The domestic worker debacle: the need for domestic worker visas in the United States.

• Author: Banks, William J.

Common concerns for many Americans when it comes to matters of immigration, aside from terrorism and issues of national security, are the interests of American workers and protection of the U.S. labor force. Indeed, one of the primary motivations for the immigration laws being drafted and structured the way they are is to protect U.S. workers from a hyper-influx of foreign nationals that could displace the American labor force. The Immigration Nationality Act (INA) places numerous hardline restrictions on those who come into this country to work or to seek permanent residency based on their employment.

In general, those most qualified for nonimmigrant and immigrant workers' visas are those people with post-secondary degrees, experience, and/or a job offer in a field that is considered professional. While professions necessarily will include doctors, lawyers, and engineers, they also include managerial and executive positions, as well as occupations that require the services of the truly elite and accomplished such as professors, researchers, and wealthy investors. However, the INA and the attendant provisions of the Code of Federal Regulations (CFR) generally do not address immigration benefits for unskilled and nonprofessional workers. Although it is not impossible for unskilled workers to come to the U.S. to work and gain lawful permanent residency, the law tends to be more restrictive for unskilled worker categories, and the process typically takes much longer than that for professionals.

The most common nonimmigrant visa for unskilled workers is the H-2. This visa allows for temporary admittance to the U.S. for a skilled or unskilled agricultural (H-2A) or nonagricultural (H-2B) worker for a seasonal, one-time, intermittent, or peak load need, and is generally issued for eight to 12 months? This visa type is very common in the hospitality industry where employers bring in crews of foreign laborers to meet their seasonal needs for housekeepers, grounds maintenance, and other unskilled positions. The H-2 is also used commonly by agricultural firms that need temporary labor for the planting and harvesting seasons. For H-2 positions, the employer must first obtain a temporary labor certification from the Department of Labor attesting to the unavailability of U.S. workers to perform the job duties. (2) The temporary labor certification determines that, when the employer is hiring for the particular position, either no U.S. citizens or lawful permanent residents are willing and able to do the job, or there is a shortage of them. Ostensibly, this protects the U.S. labor force from saturation by foreign workers.

The greatest disadvantage to the H-2 visa program is that the process tends to be complicated, and there simply are not enough visas allocated per fiscal year. Indeed, pursuant to applicable laws, only 66,000 H-2B visas are granted per year. (3) This has inevitably created a shortfall in the employee pool in recent years, and American companies utilizing the H-2 program have found themselves short-staffed.

While U.S. companies are beleaguered by a shortage of temporary H-2 workers, an entire industry reels continuously from an inability to recruit workers to fill a highly demanded job function, H-2 or otherwise--that of domestic workers, specifically, those involved in home care. Nonimmigrant and immigrant visas for domestic workers are practically nonexistent. A narrow exception is carved out for live-in domestic workers who enter the U.S. essentially as dependents of diplomats and international agency workers (A-3 and G-5 visas respectively). It is difficult, if not impossible, for a potential employer to prove that its need for a domestic worker fits the statutory "temporary need" of the H-2 category. Moreover, potential U.S. employers and American households cannot take advantage of the A-3 and G-5 visas. Thus, the U.S. household turns to the illegal population, leaving the industry staffed largely by undocumented foreign nationals.

The remainder of this article addresses the ultimate need for a domestic worker nonimmigrant visa category as well as a realistic means for foreign domestic workers to obtain lawful permanent residency through employment.

Current Law

Current immigration laws tend to be hostile to domestic workers. Aside from the referenced H-2B, A-3, and G-5 visa categories, there exist limited means for a domestic worker to come to the U.S. on a nonimmigrant visa. One option is the J-1 visa for au pairs. (4) However, much like the H-2 program, J-1 visas do not allow for extended periods of time in the U.S., and the bearers of J-1 visas often find themselves subject to a two-year home residency requirement following expiration of the visa. (5) Moreover, the terms of employment...