2011, http://www.whitehouse.gov/
sites/default/files/rss_viewer/immigration_blueprint.pdf.
103 INA §218(g)(2).
104 INA §214(c)(14).
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these rules and reinstate a model in which employers demonstrate compliance prior to
certification, the Obama Administration cited concerns about employer noncompliance with
program requirements under the 2008 rules.
The 2010 DOL final H-2A rule and the 2012 DOL final H-2B rule incorporate a compliance-
demonstration system. In supplementary information accompanying the 2011 proposed H-2B rule
(precursor to the 2012 final rule), DOL questioned the appropriateness of a post-certification
enforcement system for a temporary worker program, in which “non-compliance would likely be
identified through enforcement efforts well after the impacted H-2B workers have returned to
their home country or the U.S. workers were already denied employment.”105
Another enforcement-related question is what type of mechanism, if any, ensures that guest
workers do not remain in the United States beyond 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 an immigration enforcement priority.
Among the related regulatory provisions are provisions establishing notification requirements for
H-2A and H-2B employers. DHS regulations on the H-2A visa and the H-2B visa, as modified by
the 2008 final rules, require petitioners to notify DHS within two work days when an H-2A or H-
2B worker fails to report at the start of the employment period, absconds106 from the worksite, or
is terminated prior to completion of the work, or when the work for which H-2A or H-2B workers
were hired is completed early.107 In supplementary information accompanying the H-2B final
rule, DHS explained the purpose of these notification requirements as being
to enable DHS to keep track of H–2B workers while they are in the United States and take
appropriate enforcement action where DHS determines that the H–2B workers have violated
the terms and conditions of their nonimmigrant stay.108
To help ensure that H-2A and H-2B workers departed the United States at the end of their
authorized period of stay, the 2008 DHS final rules on the H-2A visa and the H-2B visa also
established a pilot program, known as the Temporary Worker Visa Exit Program Pilot. Under the
pilot program, which began in December 2009, H-2A and H-2B aliens who were admitted to the
United States at certain designated ports of entry were required to depart the country from one of
these designated ports and provide certain biographic and biometric information. According to
DHS, the program was “designed to positively record the departure [of workers] by utilizing the
biographic and biometric information submitted at the time of entry and departure.”109
The pilot program was discontinued effective September 29, 2011. In the notice announcing the
discontinuation of the program, DHS’s U.S. Customs and Border Protection (CBP) indicated that
during the pilot period, “DHS gathered enough data to assess the pilot’s technology, design and
105 2011 DOL proposed H-2B rule, p. 15133.
106 Absconding is defined as not reporting for work for five consecutive work days without the employer’s consent. 8
C.F.R. §§214.2(h)(5)(vi)(E), (h)(6)(i)(F)(2).
107 8 C.F.R. §§214.2(h)(5)(vi)(B), (h)(6)(i)(F)(1).
108 2008 DHS H-2B rule, p. 78116.
109 Ibid., p. 78118.
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implementation and to identify lessons learned that can be applied to programs that may have
similar requirements.”110
Other ideas have been proposed to help ensure the departure of temporary workers at the end of
their authorized period of stay. One suggestion is to involve the workers’ home countries in guest
worker programs. Another option is to create an incentive for foreign workers to leave the United
States by, for example, withholding from earnings or otherwise setting aside a sum of money for
each worker that would become available only once the worker returned home.111
Conclusion
For many years, there has been broad dissatisfaction with existing guest worker programs and
periodic activity to enact reform. The last time Congress considered significant reform to lower-
skilled temporary worker programs, it did so in the context of comprehensive immigration reform
legislation, in which guest worker programs were an ancillary focus. Today’s discussions about
possible guest worker reform are focused more squarely on the programs themselves and on the
needs of employers and workers. The tension between these often competing needs lies at the
core of the debate about how to proceed with reform. The H-2A and H-2B regulations issued by
the George W. Bush Administration and the Obama Administration reflect very different views
about how to balance employer and worker needs, as do recent legislative proposals. It would
seem, however, that in the current environment some type of compromise on employer and
worker needs—in the policy areas highlighted here and/or in other areas—may be essential to
achieving significant guest worker reform legislatively.
110 Looking toward possible future efforts along these lines, the notice further stated: “The pilot reinforced the need to
gain a full understanding of the covered population’s skill sets in order to craft effective public information materials
and to utilize appropriate technology that will support a high degree of compliance…. The pilot also demonstrated that
DHS must evaluate carefully the considerable time and resources that may be required by field personnel in order to
continually support and explain processes used infrequently by a nonimmigrant population subject to a program
specific to that population.” U.S. Department of Homeland Security, U.S. Customs and Border Protection, “Notice of
Discontinuation of H-2A and H-2B Temporary Worker Visa Exit Program Pilot CBP Dec. 11–16,” 76 Federal Register
60519, September 29, 2011.
111 See, for example, H.R. 2895 in the 112th Congress.
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Appendix A. DOL H-2A and H-2B Labor
Certifications by State
Table A-1. Top States Granted H-2A Labor Certifications: FY2009 and FY2010
Rankings based on number of positions certified
FY2009
FY2010
Positions
Positions
Ranking
State
Certified
State
Certified
1
North Carolina
8,728
North Carolina
9,387
2
Louisiana
6,681
Louisiana
6,967
3 Georgia
6,654 Georgia
5,561
4 Florida
5,820 Kentucky
5,455
5 Kentucky
5,754 Florida
4,510
6 New
York
4,313 Arizona
4,309
7 California
3,503 New
York
3,858
8 Arizona
3,402 Washington
3,014
9 Arkansas
3,037 Arkansas
3,006
Total, All States
86,014
Total, All States
79,011
Source: CRS presentation of data from U.S. Department of Labor, Employment and Training Administration,
Office of Foreign Labor Certification.
Table A-2. Top States Granted H-2B Labor Certifications: FY2009
Rankings based on number of positions certified
Ranking
State
Number of Positions Certified
1 Texas
21,302
2 Florida
11,569
3 Colorado
8,691
4 Virginia
8,612
5 Louisiana
7.716
6 New
York
6,861
7 Maryland
6,795
8 Pennsylvania
5,946
9 North
Carolina
5,156
Total, All States
154,489
Source: CRS presentation of data from U.S. Department of Labor, Employment and Training Administration,
Office of Foreign Labor Certification.
Note: Comparable data for FY2010 are not available.
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Appendix B. DOL H-2B Labor Certifications by
Occupation112
In FY2010, DOL approved 3,726 H-2B labor certification applications. For these applications,
DOL approved requests for a total of 86,596 H-2B positions.
A majority of H-2B requests certified by DOL are for workers in a few occupations. Table B-1
shows that in FY2010, 64.0% of certified requests were for 10 occupations. One occupation,
landscape laborer, accounted for 26.8% of the total number of workers certified.
Table B-1. Number of H-2B Workers Certified by the
U.S. Department of Labor, FY2010
Number of
Percent of Total
Workers
Workers
Cumulative
Ranking Occupation Certified
Certified
Percent
1
Landscape
laborer
23,210 26.8% 26.8%
2
Amusement park worker
5,974
6.9%
33.7%
3 Forest
worker
5,180
6.0%
39.7%
4 Housekeeper
5,032
5.8%
45.5%
5
Industrial commercial groundskeeper
4,918
5.7%
51.2%
6 Housekeeping
cleaner
3,547
4.1%
55.3%
7
Construction worker I
2,640
3.0%
58.3%
8 Waiter/waitress
1,713
2.0%
60.3%
9
Dining room attendant
1,611
1.9%
62.2%
10 Stable
attendant
1,559
1.8%
64.0%
Other
31,212 36.0%
100.0%
Total
86,596
100.0%
Source: Numbers compiled by CRS from H-2B employer applications for FY2010. Data are available at the
U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification,
H-2B Program Data, http://www.flcdatacenter.com/CaseH2B.aspx.
112 This appendix was prepared by Gerald Mayer, CRS Analyst in Labor Policy.
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Appendix C. H-2A and H-2B Visa Issuances
Table C-1. Number of H-2A and H-2B Visas Issued, FY1992-FY2011
Fiscal Year
H-2A Visas Issued
H-2B Visas Issued
1992 6,445
12,552
1993 7,243 9,691
1994 7,721
10,400
1995 8,379
11,737
1996 11,004 12,200
1997 16,011 15,706
1998 22,676 20,192
1999 28,568 30,642
2000 30,201 45,037
2001 31,523 58,215
2002 31,538 62,591
2003 29,882 78,955
2004 31,774 76,169
2005 31,892 89,135
2006 37,149
122,541
2007 50,791
129,547
2008 64,404 94,304
2009 60,112 44,847
2010 55,921 47,403
2011 (prelim.)
55,384
50,817
Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
Note: Data for FY2011 are preliminary.
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Appendix D. DHS and DOL Regulations on H-2A
and H-2B Nonimmigrants and their Employment in
the United States
H-2A Regulations: DHS
The 2008 DHS final rule on the H-2A visa made various changes to prior regulations. It modified
previous limitations on an H-2A worker’s period of stay in the United States. Under prior
regulations, an H-2A worker who had spent three years in the United States had to remain outside
the country for six months before he or she could again be granted H-2A status. The DHS rule
reduced this waiting period to three months.
The DHS H-2A rule extended the period of time from 10 days to 30 days that an H-2A worker
could remain in the United States after the H-2A petition expired in order to prepare to depart or
to seek an extension of stay based on a subsequent job offer. In another change, the DHS rule
allowed an H-2A worker who was awaiting an extension of stay based on a petition filed by a
new employer (and accompanied by an approved labor certification) to begin the new job before
the extension of stay was granted, provided that the new employer was a registered user in good
standing of E-Verify, the electronic employment verification system administered by USCIS.113
The DHS rule also established new requirements under the H-2A program. It instituted a
prohibition on payments by prospective H-2A workers to employers, recruiters, or other
employment service providers where the payments are a condition of obtaining H-2A
employment. In addition, the DHS rule limited participation in the H-2A program to nationals of
countries designated annually by DHS, with the concurrence of DOS.114
H-2A Regulations: DOL
The 2010 DOL rule on the H-2A visa reversed key changes to the H-2A labor certification
process made by the 2008 rule, while retaining other changes made by that earlier rule. The 2010
rule reinstated the type of supervised labor certification process that had been in place prior to the
2008 rule’s establishment of an attestation-based certification process.
Under the 2010 rule, a prospective H-2A employer must submit a job order to the state workforce
agency (SWA) serving the area of intended employment before filing a labor certification
113 For information on E-Verify, see CRS Report R40446, Electronic Employment Eligibility Verification.
114 On January 18, 2012, DHS published a notice, effective that day, identifying 58 countries whose nationals are
eligible to participate in the H-2A and H-2B programs in 2012. The countries are Argentina, Australia, Barbados,
Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia,
Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia,
Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, The Netherlands, New Zealand, Nicaragua, Norway,
Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South
Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.
See U.S. Department of Homeland Security, “Identification of Foreign Countries Whose Nationals Are Eligible to
Participate in the H-2A and H-2B Nonimmigrant Worker Programs,” 77 Federal Register 2558-2559, January 18,
2012. The notice discusses the factors taken into account in designating eligible countries.
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application. The job order has to be submitted between 60 and 75 days before the employer’s date
of need for workers, and it has to include the job qualifications and requirements as well as the
required minimum benefit and wage provisions. Either the SWA or DOL can require the employer
to submit documentation in support of any job qualification specified in the job offer. Once
reviewed and cleared by the SWA, the job order becomes the basis for recruiting U.S. workers to
fill the employer’s job openings. The employer then must file a labor certification application
with DOL at least 45 days before the date of need. The 2010 rule further required DOL to
establish an electronic registry of H-2A jobs and to post the job order on the registry once the
labor certification application was accepted.
As part of the labor certification process, H-2A employers have to offer and provide required
wages and benefits to H-2A workers and workers in corresponding employment. The 2010 rule
redefined corresponding employment for H-2A purposes as the employment of non-H-2A workers
by an employer who has an approved H-2A labor certification in any work included in the job
order or in any agricultural work performed by the H-2A workers.
With respect to wages, the 2010 DOL rule amended existing regulations to require H-2A
employers to pay their workers the highest of four wage rates: the federal or applicable state
minimum wage, the prevailing wage rate,115 the adverse effect wage rate (AEWR),116 or the
agreed-upon collective bargaining wage. The 2010 rule reversed changes made by the 2008 rule
to the methodology for calculating the AEWR. It reinstated the wage requirements in effect prior
to the 2008 rule, with the addition of the collective bargaining wage.117 Explaining the addition of
the collective bargaining wage, the 2010 rule stated:
This amendment requires employers to use a collective bargaining wage if it is the highest
wage, thus avoiding the potential payment of a collective bargaining wage that is less than
the other wages. At the same time, it acknowledges the role of the collectively bargained
wage as a potential legitimate wage.118
The 2010 rule also reinstated the fifty-percent rule in its pre-2008 rule form. The fifty-percent rule
requires an H-2A employer to hire any qualified U.S. worker who applies for a position until 50%
of the period of the work contract under which the H-2A workers are employed has elapsed. The
2008 rule took initial steps to phase out this requirement.
115 The prevailing wage rate is the average wage paid to similarly employed workers in the occupation in the area of
intended employment. Prevailing wage rates are based on DOL-funded surveys conducted by the states. See archived
CRS Report RL34739, Temporary Farm Labor: The H-2A Program and the U.S. Department of Labor’s Proposed
Changes in the Adverse Effect Wage Rate (AEWR), by Gerald Mayer (hereafter cited as archived CRS Report
RL34739).
116 The AEWR is set by DOL for each state or region, based upon data gathered by the Department of Agriculture in its
quarterly Farm Labor Survey. For 2012, the AEWR ranges from $9.30 for Arkansas, Louisiana, and Mississippi to
$12.26 for Hawaii. 2012 AEWRs for all states are available in U.S. Department of Labor, Employment and Training
Administration, “Labor Certification Process for the Temporary Employment of Aliens in Agriculture in the United
States: 2012 Adverse Effect Wage Rates,” 76 Federal Register 79711, December 22, 2011.
117 Under pre-2008 regulations, H-2A employers were required to pay workers the highest of the federal or state
minimum wage, the prevailing wage rate, or the AEWR. The 2008 rule retained this language, but changed the
methodology for calculating the AEWR, which, according to DOL, had the effect of setting the AEWRs at prevailing
wage rates. For a discussion of the wage provisions in the 2008 rule, see 2008 DOL H-2A rule, pp. 77167-77168, and
archived CRS Report RL34739.
118 2010 DOL H-2A rule, p. 6901.
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H-2B Regulations: DHS
DHS’s 2008 rule on the H-2B visa revised prior regulations in various ways. It changed the
definition of temporary employment for H-2B purposes to require the prospective H-2B employer
to establish that his or her need for the worker would end in the “near, definable future.” While
the 2008 rule stated, as did the prior regulation, that the employer’s need will generally be for a
period of one year or less, it also provided that in the case of a one-time occurrence, the
employer’s need could last up to three years. The DOL final rule discussed above further clarified
that except in the case of a one-time occurrence, an H-2B labor certification application based on
an employer’s need lasting more than 10 months would be denied, absent unusual circumstances.
DHS’s 2008 H-2B rule further amended prior regulations to require that an employer have an
approved labor certification before the employer could submit a petition for H-2B workers.
Previously, an employer whose H-2B labor certification application was denied by DOL could
submit an H-2B petition to DHS containing countervailing evidence. In response to this new
requirement for an approved certification, DOL established an appeals process in cases of H-2B
labor certification denials.
Other changes to DHS’s H-2B regulations mirrored changes to its H-2A regulations. The H-2B
rule, like the H-2A rule, reduced from six months to three months the amount of time that a
worker who had spent three years in the United States had to remain outside the country before he
or she could again be granted H-2B status. The DHS H-2B rule instituted a prohibition on
payments by prospective H-2B workers to employers, recruiters, or other employment service
providers where the payments are a condition of obtaining H-2B employment. DHS’s H-2B rule
also limited participation in the H-2B program to nationals of countries to be designated annually
by DHS, with the concurrence of DOS.119
H-2B Regulations: DOL120
The 2012 DOL rule, scheduled to take effect on April 23, 2012, reversed changes made to the H-
2B labor certification process under the 2008 rule and reinstituted a certification-based model. It
also bifurcated the labor certification application process into distinct registration and application
phases and revised application timetables.
Under the 2012 final rule, DOL must assess an employer’s temporary need for H-2B workers in
the registration phase. A prospective H-2B employer is required to submit an H-2B registration
120 days to 150 days before the initial date of need for workers and must receive registration
119 On January 18, 2012, DHS published a notice, effective that day, identifying 58 countries whose nationals are
eligible to participate in the H-2A and H-2B programs in 2012. The countries are Argentina, Australia, Barbados,
Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia,
Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia,
Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, The Netherlands, New Zealand, Nicaragua, Norway,
Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South
Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.
See U.S. Department of Homeland Security, “Identification of Foreign Countries Whose Nationals Are Eligible to
Participate in the H-2A and H-2B Nonimmigrant Worker Programs,” 77 Federal Register 2558-2559, January 18,
2012. The notice discusses the factors taken into account in designating eligible countries.
120 DOL’s 2010 rule on H-2B employment is discussed here. DOL’s 2011 H-2B wage rule is discussed in Appendix E.
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approval before filing a labor certification application. A registration approval could be valid for
up to three years.
The labor market test is administered by DOL in the subsequent application phase to determine
whether U.S. workers are available to fill the job opportunities. Under prior regulations,121 DOL
made simultaneous determinations on temporary need and the labor market test. Under the 2012
rule, the employer must file the labor certification application and the job order 75 to 90 days
before the date of need. The SWA is required to keep the job order open and continue referring
U.S. workers for the job opportunity until 21 days before the date of the employer’s need.122
Under prior regulations, the SWA had to keep the job order open for at least 10 days.
Under the 2012 DOL H-2B rule, the electronic job registry that was created for posting H-2A job
orders was expanded to include H-2B job orders. Under the rule, once DOL accepts the labor
certification application, the job order is posted on the online registry.
The 2012 final rule made a variety of other changes to the H-2B labor certification process. Prior
DOL regulations provided that, except in cases of a one-time occurrence, labor certification
applications with a period of employer need of more than 10 months would generally be denied.
In the final rule, DOL shortened this maximum period to nine months, maintaining that this new
maximum “definitively establishes the temporariness of the position, as there is an entire season
in which there is simply no need for the worker(s).”123 Along similar lines, the 2012 rule limited
the participation of job contractors in the H-2B program to cases in which they can demonstrate
their own temporary need for workers, not that of their employer-clients.124
In addition, the 2012 rule requires employers to provide workers engaged in corresponding
employment with at least the same protections, wages, and benefits as those provided to H-2B
workers. Corresponding employment, as defined under the rule, includes, with some exceptions,
employment of non-H-2B workers performing substantially the same work included in the job
order or substantially the same work performed by H-2B workers. Under prior regulations, this
“equal treatment” requirement was limited to workers hired in connection with an H-2B labor
certification application during the prescribed recruitment period. Furthermore, the final rule
requires employers to pay or reimburse workers for transportation and visa costs, and to offer a
three-fourths guarantee similar to that under the H-2A program, in which H-2B employers must
guarantee payment of wages for at least three-fourths of the contract period.125
121 “Prior regulations,” as used in this section, refers to DOL H-2B regulations in effect before the effective date of the
2012 rule.
122 Under the proposed rule, this U.S. worker recruitment period would have been longer, lasting until the later of three
days before the date of need or the date the last foreign worker departed for the employment.
123 2012 DOL final H-2B rule, p. 10053.
124 This restriction reflects a concern that job contractors often have an ongoing, permanent need for workers rather
than a temporary need, as statutorily required for the H-2B visa.
125 Under the H-2B final rule, the three-fourths guarantee applied in each 12-week period or in each 6-week period,
depending on the length of the employment period.
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Appendix E. H-2B Wage Requirements126
DOL H-2B Wage Rule Chronology
On October 5, 2010, DOL issued proposed regulations to change the methodology for
determining the prevailing wage for H-2B workers.127 DOL issued a final rule on January 19,
2011. The effective date of the final rule was January 1, 2012.128
A court ruling invalidated the January 1, 2012, effective date. Therefore, on June 28, 2011, DOL
issued a proposed rule to change the effective date of the new wage methodology.129 On August 1,
2011, DOL issued a final rule setting September 30, 2011, as the effective date for the new wage
methodology.130
In response to two lawsuits that sought to prevent the implementation of the new wage
methodology, DOL announced on September 28, 2011, that it was postponing the effective date
of the new wage rule for 60 days, until November 30, 2011.131
On November 18, 2011, the President signed H.R. 2112, the Consolidated and Further Continuing
Appropriations Act, 2012 (P.L. 112-55). The bill stated that DOL could not use funds
appropriated by the act to “implement, administer, or enforce” the new wage methodology before
January 1, 2012. The bill did not prevent the new wage methodology from going into effect as
planned on November 30. DOL determined, however, that if the new wage methodology went
into effect, it would not be able to issue wage determinations. Accordingly, the department
delayed the effective date of the new methodology until January 1, 2012.132
On December 23, 2011, the President signed H.R. 2055, the Consolidated Appropriations Act,
2012 (P.L. 112-74). The act prevents DOL from using funds provided by the act “to implement”
the new wage methodology for the remainder of FY2012. In response, DOL announced that it
was postponing the effective date of the new wage methodology until October 1, 2012.133
126 This appendix was prepared by Gerald Mayer, CRS Analyst in Labor Policy.
127 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program,” 75 Federal Register 61578-61588, October 5, 2010.
128 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
agricultural Employment H-2B Program,” 76 Federal Register 3452-3484, January 19, 2011.
129 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Amendment of Effective Date, 76 Federal Register 37686-37689, June 28,
2011.
130 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Amendment of Effective Date,” 76 Federal Register 45667-45673, August 1,
2011.
131 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Postponement of Effective Date,” 76 Federal Register 59896-59897,
September 28, 2011.
132 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Delay of Effective Date,” 76 Federal Register 73508-73509, November 29,
2011.
133 U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program; Delay of Effective Date,” 76 Federal Register 82115-82116, December 30,
(continued...)
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Comparison of Wage Methodology Under Current and New
DOL Regulations
Table E-1 compares the wage methodology under the current and new regulations for
determining the prevailing wage for H-2B workers. The last column of the table identifies some
of the changes that may affect the wages of H-2B workers.
Wage Rates Under Current Methodology
Under current regulations, DOL uses data from its Occupational Employment Statistics (OES)
survey to provide four wage rates based on the level of education, experience, and supervision
that the employer requires for the job. These four skill levels are labeled Level I, II, III, and IV.
The Level I and IV wage levels (hourly and annual) are estimated by DOL’s Bureau of Labor
Statistics (BLS) directly from OES wage data. The Level I wage is the average wage for the
bottom third of the earnings distribution. The Level IV wage is the average of the top two-thirds
of the earnings distribution. The Level II and Level III wages are calculated from the Level I and
IV wages.
To illustrate the four wage levels, assume that the Level I and Level IV hourly wages estimated
from OES wage data are $10.00 and $22.00, respectively. The difference between the Level IV
and Level I wage is $12.00. Dividing this difference by three and adding the result to the Level I
wage yields a Level II wage of $14.00 (i.e., $12.00 ÷ 3 = $4.00. $10.00 + $4.00 = $14.00).
Subtracting the result from the Level IV wage yields a Level III wage of $18.00 (i.e., $22.00 -
$4.00 = $18.00).
(...continued)
2011.
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Table E-1. Current and New Regulations for Determining the Prevailing Wage for H-2B Workers
Current Regulations
New Regulations
(in effect until October 1, 2012)
(effective October 1, 2012)
Differences Between Current and New Regulations
Employers must pay H-2B workers at least the prevailing wage. Employers must pay H-2B workers the highest wage from Under the current wage methodology, the prevailing wage for H-2B
one of several sources.
workers can come from one of several sources. But employers do not
have to pay the highest of these wage rates. Under the new wage
methodology, employers wil be required to pay the highest wage from
one of several sources.
If the job is covered by a col ective bargaining agreement, the
Employers are required to pay the highest of the
Under the current wage methodology, DOL uses wage data from the
prevailing wage is the wage that applies to the job under the
following wages:
OES survey to provide four wage rates for each job and area of intended
agreement. Otherwise, the prevailing wage may be the wage
employment. The wage rates vary depending on the level of education,
from the U.S. Department of Labor’s (DOL) Occupational
the wage that applies to the job under a collective
experience, and supervision that the employer requires for the job.
Employment Statistics (OES) survey. An employer may use a
bargaining agreement;
wage from another acceptable survey. An employer may also
Under the new methodology, the prevailing wage from the OES survey
the wage that applies to the job under either the Davis-
choose to use the wage that would apply to the job under the
will be the average wage for workers in the job in the area of intended
Bacon Act or Service Contract Act; or
Davis-Bacon Act or Service Contract Act.
employment.
the average wage paid to workers employed in similar
If the prevailing wage is based on wage data from the OES
jobs in the area of intended employment as determined
survey, DOL provides four wage rates for each occupation and from DOL’s OES survey.
area of intended employment. The wages vary according to the
level of education, experience, and supervision that the
employer requires for the job.
If an employer chooses to use wage data from another survey Employers cannot provide their own surveys, unless
Under the new rule, employers will be limited in their ability to provide
(including an employer-conducted survey), the survey must be there is no wage available from a collective bargaining
their own wage surveys.
recent, cover the area of intended employment, and include
agreement, the Davis-Bacon Act, the Service Contract
jobs similar to those to be filled by the H-2B worker. The wage Act, or the OES survey.
data must be collected using a valid statistical methodology.
The prevailing wage cannot be lower than the applicable federal Same as current regulations.
No difference.
or state minimum wage.
Sources: Information on the current regulations is from 20 C.F.R. §655.10 and U.S. Department of Labor, Employment and Training Administration, Prevailing Wage
Determination Policy Guidance, Nonagricultural Immigration Programs, November 2009, http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_2009.pdf.
Information on the new wage methodology is from U.S. Department of Labor, Employment and Training Administration, “Wage Methodology for the Temporary Non-
Agricultural Employment H-2B Program,” Federal Register, v. 75, October 5, 2010, pp. 61578-61588. Analysis of the differences between the current and new regulations
was prepared by CRS.
CRS-37
Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues
Author Contact Information
Andorra Bruno
Specialist in Immigration Policy
abruno@crs.loc.gov, 7-7865
Acknowledgments
The author wishes to thank Gerald Mayer, CRS Analyst in Labor Policy, for his contributions to this report
and his assistance with data analysis.
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