Foreign-Worker Visas: Overview

Introduction

The federal government offers workers from other countries visas to work in the United States. The work visas vary depending on the worker's educational level, skill set, the sector in which they want to work, and whether the job is seasonal or year-round.

Critics of foreign-worker visas argue that they encourage illegal immigration, undercut American wages, and allow workers to be poorly treated or exploited. Many companies maintain that these visas are necessary to make up for shortfalls in the American labor pool, both in skilled work requiring a high level of education and in lower-skilled agricultural and service occupations, and that the government should expand and streamline the process.

Understanding the Discussion

Deferred Action for Childhood Arrivals (DACA): An immigration policy created by the administration of President Barack Obama in 2012, allowing some undocumented residents brought to the United States as children to receive temporary protection from deportation and eligibility for work permits.

Deportation: The act of removing a person or group from a country; most often used to indicate the return of an immigrant to his or her country of origin.

H1-B visa: A visa allowing US companies to employ foreign workers temporarily in occupations that require advanced education, skill, or technical expertise.

H-2A and H-2B visas: Visas allowing entry to temporary agricultural and nonagricultural workers, respectively. There is a cap on the number of H-2B visas, with 66,000 workers approved annually as of 2018.

L-1 visa: A visa allowing for the temporary transfer of foreign workers in the managerial, executive, or specialized knowledge category to the US to continue employment with an office of the same employer, its parent, branch, subsidiary, or affiliate.

Silicon Valley: The nickname given to the southern San Francisco Bay Area of California, which serves as the global headquarters of many of the world's leading technology, venture capital, and innovative start-up companies.

History

The United States has restricted foreign labor at least since the passage of the Chinese Exclusion Act in the spring of 1882. The Chinese Exclusion Act began a prohibition on the entry of any Chinese laborers into the United States, based on the argument that, according to the text of the law, it "endanger[ed] the good order of certain localities." The true cause of the legislation was deep-seated anti-Chinese sentiment, especially on the West Coast, and the fear that Chinese laborers were taking jobs that should be held by native-born Americans. It was the first time the federal government regulated immigration for a specific nationality and marked the beginning of the government's effort to establish and enforce an immigration policy based on the argument that foreign workers threatened the American labor force.

The Chinese Immigration Act was a harbinger of what was to come in US immigration law, as immigrants flooded into the United States in the late nineteenth and early twentieth centuries, causing anxiety among native-born Americans. By 1920, the nation's foreign-born population had risen to an all-time high of 13.9 million, or 13 percent of the overall population. Many of these more recent immigrants were from Eastern and Southern Europe, considered to be less desirable than immigrants from Northern and Western Europe, the traditional origin of most voluntary arrivals in North America since colonial times. The backlash against unrestricted immigration from these countries sparked first a numerical cap in 1921 and then a nation-of-origin quota system in 1924, which based immigration numbers for each nation on a percentage of the foreign-born population from that nation already living in the United States in 1890—thus attempting to turn back the clock to a time when more desirable categories of immigrant were in greater number. Some workers were exempt from this quota, including many of the same categories of workers for whom foreign-worker visas are currently issued: highly skilled workers, agricultural workers, and domestic servants.

These restrictions, combined with other factors, sent immigration into sharp decline in the 1920s and '30s, but the 1940s saw the first official foreign-worker program. The Bracero program allowed temporary agricultural workers from Mexico to fill labor shortages during World War II. The program continued after the war, employing a record number of 430,000 braceros in 1959. The program was discontinued in 1964, amid rising criticism that the braceros were mistreated and underpaid. According to the US Department of Labor officer in charge of the program, it amounted to "legalized slavery."

The 1952 Immigration and Nationality Act included, for the first time, a preference system for highly skilled workers, and also included the first small quotas allowing Asian immigrants back into the country. In 1965, amid criticism that the national-origin quota system was unfair and discriminatory, the system was radically changed to emphasize visas for families of current residents of the United States, along with skilled workers and their families, and the first provision for refugees. In an employment-based visa application, the Labor Department had to agree that there would be no harm to American workers in the granting of the visa and that there were no Americans who could fill the position.

Though the old system of national-origin quotas was over, the 1965 immigration law did establish overall quotas for certain countries, including those in Central and South America for the first time. This, combined with the end of the Bracero program and the continuing need for agricultural labor, encouraged illegal immigration from Mexico and other countries in Central and South America. In 1986, the Immigration Reform and Control Act tightened restrictions on hiring illegal immigrants, in exchange for granting legal status to, ultimately, 2.7 million undocumented farmworkers and other immigrants who had lived in the country since 1982 with no criminal record.

The foreign-worker visa programs in effect in the twenty-first century were initiated at various times according to economic need and political conditions. The L-1 visa was introduced in 1970 to enable multinational companies to move their skilled workforce between offices. The H-1B visa program for skilled workers assumed its current form in the Immigration Act of 1990, while the H-2 unskilled worker category, continued from the Immigration and Nationality Act of 1952, was divided into the H-2A and H2B categories in 1986. The H-2A visa allows for the employment of temporary or seasonal agricultural workers, while the H-2B allows for the employment of temporary nonagricultural workers, such as those in the hospitality industry. Other visas for foreign workers deal with specialized categories of worker, such as actors and entertainers, and special relationships with certain nations.

The issue of foreign-worker visas has become politicized, in part because although major changes to these programs must be approved by Congress, the president has significant authority over how these programs function and can change some regulations, including the key enforcement provisions. According to Hiroshi Motomura, professor of law at UCLA, "A lot of the latitude an administration has is in how carefully the requirements are enforced." During the administration of President Bill Clinton, the cap for skilled workers was increased in response to lobbying from technology companies, but enforcement and oversight also increased. In 2004, the cap was reduced again during the George W. Bush administration, but the restrictions governing the oversight of the H-2A program, which grants temporary visas to agricultural workers, were loosened.

The administration of President Barack Obama tightened up supervision of workers with temporary visas but made work permits available to spouses of H-1B workers, easing the financial burden on those families. Foreign-worker visa applicants must go through a rigorous review to qualify for a visa, however. Employers must sponsor the applicant and provide evidence that there are no American workers who can fill the position. They must also pay H-2A workers a higher-than-minimum wage; pay for workers' transportation from their home countries to the farm and worksites; and, pay for workers' housing facilities. Once approved, employers file their petition with US Citizenship and Immigration Services; a prospective employee applies for a visa; and the government issues a decision. Skilled-worker visas are distributed on a lottery system, while the H-2A and B visa applicants must prove that they intend to return to their country of origin. Foreign-worker visa applicants may still be turned away for health or security reasons.

Additionally, the Obama administration signed the 2012 policy known as Deferred Action for Childhood Arrivals, or DACA, into law. DACA provides a renewable two years of protection from deportation actions and also qualifies recipients for a work permit.

During the 2016 presidential campaign, Donald Trump took aim at foreign-worker programs with his Buy American, Hire American slogan and promises of reducing immigration and the foreign workforce, both documented and undocumented. He unveiled a plan to implement merit-based immigration rules, in which visas would be awarded on a point system, with priority given to those with education, skill, and money to invest, as several other countries do. During Trump's presidency, the administration issued an order rescinding the DACA program and its provision for work permits (although this was stayed in federal court) and directed federal agencies to re-evaluate the H-1B program and focus on more aggressive enforcement. The 2017 Silicon Valley Competitiveness and Innovation Project (SVCIP) report noted that high proportions of employees in the science, technology, engineering, and mathematics (STEM) fields were foreign-born in innovation regions like Silicon Valley (57 percent), New York City (43 percent), and Boston (33 percent). Many of these were H-1B workers.

In 2021 a federal appeals court affirmed a district court injunction that prohibits the Department of Homeland Security from granting initial DACA requests and related employment authorization while the injunction is in effect.

Foreign-Worker Visas Today

In the 2020s, the H-2A visa program granted visas to hundreds of thousands of people, with 370,000 H-2A visas issued in 2022, or approximately 10 to 15 percent of the farm workforce that year.

As the H-2A program grew, worker advocates continued to call for greater legal protections for H-2A workers, citing abusive practices perpetrated by employers, including wage theft, human trafficking, and human rights violations, and a lack of adequate recourse for H-2A workers seeking relief from such practices. On the other side of the debate, farmers and their advocates called for reducing the number of rules and regulations they must follow, saying that the cost of hiring H-2A workers is too high to be sustainable and threatens the existence of the farming sector in the US.

In 2022, the US Department of Labor under the administration of President Joe Biden amended H-2A certification regulations to improve protections for workers as well as to update the program's application and certification process. The changes included: improving health and safety for workers in rental or public housing; streamlining bond requirements to increase labor contractor accountability; allowing state and local authorities to inspect worker housing; granting authority to the DoL to debar attorneys and agents for their misconduct, independent of employer violations; requiring applications to be filed electronically to improve efficiency; updating the way prevailing wage is determined; and supporting the DoL's Wage and Hour Division enforcement capabilities to investigate fraud and abuse.

In September 2023, the DoL proposed further rule changes to strengthen protections for H-2A farm workers and to "prevent abuses of the program that undermine wages and standards for all agricultural workers," according to a DoL press release. The proposed rule sought to: add, expand, and clarify anti-retaliatory protections for worker self-advocacy; add conditions for and clarify "for cause" terminations; increase transparency in the foreign labor recruitment process; establish more predictable wages; improve transportation safety in terms of driver alertness and seat belts; and, improve enforcement of program rules.

Congress continued to work on legislative reforms to the H-2A program in the 2020s. In March 2024, the bipartisan House Agricultural Labor Working Group released their roadmap to ease the farm labor crisis. The roadmap detailed twenty-one recommendations, including fifteen recommendations that received the group's unanimous support.

These essays and any opinions, information, or representations contained therein are the creation of the particular author and do not necessarily reflect the opinion of EBSCO Information Services.

Bibliography

"Chapter 1: The Nation's Immigration Laws, 1920 to Today." Pew Research Center: Hispanic Trends, 28 Sept. 2015, www.pewhispanic.org/2015/09/28/chapter-1-the-nations-immigration-laws-1920-to-today/. Accessed 19 June 2018.

Douglis, Sylvie, Andrea Hsu, and Ximena Bustillo. "The Problems with the US's Farm Worker Program." Interview hosted by Adrian Ma. The Indicator, NPR, 29 Aug. 2023, www.npr.org/transcripts/1196573413. Accessed 29 Apr. 2024.

Felter, Claire. "U.S. Temporary Foreign Worker Programs." Council on Foreign Relations, 30 May 2017, www.cfr.org/backgrounder/us-temporary-foreign-worker-programs. Accessed 19 June 2018.

"Guest Worker Visas: The H-1B and L-1." Department for Professional Employees AFL-CIO, 2017, dpeaflcio.org/programs-publications/issue-fact-sheets/guest-worker-visas-the-h-1b-and-l-1/. Accessed 19 June 2018.

Hart, Kim. "'Merit-Based' Immigration May Complicate Tech's Relationship with Trump." Axios, 6 Mar. 2017, www.axios.com/merit-based-immigration-may-complicate-techs-relationship-with-trump-1513300731-08c8485f-b683-4b26-b775-30f923f56b32.html. Accessed 19 June 2018.

Kim, Caitlyn. "In a Push to Ease the Farm Labor Crisis, a Group of House Lawmakers Look to H-2A Visa Reform. But Can It Get Wider Support." CPR News, 9 Mar. 2024, www.cpr.org/2024/03/09/farm-labor-crisis-h2a-visa-reform-legislation/. Accessed 29 Apr. 2024.

Maney, Kevin. "Here's How Trump Is Killing Silicon Valley with Policies on Trade, Immigration and Investment." Newsweek, 21 Sept. 2017, www.newsweek.com/2017/09/29/donald-trumps-policies-could-turn-silicon-valley-another-detroit-667662.html. Accessed 19 June 2018.

Martin, Philip. "The H-2A Farm Guestworker Program Is Expanding Rapidly: Here Are the Numbers You Need to Know." Economic Policy Institute, 13 Apr. 2017, www.epi.org/blog/h-2a-farm-guestworker-program-expanding-rapidly/. Accessed 19 June 2018.

Ruiz, Neil G. "Key Facts about the U.S. H-1B Visa Program." Pew Research Center, 27 Apr. 2017, www.pewresearch.org/fact-tank/2017/04/27/key-facts-about-the-u-s-h-1b-visa-program/. Accessed 19 June 2018.

"US Department of Labor Announces Final Rule to Improve H-2A Visa Program." U.S. Department of Labor, 6 Oct. 2022, www.dol.gov/newsroom/releases/whd/whd20221006. Accessed 29 Apr. 2024.

"US Department of Labor Announces Proposed New Rule to Strengthen Protections for Temporary Farm Workers." U.S. Department of Labor, 12 Sept. 2023, www.dol.gov/newsroom/releases/eta/eta20230912. Accessed 29 Apr. 2024.

Zaveri, Paayal, and Aditi Roy. "Big American Tech Companies Are Snapping Up Foreign-Worker Visas, Replacing Indian Outsourcing Firms." CNBC, 20 Apr. 2018, www.cnbc.com/2018/04/20/big-american-tech-companies-are-snapping-up-h1-b-visas.html. Accessed 19 June 2018.