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Summary

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. Before an employer can file a petition with the U.S. Department of Homeland Security (DHS) to import workers under either program, the employer must apply to the U.S. Department of Labor (DOL) 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. In December 2008, DHS and DOL published final rules to significantly amend their H-2A and H-2B regulations. The new H-2A and H-2B rules became effective on January 17, 2009. The DHS final H-2A and H-2B rules modify previous limitations on H-2A and H-2B workers periods of stay in the United States. The rules also establish new requirements under both visas. They prohibit payments by prospective H-2A or H-2B workers to employers, recruiters, or other employment service providers where the payments are a condition of obtaining H-2A or H-2B employment, and provide for the denial or revocation of petitions in the event of petitioner violations. Among the other new requirements applicable to both programs, the DHS rules limit participation in the H-2A and H-2B programs to nationals of designated countries. DOLs final H-2A and H-2B regulations replace the labor certification process with an attestation-based process, in which employers attest in their applications, under threat of penalties, that they have complied with program requirements. Under this new process, prospective H-2A and H-2B employers must begin recruiting U.S. workers to fill their job openings before applying for labor certification. Among other changes to DOLs H-2A and H-2B regulations, the December 2008 rules establish a system of post-certification audits of H-2A and H-2B employer applications. Various bills have been introduced in recent Congresses to make changes to the H-2A and H-2B programs and to establish new temporary worker visas. In the 111th Congress, similar bills (S. 1038, H.R. 2414), known as AgJOBS, propose to reform the H-2A program and establish a legalization program for certain agricultural workers. Among the other guest worker bills before the 111th Congress, S. 388, H.R. 1136, and H.R. 1934 would reenact, in different forms, an expired H-2B provision to exempt certain returning workers from the H-2B statutory annual cap of 66,000. The current discussion of guest worker programs takes place against a backdrop of high levels of unauthorized migration to the United States, and one question that often arises about proposals for new guest worker programs is whether they would enable participants to obtain legal permanent resident (LPR) status. Other issues raised in connection with guest worker proposals include how new program requirements would compare with those of the H-2A and H-2B programs and how the eligible population would be defined. This report will be updated as legislative developments occur.

Related Legislation:
• S.1038
• H.R.2414
• S.388
• H.R.1136
• H.R.1934

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