A Look at Our Broken Guest Worker Program

Most people recognize that labor shortages are a major cause of a large undocumented population in this country, but the extent to which our broken guest worker program contributes to this problem is largely unknown.  

Our current non-agricultural guest worker program is limited to 66,000 guest workers annually, an exceedingly small number given the size of our economy and our labor needs. 

The Process to Hire Seasonal Workers: Dealing with the Department of Labor

To hire guest workers, first you are limited to only a seasonal, one-time, intermittent or “peak-load” need for additional workers. Namely, you must have an unusual, non year-round need for the additional workers. You must prove this need with extensive documentation that often may be challenged by immigration if they find any data that challenges your temporary need. 

Next, distinct from every other worker classification such as professionals, specialty occupations, and intra company transfers, the government does not trust employers when they state that they have a real labor shortage and cannot find U.S. workers for the position. Instead, the government requires employers to conduct expensive, specific recruiting to seek U.S. workers for the position, even though the employer has often already conducted extensive recruiting for the positions.  

Now here’s the kicker: the employer, in order to comply with the timing requirements of the process, must recruit for these non-professional temporary positions (for example, landscape laborers, construction workers, restaurant workers, etc.) around four months before the position is available. If any U.S. worker states, again four months before the job is actually open, that they intend to show up to work in four months, U.S. immigration reduces the number of permitted foreign workers by that number. Take a guess as to what happens to the U.S. workers who “accepted” the position four months before it is open. They do not show up for obvious reasons: they found another job, or perhaps they were not that committed to the non-professional job in the first place.  

The employer is also required to pay the prevailing wage for the position, which is the average wage for the position in a given geographical area as established by the Department of Labor. This wage typically far exceeds the federal minimum wage. 

Next Steps: Dealing with the Department of Homeland Security (DHS) and the Department of State

The absurdity of the process continues. After the employer has established to the satisfaction of the Department of Labor that they cannot find sufficient workers (and the number has been reduced by the number of U.S. workers who responded that “sure, I’ll show up for your laborer position in four months”), the employer must then file another application with another U.S. agency, now the Department of Homeland Security (DHS), where they again must assert and potentially prove their temporary seasonal or peak load need for additional workers.  

Assuming they clear the DHS hurdle, then the foreign nationals must complete an online computer form application (in countries where computers and computer skills are often still quite sparse), submit the form now to a third separate U.S. Department, now the Department of State, and await an interview with a consular officer who will make a final decision as to whether to grant the visa so that the foreign national can show up to work.  

The Result of all the H-2b Hurdles

In summary, the H-2b guest worker program requires clearing substantial obstacles placed by three separate U.S. departments, Department of Labor, Department of Homeland Security and Department of State. The complexity and length of the process adds so much uncertainty and cost to the process that it is no surprise that so many U.S. employers do not use the system. This failed guest worker system is a major factor in our large undocumented population. If we had a guest worker system that worked for U.S. employers, the number of undocumented workers going forward would vastly decrease. Rather than finger pointing and scapegoating, our leaders need to sit down together and address the most broken parts of our immigration system head-on, and our guest worker program should be at the top of their list.  

Photo Credit: World Bank Photo Collection Flickr via Compfight cc