Guest Worker Visas and Their Impact on Industry: An Argument Against Their Limitation and For Stricter Controls on Employers

Part 4: Summarizing Potential Solutions

Over the course of this series, the current state of the H-1B and H-2 class visas has been discussed. While the H-1B and H-2B visas have statutorily imposed limitations on the number of visas that may be issued, H-2A visas are only limited by the speed at which applications can be processed.[1] The legally mandated worker protections for nonimmigrants have been discussed, along with their shortcomings. Problems with employer honesty throughout the application process and the inability of the government to adequately follow up have also been explored.

Potential solutions to some of these issues have been put forward as well. These included an increase in the number of visas available to be issued, the expansion of enforcement resources and capabilities by the Department of Labor and the United States Customs and Immigration Service, removal of limitations on worksite inspections by those agencies, an increase in penalties for employers participating in fraud, and training requirements for similarly situated Americans, among others.

Given the range of operators and entities that would need to work in concert to provide meaningful changes to the visa program—from black letter law to enforcement—the last part of this series will identify the agencies, regulations, and statutes that would need addressed and suggest amendments toward reform.

H-1B Legislative Changes

The United States Code is managed by the United States Congress.[2] Amending the United States Code is the first and most important step in creating program reform. These amendments not only create new regulations, but also authorize funds to be appropriated to enforce them.[3] The majority of statutes dealing with nonimmigrant visas can be found in Title 8 of the United States Code, beginning with the admission of nonimmigrants.[4] An H-1B nonimmigrant is defined in the following code section:

(b) subject to section 1182(j)(2) of this title, who is coming temporarily to the United States to perform services (other than services described in subclause (a) during the period in which such subclause applies and other than services described in subclause (ii)(a) or in subparagraph (O) or (P)) in a specialty occupation described in section 1184(i)(1) … and with respect to whom the Secretary of Labor determines and certifies to the Attorney General that an unexpired attestation is on file and in effect under section 1182(m)(2) of this title for the facility (as defined in section 1182(m)(6) of this title) for which the alien will perform the services…[5]

This definition is broad enough to create a substantial pool of potential visa recipients, and can be more narrowly tailored in other sections of the code. Therefore, this definition of a nonimmigrant H-1B visa holder is adequate and likely would not need to be amended. For the purposes of this discussion, the current H-1B definition provides a roadmap to other sections of the code that reference it.

The section of code that concerns the initial Labor Condition Application filed by the employer is referenced within the definition section, and portions of it need to be amended.[6] These amendments should expand the burden of proof placed on the employer to show there is a present need for the skillsets being sought. Currently, the employer only needs to attest to the job classification of the position they are seeking a nonimmigrant to fill.[7] This is evidenced in the following section of the current code below:

(D) The application shall contain a specification of the number of workers sought, the occupational classification in which the workers will be employed, and wage rate and conditions under which they will be employed.[8]

The job classifications are developed by the Bureau of Labor Statistics.[9] The classifications are broken down into 459 broad occupations, 98 minor groups, and 23 major groups. Occupations with similar skills are grouped together.[10] The second piece of this series suggested that the guidelines should force employers to hire Americans with similar skills. In order to create such a provision, an amendment would need to be added to subsequent sections of code. First, the current definition of “displaced” would need certain language struck from it. The Code defines “displaced” as follows:

In the case of an application with respect to one or more H-1B nonimmigrants by an employer, the employer is considered to “displace” a United States worker from a job if the employer lays off the worker from a job that is essentially the equivalent of the job for which the nonimmigrant or nonimmigrants is or are sought.[11]

Currently, similarly skilled Americans that have not performed “essentially the equivalent”[12] job functions are not considered displaced in a layoff action. The “essentially the equivalent” language should be removed and instead should be defined by a Standard Occupational Classification Category.[13]

The “essentially equivalent” language is not included in the section requiring attempted recruitment of American employees, but the “equally or better qualified”[14] language that the section contains is sufficiently narrow to obtain similar results. Language should be added in this section to expand this definition and require similarly skilled Americans be considered for employment. Additionally, the onus should be placed on the employer to bridge any skills gap through training. An amended subparagraph governing recruitment could state:

(II) has offered the job to any United States worker who applies and is equally or better qualified or possesses similar skills as defined by the major category of the position sought in the most current version of the Standard Occupational Classification as assigned by the Bureau of Labor Statistics for the job for which the nonimmigrant or nonimmigrants is or are sought.; and

(III) will provide, at the cost of the employer, any similarly skilled individual or individuals hired based on the Standard Occupational Classifications’ major category classification with any supplemental training necessary to perform the job.[15]

Such a provision would create more difficulty for an employer seeking to abuse the H-1B system. It would also have the additional effect of forcing employers to invest their resources into the American workforce. In order to avoid interrupting the influx of new ideas, positions that typically generate patents may be excluded. Additionally, occupations that generally require advanced degrees should be carved out as an exception as well. This would most likely be easiest by defining the minimum degree required as a Master’s. Such a change to the language could be:

(B) attainment of a bachelor’s Master’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States, unless petitioning employer can show a lack of similarly skilled Americans as defined in §1182(n)(2)(G)(i) at which point a bachelor’s degree or higher in the specific specialty (or its equivalent) are the minimum for entry into the occupation in the United States.[16]

This change would have a twofold effect. First, the pool of individuals that would qualify for an H-1B visa without a bona fide shortage of American workers would significantly shrink. In addition, such a provision would also limit the typical types of positions a company would generally place a new hire with that degree of education, making it harder to falsify responsibilities.

As a result of the smaller pool of potential laborers, added difficulty in showing a shortage, and the more advanced degree requirement, there is less of a need for a hard cap on the number of visas that can be granted each year. The below lines could be omitted and replaced to eliminate the ceiling and place discretion with the Attorney General of the United States:

A) under section 1101(a)(15)(H)(i)(b) of this title, may not exceed–

(i) 65,000 in each fiscal year before fiscal year 1999;

(ii) 115,000 in fiscal year 1999;

(iii) 115,000 in fiscal year 2000;

(iv) 195,000 in fiscal year 2001;

(v) 195,000 in fiscal year 2002;

(vi) 195,000 in fiscal year 2003; and

(vii) 65,000 in each succeeding fiscal year; or

(A) under section 1101(a)(15)(H)(i)(b) of this title may not exceed 66,000.[17] for each fiscal year, the United States Attorney General will have discretion as to the total number of visas available.

Such a change puts the program in line with several other provisions that grant broad discretion to the Attorney General to define terms.[18] Acquiescing control of the size of the H-1B program to the United States Attorney General creates a more flexible program that can more effectively meet the potential needs of American employers.

Finally, H-1B visa holders should not be forced to stay with a single employer during the duration of their authorized employment in the United States. In order to curb some of the pay inequity seen in the H-1B system[19] between immigrants and similarly positioned Americans, H-1B holders must have the freedom to change employers at will. This problem appeared to be close to being solved with an amendment including such language.[20] Unfortunately, the Trump Administration has recently directed the USCIS to begin deportation proceedings as soon as H-1B nonimmigrants are reported as “out of status” and discontinue expedited processing of applications for all classes of nonimmigrant visa requests.[21] What this means is that the margin of error for nonimmigrants seeking to change H-1B employers is slim. The inability to expedite processing of required forms leaves nonimmigrant employees in a state of vulnerability to deportation. For example, if an H-1B holder opts to change employers during the period their visa is valid, the paperwork must be completed and processed for them to remain compliant. If an employer knows they are seeking an alternative employer, they will not seek to extend their visa. Prior to the Trump Administration’s directive, nonimmigrant visa holders were granted a considerable window between being considered out of status and having deportation proceedings started against them.[22] This new policy was put into place in early 2017 by the Department of Homeland Security with the addition of language to the Code of Federal Regulations. That language was as follows:

An alien admitted or otherwise provided status in E–1, E–2, E–3, H–1B, H–1B1, L–1, O–1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60–day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.[23]

With the Trump Administration’s position that deportation proceedings should begin immediately once a visa holder is “out of status,” H-1B holders are afraid that something as simple as paperwork not being processed in a timely manner could affect their status in the system. Previously, H-1B holders could rely on an expedited application being processed in fifteen days or less.[24] With that option no longer available, processing of these requests can take six months or more. This large of a processing window poses a significant chance that an H-1B holder will fall “out of status” prior to having a transfer approved. Once that happens, the H-1B holder faces deportation. Ultimately, this has a chilling effect on nonimmigrant employees seeking to transfer and creates an environment of forced loyalty to their initial employer—regardless of the conditions of employment. This directive[25] by President Trump should be repealed to allow the transfer process to work as intended and help employees, both American and foreign, earn what the market will allow.

H-2A & H-2B Legislative Changes

There are several changes that should be made to the language authorizing the H-2A and H-2B programs. Each of these programs is authorized in the definitions section of the Immigration and Nationality Act, which was codified as 8 U.S.C.A §1101 et seq, by the following language:

(ii)(a) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 3121(g) of Title 26, agriculture as defined in section 203(f) of Title 29, and the pressing of apples for cider on a farm, of a temporary or seasonal nature, or (b) having a residence in a foreign country which he has no intention of abandoning 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, but this clause shall not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession.[26]

Subsequent portions of the Code add additional stipulations to the program. The first change that should be made is the hard cap in place on the number of H-2B visas available for issuance. Currently, the number of H-2B visas issued is 66,000.[27] The language mandating the cap is written in the Code in the same subparagraph as the cap for H-1B visas. This section of the code should also be amended to leave the number of visas available for any fiscal year to the discretion of the Attorney General of the United States. The current language and proposed amendment would be as follows:

(B) under section 1101(a)(15)(H)(ii)(b) of this title may not exceed 66,000 for each fiscal year, the United States Attorney General will have discretion as to the total number of visas available.[28]

At the current level, there are not enough resources to fill the available positions. Assessing the number of openings each year will allow the program more agility in meeting economic needs. This labor source should not just represent a way to displace Americans, though. The requirements that American workers not be displaced should be maintained and strengthened. This is true for both H-2A and H-2B visas. While there are not preexisting education or skillsets that such a provision could be tied to in a similar fashion to the proposed changes to the H-1B regulation, there are provisions that could be strengthened. Currently, the language for the H-2A provision is the following:

(1) A petition to import an alien as an H–2A worker (as defined in subsection (i)(2) of this section) may not be approved by the Attorney General unless the petitioner has applied to the Secretary of Labor for a certification that—

(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and

(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.[29]

At the present time, there is no statutory language that forces the H-2B program’s regulatory bodies to implement any type of worker displacement test for the issuance of H-2B visas. The Department of Labor has adopted one as part of its Code of Federal Regulations guidelines, but it is not mandatory. Including language making certifications that both American workers are unavailable and will not be displaced should be included in the statutory language. As a safeguard to policy decisions being made based on the changing political whim of the executive branch, a section similar to 8 U.S.C.A. 12 §1188[30] should be inserted as §1189 that imposes similar regulations statutorily to H-2B visas. The most important pieces of the statute to recreate would include §1188(a),[31] §1188(b),[32] §1188(c),[33] and §1188(g).[34]

The last of the preceding code sections, §1188(g), would also need to be amended in both cases as it relates to H-2A and H-2B visas. The language relating to appropriations can be found in this portion of the Code. Particularly, the minimum amount that should be appropriated for enforcement of employer compliance. That language reads as follows:

(1) There are authorized to be appropriated for each fiscal year, beginning with fiscal year 1987, $10,000,000 for the purposes–

(A) of recruiting domestic workers for temporary labor and services which might otherwise be performed by nonimmigrants described in section 1101(a)(15)(H)(ii)(a) of this title, and

(B) of monitoring terms and conditions under which such nonimmigrants (and domestic workers employed by the same employers) are employed in the United States.[35]

In order to be effective with enforcement, that $10,000,000 appropriation minimum should at least be tied to the inflationary rate. For effective enforcement resources, though, that number was likely too small even in 1987. While evaluating the required resources to effectively police the nonimmigrant programs is outside the scope of this analysis, it goes without question that a significant increase would be required.

Finally, in conjunction with the appropriations increase for enforcement, the rights of regulators to investigate the working conditions of employers leaning on these programs should be expanded. Presently, a complaint must be initiated for regulators to investigate an employer. Several extraneous reasons have been discussed throughout the course of this series that touch on why the filling of complaints might be avoided by nonimmigrant laborers. These included the threat of violence in the country of their foreign residence that was often related to sums of money loaned at usurious interest rates. Typically, this money was needed to secure the migrant a place in one of the nonimmigrant programs through an unscrupulous recruiter.[36] This leads to dire violations of employment law as well as basic human decency. In order to attack this problem, language should be inserted that requires the employer to submit to inspections at any time, regardless of whether suspicion of wrongdoing is present. Additionally, in order to protect both American workers and nonimmigrant laborers from wage deflation, the E-Verify program should be made mandatory for all employers with employees working under the nonimmigrant visa programs. E-Verify is a government website that is free to use and provides verification of a potential employee’s right to work. Estimates have placed the percentage of undocumented immigrants working, especially in agriculture, at significant levels.[37] This would increase the employer’s minimum duty to investigate an individual’s employment status. Currently, if the documents provided that satisfy a federal I-9 form’s requirements to establish both identity and right to work look legitimate, the employer often faces very limited penalties for employment of illegal labor. Mandating participation in the E-verify program will place the onus of investigation on the employer and make it more difficult for them to break the law.

Ending Comments

These changes may not totally rectify the current abuses of these visa programs. They may not placate the critics that say they open up American jobs to foreign labor and depress wages overall. What they will do is create statutory regulations that will force regulatory agencies to rethink how they approach the enforcement of the legalities associated with these programs. It will make it more difficult for employers to discount the availability of similarly skilled Americans because foreign labor is cheaper. It will make it harder for program participants to commit human rights violations, deflate wages by employing a largely undocumented labor force, or lie on their initial certification application. These recommendations create a starting point. Implementing them, assessing how they affected the situation, and adjusting will put us on the road to a more equitable economy.

  1. Wage and Hour Division, H-2A: Temporary Agricultural Employment of Foreign Workers, United States Department of Labor, (Dec. 4, 2018), https://www.dol.gov/whd/ag/ag_h-2a.htm.

  2. U.S. Const. art. I, § 8.

  3. See, e.g. 8 U.S.C.A. 12 § 1188(g).

  4. 8 U.S.C.A. 12 § 1184.

  5. 8 U.S.C.A. 12 § 1101(a)(15)(H).

  6. 8 U.S.C.A. 12 § 1184(n).

  7. 8 U.S.C.A. 12 § 1182(n)(1)(D).

  8. Id.

  9. Bureau of Labor Statistics, Standard Occupational Classification, United States Department of Labor (Dec. 2, 2018), https://www.bls.gov/soc/.

  10. Id.

  11. 8 U.S.C.A. 12 § 1182(n)(4)(B).

  12. Id.

  13. Bureau of Labor Statistics, Supra 9.

  14. 8 U.S.C.A. 12 § 1182(n)(2)(G)(i)(II).

  15. Id. Italics represent additional language. Strikethrough represents language to be removed.

  16. 8 U.S.C.A. 12 § 1184(i)(1)(B).

  17. 8 U.S.C.A 12 § 1184(g)(1)(A). Text with strikethrough represents removed text. Italicized represents text recommended to be added.

  18. 8 U.S.C.A 12 § 1184(a)(1), for example.

  19. Youyou Zhou, Most H-1B workers are paid less, but it depends on the type of job, Associated Press, (Dec. 4, 2018), https://www.apnews.com/afs:Content:873580003.

  20. 8 U.S.C.A. 12 § 1184(n).

  21. United States Customs and Immigration Service, USCIS Will Temporarily Suspend Premium Processing for Fiscal Year 2019 H-1B Cap Petitions, Department of Homeland Security, (12/4/2017), https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-fiscal-year-2019-h-1b-cap-petitions.

  22. 8 C.F.R. 214.1(l)(2).

  23. Id.

  24. United States Customs and Immigration Service, How Do I Use the Premium Processing Service, Department of Homeland Security, (Dec. 12, 2018), https://www.uscis.gov/forms/how-do-i-use-premium-processing-service.

  25. Exec. Order No. 13788, 82 FR 18837.

  26. 8 U.S.C.A. 12 § 1101(a)(15(H).

  27. 8 U.S.C.A. 12 § 1184(g)(1)(B).

  28. Id. Text with strikethrough represents removed text. Italicized represents text recommended to be added.

  29. 8 U.S.C.A. 12 § 1188(a)(1).

  30. 8 U.S.C.A. 12 § 1188. Governs admissions of H-2A nonimmigrants.

  31. 8 U.S.C.A. 12 § 1188(a) deals with conditions for approval of H-2A petitions.

  32. 8 U.S.C.A. 12 § 1188(b) deals with conditions for denial of labor certification.

  33. 8 U.S.C.A. 12 § 1188(c) deals with special rules for consideration of applications.

  34. 8 U.S.C.A. 12 §1188(g) deals with authorization of appropriations.

  35. 8 U.S.C.A. 12 §1188(g).

  36. Know your Rights: An information pamphlet describing your rights while working in the United States., United States Department of State, (2018), https://travel.state.gov/content/dam/visas/LegalRightsandProtections/Wilberforce/Wilberforce-ENG-DS-100116.pdf.

  37. Tamar Haspel, Illegal immigrants help fuel U.S. farms. Does affordable produce depend on them?, The Washington Post, (Dec. 4, 2018), https://www.washingtonpost.com/lifestyle/food/in-an-immigration-crackdown-who-will-pick-our-produce/2017/03/17/cc1c6df4-0a5d-11e7-93dc-00f9bdd74ed1_story.html?utm_term=.0bfa506085d8.

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