Last year, lawmakers on Capitol Hill tried and failed to pass comprehensive immigration and border security reform. The bill died largely because it tried to do too much. Granting amnesty to 12 million illegal aliens would cause rampant fraud and a tsunami of applications that would overwhelm America's already over-stretched and backlogged immigration services. Creating a temporary worker program for the illegal aliens is an equally unworkable idea. On the other hand, lawful immigrants and foreign temporary workers (who enter the country legally with a non-immigrant status through a worker visa) are integral components of the American workforce. The appropriate approach for Congress and the Administration, as part of a responsible overall program to restructure American immigration and border security policies, is to begin by reforming existing visa policies in a manner that appropriately addresses concerns regarding security, sovereignty, citizenship, and economic growth.
The Right Strategy
There is no silver-bullet solution to fixing failed immigration policies and broken border security. On the contrary, the appropriate strategy requires addressing multiple tasks at the same time:
- Enforce the law. A crucial component of immigration reform requires the U.S. government to enforce the immigration laws that already exist. A recent report by the Center for Immigration Studies argues that recent enforcement efforts have succeeded in decreasing the illegal immigration population by 11 percent. Workplace enforcement must be an integral component of any overall border and immigration strategy.
- Regain control of the southern border. The Administration must increase its ability to manage the border with Mexico. Good border security serves as a deterrent to unlawful entry and will allow authorities to focus on criminal and national security risks including the smuggling of guns, drugs, people, and money—not to mention terrorists and weapons of mass destruction—that imperil the lives and property of people on both sides of the border.
- Support economic development in Latin America. The lack of available jobs and opportunities for wealth creation in Latin America, in part, creates a "supply push" of foreign workers into the United States. Relieving this pressure will require domestic economic and governance reforms in these countries that create jobs and economic growth.
- Emphasize legal opportunities. The legal means by which foreigners can enter the United States must be fair, orderly, and efficient. The lack of such a process will only push more future migrant workers toward illegal entry and undermine the integrity of the U.S. immigration process, rule of law, and national sovereignty.
The Next Step: Emphasizing Legal Opportunities
Repairing current visa programs is a necessary first step in immigration reform. Many visa programs no longer work as intended, contributing to rather than helping to fix a broken immigration system. If the federal government does nothing to fix the temporary visa programs for high- and low-skilled workers, including H-2A, H-2B, and H-1B, it will become increasingly difficult for the U.S. to offer credible legal alternatives to undocumented workers. Congress and the Administration must make sensible changes to the employment visa regime so that they meet employer demand both in numbers and process by increasing their efficiency and dependability. Fixing immigration programs will take thoughtful legislation that expands programs as well as adding accountability from Congress, and time and effort to implement effective changes to streamline the executive branch process.
Reforming these programs will allow policymakers to address today's immigration situation. While changes to these programs will improve work visas significantly, they will not drastically change the structure and overall aim of these programs.As reforms are implemented, it will become clearer where new temporary worker programs might be required to fill the remaining gaps in the immigration system. The lessons learned from reforming existing programs will help to more clearly identify these needs.
Improving the Surety of the Visa System. The current illegal-alien population does not only consist of individuals crossing the U.S. border illegally. By some estimates, 31 percent to 57 percent of this population are "overstays." This means they entered the U.S. with a valid visa and failed to leave after the end of their authorized time period. Thus, it is necessary that any improvements to the current visa systems include oversight measures to ensure that visa holders leave the country when their visas expire.
The United States Visitor and Immigration Status Indicator Technology (US-VISIT) program was established pursuant to a mandate by Congress in 1996 to record foreign visitors and workers leaving the country. Intended to track a person's immigration and visa status and alert authorities to expired visas, US-VISIT has yet to be fully implemented. The Department of Homeland Security (DHS) has found it particularly difficult to determine how to put the system in place at U.S. land borders with points of exit scattered over thousands of miles where hundreds of millions enter every year.
Establishing a system of voluntary land-border exit checks for selected work visa programs could be an important first step in implementing an effective and cost-efficient program. It also could serve as an invaluable management tool for ensuring these types of visas are not abused.
On the Border. Congressional requirements for better means to monitor visa programs and reduce overstays are not new. Congress first demanded entry-exit checks in 1996, and for good reason. It was not, however, until after 9/11 and the creation of the DHS that this demand was seriously considered.
Yet, seven years after 9/11, the system is still not fully implemented. DHS has found putting a system in place at the land border especially problematic. Part of the problem is the potential cost of slowing traffic at busy border crossings even further. In 2007, a report by the San Diego Association of Governments found that delays at border crossings cost $5.1 billion in lost output and 51,500 lost jobs in that year alone. DHS has also encountered myriad other infrastructure and technical issues.
Value of Exit. Despite the challenges and costs involved in implementing exits on the land border, it is a system still worth putting into operation—but not because it will be particularly helpful in tracking specific individuals (such as suspected terrorists). With hundreds of millions of potential transactions every year, even a small error rate will create tens of thousands of false reports. Additionally, even indicating that an individual may have remained unlawfully in the United States is not very useful information for law enforcement in and of itself. That individual would be just one of the 12 million foreigners here illegally or might have just exited the border at a location other than an exit transit point.
The overall numbers (even accounting for an acceptable error rate) would be useful to DHS for auditing compliance with U.S. visa programs, particularly for identifying which categories of visas and what countries may be guilty of excessive overstay rates.
A Proposal. One option may be for DHS to establish voluntary check-out stations or processes for certain visa categories. These might not have to be at the border points of exit. Voluntary stations could be established to minimize concerns about congestion and requirements for extensive infrastructure. Processes for exit could be established to provide incentives for maximum compliance. These would include:
- Incentives for employers. Require employers of workers holding temporary visas to post bonds, returnable when the worker checks out. Employers would encourage workers to check out both to reclaim their bond and to ensure that the worker could return the following year. Such requirements should be mandatory, not voluntary, for any work visa program category that records an overstay rate above 2 percent.
- Incentives for temporary workers. Workers who did not check out would be barred from participating in future worker programs. Those that did comply would be automatically eligible to participate in future worker programs (absent other disqualifying factors, such as contagious diseases or criminal convictions). This requirement applies to all work visa programs.
- Incentives for countries. Countries whose citizens participated in the visa programs and who exceeded a 2 percent overstay rate would find their citizens barred from participating in these visa programs.
Improving Current Work Visa Programs
The United States government has numerous different visa classifications. The "H" visas are commonly used for temporary workers. They are categorized into H-2A for agricultural workers, H-2B for seasonal low-skilled workers not in the agriculture sector, and H-1B for high-skilled workers. The inability of these programs to sufficiently process foreign workers is one reason why employers and immigrants revert to illegal means. These visa programs are often very cumbersome and bureaucratic, and are often too limited in size. With some reforms to these programs, they could be greatly improved to meet the needs of employers and workers.
H-2A Visa for Temporary Agricultural Workers. When the recent comprehensive immigration bill failed to pass, the executive branch amplified its efforts to enforce the existing immigration laws. Internal enforcement is essential to immigration reform, but critics and supporters alike acknowledge that employers must have an avenue for hiring legal workers. Enforcement alone will further deplete the workforce available to the agricultural sector.
Congress has attempted to legislate new visa programs to deal with the shortage of agricultural workers, but these efforts were all based on the idea of granting amnesty to agricultural workers who are here illegally. While pilot programs that attempt to meet market needs are extremely beneficial for testing new methods and provide a different option to those who do not like the current systems, they are limited in scope and would take time to implement. Congress has not made much effort to fix the current systems, and the H-2A is not functioning as originally designed. Relatively simple improvements could greatly increase its effectiveness.
H-2As in Practice. The H-2A visa is for temporary agricultural workers and was created in 1986 through the Immigration Reform and Control Act. The H-2A visa is the most bureaucratic and most difficult to obtain of all temporary visas. Unlike other U.S. immigration or temporary worker visas, however, the H-2A has no numerical cap. The H-2A visas are issued for one year, and holders can extend them up to two additional years for a total of three.
The program has the same protections for employees and American workers as do other work visas. There is a prevailing wage provision that requires the employer to pay the highest of the Adverse Effect Wage Rate (AEWR), prevailing wage, or federal minimum wage. In order to hire H-2A workers, employers must search for American workers first. Employers are required to provide H-2A employees with specific benefits, such as transportation costs and housing. Employers of H-2A workers must also agree to hire any qualified American worker who applies for work at their work site until half of the H-2A worker's contracted time of employment has passed.
The employer application process is often cited by experts as the main problem because it is overly complicated and cumbersome. To apply, the employer must go through three separate departments: the Department of Labor (DOL), the Department of Homeland Security and the Department of State. An employer first files with the DOL's Employment and Training Administration (ETA) for a "labor certification." In order to obtain a certification, an employer must prove that there are no available American workers available by recruiting, through various informal channels, advertising, and the use of federal and state government employment services. The employer must also attest that he will pay the higher of the AEWR, prevailing wage, or minimum wage. The employer must also prove that housing and transportation is made available and guarantee that he will employ the H-2A worker for a minimum of 75 percent of the agreed contract of work. The employer then files a petition with the DHS U.S. Citizenship and Immigration Services (CIS). Once CIS has approved a petition, it notifies the State Department and the employer. The foreigner then applies for a visa through a consulate in his home country.
Misguided Debate. There is general consensus— among lawmakers and the public alike—that the H-2A visa program, as currently constructed, is an inefficient program. While the lengthy and complicated application process is a concern, it is eclipsed by the amount of publicity regarding the negative effects of foreign workers on Americans. Many people argue that American farmers have become dependent on H-2A workers and prefer to hire foreigners over Americans because they do not feel bound to uphold the same labor standards and provide the same benefits. In addition, farmers are believed to prefer H-2A visa holders because they can pay them less than American workers, and thus lower the average wage of American agricultural workers. Of course there is also a general fear that temporary workers will fail to leave the country once their contract is over. Though these concerns are based largely on myths, the H-2A program is being threatened by ever-greater restrictions and regulation.
In truth, the excessive restrictions have only made the problem worse for American agricultural laborers by establishing perverse incentives for employers to hire illegal workers. One of the reasons why farmers prefer to hire illegal aliens is because H-2A workers have proven expensive, with high fees and inaccurate wage calculations by the DOL, causing the mandatory wages to be higher than what American workers would have been paid. Reform of the H-2A program is necessary to encourage more widespread use and to address many of the existing concerns.
The Real Problem. Ironically, while the H-2A program is the only visa program that does not have a numerical cap, it is the most underused. There has been substantial growth in the H-2A program, from only 6,445 visas issued in fiscal year (FY) 1992, to 50,791 in FY 2007.Of course, 50,000 people is only a fraction of the estimated 600,000 to 800,000 illegal laborers working in the agricultural sector.
By comparison, the temporary H-2B work visa, used for seasonal non-agricultural workers, has similar wage provisions, but its usage is more than double that of H-2A. For FY 2007 there were 129,547 H-2B visas. The discrepancy is blamed on the overly difficult and bureaucratic H-2A application process. This guest-worker program has numerous statutes that require the DOL to check and verify that the statutes are met before providing a labor certification. An example of such a statute is that State Worker Agencies (SWAs) are required to physically verify that employers have available housing for the migrant worker. However, most states have only a handful of SWA offices, and they cannot check all statutes for all applicants within the 30-day limit. Thus, most applications are not approved by the deadlines, and for agricultural employers, losing even several days leads to lost man-hours and revenue that is not acceptable for such a competitive industry.
DHS must then approve the petition within 90 days. Thus, between DOL and DHS an employer must wait 120 days. This does not include the additional time for the consulate offices to interview foreign workers and process the visas.
Improving the H-2A Program
This program has proven that it is not functioning properly, and it is time for Congress to fix it. Congress should lessen requirements at the front end of the application and increase enforcement of the program requirements.
- Using attestations. The applications are not being handled in the appropriate allotted time because of the number of requirements that DOL must verify before granting the applicant a labor certification. The H-2A process should be changed to one where the applicant/employer attests to meeting all the requirements as opposed to physical government verification, which would greatly expedite the process.
- Improve enforcement. Instead of including a large number of front-end restrictions to the H-2A program, there should be greater enforcement of H-2A rules throughout the period of the work visa. The DOL should verify that employers are meeting the regulations, either through random checks or checking all employers. Should DOL find that employers are attesting falsely to the provisions of the program, they should be fined or barred from the program.
The Administration also has opportunities to fix the program. The DOL and DHS published proposed changes to the program this year, and those changes (including more accurate wage calculations for AEWR), should be implemented as soon as possible. In addition, the Administration should:
- Make more information available. The process would benefit from simple services, such as posting the application process on an accessible page on all three departments' Web pages.
- Process in a timely manner. The timeline for an applicant to go through DOL and DHS is 120 days. The DOL has 30 days to grant a labor certification, and DHS has 90 days to approve their petition. This period does not include the time it requires for foreign workers to apply for a visa, which may take up to several weeks. Shortening the processing time allows workers a greater ability to predict their needs before the beginning of their work period.
H-2B Visas for Temporary Non-Agricultural Workers
The H-2B visa is used for all seasonal temporary work not related to agricultural work. H-2B visas are often used for ski instructors at winter resorts, for lifeguards at pools, and to bring in workers during tourist seasons. The program is capped at 66,000 per year and features a process that is much less regulated by the government. As a result, the H-2B is a very popular program with American employers, and has exceeded the cap for the past several years. Last year, the number of H-2B visas issued was nearly twice the allowed numerical cap, due to an exemption that allowed returning workers to not be counted against the cap.
The general process is similar to H-2A, and requires employers to file with the DOL and DHS before the employee can obtain a visa from the State Department. In order to obtain a labor certification from DOL, the employer must prove that there are no available U.S. workers, and that hiring the foreign labor will not adversely affect wages and conditions of the U.S. worker. However, the DOL process does not include nearly as many ensnaring statutes as the H-2A process, and labor certification can be granted to applicants fairly quickly.
There are also fewer provisions for H-2B than those on the H-2A visa. Employers are not required to provide housing or pay for transportation from the worker's originating country. In addition, the prevailing wage provisions for H-2B visas require that employers pay the minimum wage or prevailing wage, whichever is higher, but not the AEWR.
Lack of Available Visas. The cap limitation on the H-2B is the largest threat to most businesses. The impact was even more severe this year, as the law that allowed returning applicants to be exempt from the cap expired on September 30, 2007. Last year, there were approximately 130,000 H-2B visas issued and a total of 69,000 returning H-2B workers. Because the exemption for returning workers is no longer available, employers will have to fight over the available 66,000 workers.
The growing popularity of the program has led many to claim that employers have become overly dependent on foreign workers because they can easily be mistreated as well as underpaid. Others have claimed that the rise of immigration has led to the "decline in employment and wages for less-educated natives." Their solution is to significantly limit the program and require that American employers pay whatever wages necessary to hire American workers. Such a policy would harm businesses by driving up business costs and limiting the labor pool.
These arguments against H-2B fail to address the fact that cutting temporary non-immigrant programs would force many employers to choose between hiring illegal workers or going out of business. As the current situation demonstrates, many employers would resort to hiring illegal workers, further hurting American workers and national security.
Required Action to Fix H-2B. Employers who are trying to abide by the law are putting their businesses at risk because of the extremely low arbitrary cap. Congress should act quickly to address this problem by:
- Increasing the cap to market need. The past several years show that American employers make use of more than 66,000 visas a year. The cap must be raised to meet their needs, rather than encouraging employers—and foreign workers—to break the law.
- Making the cap flexible. The number of foreign workers needed will shift. The cap should fluctuate as market demands change. If a cap is met the previous year, it should be raised by an amount previously set by Congress the following year.
- Giving the DOL full enforcement authority. The DOL currently does not have enforcement authority for H-2B visas. Congress should ensure that DOL has enforcement authority comparable to the other visa programs. With proper oversight of employers, DOL can ensure that employers are paying the correct wages and adhering to the rules of the program.
As with the H-2A, the Administration has also been working to streamline the H-2B process. The DOL and DHS released proposed rules to that effect. In order to increase the efficiency of the filing process, employers would file directly with the ETA office within DOL rather than applying with SWA first, and the time an H-2B visa holder must spend outside the United States after his visa expires would be lowered from six months to three. DHS also proposed several security changes including establishing an exit system pilot program at land borders for H-2B visas, and denying H-2B visas to citizens of those countries that refuse to repatriate their own citizens. These changes should be implemented.
H-1B Visas for Temporary High-Skilled Workers
The H-1B visa is a temporary work visa. However, unlike its H-2A and H-2B counterparts, it is a non-seasonal visa for highly skilled foreign workers with a college degree or higher. The main problem with the H-1B program is an artificially low cap, despite its popularity among foreigners and American employers. Unlike H-2Bs, the low cap does not result in increased illegal immigration, yet it does negatively affect the U.S. economy, and compounds the "image problem" of an America that is no longer welcoming to foreigners.
The cap for H-1B visas currently stands at 65,000 per fiscal year. An exemption of 20,000 visas is given to foreigners with graduate degrees or higher. This is not nearly enough to meet the demand of employers in the United States. In 2003, Congress lowered the visa cap from 195,000 to 65,000. Since then the limit has been reached every year and the cap is now being reached faster than before. In the last two years, the cap for H-1B visas was met within a single week of accepting applications. The CIS received a total of 163,000 applicants for FY 2009 by the end of the first week of accepting applicants.
The shortage of H-1B visas has forced many companies to expand outside the United States, or not expand at all. A survey by the National Foundation for American Policy illustrates that the shortage of skilled workers caused by the low H-1B cap has caused 65 percent of high-tech companies to expand outside of the United States. Typically, H-1B visas are given to foreigners with expert skills in computer and mathematical occupations. This particular sector of the U.S. economy has a 2.1 percent unemployment rate. Economists consider 4 to 6 percent unemployment to be the full employment rate that corresponds to the natural movements between jobs in the economy. At 2 percent unemployment, virtually every worker who wants to be employed has a job. Thus, there is a significant shortage of qualified Americans to take these positions.
The low cap also affects foreign students who have studied in the United States. Students who have a degree from an American university have a difficult time remaining in the United States to work because they are not able to obtain an H-1B visa. Their applications undergo the same process as other H-1B applicants, despite the fact that they have been living in the United States for years. Consequentially, those who cannot work in the United States, often work for competitive companies in India or Canada.
Some have raised concerns that H-1B visas threaten American workers and jobs by allowing companies to hire foreign workers with commensurate (or at times inferior) skills for reduced wages. However, a recent study illustrates that H-1B visas are often used to hire essential workers, which allows companies to expand. With every H-1B worker hired, the company often expanded and hired four American workers for complementary positions.
In addition, a study shows that if the cap for H-1B visas were raised to its previous level of 195,000 visas, it would raise an extra $69 billion in revenue over eight years. Any increase in cost attributed to implementing visa reforms could be paid for by the increase in revenue from theH-1B program.
The H-1B visa has also been criticized for improper use, such as facilitating human trafficking or enabling employers to pay less than the appropriate prevailing wage. While some of these concerns are valid, they should not be the reason why H-1B visas are not expanded. In 2005, there were only 217 violations affecting 604 workers—a tiny fraction of the 65,000 visas issued.
An H-1B program that is responsible and also responsive to market demands is a win for everybody. Congress should immediately:
- Raise the cap to the previous level of 195,000 visas a year.
- Exempt foreign students with American degrees from the cap. Should a foreign student want to stay in the United States to work, and is eligible for an H-1B visa, he should not be counted against the cap.
- Make the cap flexible. The caps must be based on the needs of the marketplace. If the cap was met the previous year, there should be an automatic increase, set by Congress, for the following year. In addition, any unused visas should be rolled over to at least the next fiscal year.
General Improvements to All Programs
Due to the separate provisions guiding these different visa programs, well-tailored recommendations should be implemented for each of them. However, there are general improvements that can be employed to improve all of the non-immigrant programs.
The federal government should:
- Create interoperable databases. All government departments play a separate role in the application process. However, they should not do so in a disparate manner. CIS and ETA databases should be compatible and interoperable. A DHS agent should know what the employer has declared in the DOL application. This would greatly enhance the government's ability to maintain oversight over visa programs. The Enhanced Border Security and Visa Entry Reform Act of 2002, in fact, mandated that the federal government create databases capable of information sharing. It is time the government follows through.
- Reform the process to require that employers only file once. Rather than undergo duplicative and redundant processes, applicants should supply all necessary information in one application that would be made available to all relevant departments. Once a labor certification is granted, the application should be automatically sent to DHS, and the employer should be notified.
The Way Forward
Reforming the current system to meet the needs of employers and non-immigrant workers is essential in addressing the existing concerns over illegal aliens. Ultimately, such reforms will greatly benefit the United States by reducing the number of illegal crossings, ensuring all workers are paid fair wages, and relieving pressure at the border to allow border agents to focus on the real criminals. Reforming such programs also has great benefits to the foreign worker, including fair wages, the ability to travel freely between his home country and the United States, and living as a legal individual in the U.S.
These visa programs have now existed in their dysfunctional state for 20 years—contributing significantly to the burgeoning illegal population in the United States. Fixing them now, as part of an overall integrated strategy for addressing failed U.S. immigration policies and poor border security, just makes sense.
James Sherk is Bradley Fellow in Labor Policy in the Center for Data Analysis at The Heritage Foundation and Diem Nguyen is a Research Assistant in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.