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,"[1] 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.[2] 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:

1. Workers seeking 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.
   
2. Workers could 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.
   
3. 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 anyone else.
   
4. Employers would 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.
   
5. A SAFE visa would be issued only after the applicant passes a medical exam and background check and provides proof of pending employment.
   
6. The program 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 necessary.

Sen. Hutchison's SAFE visa program has three major advantages over the "temporary" guest worker program currently being debated in the Senate:

1. No workers 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 visa.
   
2. The program 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.
   
3. A SAFE visa holder would not be eligible for any local, state, or federal social benefits.

Truly Temporary

Sen. Hutchison 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.[3] After the nine months is up, the worker must return to Mexico for the remaining three months of the year.

Similarly, a 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.

Room for Improvement

While Sen. Hutchison's proposal has a number of desirable traits, the following changes would improve it:

1. The market 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.
   
2. Increase 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 one.
   
3. Increase 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.[4]
   
4. Require 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.[5]
   
5. Clarify the 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.
   
   
6. Clarify the 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.[6]
   
7. Enact a 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.

Conclusion

Sen. Hutchison's 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 consideration.

Kirk A. Johnson, Ph.D., is a Senior Policy Analyst in the Center for Data Analysis at The Heritage Foundation.