Guestworker 101

I thought it would be a good idea to kick things off with the basics about the guestworker programs. There are many people out there who simply have never heard of the guestworker programs.  Misconceptions and misinformation are the standard when it comes to the guestworker programs.

The guestworker programs that are currently in place now in the U.S. are the H1B, H2A and H2B programs. Congress initiated the H2A program under the Immigration Reform and Control Act of 1986.

  • The H1B program is for skilled occupations, i.e. computer programmers
  • The H2A program is for agricultural employers , i.e. farmers, nurseries, sod producers
  • The H2B program is for non-agricultural employers, i.e. landscapers, seafood processors, hospitality workers

These guestworker programs are administered and regulated by the U.S. government.  Employers must comply with all regulations and all parts of the paperwork process to be approved to employ legal, foreign workers through one of these guestworker programs.  After obtaining a work visa, a guestworker may work for a temporary period of time for their sponsor or employer and then they return home and the process recycles every year.  The maximum amount of time H2A and H2B workers may work in the U.S. is ten months.  An employer can extend the workers for up to three years and then the worker has to return home, however most employers do not extend for this lengthy of a period because the transfer and extension process is so arduous as is the entire process to obtain approval for a work visa.

Obligations that an H2A employer must fulfill before workers arrive:

  • Submit an application for Foreign Labor Certification with the U.S. Department of Labor (USDOL) 45 days from the proposed start date of work
  • Conduct labor market tests to determine if there are any U.S. citizens available for the job
  • Obtain approval of housing facility by state housing inspector
  • Receive approval from U.S. Department of Labor
  • Petition United States Citizenship and Immigration Services (USCIS) for work visas
  • Receive approval from USCIS
  • Schedule Consulate appointments
  • Foreign employee approved by Consulate, receives work visa

Obligations that an H2A employer must fulfill after worker arrives:

  • Pay set pay rate called the Adverse Effect Wage Rate (AEWR), changes from state to state, e.g. NC $8.52
  • Provide free, government-inspected housing
  • Provide free transportation to and from work everyday
  • Reimburse workers for the incoming and returning transportation expenses
  • Provide required tools and equipment
  • Offer Workers Compensation coverage
  • Offer hourly guarantee of 3/4 of the total contract hours
  • Inform local employment office and U.S. Consulate if any worker is terminated or abandons employment

Obligations that an H2B employer must fulfill before workers arrive:

  • Submit an application for Foreign Labor Certification to the U.S. Department of Labor (USDOL) 120 days from the proposed start date of work
  • Conduct labor market tests to determine if there are any U.S. citizens available for the job
  • Receive approval from USDOL
  • Petition United States Citizenship and Immigration Services (USCIS) for work visas
  • Receive approval from USCIS
  • Schedule Consulate appointments
  • Foreign employee approved by Consulate, receives work visa

Obligations that an H2B employer must fulfill after worker arrives:

  • Pay prevailing wage rate, this wage is determined by surveys conducted by State Workforce Agencies
  • Take workers to social security office to obtain card
  • Offer Workers Compensation coverage
  • Overtime pay
  • Inform U.S. Consulate if any worker is terminated or abandons employment

There are a projected 12 million people currently living in the U.S. illegally.  Of those 12 million, 4 million are projected to be employed in an agricultural occupation.  In 2006, USCIS admitted 46,432 workers under the H2A program and 431,853 under the H2B program.  

The guestworker programs are generally expensive and litiguous resulting in low participation.  H2B employers face an additional challenge in the cap that Congress placed on the amount of H2B visa holders that may enter the country. Only 66,000 workers may receive visas from USCIS.

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