U.S. Temporary Foreign Worker Visa Programs
Backgrounder

U.S. Temporary Foreign Worker Visa Programs

The United States has long accepted hundreds of thousands of foreign workers each year. President Biden has pledged to restore opportunities for migrants after the Trump administration blocked many temporary visas amid the pandemic.
Agricultural workers harvest celery in Oxnard, California, on March 26, 2020.
Agricultural workers harvest celery in Oxnard, California, on March 26, 2020. Brent Stirton/Getty Images
Summary
  • Temporary foreign workers have long supported the U.S. economy, providing American industries, such as agriculture and technology, with a critical labor force.
  • These workforce programs have been troubled by pushback from domestic labor groups, an influx of undocumented immigrants, poor enforcement of work visa restrictions, and concerns about treatment of foreign workers.
  • President Biden is looking to expand the programs’ capacity, including by streamlining the application process, after President Trump blocked most new temporary work visas.

Introduction

Foreign workers have been an essential but contentious feature of the U.S. economic landscape for generations. Since the United States launched its first migrant labor program, during World War I, Washington has struggled to balance the shifting needs of industry with the concerns of the domestic labor force. Meanwhile, the temporary worker debate has been complicated by high levels of undocumented immigration and deficiencies in the U.S. government’s tracking of visas.

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The number of visas issued as part of U.S. temporary foreign worker programs, sometimes referred to as guest worker programs, has sharply declined in recent years as the COVID-19 pandemic has slowed the movement of international migrants: nearly 550,000 visas were granted in 2021 [PDF], down from some 846,000 in 2019. The H1B, H2A, H2B, and H4 visas, the largest of these programs, have been the subject of some of the most heated debate. President Donald Trump promised to reform these programs in line with his “Buy American and Hire American” agenda; although his proposals to overhaul the country’s immigration system stalled in Congress, his administration managed to halt most foreign worker visa programs during the pandemic. President Joe Biden is now seeking to reverse his predecessor’s approach by expanding the legal opportunities for temporary migration.

What are the largest foreign worker visa programs?

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In 2021, the United States issued nearly 470,000 visas for the H1B, H2A, H2B, and H4 programs, far fewer than the 616,000 issued in 2019. However, the total number of workers participating in these programs at any one time is unknown because the various federal data systems that process visas are not linked. This total number includes H1B workers who have received visa extensions while awaiting permanent residency status, a process that can take more than a decade.

How did the temporary worker programs start?

The earliest U.S. temporary worker programs, such as the Bracero Program, were established amid severe labor shortages during World War I and World War II to draw in hundreds of thousands of agricultural laborers primarily from Mexico. It wasn’t until 1952, however, that lawmakers attempted to regulate these programs, consolidating them in the comprehensive Immigration and Nationality Act (INA) passed that year. The INA introduced both the H2 visa and the H1 visa, the precursor to the H1B that would be formally established in 1990; a visa category for spouses and children was created in 1970 as an amendment to the INA.

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How have they changed in recent administrations?

Changes to major aspects of the programs, such as numerical caps and wage requirements, must receive congressional approval, but presidents have the authority to unilaterally change some regulations and can determine how federal officials implement them. “A lot of the latitude an administration has is in how carefully the requirements are enforced,” says Hiroshi Motomura, a law professor at the University of California, Los Angeles.

In 1998, President Bill Clinton signed legislation that significantly increased the H1B cap for 1999–2001 in response to pressure from technology companies who requested more skilled workers to meet growing industry demand. The bill also placed additional requirements, including increased fees, on so-called H1B-dependent employers, or employers with high proportions of H1B workers. In addition, it penalized those who falsified information. Two years later, Clinton signed the American Competitiveness in the Twenty-First Century Act of 2000, which further increased employers’ fees and raised the annual H1B cap from 115,000 to 195,000 for fiscal years 2001–03.

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In 2004, President George W. Bush reduced the H1B program’s cap to today’s limit of sixty-five thousand. In 2008, he eased oversight of the H2A program’s labor certification process, which had formerly been supervised by federal and state officials, by allowing employers to merely attest to complying with the program’s requirements. Additionally, his administration lowered the wage requirements for H2A workers.

President Barack Obama reversed many Bush-era policies with several executive orders aimed at strengthening the organized labor force. In 2010, his administration reverted to a more supervised process after claiming that the attestation-based process implemented under Bush resulted in widespread noncompliance, and in 2015, it began allowing some H4-visa holders to work to ease economic burdens on H1B families. (A 2020 Government Accountability Office report on the H2B program found that the change did not lead to fewer violations.) Yet, some critics argued that Obama’s policies adversely affected wages and working conditions for U.S. workers.

What is the process for getting a temporary work visa?

Several executive branch agencies are involved in reviewing and approving petitions for temporary work visas, including the Department of Homeland Security (DHS), the Department of Labor (DOL), and the Department of State. Employers must obtain certification from the DOL and are required to show that there are no qualified or available U.S. workers for the open positions (oversight of this process varies by program). They then file a nonimmigrant worker petition with U.S. Citizenship and Immigration Services, a branch of DHS, on behalf of prospective workers.

Once approved, workers apply to their local U.S. embassy or consulate for a visa. Consular officers interview applicants to determine whether they qualify for a visa; applicants for most of these visa categories typically must provide evidence that they plan to return to their country of origin after the visa expires. In recent years, H1B visas have been distributed based on a lottery as the number of applications has overwhelmingly exceeded the numerical cap; an H2B lottery was held for the first time in 2018. Still, DHS officials have the ability to deny visa holders at ports of entry on grounds related to health, crime, or security.

What is the debate over these programs?

H1B. Criticisms of the program are many and varied. Depending on the critic, the H1B program is too large, too small, too inflexible, poorly monitored, or overly regulated. Many corporate executives say the H1B program is necessary to make up for a shortage of qualified domestic applicants, particularly for those with advanced technical degrees. They say the government should expand and streamline the program, doing away with the current lottery system. 

On the other hand, U.S. labor groups allege that some businesses take advantage of the H1B program because they can get away with paying foreign workers less and offering fewer labor protections. All companies must attest they will comply with rules regarding wages and working conditions, but only H1B-dependent employers under certain circumstances must attest to having first sought out qualified American workers. Still, others say that the H1B program leads to competition between domestic and foreign workers, which it was designed to prevent.

H2A and H2B. Some experts claim the red tape involved in temporary worker immigration leads to an inefficient system that incentivizes hiring undocumented immigrants, many of whom are just as willing to avoid the required fees and paperwork. The agricultural worker program has no numerical cap, but it provided visas to more than 250,000 workers in 2021, over five times more than received visas in 2005. The U.S. Department of Agriculture estimates that in recent years, around half of farmworkers were undocumented, binding this issue to the broader debate over immigration enforcement. “When it’s more difficult to come into the United States to work legally, all things being equal, more people enter to work illegally or overstay their visas,” says Alex Nowrasteh of the libertarian-leaning Cato Institute. Despite the problems plaguing these programs, cutting them entirely would increase undocumented immigration, he says.

Some lawmakers and advocacy groups say the government agencies managing these programs do not go far enough to ensure that foreign workers are not displacing domestic workers. Others stress they fail to protect foreign workers from exploitation. Current rules and fee requirements make it difficult for temporary workers to change employers, which, advocates say, prevents them from negotiating for fair wages and improved working conditions. One of the biggest problems the system has is that the legislation behind these programs is inflexible, says Audrey Singer, an immigration expert at the Congressional Research Service. “By the time we develop and pass these bills into law, they become outdated,” Singer says.

What changes did the Trump administration make?

During his 2016 campaign, President Trump said that he would seek to reduce both legal and illegal immigration and implement a “merit-based” immigration system, though he failed to gain the support in Congress necessary to make such policy changes. In 2017, Trump issued an executive order directing federal agencies to evaluate immigration policies in order to protect U.S. workers and crack down on fraud. He requested that agencies suggest reforms to the H1B program to ensure that visas were awarded to the most-skilled or highest-paid applicants. The administration temporarily suspended fast-track processing for H1Bs on two occasions, and the number of denials of H1B applications more than doubled in 2018 from the year before. In 2019, however, denials dropped sharply, bringing the approval rating up to 98 percent. 

Despite Trump’s anti-immigrant rhetoric, between 2016 and 2019, at least fifteen thousand additional H2B visas were granted on top of the annual cap to meet the high demand for seasonal workers that resulted as unemployment dropped to its lowest level in decades. In May 2019, Trump unveiled a plan to overhaul the country’s immigration system aiming to shift from visa lotteries and family reunification to a points-based system that would consider factors such as age and English proficiency. But the proposal failed to gain any traction in Congress.

What other reforms have been proposed?

Recent H1B bills have included proposals to permanently raise the numerical cap, impose additional requirements on companies planning to pay H1B workers less than $100,000, and reduce fraud and abuse. A bipartisan bill introduced in 2020 aims to prioritize U.S.-educated H1B applicants and close loopholes that have allowed the replacement of American workers with H1B and other visa holders.

Proposed reforms to the H2 programs have focused on streamlining their administration to shorten the labor certification and application process from up to two months to just days. Some have proposed overhauling or entirely replacing the programs; Senator Dianne Feinstein (D-CA) has pushed for an agricultural worker program focused not only on admitting new workers, but also on identifying undocumented workers in the country and granting them legal status. A Republican-sponsored bill introduced in 2017 would have allowed state governments to craft their own temporary worker programs. Some proposals for H2A reforms have even sought to allow employers to hire temporary workers for year-round, rather than just seasonal, labor needs. Still, other proposals have looked to broaden the scope of the types of labor authorized under the H2 programs and the groups exempted from the H2B numerical cap.

How has the COVID-19 pandemic affected these programs?

The pandemic and resulting shutdowns have disrupted most temporary foreign worker programs. In March 2020, the State Department halted routine visa services at U.S. embassies and consulates, including for H1B visa holders, though efforts to resume services are ongoing. However, officials continued to process H2 visas, even easing restrictions on these programs to ensure a steady supply of migrant farmworkers and avoid domestic food shortages.

In June 2020, Trump issued a proclamation suspending almost all new temporary work visas until at least the end of the year, citing the need to protect American jobs amid skyrocketing unemployment. (Some coronavirus researchers and seasonal farmworkers were excluded from the order.) Business leaders who rely on workers from overseas objected to the move, while many economists argued that turning away skilled workers would undermine the country’s economic recovery.

What has Biden done?

President Biden has promised to restore the visa programs that Trump halted. In February 2021, Biden revoked an order implemented under Trump that froze the issuance of new green cards and halted certain types of visas, including those for H1B and H2B holders. He has also released a proposal for comprehensive immigration reform. If passed, it would make temporary workers eligible for lawful prospective immigrant status, which would allow them to legally live and work in the United States; grant work authorizations to H1B holders’ dependents; and increase the availability of employment-based green cards. 

Biden also aims to expand the capacity of guest worker programs and streamline the overall immigration process. In a May 2021 blueprint, the administration detailed plans to admit more high-skilled workers into the United States and create new pathways for foreign entrepreneurs. The following November, DHS designated six new countries as eligible to participate in the H2 programs, and in March 2022, the administration declared that it would make an additional thirty-five thousand seasonal worker visas available to U.S. businesses in response to the increasing demand for temporary workers.

Recommended Resources

The Congressional Research Service provides background on the H2 visa programs [PDF].

For InSight Crime, Parker Asmann discusses how Mexican and Central American migrants are exploited by U.S. temporary foreign worker programs.

Cornell University’s Vernon M. Briggs Jr. details the history of U.S. guest worker programs for the Center for Immigration Studies.

Deanne Fitzmaurice and Katie Benner look at the workers who would be affected by H1B reforms for the New York Times.

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Will Merrow helped create the graphics for this Backgrounder. Nathalie Bussemaker contributed to this report.

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