Jacob Wedemeyer, J.D. candidate, The University of Iowa College of Law, 2007. Special thanks to Alejandra, Jacobo, and our family. Thanks also to the editors and staff at the Journal; the attorneys, staff, and clients at Texas RioGrande Legal Aid; and the The University of Iowa for seven great years.
"The term ¥guestworker¥ is misleading: ¥Welcome to my house, now do the dishes.¥"1
The H-2 visa is the current temporary guestworker program for low- skilled laborers in the United States. The H-2A visa covers agricultural workers,2 while the H-2B visa covers all other low-skilled workers.3 While scholars have written extensively about the H-2A program,4 surprisingly Page 144 little scholarship has been devoted to the H-2B visa5 despite the fact that the U.S. Citizenship and Immigration Services (USCIS) annually issues five times more H-2B visas than H-2A visas.6 This Note analyzes the disparities between the H-2A and H-2B visas, critiques the current administration of the H-2B labor certification from legal and policy standpoints, and suggests ways for Congress and the Department of Labor to improve the H-2 program in order to provide more protections for U.S. and foreign workers. In particular, this Note asserts that the Department of Labor should administer the H-2B program with the same benefits and protections as the H-2A program. This Note also highlights two shortcomings of the H-2B program: its use in agriculture to circumvent the protections and benefits of the H-2A program; and its use in areas of high U.S. unemployment, like the Rio Grande Valley of South Texas.
Section II of this Note briefly explores the history of the H-2A and H- 2B programs and provides a statistical overview. This section details the current statutory and regulatory framework, examines recent developments and proposals, and discusses relevant cases. Section III of this Note proposes two legal and two policy arguments in favor of more protective H-2B procedures for U.S. and foreign workers. First, the H-2B regulations incorporate by reference the more protective H-2A procedures. Second, many H-2B job titles actually entail agricultural work and should be covered by the H-2A program. Third, because low-skilled U.S. labor shortages are questionable, the H-2B procedures should require greater U.S. worker recruitment at higher wage levels, which would then be paid to foreign workers if no U.S. workers responded. Fourth, proposed agency regulations to change the H-2B program would weaken U.S. and foreign worker protections. Section IV proposes two solutions: eight governmental improvements to the H-2A and H-2B programs and international solidarity.
The H-2B temporary worker visa originated along with the Bracero Program, which brought temporary Mexican workers to the United States in 1943 to work in agriculture during the emergency labor shortages of World Page 145 War II.7 Congress and the Immigration and Nationality Service ("INS")8extended the Bracero Program several times until 1964 despite the end of World War II two decades earlier.9 The Immigration and Nationality Act of 1952 codified the H-2 temporary work visa,10 which was first created in 1943 like the Bracero program.11 During the twelve-year period when the Bracero program and the H-2 visa officially overlapped, Mexicans did not qualify for H-2 visas.12 In 1986, Congress divided the H-2 visa into two subcategories: the H-2A (agricultural) and H-2B (nonagricultural) visas.13Now Congress and the Bush Administration are considering the creation of another Bracero-like guestworker program.14 The H-2A and H-2B visas will likely be directly affected.
To qualify for H-2A and H-2B temporary work visas, sponsoring employers must obtain labor certification from the Department of Labor (DOL).15 Labor certification implements Congress¥s intent that both the importation16 of foreign workers should only occur during a bona fide labor Page 146 shortage and that the importation will not harm U.S. workers.17 In other words, labor certification is a test of the domestic labor market. Labor certification requires that no U.S. workers are available18 and that wages and working conditions of U.S. workers will not be adversely affected by the hiring of the foreign workers.19 Once the DOL grants labor certification, the employer applies to the USCIS for the H-2 visas.20 The H-2A visa has no numerical cap, but the statutory cap for H-2B visas is 66,000.21 In 2003, USCIS actually issued 14,094 H-2A visas and 102,833 H-2B visas.22 In 2004, USCIS issued 22,141 H-2A visas and 86,958 H-2B visas.23
The DOL grants about twice as many labor certifications as USCIS issues H-2B visas.24 In fiscal year (FY) 2004, employers submitted 9341 applications to the DOL to certify 203,450 H-2B workers.25 The DOL granted 168,471 or 82.8% and denied 24,841, or 12.2%.26 The DOL certified one application for 1070 forestry workers, the largest request.27 A total of 1401 employers submitted applications requesting only one worker; the DOL granted 766.28 Based on the number of labor certifications in FY 2004, the five most common H-2B jobs were, in order, landscape laborers, forestry workers, maids and housekeeping cleaners, construction workers, and stable attendants.29
In Texas, employers submitted 1401 applications to certify 23,602 workers; the DOL granted 19,549 labor certifications and denied 3181.30 In FY 2005, the DOL received 7236 applications to certify 151,182 workers.31The DOL approved 134,837 workers and denied 13,726; the DOL approved 90.7% and denied 9.2%.32 In Texas, the DOL received 887 applications to Page 148 certify 20,823 workers; DOL approved 19,131 workers and denied 1250.33
In 1999, the DOL granted 41,827 H-2A labor certifications and the Department of State issued 28,560 H-2A visas.34 In FY 2004, the Department of State issued 31,774 H-2A visas.35 The top three receiving states were North Carolina (25% of the labor certifications), Georgia (13.9%), and Virginia (9.2%).36 Texas ranked eighth with 3.6%.37 The top four crops were tobacco (42.1% of the labor certifications), vegetables (20.5%), apples (10.3%), and nursery horticulture (6%).38
The labor certification processes for H-2A and H-2B visas resemble each other but differ in key aspects. In general, to obtain labor certification, an employer submits an application to the State Workforce Agency ("SWA"). The application must contain the wages, terms, dates, and location of the employment as well as documentation that the employer has followed the recruiting requirements to test the labor market for domestic workers based on the same job terms in the application. If the SWA approves the application, it then forwards it to the DOL, which officially certifies the employer for the number of vacancies still open after the recruitment of U.S. workers. Upon receipt of the DOL certification, the employer files a visa petition with USCIS.
DOL regulations found in Subpart B of the labor regulations statute prescribe detailed procedures for H-2A labor certifications of agricultural workers.39 Agricultural employers must file an application that includes a job offer with the Regional Administrator ("RA") of the DOL. The terms of the job offer apply to any U.S. workers hired and to the H-2A workers. The regulations in Subpart B require the employer to extensively recruit U.S. farmworkers before importing foreign workers,40 affirm that no strike or Page 149 lockout exists,41 pay the "adverse effect wage rate,"42 provide workers compensation insurance,43 provide safe and healthy housing for the workers44 and their families if such practice is prevailing in the area of employment,45 provide tools and equipment,46 and provide three meals a day...