The current battle
over the guest worker provisions of the Senate's Comprehensive
Immigration Reform Act (CIRA, S. 2611) centers on the amount of
time that guest workers would be allowed to remain in the United
States. As Senator Jeff Sessions (R-AL) noted, "There is nothing
temporary about this guest worker program,"
and he is correct. The current bill would offer a path to
citizenship for virtually all guest workers brought into the United
States under the "H-2C" visa program. H-2C guest workers could
apply for a six-year visa and then petition for Legal Permanent
Resident (LPR) status after being in the United States for four
years and learning English or enrolling in an English class.
Thus, the "temporary guest worker" program in CIRA would open the
door to millions of new immigrant workers who would have the right
to stay in the United States for their entire lives.
Sen. Kay Bailey
Hutchison (R-TX) has proposed an amendment- the Secure Authorized
Foreign Employee (SAFE) visa (S. 2611 Amendment No. 4046)-to CIRA
that would create a truly temporary worker program. The amendment
is not perfect, but it does have a number of desirable
characteristics that the guest worker proposal in CIRA does not. If
safeguards are added to assure compliance, Sen. Hutchison's
proposal shows significant promise as a replacement for the H-2C
proposal in CIRA.
The SAFE Visa
The SAFE visa
pilot program has the following main provisions:
admission into the United States would have to apply for SAFE visas
from their native countries. Initially, SAFE would be a pilot
program, available only to residents of countries that are
signatories to the North American Free Trade Agreement or the
Central American Free Trade Agreement.
spend only 10 months per year working in the U.S. and would have to
leave for two months to reside in their home country. This would be
documented through point-of-entry and -exit screening. Workers who
become unemployed would have to leave the United States if they
could not get another job within 60 days.
Workers who are
illegally in the U.S. today could apply for SAFE visas, but only if
they leave for their home countries and apply from there, like
have to withhold payroll taxes as for any other worker. Medicare
taxes would be used to pay for any uncompensated emergency health
care, and SAFE visa holders would be entitled to receive their
portion of Social Security contributions upon reaching retirement
age or when the visa is relinquished.
A SAFE visa
would be issued only after the applicant passes a medical exam and
background check and provides proof of pending employment.
would have an initial cap of 200,000 SAFE visas per year that could
be increased by the President in 50,000-visa increments, as
SAFE visa program has three major advantages over the "temporary"
guest worker program currently being debated in the Senate:
currently here illegally would be able to apply for SAFE visas
without first leaving the United States to return to their
countries of origin. This provision respects the rule of law by
requiring current illegal immigrants to leave the United States
(that is, to stop breaking the law) before applying for a
would not be a path to citizenship because workers with SAFE visas
would be precluded from applying for any other visa program until
after they return to their home countries and relinquish their
visas. Additionally, no one could petition for a change of status
on the visa holder's behalf until after the SAFE visa is
surrendered. At that point, the worker could apply for a different
type of visa without preference or prejudice.
A SAFE visa
holder would not be eligible for any local, state, or federal
modeled her proposal on the successful Mexican/Canadian Seasonal
Agricultural Worker Program. Since 1974, this program has allowed
thousands of Mexican workers annually to enter Canada for a period
of up to nine months, predominantly to work in the Quebec prairies
or on farms in Ontario.
After the nine months is up, the worker must return to Mexico for
the remaining three months of the year.
worker in the United States on a SAFE visa could return to the
United States for a series of ten-month intervals so long as he or
she returned home for the required two months per year. This
provision for returning home is important-it underscores the idea
that temporary workers should maintain stable households in their
home countries, given that no family members could come with them
to the United States.
This policy would
encourage visa holders to maintain roots in their home countries.
Program participation, broken into relatively brief periods, would
allow temporary workers to bond with their families and reconnect
to home. Without such respites to the country of origin, the risk
is higher that workers will abandon their home countries.
Hutchison's proposal has a number of desirable traits, the
following changes would improve it:
should determine the allocation of temporary guest workers, not the
government. As the amendment is drafted, SAFE visas would only
be available in certain industries and for certain geographical
areas, as determined by the Secretary of Labor. This certification
provision would allow the federal government to engage in
industrial policy, picking winners and losers by economic sector
and geography. There is a legitimate risk that certain industries
or geographic areas would lobby to get more guest worker visas
while others would get none. The government should not be so
involved in these decisions. Rather, the market should determine
where the economy needs temporary guest workers.
time-limit flexibility. The purpose of the 10-month limit in
Sen. Hutchison's proposal is to ensure that the visas would be
temporary in nature. The two-month requirement assures that a
worker regularly returns to his or her permanent residence outside
of the United States. Some employers, however, would need to hire
temporary guest workers for longer periods of time. The amendment
should allow a longer stretch of time in the United States if it is
accompanied by a proportional amount of time back in the home
country. For example, the proposal might allow a worker to stay in
the United States for 20 months if the worker then spends four
months back in his or her home country. Flexibility over a two-year
period should affect the annual year cap for both years, not just
private-sector involvement in administering the program
. In the
United States, employment firms such as Manpower, Kelly, and others
help place temporary workers with employers. Because the Hutchison
proposal requires that SAFE visa holders have a job waiting for
them in the United States, employment firms would play a major role
in matching employers and workers. As well, they could process much
of the program's administrative paperwork, while leaving the
background check and border security duties to federal agencies.
compliance bonds for employers
. Many reasonable observers fear
that guest workers might illegally overstay their visas. The SAFE
visa proposal mandates that employers arrange for the
transportation, room, and board of temporary guest workers. A
compliance bond would give employers an incentive to ensure that
guest workers leave the United States at the end of the 10-month
visa term. Over time, employers that have few guest workers
overstay their visas would enjoy lower bonding costs.
numeric cap. Numeric participation caps, especially for new
programs such as this one, are a legitimate way of curbing a
program to ensure that it does not overwhelm the system. Currently,
the cap is fixed at 200,000 guest workers per year. Because all
workers would be required to reapply annually for a SAFE visa, only
200,000 guest workers would be allowed in the U.S. at any one time.
However, the amendment would allow the President to increase the
cap by 50,000 visas or 100,000 visas, or any other higher
50,000-visa increment, each year without any limit. The Senate
should clarify this provision and set an upper ceiling for the
total number of SAFE visas that could be used in any given year, at
least initially. Later legislation could increase this if the
program is a success.
Additionally, the Senate could limit the President's power to
increase the cap by providing a performance incentive: The cap in
future years could be reduced by the number of guest workers who
overstay their visas.
status of children born to guest workers
. Temporary workers who
do not have an expectation of remaining in the United States should
not have an expectation that any children born to them while in the
United States would be U.S. citizens. This could be clarified
either by statute or bilateral agreements.
reporting or evaluation provision. Because this would be a new
pilot program for workers from only a small number of nations,
Congress should require a report after the first few years of
implementation. The report should indicate how many SAFE visas were
issued, how many temporary guest workers violated their visa terms,
and in what kinds of jobs guest workers were employed. Such a
provision would allow Congress to revisit and expand the program if
it has been successful.
SAFE amendment to the Senate's immigration bill would create a
reasonable guest worker program that is truly temporary in nature,
does not give amnesty to those here illegally today, and otherwise
respects America's rule of law. This proposal should replace the
flawed H-2C guest worker program. As the Senate continues to debate
this contentious issue, Sen. Hutchinson's proposal warrants serious
Johnson, Ph.D., is a Senior Policy Analyst in the Center for
Data Analysis at The Heritage Foundation.