Immigration: Policy Considerations Related to Guest Worker Programs

Publication Date: May 2008

Publisher: Library of Congress. Congressional Research Service

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At present, the United States has two main programs for temporarily importing low-skilled workers, sometimes referred to as guest workers. Agricultural guest workers enter through the H-2A visa program, and other guest workers enter through the H-2B visa program. Employers interested in importing workers under either program must first apply to the U.S. Department of Labor for a certification that U.S. workers capable of performing the work are not available and that the employment of alien workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Other requirements of the programs differ.

The 109th Congress revised the H-2B program in the FY2005 Emergency Supplemental Appropriations Act (P.L. 109-13). Among the changes, a temporary provision was added to the Immigration and Nationality Act (INA) to exempt certain returning H-2B workers from the H-2B annual numerical cap. The FY2007 Department of Defense authorization act (P.L. 109-364) extended this exemption through FY2007. Other bills before the 109th Congress proposed to make changes to the H-2A program (S. 359/H.R. 884, H.R. 3857, S. 2087, Senate-passed S. 2611), the H-2B program (S. 278, H.R. 1587, S. 1438, S. 1918), and the "H" visa category generally (H.R. 3333), and to establish new temporary worker visas (S. 1033/H.R. 2330, S. 1438, S. 1918, H.R. 4065, Senate-passed S. 2611). S. 359/H.R. 884, S. 1033/H.R. 2330, S. 1918, and S. 2611 also would have established mechanisms for certain foreign workers to become U.S. legal permanent residents (LPRs). None of these bills were enacted. Various guest worker measures were also introduced in the 108th Congress, but they saw no action beyond committee referrals. President George W. Bush proposed a new, expanded temporary worker program in January 2004 when he announced his principles for immigration reform. In a May 2006 national address on comprehensive immigration reform, he reiterated his support for a temporary worker program.

The current discussion of guest worker programs takes place against a backdrop of historically high levels of unauthorized migration to the United States. Supporters of a large-scale temporary worker program argue that such a program would help reduce unauthorized immigration by providing a legal alternative for prospective foreign workers. Critics reject this reasoning and instead maintain that a new guest worker program would likely exacerbate the problem of illegal migration.

The consideration of any proposed guest worker program raises various issues, including the following: how new program requirements would compare with those of the H-2A and H-2B programs; how the eligible population would be defined; whether the program would include a mechanism for participants to obtain LPR status; how family members of eligible individuals would be treated; what labor market test, if any, the program would employ; whether the program would be numerically limited; how the rules and requirements of the program would be enforced; and what security-related provisions, if any, would be included.