New Guest Worker Visa Program Proposed

H-2C visa would fill the gap between existing visa classifications

By Roy Maurer May 6, 2016

U.S. Sen. Jeff Flake, R-Ariz., recently introduced legislation that would set up a pilot guest worker program to fill the gap proponents say currently exists between the temporary visa programs for H-2A and H-2B seasonal workers and high-skilled H-1B workers.

The Willing Workers and Willing Employers Act (S. 2827) would amend the Immigration and Nationality Act and create a new H-2C classification.

The bill would establish a 10-year-long pilot program that would admit workers who have less education than a bachelor’s degree to the United States to do year-round, nonagricultural work. Construction, nursing, manufacturing, landscaping and meatpacking employers that currently have to fight for who they can get from the limited H-2B seasonal worker program would welcome the new visa classification. 

“This bill addresses a critical omission in our immigration laws—a mechanism to bring foreign lesser-skilled workers to the country when U.S. workers cannot be found,” said Laura Reiff, an attorney ‎in the Washington, D.C., area offices of Greenberg Traurig. The bill is not expected to be advanced, but is instead a legislative marker laying the groundwork for the potential architecture of such a program in 2017, she said.

The legislation would:

  • Create a flexible cap for registered positions ranging from 65,000 to 85,000 a year to match economic demand.
  • Require that employers first test the labor market to seek an available U.S. worker before utilizing the program. If a company is unable to hire a U.S. worker, it can apply for a permit to hire a foreign worker, which would be good for three years.
  • Allow workers greater portability by enabling them to change jobs and work for any employer that has tested the labor market and been granted a permit.
  • Require that potential H-2C employees be screened through the federal government’s E-Verify system.

“This more flexible, market-like arrangement has benefits for employers and employees,” said Tamar Jacoby, president and CEO of ImmigrationWorks USA, a national federation of small business owners working to advance immigration law, based in Washington, D.C. The principal advantage for employers is that “there can be no claim [as there is under current law] that they are responsible for workers’ travel or housing or for providing a fixed number of work hours,” said Jacoby, who helped write the legislation. “And if a visa holder leaves the company for any reason, the employer can hire a replacement quickly, easily and legally without going back to the government.”

The political climate in the U.S. today is not conducive to creating a large-scale, coast-to-coast guest worker program, Jacoby said. Therefore, the program proposed in Flake’s bill would only apply in counties and metropolitan statistical areas where the unemployment rate is less than 5 percent.

During the pilot, the bill would require a study to determine the effects of the program on wages, employment, economic growth, welfare use and government services to determine if it should be continued.

Industry Reaction

Employer associations representing sectors as diverse as health care, construction and poultry applauded the bill’s introduction as a way to fill open positions.

“There is a well-documented health care worker shortage, and the crisis will only worsen if action is not taken,” said Clifton Porter II, senior vice president of government relations for the American Health Care Association and National Center for Assisted Living, based in Washington, D.C.

According to the U.S. Department of Health and Human Services and the U.S. Department of Labor, as many as 6.5 million more nurses, nursing assistants and personal care workers will be required to care for the 27 million Americans who will need long-term care by 2050.

“Recruiting, training and retaining caregiving staff are the biggest challenges facing skilled nursing care centers today,” Porter said. High turnover and a shallow labor pool—coupled with a nationwide shortage of nurses—make effective staffing one of the biggest challenges for providers, he added.

The National Association of Home Builders also greeted the bill with praise, saying the current immigration system lacks a market-based program to allow workers into the country temporarily to fill construction-sector labor gaps.

Joel Brandenberger, president of the National Turkey Federation, said, “There is currently no one bill that is a ‘silver bullet’; however, Sen. Flake’s bill will go a long way to fixing our broken immigration system. Ensuring the legal hiring of enough qualified workers is critical to the turkey industry and the long-term success of the U.S. economy.”

Notable Concerns

Not everyone thinks the proposed new program is a great idea. “Our country does not have a shortage of workers who are without college degrees; in fact, these are the workers who face the most difficulty in finding work these days, and these are the workers who have not seen their wages increase in recent years in large part due to an oversupply fueled by our immigration policies,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, a Washington, D.C.-based research institute. “It makes no sense to bring in foreign workers to do low-paying work when we have tens of thousands of unemployed and underemployed Americans and legal immigrants who need those jobs.”

Vaughan also expressed concern about the potential fraud and exploitation of workers that could occur, citing past fraud and abuse in similar guest worker programs.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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