Third International Metropolis Conference, Israel, November 1998
COMPARATIVE EXPERIENCES WITH TEMPORARY WORKERS:
THE UNITED STATES*

INTRODUCTION

The Immigration Act of 1965 is the architecture of today's U.S. immigration system. It divided the inflow into a predominantly family-based intake and a smaller employment-based one, the practice of certifying that the latter will not harm U.S. working conditions, and the elaboration of an alphabet of temporary workers. The Immigration Act of 1990 increased the numbers of family- and employment-based and made the transition from temporary to permanent immigrant easier. Since then, the welfare act of 1996 took away the right to most federal means-tested benefits from new immigrants and the immigration act of 1996 took away specific rights of due process as a means of easing deportation of criminal aliens and claimants for asylum.

Most recently, debate has turned around the temporary system with claims that there is a shortage of information technology workers and a need for high-skilled, foreign temporary workers. A view that won the day and an expansion of the number of temporary workers admitted. Indeed, technology in the United States continues to drive an economy demanding highly-skilled workers. Scientists and engineers are at the core of the new economy, and the recent debate, and this paper will give preference to studies of those occupations. Currently, information technology is a leading growth sector with rapid increases of its native- and foreign-born labor force.

This paper has two missions, one to lay out the best available data on the number of temporary migrants and one to discuss the general literature on their labor market impact. First, definitions are given of the multiple temporary categories and their basic requirements and purpose. Then the statistics for the various categories are presented with, to the degree possible, attention being given to the increases in the number of temporary migrants since the 1990 Act went into play. While the central focus of the paper is temporary migrants, it should become clear to the reader that any analysis of the temporary system needs to follow through to the juncture where temporary meets permanent.

Secondly, a review of the literature breaks out into the academic and the private-sector labor markets. There is a lot of debate over the impact or non-impact of temporary workers, especially in the sciences and engineering, but no solid body of research that systematically establishes that there are adverse impacts. This paper will not explore the subset of difficult issues that are imbedded in this debate, i.e., the question of what is a shortage and how many workers are needed, or which employers are most likely to abuse foreign-temporary labor, or which policies might circumvent egregious abuses. It should, nevertheless, provide the reader with a general understanding of the issues and analytic results in the literature.

ADMISSION CATEGORIES

Temporary foreign workers enter the United States under one of several admission statuses, chiefly as "nonimmigrant" temporary workers, students or exchange visitors, and as legal permanent residents ("immigrants"). The temporary visa-holder is oftentimes referred to as a "nonimmigrant" (a.k.a. NIV), and the permanent admission as a legal permanent resident (a.k.a. LPR). Admission to the United States is authorized by different rules for each visa class and, correspondingly, there are varied sources of administrative data collected

Temporary Classes of Admission

Admission classes for temporary migrants with work authorization fall into two broad categories, those that are specifically for work-related purposes (work authorized) and those for which the visa is primarily issued for other reasons upon which work authorization is contingent (students and exchange visitors).

Work Authorized

Employment with an employer in the U.S. is authorized for only a select set of temporary working visas. These are largely for special-purpose occupations, for international trade, and for employment by multinationals.

H-1B speciality workers are professionals and highly skilled individuals in specialty occupations. They are sponsored by employers who must first submit and have approved by the DOL a Labor Condition Application (LCA) in which they attest that they will pay the actual or prevailing wage, not adversely affect the working conditions of U.S. workers, that they will post the job and that there has been no strike or lock out. There is legislated time period on the DOL’s review of employers’ applications. The Immigration Act of 1990 recognizes that many employers hire nonimmigrants with dual intent, i.e., as temporary workers at the moment and as potential additions to their permanent workforce. The legislation permits entry of nonimmigrant H-1B workers who possess an intent to immigrate at some future time, with a duration of no more than six years. The H-1B visa generally requires a baccalaureate or higher degree.

H-2B visa for temporary nonagricultural workers permits entry for nonprofessionals who work in science and engineering fields.¹ This category requires that the employer first submit and have approved by DOL a labor certification which requires that the employer fulfill a number of wage and working conditions that demonstrate that the job will not adversely affect similar workers. It requires provision and scrutiny of employer evidence that insufficient U.S. workers were able, willing, qualified, or available for hire and, typically, takes some time to process. The program has a double temporary requirement, i.e., that both the job be temporary or seasonal and the workers may only remain for temporary periods. About one-half of the H-2B entrants are for low-wage, low-skill occupations such as seafood, hotel, and resort industries. The higher-skilled H-2Bs appear to be in health-related services or engineering.

E visas for treaty traders and investors do not require labor market testing and attestations or certifications are not required. The E visa entitles a temporary alien to enter the United Sates under the provisions of treaties with foreign nations to carry on trade, including trade in services or technology, and develop or direct the operations of an enterprise.

L visas for intracompany transferees are employed by a multinational company and do not require labor market testing and attestations/certifications are not required. The classification dates from 1970 and requires that the alien has been employed continuously for one year by a firm or corporation or other entity to render temporary services to their employer in the capacity of a manager, executive, or position of specialized knowledge. The Immigration Act of 1990 amended previous requirements and permits dual intent, i.e., the worker may possess an intent to immigrate permanently at some future time for a position which may be permanent. Stays are from between five and seven years.

TN professional workers are citizens of Canada or Mexico and the category was created by the North American Free Trade Agreement (TN refers to "Trade NAFTA"). Their status is somewhat analogous to H-1 workers; however, the TN category remains separate, distinct, and the number of TNs is in addition to other working visas issued to Canada or Mexico. Presently, TN professionals from Canada are exempt from visa requirements, whereas Mexicans must first obtain a visa with requirements that are similar to the H-1B before they can be admitted to the United States in TN status. The applicant must have a baccalaureate degree or appropriate professional credentials and stay for up to one year with no limit no the number of extensions.

O visas are for aliens with extraordinary abilities in sciences, arts, education, business, or athletics, and those assisting in their athletic or artistic performances, may include scientists and engineers.² The individual must demonstrate sustained national or international acclaim and must be entering the U.S. to work in his or her particular field. Petitions are filed with the INS.

Students and Exchange Visitors

Both the foreign student (F) and the cultural exchange visitor (J) visas are intended primarily to promote both formal education and learning by experience, and both permit limited work authorization.

The foreign student (F) is admitted with the understanding that they have no intention of abandoning their home country and these vias are issued only to students who are attending INS-accepted institutions. Work authorization is generally restricted to campus with one year of off-campus work (practical training) allowed. Work may also be authorized if a student faces financial hardship and students from certain countries may on occasion be granted blanket work authorization due to economic crises in their home countries. The number of such workers is essentially unknown.

The exchange visitor (J) visa may partly be governed by international agreements, some may only study, while others engage in significant work activity during their stay. The USIA regulations state that the underlying purpose must be to stimulate international collaborative teaching and research efforts or to promote interchange between research and education institutions. Although many (those funded by U.S. institutions and paid the prevailing wage) could qualify under the current H-1 category and some of extraordinary ability could qualify under O, most who are funded from abroad or who are paid less than prevailing wage qualify only under J. There are number of separate subcategories of J visas including trainees, students, teachers, and physicians.

The vocational student (M) visa is used for vocational students, who are prohibited from any employment except for after completion of studies and practical training

Permanent Classes of Admission

Permanent resident admissions are given to several classes of immigrants the two broadest of which, family-based (FB) and employment-based (EB), are generated, respectively, through the sponsorship of an immediate family member or an employer

Family Based

The family-based admissions dominate the flow of immigrants into the country. Any family-based immigrant may work in the United States. These categories do not require labor market tests or exceptional ability to contribute to the U.S. economy. Significant portions of S&E workers enter under family-based admissions.

Employment-Based

There are four preference categories of those admitted to work. The first three apply to those admitted for employment-related reasons in the for-profit U.S. labor market, while the fourth applies to ministers and religious workers, and the fifth to self-employed entrepreneurs.

Priority workers or first preference (EB-1) permanent immigrants are those with extraordinary ability; or outstanding professors/researchers; or multinational executives and managers. These workers are exempt from labor market tests and must demonstrate sustained national or international acclaim. The required level of expertise should make the individual one of a very small percentage of those who have risen to the top of their field.

Professionals with advanced degrees or second preference (EB-2) immigrants are those with exceptional ability who do not meet the criteria laid out for priority workers and are labor market tested. The Attorney General may waive the job offer requirement when it is deemed to be in the national interest. The requirements for the Permanent Labor Certification (PLC) are the same as described above for the H-2B, the employer must first submit and have approved by DOL a labor certification which requires that the employer fulfill a number of wage and working conditions that demonstrate that the job will not adversely affect similar workers.

Skilled workers/professionals with baccalaureate degrees, or third preference (EB-3) immigrants are those with at least two years of training or experience and are labor market tested. The employer must first submit and have approved by DOL a permanent labor certification which requires that the employer fulfill a number of wage and working conditions that demonstrate that the job will not adversely affect similar workers. This preference category includes those who generally have a baccalaureate degree (EB-3a) and those with less than two years training or experience (EB-3b).

Footnotes

¹   H-2A agricultural workers, although the numbers are small, also require a labor certification by the U.S. Department of Labor, as do D visas for foreign crewman.

²  P visas for internationally recognized entertainers and athletes, artists or entertainers on an exchange program or under a culturally-unique program are applicable to those who cannot qualify as extraordinary. Stay is limited to the project or training program. Q visas for participants in international exchange programs were created by the Immigration Act of 1990 and allow entry for prearranged employment with comparable wages and working conditions to domestic workers. Cultural exchange is the underlying motive for admission. The 1990 Act also established R visas for religious workers to meet the need for nonprofit religious organizations that have different requirements for jobs from the business world (e.g., B, H, or Js). Additional workers, such as researchers, scholars, au pairs, and camp counselors, enter under the J visas (see text).

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