This post is part of The Next Agenda, a series that will explore the main policy challenges facing the next Congress and presidential administration on issues from immigration and infrastructure to economics and energy. Check back regularly for future installments.
The next president—Democrat or Republican—will inherit a host of problems facing the country’s immigration system. Presidential nominees Hillary Clinton and Donald Trump have both made immigration a cornerstone of their campaigns, and inaction by Congress along with the Supreme Court’s recent stalemate on President Obama’s executive action on immigration leaves the next White House occupant with a unique opportunity to tackle the issue. But “immigration” as a policy area can include a complex knot of interrelated issues. One such issue is the litany of problems that exist in the current temporary worker visa programs.
What types of temporary work programs are available—and not available—to foreign workers?
Temporary worker visa programs cover a wide range of jobs and employees: day laborers, tech workers, investors, religious workers, artists, and many others can all apply for a specific visa to work in the United States. In all, there are 21 different types of visa categories available for temporary nonimmigrant workers. These visas do not confer any resident status to the worker, and are intended to fill labor needs without increasing the overall immigrant population.
Of the core temporary worker programs, the H visa has attracted the most scrutiny in recent months and years, particularly as immigration has rocketed to the forefront of the national dialogue and become a critical component of the upcoming presidential election. The H visa comprises three main subsets: H-1B Specialty Occupations, H-2A Agricultural Workers, and H-2B Temporary Non-Agricultural Workers.
H-1B visas are for skilled foreign workers filling specialty occupations, mostly computer-related, engineering and architecture. The visas are issued in three-year increments, with a maximum duration of six years. Since the visa’s creation in 1990, there has been an annual cap on the amount of H-1B workers that the United States will accept. Because of the rush by employers to file applications before the cap is reached (the FY 2017 cap was met within five days), the U.S. Citizenship and Immigration Services uses a lottery system to determine which applications will be processed, with no consideration of merit, and employers continue to rush to file petitions every year in April regardless of need.
Democrat or Republican, the next president must calm the storm of angry backlash from Americans who claim to have been displaced by H-1B visa holders.
H-1B may carry the most stigma in the current work visa system, due to recent spotlight on the cases of alleged abuse of the system by companies such as Disney and Toys “R” Us. Two notable bipartisan efforts to reform the H-1B visa system are currently pending before Congress. The H-1B and L-1 Visa Reform Act of 2015, sponsored by Sen. Chuck Grassley (R-IA) and Sen. Richard Durbin (D-IL), would set limits on how many foreign workers an employer could hire based on the total number of employees, and would require “good faith” steps to hire American workers. The Protect and Grow American Jobs Act, sponsored by Rep. Bill Pascrell, Jr. (D-NJ) and Rep. Dana Rohrabacher (R-CA), would raise the H-1B salary minimum from $60,000 to $100,000 and would eliminate the “master’s degree exemption,” which some argue unfairly displaces American workers. If they are not considered before the end of the year, both of these measures would have to be re-introduced once a new session of Congress begins in January. Democrat or Republican, the next president must calm the storm of angry backlash from American who claim to have been displaced by H-1B visa holders, while maintaining a dynamic economy reliant on high-skilled immigrants—and even limited bipartisan support in Congress should be sufficient to warrant the attention of the president.
H-2A and H-2B
For lesser-skilled workers coming to the United States using the H-2A visa, used exclusively by agricultural workers, or the H-2B visa, used mainly for landscaping and forestry, the problem starts with the temporary nature of the visas. These visas only exist for jobs that are, by definition, temporary, such as strawberry picking in the spring for H-2As or spring and summer landscaping jobs. For agricultural businesses requiring year-round employment, such as dairy farming, there is no temporary visa available to bring in foreign-born workers. Not only that, but there is no visa that covers non-agricultural year-round jobs such as hotel housekeeping or construction. These are the types of jobs that are most often filled by the foreign-born labor force, and yet there is no legal avenue for employers to hire a foreign-born worker. This disconnect has incentivized unauthorized migration over the last decades. Additionally, the process for applying for these visas is complex, time-consuming, and involves multiple government agencies, meaning that needed workers may not arrive in time for the employer’s need. This is a main reason why the H-2A visa is only used by about 4 percent of the 1 million-plus agricultural workforce, despite the lack of an annual cap. The next president must contend with these discrepancies if he or she wishes to dissuade employers from hiring undocumented foreign-born workers.
In addition, the H-2A and H-2B visas require that the immigrant worker be tied to one employer, which leaves open a path for exploitation. Employers can be tempted to provide substandard living and working conditions because they know the worker cannot complain or they risk losing the only job for which their visa is applicable.
In reality many nonimmigrant workers end up staying in the country for several years and eventually getting a green card, particularly in the H-1B category.
In a true hallmark of a confusing and often backwards legal immigration system, both foreign and American workers have the potential to be abused under the various forms of an H visa. For example, there are rules in place for all three H visas that require employers to prioritize Americans before filling the job with a foreign worker, and to pay their foreign workers a prevailing wage. However, enforcement of these rules is very limited, and most employers are taken at their word unless an audit is conducted and a violation uncovered. Real-world enforcement is not a priority under the current system, drawing fire from both sides of the aisle.
Finally, it is worth noting that while the law contends that temporary categories are distinct from permanent migration options, in reality many nonimmigrant workers end up staying in the country for several years and eventually getting a green card, particularly in the H-1B category. If employers would rather hire someone permanently in the first place, it makes little sense to spend time and resources on costly and slow bureaucratic steps to hire a worker for a temporary program, once again encouraging employers to hire undocumented workers. It may be time to consider some work visa categories as “pre-immigrant,” rather than enforcing an unrealistic separation between the two.
While Clinton and Trump differ widely on immigration policy, both have pledged to address the issue in their first 100 days of office. Temporary visa reform may be an excellent place to start if the next president is looking for bipartisan support to spur momentum on moving legislation through Congress.
KEYWORDS: 114TH CONGRESS, 2016, BILL PASCRELL, CHUCK GRASSLEY, DANA ROHRABACHER, DONALD TRUMP, H-1B VISAS, HILLARY CLINTON, IMMIGRATION, PRESIDENT BARACK OBAMA, SUPREME COURT, THE NEXT AGENDA SERIES, U.S. CITIZENSHIP AND IMMIGRATION SERVICES