US Temporary Worker Programs: Lessons Learned
By Doris Meissner
Migration Policy Institute
March 1, 2004
Demographers believe that the undocumented population in the United States
numbers close to 10 million people, with Mexicans accounting for 55-60 percent
of this total. Thus, United States immigration policy and reforms are of
overarching importance and interest to Mexico and to issues surrounding
Mexican-United States migration.
On January 7, 2004, US President George W. Bush proposed major,
far-reaching changes in US immigration policy that are based on the proposition
that a core principle of immigration policy—meeting the nation's labor market
needs—should be realized through new, large-scale temporary worker measures. This
article reviews the highlights of previous and current temporary worker
programs and US experiences with them.
By way of definition, temporary workers are people who are imported to
meet labor market needs in the United States or in any country for limited
periods of time. Their admission is not considered a basis for permanent
residence or permanent stays in the country.
Such programs have covered workers at all skill levels. In the popular
mind, they are typically at the low-skill end of the labor market. But there
are many temporary worker schemes that meet high and medium-skill labor market
needs. This approach dates far back all over the world, and in many countries
it predates the US experience with temporary workers. Today, it is an
important phenomenon worldwide, particularly in the Middle East, where many
economies could not function without imported labor.
In the case of the United States, there have been several key programs
beginning with the "Bracero" program that lasted from 1942 to 1964. The
program was established through formal negotiations and an agreement between the
United States and Mexico for the purpose of meeting US food supply needs
during World War II. The program imported agricultural workers on a seasonal
basis, although in later years it also involved workers for railroad companies.
At its root, however, it was an agricultural program.
During the Bracero program's 22 years, it involved 4.5 million people.
There were elaborate contracts that covered wide-ranging contingencies
regarding housing, wages, and labor conditions. The contracts included the
withholding of 10 percent of workers' wages, which went to the government of
Mexico to be given back to workers when they returned.
Contracts notwithstanding, the central characteristic of the Bracero
Program was widespread abuse of workers. Among the more egregious was that the
10 percent wage withholding generally never found its way to the workers when
they returned. One legacy of the Bracero years is a pending lawsuit seeking
payment of those wages.
The second broad characteristic of the program was lax enforcement of
its rules. Ultimately, the combination of abuses and poor enforcement brought
the program to an end because its failings could no longer be reconciled with civil rights-era sensibilities about how people should be
treated in a democratic society.
However, the lasting effect of the Bracero Program has been that it
spawned and institutionalized networks and labor market relationships between
Mexico and the United States. These ties continued and became the foundation
for today's illegal migration from Mexico. Thus, ending the agreement as a
legal matter did not alter the migration behavior that had been established
over the course of more than 20 years; the migrant flows simply adapted to new
conditions.
There have been other, smaller temporary programs. Among the current
programs are the H-1B program, H-2A, and H-2B. H-2A is an agricultural
program. H-2B is a non-agricultural program. Both are temporary and seasonal
in nature. H-1B is a temporary program that permits employment of high-skilled
workers (see Spotlight on
H-1B program).
For an H-1B visa, the minimum qualification is a bachelor's degree or
higher in the specialty skill for which one would be coming to the US to work.
The program today is most commonly used in the information technology and
computer industries. Almost half of those admitted on H-1B visas in the last
six to eight years have been from India. The next largest source country has
been China.
The program legislation includes a numerical ceiling, but that cap has
regularly been adjusted by Congress in response to employers' assertions
about their labor needs. The ceiling started out at 65,000 in the mid-1990s and
went up to 195,000 around 2000. Today, it has been brought back down because
of the slowdown in economic growth and job creation. These are significant
ranges that have changed rather regularly over a short span of years.
President Bush's proposal that the initial temporary work visa be for three years,
renewable for another three years for a maximum of six years, is similar to the
H-1B program. The current programs and Bush's proposal differ, however, in that
Congress recently eased the rules for H-1B visa-holders to adjust to permanent
status. People at the six-year point of the H-1B program now have a much
smoother route to becoming permanent residents if they choose to stay. The
Bush plan, as presently outlined, has no route to permanent residency.
Taken together, although current programs have some features in common
with the president's proposal, their actual numbers are small. Even H-1B, at its
peak, was 195,000 annually. The other temporary programs number about 30,000
each per year. Thus, at any one time, there are likely to have been no more
than 250-300,000 temporary work visas granted per year. Even aggregating the
numbers to take into account extensions of visa eligibility, there are not
likely to be any more than one or 1.2 million people at any one time who are in
the US on temporary worker programs. What President Bush has proposed would be
at a very different, far greater order of magnitude than anything the United
States has done before.
Lessons Learned
There are common issues and threads that emerge from past experience.
Perhaps the most important is that our experience with temporary programs —
both historically and at the current time — has been that temporary workers
tend to contribute to establishing lasting migration networks. Stated
differently, migration is not simply an economic process. It is also a social
process.
The lesson of past programs is that, whatever kind of temporary worker
approach might be legislated, a flexible design is much more likely to succeed
than a one-size-fits-all formula. Encouraging temporary status through
incentives for workers to return to their home countries is likely to be
effective for some temporary workers. In this connection, the incentives that
President Bush suggested regarding social security payments to them in their
home countries (when they become eligible) are new and interesting.
However, there must also be ways over time to earn permanent status in
the United States. Failing to create robust pathways to permanency would be to
ignore the lessons of US and other countries' experiences and the
characteristics of the undocumented population in the United States today. Some
of the key characteristics include having US-born citizen children and close
relatives, including spouses, in the US who have legal status.
Another critical issue related to the Bush proposal has to do with
workers' rights and the likelihood of exploitation of workers. This is a
universal problem with temporary worker programs because of the inherently
unequal relationship between an employer and a worker, under which the worker's
ability to stay in the country is dependent on a visa tying him or her to
specific employers.
One way to overcome this problem is to allow portability of the visa—perhaps after an initial work period—as a way to try to level the playing
field. In this way, if the worker can take the opportunity of being in the
United States and move the visa to a different, comparable job, it gives him needed
negotiating leverage in the employment relationship.
The third universal lesson of past programs relates to enforcement.
Despite protections that are written into contracts and agreements or
legislation, enforcement of the rules governing temporary worker programs has
chronically been weak and insufficient, both in the United States and around
the world. Overcoming this failure in ways that promise effective regulation,
while respecting needs for timeliness and market-sensitivity that drive
employer needs, will require new schemes not yet conceived of or used in the
United States.
Finally, a thread running through all of the earlier programs concerns
the labor market, job opportunities, and how to determine how to protect
American workers. A major principle of temporary programs is not to
disadvantage or harm American workers, wages, and working conditions.
Government agencies have not adequately developed a formula for
accurately testing the labor market that would protect American workers and
ascertain where employers have a legitimate need to import workers. It is
well-known that the current system takes too long and does not represent a true
test of labor market conditions. Even if it worked well, it would be
unworkable at the scale that is being contemplated in the administration
proposal.
Accurately testing the labor market is key. The president's proposal
involves market-oriented determinations. Indeed, from the standpoint of
supply and demand, it makes sense to imagine certifying sectors of the labor
market, or particular geographical areas, as open to hiring foreign workers for
specified periods. But how time-sensitive those certifications would be, the
nature of the monitoring that would be required, and the need for data to make
informed judgments pose large, unanswered public policy questions. There is
some experience in some of the specialized skills areas of the labor market
where individual certifications have not been required in the past. But the method of tackling such challenges represents both an art and a science that needs to be developed.
All this experience, past and present, underscores the fact that the
new policy President Bush has outlined potentially brings with it significant
challenges. Addressing them will require complex new policies and machinery
that have not yet been conceptualized and that pose significant implementation
challenges. The long-term social and economic interests of the United States
lie in developing these policies and machinery carefully and fully in the
course of debating and enacting legislation.
Doris Meissner is an MPI Senior Fellow and former Commissioner, Immigration and Naturalization Service (INS).
The author gratefully acknowledges the important source material provided for this article by MPI Policy Analyst Deborah Meyers' report "Here We Go Again: US Temporary Worker Programs." Volume 4: Immigration Law and Policy. Illinois Immigrant Policy Project, Illinois Department of Human Services. January 2003.
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